HomeMy WebLinkAboutModis Consulting Services Agreement -2003 05 13
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This Consulting Services Agreement (hereinafter
"Agreement'') is entered into as of this 13th day of
May, 2003, by and between Modis, Inc., a Florida
corporation with ilS principal place of business in
Jacksonville, Florida (hereinafter "Company"), and City
of Winter Springs, a Florida municipal corporation with
its principal place of business in Winter Springs,
Florida (hereinafter "City").
1. Scooe of Services.
Company shall provide to City services of the type and
at the locations and rates as agreed to and incorporated
herein in writing, signed by duly authorized officials of
the parties and attached hereto as consecutively
numbered Statement(s) of Work (i.e. "Statement of
Work No. _''). The tenns of this Agreement shall
prevail over and govern to the extent of any conflicting
or inconsistent tenns or conditions in any Statement of
Work or other writing or arrangement between the
parties unless such Statement of Work or other written
arrangement specifically refers to the particular
provision of this Agreement which it supersedes.
2. CCNA Services.
The Company warrants unto the City that Work being
performed pursuant to this Agreement does not
constitute professional services as defined by Section
287.055(2)(a), Florida Statutes.
3. Term.
The effective date of this agreement is the date last
signed by all the parties hereto. This Agreement shall
continue in effect for an initial term of one (1) year and
shall continue thereafter for successive renewal periods
of one (1) year each, unless or until either party
provides written notice of intent to terminate this
Agreement at least sixty (60) days in advance of any
such renewal period. Either party may terminate this
Agreement without cause upon sixty (60) days advance
written notice. Either party may terminate this
Agreement on thirty (30) days advance written notice of
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CONSULTING
SERVICES AGREEMENT
a material breach by the other party that is not
substantia1ly cured by that party within ten (10) days of
receipt of such notice.
4. Pavment and Invoicin2.
Company shall submit detailed invoices to City for all
services performed and reasonable reimbursable costs
or expenses to be paid by the City. Any costs or
expenses to be reimbursed to Company by City under
this Agreement shall be approved in advance by City.
City shall pay all approved invoices in a timely manner
consistent with provisions of the Florida Prompt
Payment Act.
5. Comoensation.
The City shall compensate Company m. the amoW'lt of
One ThOtlsW:1El Nine H1U1EIfed and T'l.emy Dollars and
80/100 ($1,920.00), to perferm 8:8Et eomplete 8:8
asseSSme8t of the City's Omele Elambase as for
technology related consulting services provided herem.
per addendum. In addition, Company, upon a specific
task authorization from the City Manager or designee of
the City Manager, shall perform any and all other
ancillary or support services requested by City under
the scope of such authorization as reflected in the
Statement of Work and/or contract addendum at an
hourly rate ROt to ~eeeEi ORe HUBdreEi and T':leRty
Dollars and 80/100 ($120.00). specified therein. Other
than the compensation set forth herein, there shall be no
other compensation due Company for the Services
provided under this Agreement, unless specifically
agreed to by City in writing.
6. Time is of Essence: Delav and Defect.
Time is of the essence for all services performed under
this Agreement. Upon request by the City, Company
shall submit a written progress report as to the status of
all services set forth in this Agreement. The report shall
in a sufficient manner demonstrate what services were
performed under this Agreement. If the detail is not
sufficient for the City Manager's reasonable discretion
to permit the City to determine the Services performed
or the manner it is being performed, the City may seek
more detail from the Company.
7. Dili2ence and Professionalism.
Company warrants that it shall, in a diligent and
professional manner, perform and complete all services
to be provided to City under this Agreement in
performing its services hereunder, the Company will use
that degree of care and skill ordinarily exercised, under
similar circumstances by reputable members of its
profession practicing in the same or similar locality.
8. RelationshiD of Parties.
a) The parties agree that the relationship between
them is that of independent contractor and that neither
party shall have any authority to represent or bind the
other and that neither party shall hold itself out or have
any authority as an agent of the other for any purpose
whatsoever. Nothing herein shall be construed as
creating a principal and agent, joint venture, or any
other type of relationship besides independent
contractor between City and Company.
b) Company and City shall each remain solely
responsible for the payment of all wages and benefits
for each of their own respective employees, and neither
party shall be responsible for the withholding or
payment of any payroll deductions or taxes, or the
provision of workers' compensation or unemployment
insurance coverage, for or on behalf of employees of the
other party or for any payment or expense in respect of
claims arising under the other party's employee benefit
plans. As between Company and City, Company shall
remain specifically responsible for any applicable
federal, state or local withholding or income taxes,
paying Social Security taxes, and providing
unemployment compensation and workers'
compensation insurance or coverage for its employees
and contractors providing services in accordance with
this Agreement or any Statement of Work.
9. Non-Hire and Conversion Fees.
a) Without Company's written consent, during the
term of this Agreement and for six (6) months thereafter
and except through Company, City shall refrain from
soliciting, hiring or accepting services or work from any
person who at any time provided services through or on
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behalf of Company, except where the parties have
otherwise agreed in writing or upon the payment of a
conversion fee as expressed in any applicable Statement
of Work.
b) Without City's explicit written consent during
the term of this Agreement and for six (6) months
thereafter, Company shall refrain from soliciting, hiring
or in any way diverting the services of any employee or
consultant of City, the identity of which Company
learned or discovered in the performance of services
under this Agreement or any applicable Statement of
Work.
10. Warranties.
a) Company warrants and represents that the
services provided hereunder shall be delivered in a
workmanlike manner and in keeping with the standards
prevalent in the industry. City warrants that any
workplaces owned, leased or supervised by City and to
which Company employees or contractors are assigned
shall be maintained free from any unreasonable hazards
or defects and that City will make available any safety
equipment, training or materials provided to City's own
employees and contractors.
b) City shall promptly notify Company of a
breach of the warranty stated above, and Company
shall promptly investigate the matter, and if substantial
evidence of a breach appears, then Company shall in its
sole discretion either (i) remedy the defect complained
of until the performance meets the warranty standard
stated above, and/or (ii) refund or credit to City the fees
attributable to the extent of the defective services. This
provision states Company's sole liability for breach of
the warranty stated in section a) above.
c) COMPANY EXCLUDES AND DISCLAIMS
ALL OTHER WARRANTIES WHATSOEVER NOT
SPECIFICALLY STATED ABOVE, WHETHER
EXPRESS, IMPLmD OR STATUTORY,
INCLUDING ANY WARRANTY OF
NONINFRINGEMENT, MERCHANTABILITY OR
FITNESS FOR PARTICULAR PURPOSE.
d) NEITHER PARTY SHALL BE LIABLE TO
THE OTHER WHATSOEVER FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT, EXEMPLARY OR
PUNITIVE DAMAGES, INCLUDING ANY
DAMAGES ON ACCOUNT OF LOST PROFITS,
LOST DATA, LOSS OF USE OF DATA, OR LOST
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OPPORTUNITY, WHETHER OR NOT PLACED ON
NOTICE OF ANY SUCH ALLEGED DAMAGES
AND REGARDLESS OF THE FORM OF ACTION
IN wmCH SUCH DAMAGES MAY BE SOUGHT.
THE FEES AND BILLINGS DUE UNDER TIllS
AGREEMENT ARE NOT CONSIDERED SPECIAL
DAMAGES OR LOST PROFITS AND SHALL NOT
BE LIMITED BY THESE PROVISIONS.
11. Comoliance with Laws.
The parties agree that they each will comply with all
applicable federal, state or local laws and ordinances
and that neither of them will discriminate against any
employees or contractors of the other on the basis of
race, color, religion, national origin, sex, age, disability,
status as a disabled veteran or veteran of the Vietnam
Era, or any other basis prohibited by law.
12. Insurance.
Company shall maintain insurance coverage, and
require any contractors to provide similar insurance
coverage, as follows:
a) Workers' Compensation insurance, for
employees of Company, that meets or exceeds the
statutory limits of the state(s) in which the services will
be performed.
b) Comprehensive General Liability insurance,
with limits of at least One Million Dollars ($1,000,000)
combined single limit for bodily injury, personal injury
and property damage for each occurrence.
c) Commercial Blanket Bond with limits of at
least One Million Dollars ($1,000,000) for each
occurrence.
d) Employer's Liability insurance of at least Five
Hundred Thousand Dollars ($500,000) per employee of
Company.
e) Errors and Omissions Liability insurance in an
amount of not less than One Million Dollars
($1,000,000) for each occurrence.
t) A combination of primary and excess/umbrella
liability policies will be acceptable as a means to meet
the limits specifically required herein.
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Company shall provide City Manager with ~
certificate of insurance with 00pies of all polieies
aREI--coverages required under this Agreement
within ten (10) days of execution of this
Agreement. The City shall be named as an
additional insured on such policies and coverages.
Company shall be solely responsible for the
payment of any claims against or deductibles for
any insurance coverages or policies required under
this Agreement.
13. Indemnification.
a) Company will indemnify, defend and hold
harmless City, its officers, agents, employees, and its
attorneys from and against all claims, demands, suits
and expenses (including reasonable attorneys' fees)
brought by any person or party for tangible personal
property damage and bodily injury (including death)
arising from the negligent or illegal act or omission of
Company or any of its employees and contractors in the
performance of services hereunder, except to the extent
of the negligent or illegal act or omission of City or its
employees and contractors.
b) City will indemnify, defend and hold harmless
Company to the extent permitted by law, from and
against any claims, damages, suits or expenses
(including reasonable attorneys' fees) in connection
with actual or alleged violations of the Occupational
Safety and Health Act or any similar state law
governing work places owned, leased or supervised by
City and to which Company employees or contractors
are assigned, except to the extent of any such violations
arising from Company's own negligent or illegal act or
omission.
14. Sovereim Immunitv.
Nothing contained in this Agreement shall be construed
as a waiver of the City's right to sovereign immunity
under Section 768.28, Florida Statutes, or other
limitations imposed regarding the City's potential
liability under state or federal law.
15. Notices.
Any and all notices, requests, demands and
communications provided for by this Agreement shall
be in writing and shall be effective when delivered in
person or sent by facsimile with confirmation, and upon
receipt via reputable overnight courier or U.S. Mail
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postage prepaid, with return receipt requested, as
follows:
Modis, Inc.
255 S. Orange Avenue, Suite 1550
Orlando, FL 32801
Managing Director
with a copy to:
Modis, Inc.
Senior Vice Pres. & General Counsel
1 Independent Dr., 25th Floor
Jacksonville, FL 32202
City Manager
City of Winter Springs
1126 East State Road 434
Winter Springs, FL 32708-2799
407-327-1800 (Phone)
407-327-4753 (Fax)
Anthony A. Garganese
City Attorney
Brown, Salzman, Weiss & Garganese
225 E. Robinson Street, Suite 660
Orlando, FL 32802
407-425-9566 (Phone)
407-425-9596 (Fax)
The parties may update or modify the addressees above
by providing written notice of such as provided herein.
16. Confidentiality and OwnershiD.
a) The parties agree that the specific terms,
conditions and rates set forth in this Agreement and in
any Statement(s) of Work and all information identified
as confidential and proprietary by the disclosing party,
("Confidential Information") and except as set forth
below, the parties shall use its commercially reasonable
efforts to: (i) protect the Confidential Information
against any unauthorized or unlawful use, disclosure,
dissemination or copying; (ii) not use any of the
Confidential Information other than as permitted under
the terms of this Agreement; (iii) not provide or disclose
to third parties the Confidential Information in any
form; and (iv) not provide or permit public access to the
Confidential Information in whole or in part. These
restrictions on the use or disclosure of Confidential
Information shall not apply to any Confidential
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Information: (a) which is independently developed by
the receiving party or lawfully received free of
restriction from another source having the right to so
furnish such Confidential Information; or (b) after it has
become generally available to the public without breach
of this Agreement by the receiving party; or (c) which at
the time of disclosure to the receiving party was known
to the receiving party free of restriction as evidenced by
documentation in the receiving party's possession; or
(d) which the disclosing party agrees in writing is free
of such restrictions. Company shall cause each
employee or contractor assigned to provide services to
City under this Agreement or any Statement(s) of Work
to enter into a confidentiality and Invention Agreement
in the form attached here as Exhibit "A". The
Company may disclose the existence of this Agreement
and the general nature of the services provided
hereunder. The parties may disclose the terms of this
Agreement or any Statement(s) of Work and divulge
any confidential information when necessary to comply
with the legal order, subpoena, requirement or process
of a governmental agency or court of competent
jurisdiction, but shall endeavor to provide the other
party with reasonable notice and an opportunity to
secure any protective order or limit on disclosure at that
party's own sole expense.
b) Upon payment in full of all fees and charges, all
materials produced by Company employees or
contractors during the term of their assignment to City
and which: (i) result from or are suggested by the work
such employees perform for City; or (ii) are made or
conceived using equipment or other materials of City; or
(iii) are made or conceived during the hours of assigned
work for City, shall be considered "works made for
hire" and all right, title and interest in such materials
shall be assigned to City. To the extent that such
materials may not qualify as or be considered works
made for hire, Company hereby assigns to City any and
all rights which Company may have in such materials.
Company shall provide all such reasonable assistance
(at City's expense) as City shall request in order to
obtain, maintain, or enforce any trademark, patent,
copyright or other protection it may seek on such
materials.
c) Nothing contained herein shall preclude the
City from complying with its obligations pertaining to
the disclosure of public records under Chapter 119,
Florida Statutes or any other state or federal law or
regulation.
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17. OwnershiD of Documents.
The City and the Company agree that upon payment of
fees due to the Company by the City for a particular
report, inventory, schedule or compilation of data
relating to the Services provided herein and produced by
the Company in the performance of this Agreement, or
any Services hereunder, shall be the sole property of the
City, and the City is vested with all rights therein. The
Company waives all rights of copyright in said report,
inventory, compilation, schedule, technical data,
recommendation, and other instrument produced by the
Company in the performance of this Agreement, and
hereby assigns and conveys the same to the City
whether in the possession or control of the Company or
not.
18. Public Record.
It is hereby specifically agreed that any record,
document, computerized information and program,
audio or video tape, photograph, or other writing of the
Company related, directly or indirectly, to this
Agreement, or portions thereof, may be deemed to be a
public record under Chapter 119, Florida Statutes
unless expressly exempted therein or any other
applicable Federal or State law. Said record, document,
computerized information and program, audio or video
tape, photograph, or other writing of the Company is
subject to the provisions of Chapter 119, Florida
Statutes or any other applicable Federal or State law,
and may not be destroyed without the specific written
approval of the City. Upon request by the City, the
Company shall promptly supply copies of said public
records to the City. All books, cards, registers, receipts,
document, and other papers in connection with this
Agreement shall at any and all reasonable times during
the normal working hours be open and freely exhibited
to the City for the purpose of examination and/or audit.
19. Reuse of Documents.
All documents, including but not limited to, drawings,
specifications, and data, or programs stored
electronically or otherwise, prepared by the Company
pursuant to this Agreement or related exclusively to the
services described herein (if any) may be reused by the
City for ant reason or purpose at any time.
20. Authoritv.
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Each party represents and warrants to the other party
that it has all necessary power and authority to enter
into and perform this Agreement in accordance with the
terms hereof.
21. COmD8DV'S Reoresentative.
The Company shall designate an individual to act as a
representative for the Company under this Agreement
with the authority to transmit instructions, receive
information, and make or interpret the Company's
decisions. This person shall be the Company's contract
administrator. The Company may from time to time
designate other individuals or delete individuals with
authority to act for the Company under the Agreement
with the authority to transmit instructions, receive
information, and make or interpret the Company's
decisions. All deletions or designation of individuals to
serve as a representative shall be given by written
notice.
22. Additional Assurances.
The Company certifies that:
a) No principal (which includes officers, directors,
or executives) or individual holding a professional
license and performing services under this Agreement is
presently ineligible, suspended, or voluntarily excluded
from participation in the provision of services under this
Agreement by any Federal, State, or local governmental
commission, department, corporation, subdivision, or
agency.
b) No principal (which includes officers, directors,
or executives) or individual holding a professional
license and performing services under this Agreement,
employee, or agent has employed or otherwise provided
compensation to, any employee or officer of the City.
b) No principal (which includes officers, directors,
or executives) or individual holding a professional
license and performing services under this Agreement,
employee, or agent has willfully offered an employee or
officer of the City any pecuniary or other benefit with
the intent to influence the employee or officer's official
action or judgment.
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23. Assimment.
Neither party shall assign any of its rights or obligations
under this Agreement without the prior written consent
of the other party, which consent shall not unreasonably
be withheld. The only exception is that this Agreement
may unilaterally be assigned by either party to an
affiliate, successor or assign in a change of corporate
control that does not materially affect the duties of the
other party hereunder. This Agreement is entered into
solely for the benefit of the parties hereto, and nothing
in this Agreement whether express or implied is
intended to confer any rights or remedies on any other
person or party other than the parties hereto and their
respective successors and assigns.
24. Waivers.
No waiver of any provision of this Agreement shall be
effective unless it is in. writing, signed by the party
against whom it is asserted, and any such written
waiver shall only be applicable to the specific instance
to which it relates and shall not be deemed to be a
continuing or further waiver.
25.
Severability.
Each provision herein shall be separate and independent
from any other, and a breach of any provision shall in
no way or manner discharge or relieve the performance
of any other provision, covenant or agreement.
26. Survival.
The parties' obligations under this Agreement which by
their nature continue beyond termination, cancellation
or expiration of this Agreement, shall survive
termination, cancellation or expiration of this
Agreement.
27. Headin2s.
Caption and article headings contained m this
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Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope or
intent of this Agreement nor the intent of any provision
hereof.
28. Governin2 Law: Venue.
This Contract shall be governed by the law of the
State of Florida. Venue of all disputes shall be
placed in the appropriate jurisdictional court oflaw
located in Seminole County, Florida. The parties
agree that the Agreement was consummated in
Seminole County, and the site of the Services is
Seminole County. If any dispute concerning this
Contract arises under Federal law, the venue will
be in an appropriate jurisdictional court of law in
Orlando, Florida.
29. Attornev's Fees.
Should any litigation arise concerning this Agreement
between the parties hereto, the parties agree to bear
their own costs and attorney's fees.
30.
Entire A2reement.
This Agreement and the attachments and exhibits hereto
represent the entire Agreement between the parties and
supersede any prior understandings or Agreements
whether written or oral between the parties respecting
the subject matter herein. This Agreement may only be
amended in a writing specifically referencing this
provision and executed by both parties. This
Agreement shall inure to the benefit of and shall be
binding upon the parties hereto and their respective
heirs. personal representatives, successors and assigns.
subject to the limitations contained herein. The
unenforceability. invalidity or illegality of any provision
of this Agreement shall not render any other provision
unenforceable, invalid or illegal and shall be subject to
reformation to the extent possible to best express the
original intent of the parties.
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IN WITNESS WHEREOF, the parties have hereunto set their hands with effect as the date first above written.
CITY OF WINTER SPRINGS, FLORIDA
By:/~It/I,1J1/9 ~
,
By:
Title: CITY MANAGER
Title:
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Exhibit A
CONFIDENTIALITY AND INVENTION AGREEMENT
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In consideration of my assignment by Modis, Inc. ("Company") to perform services for
("City" or "Company's City"), I hereby agree as follows:
1. I acknowledge and understand that during the course of my service with City, I may learn of
proprietary, trade secret and confidential information of City or its customers, including identities and
information involving customers, potential customers and employees. I agree not to disclose to anyone,
either during or after my employment with Company, any oral or written confidential, proprietary or
trade secret information concerning any and all business or other activities of City and/or its customers,
its financial affairs, and its relationships with customers, potential customers and employees.
2. I assign to Company and to City any and all rights, title and interests to any and all copyrights, patents,
trademarks or other intellectual property rights in ideas, inventions, developments, writings, documents,
reports, studies, papers, computer programs, and any other works or matters produced or developed by
me in conjunction with services I provide while assigned to provide services to City or which were
derived or suggested thereby.
3. Upon termination of my assignment at City, I will return all identification cards, authorization passes,
keys, papers, drawings, reports, computer programs, and other documents, materials or property,
including any copies thereof, which were provided to or obtained by me during my placement at City.
Employee Name
Date
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