Loading...
CONSULTING SERVICES AGREEMENTCONSULTING SERVICES AGREEMENT This CONSULTING SERVICES AGREEMENT, dated as of _,__ 25, a015, (the "Agreement "), is entered into by and between The City of Clearwater a government entity organized under the laws of the State of Florida, having its principal place of business at (the "City "), and SVW Consulting, Ltd., a corporation organized under the laws of the State of New York, having its principal place of business at 109 Sunset Drive., Broadalbin, NY 12025 ( "Consultant "). IN CONSIDERATION of their mutual promises made herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: Section 1. Scope of Work. The City engages the Consultant to furnish the services described in the Schedule A attached to this Agreement during the time periods specified in the Schedule. Section 2. Price and Payment. The City agrees to pay the Consultant in accordance with the price and payment terms set forth in the Schedule A attached to this Agreement, and the Consultant agrees to accept such amount as full payment for the Services and to sign such receipts as the City shall request in order to acknowledge payment for the Services. Section 3. Independent Contractor Relationship. The Consultant is an independent contractor and is not an employee, servant, agent, partner or joint venturer of the City. The City shall determine the work to be done by the Consultant, but the Consultant shall have the sole discretion to determine the means by which it accomplishes the work specified by the City. The City is not responsible for income tax withholding, and shall not withhold FICA or taxes of any kind from any payments which it owes or pays the Consultant. The Consultant is not entitled to receive any benefits which employees of the City are entitled to receive and shall not be entitled to workers' compensation, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing, or Social Security on account of its work for the City. Section 4. Business of Consultant. The Consultant is engaged in the business of doing the work specified in the attached Schedule A. Copies of any of the following documents verifying the Consultant's established business shall be provided to the City within five (5) days of receipt of a request: (a) Articles of incorporation (b) Federal Employer Tax Identification Number. Section 5. Withholding of Taxes / Benefits. The Consultant shall be solely responsible for paying any and all taxes, FICA, workers' compensation, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing and other benefits for the Consultant and the employees of the Consultant. Section 6. Insurance. The Consultant shall furnish the City with current certificates of coverage of the Consultant, and proof of payment by the Consultant, for workers' compensation insurance, general liability insurance, motor vehicle insurance and such other insurance in amounts as mutually agreed upon by the parties from time to time. The Consultant shall maintain all such insurance coverage and shall furnish the City with certificates of renewal coverage and proofs of premium payments. Section 7. Risk. The Consultant assumes all responsibility for the condition of equipment, materials, and the work location. The Consultant shall indemnify and hold harmless the City from any claim, demand, loss, liability, damage or expense arising specifically and solely from the performance of Consultant's Services, provided that in no event shall the Consultant be liable for any punitive damages; provided further, the responsibility in this Section 7 shall be limited to, and payable solely by, the amounts recovered (if any) by the insurance policies obtained pursuant to Section 6 above. Any claim,• demand, loss, liability, damage or expense arising jointly from faults of both the City and of the Consultant would not be constituted as arising specifically and solely from the performance of Consultant's Services, and thus would not be applicable to this section. Section 8. Assignment. The City may assign any or all of its rights and duties under this Agreement at any time and from time to time without the consent of the Consultant. The Consultant may not assign any of its rights or duties under this Agreement without the prior written consent of the City. Any assignment by the Consultant, without the prior written consent of the City shall be null and void. Section 9. Term and Termination. Unless terminated earlier pursuant to this Section 9, the term of this Agreement shall be for a period of one (1) year from the date hereof. This Agreement may also be terminated prior to the end of the Term in accordance with the following: (a) Termination Without Cause. Either party may terminate this Agreement during the initial one (1) 2 year term by giving thirty -days (30) days written notice to the other party of its intent to terminate this contract. Such termination may be made with or without cause. During the thirty (30) day period after such notice is sent, the parties shall continue to act toward each other in good faith. (b) Termination With Cause. Either party may terminate this Agreement upon the giving of written notice of the termination for cause. The grounds for reasonable cause are(1) the material violation of any term of this Agreement, (2) the manifestation of any physical or mental disability of any Consultant employee that result in the inability to perform the Services, (3) the act of exposing the other party to a liability, (4) the engagement of behavior that is materially disruptive to the City, or (5) the engagement of behavior by the City that is materially disruptive to the Consultant toward his efforts to provide the services under this contract. Section 10. Effect of Termination. Upon the expiration of the Term, including in the event this Agreement is terminated pursuant to Section 9(a) or 9(b), all further obligations of the parties hereunder shall terminate, except for the obligations set forth in Section 20, Schedule A, Schedule B, and this Section 10, and except that nothing in this Section 10 shall relieve any party hereto of any liability for breach of any of the covenants, agreements, representation or warranties contained in this Agreement prior to such termination, including the obligation to pay any cancellation fees set forth in Exhibit A hereto. Section 11. Entire Agreement. This Agreement, together with Schedules A and B hereto, constitutes the entire agreement between the parties on the subject matter hereof. This Agreement may be supplemented, amended or revised only by a writing which is signed by each of the parties. Section 12. Severability. If any part of this Agreement shall be held to be unenforceable, the rest of this Agreement should nevertheless remain in full force and effect. Section 13. Termination of Prior Agreements. This Agreement cancels and terminates, as of its effective date, all prior agreements between the parties hereto covering the services covered hereby, whether written or oral or partly written and partly oral. Section 14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the 3 State of Florida without regard to principles of conflicts of laws. Section 15. Consent to Jurisdiction and Forum Selection. The parties hereto irrevocably elect as the sole judicial forum for the adjudication of any matters arising under or in connection with this Agreement, and consent to the jurisdiction of the courts of the State of Florida or a United States federal court located in Florida. Section 16. Notices. All communications under this Agreement shall be in writing and shall be delivered by hand or facsimile or mailed by overnight courier or by registered mail or certified mail, postage prepaid, to the address referenced above. Section 17. Non - waiver. The failure of either party to this Agreement to exercise any of its rights under this Agreement at any time does not constitute a breach thereof and shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach. Section 18. Paragraph and Section Headings. The headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a part thereof. Section 19. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement. Section 20. Confidentiality; Intellectual Property. The Consultant agrees, for itself and its employees, agents and contractors to not, either during the Term or any time thereafter, use for itself or for others, or divulge or convey to others, any. proprietary or confidential information, knowledge or data obtained by it relating to the City or the City's customers. Such information includes, but is not limited to, system architecture, source code, City data or other similar types of information. In the event that Consultant is required by applicable law or regulation or by legal process to disclose any proprietary or confidential information, Consultant agrees to provide the City with prompt notice of such request(s) and will furnish only that portion of the confidential information which, in the written opinion of counsel, Consultant is legally compelled to disclose. In the event that, for any reason, Consultant is no longer rendering Services to the City, Consultant will promptly deliver to City or, if the City so notifies the Consultant in writing, destroy, all confidential information received, including all copies, reproductions, 4 summaries, analyses or extracts thereof or based thereon in Consultant's possession, custody or control. The Consultant hereby covenants and agrees to be bound by the Innovation and Proprietary Information Terms attached hereto as Schedule B. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates shown below. Countersigned: Assistant City Attorney CONSULTANT: SVW Consulting, Ltd. By : ✓% l� Name: Steven Wasserman Title: President Date: P/267-7-0/ 5- CITY OF CLEnAnnR.WATER, FLORIDA By: GV.<-021:1444 William B. Horne II City Manager Attest: Rosemarie Call City Clerk SCHEDULE A TO CONSULTING SERVICES AGREEMENT CITY: Clearwater CONSULTANT: SVW Consulting, Ltd. DATE: SCOPE OF WORK: This Schedule to the Consulting Services Agreement (the "Agreement ") specifies the consulting services to be rendered by the Consultant to the City for a minimum of sixteen (16) hours hours over the one (1) year terms of this agreement and not to exceed $50,000. The Consultant shall provide in a timely, thorough and professional manner custom programming and relating services as directed by the City (the "Services ". The Consultant shall perform such work from home or at the City's offices, as mutually agreed upon with the City. Since this agreement is for "hours of work" and not specific scope of work assignments, each time the City requests work from the Consultant, the City will send Consultant an email with the scope of work to be performed, asking for an estimate of hours required to perform work, and whether travel expenses are involved, with an estimated total task amount. The Consultant email reponse will constitute a quote which the City can then accept via email, at which point this quote and scope of work becomes a specific extensions of this agreement. PRICE AND PAYMENT TERMS: The City will pay for the Services as used at a rate of $150.00 per hour. The Consultant will invoice for the services performed and the City will pay for the Services on a monthly basis. Payment is due and payable within thirty (30) days after receipt of an invoice for the Services. Upon pre- approval by the City for any specific onsite time requirements for the Consultant, then in addition to the above fees, the City shall pay reasonable out -of- pocket expenses associated with travel to the City's offices, which shall be due and payable within thirty (30) days after submission and approval of the City's standard expense report form. Travel time to and from the Consultant home based location to the City's site shall be billable at the $75.00 per hour with a maximum of 4 hours each way per onsite visit. As a condition to receiving payment for the Services, the Consultant shall be required to furnish to the City written invoices and supporting documentation which shall include a listing of days worked, together with detailed summaries of work completed. 2 SCHEDULE B TO CONSULTING SERVICES AGREEMENT Innovation and Proprietary Information Terms TO: City of Clearwater(hereinafter the "City "): In consideration of the engagement of SVW Consulting, Ltd. ( "Consultant ") by the City pursuant to that certain Consulting Services Agreement dated (the "Agreement "), and the compensation paid to Consultant by the City pursuant to the Agreement for the work performed of its employees under and pursuant to the Agreement, Consultant, for itself and on behalf of each of its employees: (a) hereby assigns and shall in the future assign to the City as its exclusive property, all inventions, discoveries, innovations, improvements, trade secrets and technical or business information which any Consultant employee may solely or jointly develop, conceive, reduce to practice or author during the period of such employee's performance of services under, pursuant to or in connection with the Agreement ("Consultancy"). To the extent that any court of competent jurisdiction finds that any provision of this paragraph is unenforceable because it causes or requires the assignment of any invention in contravention of the law or public policy of that jurisdiction, this paragraph shall be interpreted to impose only the maximum permissible assignment obligation; provided, however, that the Consultant are not obligated to assign to the City any rights in an invention that the Consultant developed entirely on his or her own time without using the City's equipment, supplies, facilities, material or trade secret information unless those inventions either (1) relate to the City's business or actual or demonstrably anticipated research or development of the City at the time the invention was made; or (2) result from any work performed by the employee for the City. (b) agrees that all original works of authorship that are made by all such Consultant employees (solely or jointly with others) within the scope of the Consultancy and that are protectable by copyright are "works made for hire," as that term is defined in the United States Copyright Act (17 U.S.C. Sec. 101) and Consultant further agrees, to the extent any such work is determined not to be a "work made for hire," that Consultant will disclose and assign to the City (or as the City may direct) as its exclusive property any such original work of authorship; (c) agrees to execute, upon the request of the City, all necessary papers and otherwise provide proper assistance (at the City's expense), during and subsequent to the Consultancy, to enable the City to obtain for itself or its nominees, patents, copyrights, or other legal protection for such inventions, discoveries, innovations, improvements, original works of authorship, trade secrets and technical or business information in any and all countries; (d) agrees to make and maintain for the City adequate and current written records of all such inventions, discoveries, innovations, improvements, original works of authorship, trade secrets and technical or business information; (e) agrees at the City's request, or upon any termination of any such Consultant employee's Consultancy to deliver to the City promptly all items that belong to the City or its parent, subsidiaries or affiliates or that by their nature are for the use of City employees only, including, without limitation, all written and other materials that are of a secret* or confidential* nature relating to the business of the City or its subsidiaries or affiliates; (f) agrees not to use, publish or otherwise disclose (except as City duties may require), either during or subsequent to such Consultant's Consultancy, any secret or confidential information or data of the City or its parent, subsidiaries or affiliates or any information or data of others that the City or its parent, subsidiaries or affiliates are obligated to maintain in confidence; (g) agrees not to disclose or use in work with the City any secret or confidential information of others (including any prior employers), or any inventions or innovations of that are not included within the scope of this Agreement; (h) agrees that the City may, at any time and without further consent, access and monitor Consultant's usage of City information and resources, including but not limited to: computers, computer software, electronic mail, on -line services, voice mail, facsimile machines, telephones and photocopiers; Not withstanding the foregoing, Consultant agrees to comply with public records laws, specifically per §119.0701, Florida Statutes, to: (a) Keep and maintain public records that ordinarily and necessarily would be required by City in order to perform the service. (b) 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 chapter or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (d) Meet all requirements for retaining public records and transfer, at no cost, to 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 City in a format that is compatible with the information technology systems of City. This Schedule supersedes and replaces any existing agreement between the City and any Consultant employee relating generally to the same subject matter. This Schedule may not be modified or terminated, in whole or part, except in writing signed by an authorized representative of the City. Discharge of each Consultant employee's undertakings in this Agreement shall be an obligation of executors, administrators, or other legal representatives or assigns. In the event that any court of competent jurisdiction concludes that any provision (or portion of any provision) of this Schedule is unenforceable because it conflicts with the law or public policy of that jurisdiction, the parties agree that the court should first narrow or otherwise interpret the provision to the extent necessary to conform it to the law or public policy of that jurisdiction. In the event that the court concludes that it is unable to narrow or otherwise interpret the provision so that it is not invalid, not illegal nor otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. Consultant represents, on behalf of its employees engaged pursuant to the Agreement that, except as stated below, none of such employees have any agreements with or obligations to others in conflict with the foregoing. *These terms are used in the ordinary sense and do not refer to the official security classifications of the United States Government. The City generally considers "secret" or "confidential" any information or data that is not generally known - regardless of whether such information or data is in oral, written, machine readable or other form. When in doubt, you should assume that information or data is secret or confidential unless or until determined otherwise. Without limitation, examples of information or data that may be of a secret or confidential nature are: drawings, manuals, notebooks, reports, models, inventions, formulas, processes, machines, compositions, computer programs, accounting methods, business plans and information systems. For further information, you should consult the City.