ATTACHMENT A
STANDARD TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES
1. AUTHORITY: This contract (“Contract”) is made in accordance with Utah Code 63G-6a-101 et seq., as amended, and Utah Administrative Code R33.
2. CONTRACT JURISDICTION, CHOICE OF LAW, AND VENUE: This Contract shall be governed solely by the laws of the State of Utah. The parties will submit to the exclusive jurisdiction of the courts of the State of Utah for any dispute arising out of or relating to this Contract. Exclusive venue shall be in Salt Lake City, in the Third Judicial District Court for Salt Lake County, Fairpark and the State of Utah do not waive any protection, right, defense or immunity under the Governmental Immunity Act of Utah, Utah Code §§ 63G-7-101 to 904, as amended, the Eleventh Amendment to the Constitution of the United States, or otherwise, from any claim or from the jurisdiction of any court.
3. LAWS AND REGULATIONS: The person or entity contracting with Fairpark under this Contract (“Contractor”) and any and all supplies, services, equipment, and construction furnished under this Contract will comply fully with all applicable Federal, and State, and local laws, codes, rules, regulations, and ordinances, including applicable licensure and certification requirements.
4. RECORDS ADMINISTRATION: Contractor shall maintain, or supervise the maintenance of, all records necessary to properly account for Contractor’s performance and the payments made by Fairpark to the Contractor. These records shall be retained by Contractor for at least six years after the Contract terminates, or until all audits initiated within the six years, have been completed, whichever is later. The Contractor agrees to allow State auditors and Fairpark staff access to all the records relating to this Contract at no additional cost, for audit and inspection, and monitoring of services. Such access will be during normal business hours, or by appointment.
5. TIME: Contractor shall complete the work and meet or exceed any milestones identified in the procurement documents related to this Contract and the attachments to this Contract. The work shall be completed by any deadline stated in the solicitation.
6. TIME IS OF THE ESSENCE: For all work and services under this Contract, time is of the essence and Contractor shall be liable for all damages to the Fairpark and anyone for whom the Fairpark may be liable, as a result of the failure to timely complete the work required under this Contract.
7. PAYMENT:
7.1 Payments are normally made within 30 days following the date the order or services are delivered to Fairpark or the date a correct invoice is received, whichever is later.
7.2 The contract costs may be changed only by written amendment executed by authorized personnel of the parties. Unless otherwise stated in the Contract, all payments to Contractor will be remitted by mail.
7.3 Any written protest of the final Contract payment must be filed with Fairpark within ten (10) working days of receipt of final payment. If no protest is received, Fairpark and the State of Utah are released from all claims and all liability to Contractor for fees and costs pursuant to this Contract.
8. PROMPT PAYMENT DISCOUNT: Offeror may quote a prompt payment discount based upon early payment; however, discounts offered for less than 60days will not be considered in making the award. Contractor shall list Payment Discount Terms on invoices. The prompt payment discount will apply to payments made with purchasing cards and checks. The date from which discount time is calculated will be the date a correct invoice is received or receipt of shipment, whichever is later; except that if testing is performed, the date will be the date of acceptance of the merchandise.
9. CHANGES IN SCOPE: Any changes in the scope of services to be performed under this Contract shall be made by written amendment to this Contract, signed by duly authorized representatives of both parties.
10. OWNERSHIP: All work and Deliverables prepared for Fairpark, with the exception of Contractor’s previously owned Intellectual Property, shall be deemed work made for hire, and all right, title and interest in the work and Deliverables shall transfer to Fairpark. If any work or Deliverable is held not to be work made for hire, Contractor shall assign all right, title, and interest, including copyright, patent, trademark, and trade secret, to such work and Deliverables to Fairpark. Contractor shall provide all assistance reasonably requested by Fairpark in the establishment, preservation and enforcement of its rights in such work and deliverables, without additional compensation. Contractor waives all rights relating to such work and deliverables.
11. CERTIFY REGISTRATION AND USE OF EMPLOYMENT "STATUS VERIFICATION SYSTEM”: The Status Verification System, also referred to as “E-verify,” only applies to contracts issued through a Request for Proposal process, and to sole sources that are included within a Request for Proposal. It does not apply to Invitation to Bids nor to the Multi-Step Process.
11.1 Status Verification System
(1) Contractor certifies as to its own entity, under penalty of perjury, that the named Contractor has registered and is participating in the Status Verification System to verify the work eligibility status of the Contractor’s new employees that are employed in the State of Utah in accordance with applicable immigration laws including Utah Code Ann. Section 63G-12-302.
(2) Contractor shall require that the following provision be placed in each subcontract at every tier: “The subcontractor shall certify to the main (prime or general) contractor by affidavit that the subcontractor has verified through the Status Verification System the employment status of each new employee of the respective subcontractor, all in accordance with applicable immigration laws including Utah Code Ann. Section 63G-12-302 and to comply with all applicable employee status verification laws. Such affidavit must be provided prior to the notice to proceed for the subcontractor to perform the work.”
(3) Contractor’s failure to comply with this section is deemed a material breach of this Contract.
11.2 Indemnity Clause for Status Verification System
Contractor shall protect, indemnify and hold harmless, the State, Fairpark and its officers, employees, agents, representatives and anyone that the State or Fairpark may be liable for, against any claim, damages or liability arising out of or resulting from violations of the above Status Verification System Section whether violated by employees, agents, or contractors of the following: (a) Contractor; (b) Contractor’s subcontractor or subconsultant at any tier; and/or (c) any entity or person for whom the Contractor or Subcontractor may be liable.
12. CONFLICT OF INTEREST: Contractor represents that none of its officers or employees are officers or employees of the State of Utah or the Fairpark, unless disclosure has been made to Fairpark in writing.
13. CONTRACTOR AN INDEPENDENT CONTRACTOR: Contractor is an independent contractor, not an employee or agent of the State, and is not entitled to any of the benefits associated with State employment. Contractor has no authorization, express or implied, to bind the State or Fairpark to any agreements, settlements, liability, or understanding, and shall not perform any acts as agent for the State or Fairpark. Contractor is responsible for the payment of all income tax and Social Security amounts due as a result of payments received from Fairpark.
14. INDEMNITY CLAUSE: Contractor shall indemnify, save harmless, and release the State of Utah and Fairpark, and all their officers, agents, volunteers, and employees from any claims, loss, damages, injury, liability, suits, costs, and proceedings arising out of the performance of this Contract which are caused in whole or in part by the acts or negligence of Contractor, Contractor’s officers, partners, agents, volunteers, employees, subcontractors or subconsultants. Contractor shall not be required to indemnify for that potion of any claims arising from Fairpark's negligence. Any Limitations of Liability will not apply to injuries to persons, including death, or to damages to property.
15. EMPLOYMENT PRACTICES CLAUSE: Contractor shall comply with Title VI and VII of the Civil Rights Act of 1964 (42 USC 2000e) which prohibits discrimination against any employee or applicant for employment or any applicant or recipient of services, on the basis of race, religion, color, or national origin; Executive Order No. 11246, as amended, which prohibits discrimination on the basis of sex; 45 CFR 90 which prohibits discrimination on the basis of age; Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990, which prohibits discrimination on the basis of disabilities. Contractor shall comply with Utah's Executive Order, dated December 13, 2006, which prohibits sexual harassment in the work place. Contractor shall comply with any laws, regulations, orders and policies that prohibit discrimination.
16. PERFORMANCE EVALUATION: The State of Utah or Fairpark may conduct a performance evaluation of Contractor’s services, including Contractor’s employees, subcontractors, or subconsultants at any tier to confirm Contractor’s compliance with this Contract; associated scopes of work; and applicable laws, regulations, and industry standards. Contractor shall fully cooperate by providing access to personnel; physical premises; records; and any other person, place, or object which may assist Fairpark in completing such assessment. Results of any evaluation may be made available to the Contractor upon request.
17. WAIVERS: The waiver of any default or term of this Contract by either party shall not constitute a waiver of any other default or term or the same default or term at a later time. The acceptance of or payment for any Goods or Services required under this Contract shall not be construed as a waiver of any right under this Contract or any cause of action arising out of the performance or nonperformance of this Contract. Any reviews, comments or approvals of the services shall not be construed as relieving the Contractor from its responsibility for performing services in accordance with the requirements of this Contract and shall not be construed as a waiver of any right, default or term of this Contract.
18. SEPARABILITY CLAUSE: An order by any court that any provision of this Contract is illegal and void shall not affect the legality and enforceability of any other provision of this Contract, unless the provisions are mutually dependent.
19. MODIFICATIONS: This Contract may be amended only by mutual written agreement executed by authorized representatives of the parties and attached to this Contract. Automatic renewals are prohibited and deemed void.
20. SUSPENSION/DEBARMENT: Contractor certifies that neither it nor its principals are presently or have ever been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any governmental department or agency. Contractor must notify the State Director of Purchasing and Fairpark within 10 days if suspended, debarred, proposed for debarment, declared ineligible or voluntarily excluded from participation in any contract by any governmental entity.
21. TERMINATION:
21.1 This Contract may be terminated for cause by either party upon written notice being given by the other party. The party in violation will be given ten (10) working days after notification to correct and cease the violations, after which this Contract may immediately be terminated for cause. This Contract may be terminated by Fairpark without cause upon 30 days prior written notice when Fairpark determines, in its sole discretion, termination is necessary in the public interest. The parties may agree to terminate this Contract at any time by written agreement.
21.2 Contractor shall be compensated for services properly performed under this Contract up to the effective date of the notice of termination. Contractor’s sole remedy upon termination is limited to payment for all work properly performed as authorized under this Contract, and in the case of termination without cause, any reasonable pro-rated monies owed as a result of Contractor having to terminate contracts necessarily and appropriately entered into by the Contractor pursuant to this Contract, after receipt and verification of documented evidence of those terminated contracts. Upon termination, all work product, which includes but is not limited to all manuals, forms, contracts, schedules, reports, and documents produced by Contractor under this Contract are the property of Fairpark and shall immediately be delivered to Fairpark.
22. INSURANCE:
22.1 Contractor shall obtain and maintain during the entire period of this Contract without interruption, at its own expense, the following insurance from insurance companies authorized to do business in the State of Utah and with an A.M. Best rating of A- or better:
(1) Worker’s Compensation Insurance for all its employees and any Subcontractor employees related to this Contract.. Worker’s compensation insurance shall cover full liability under the worker’s compensation laws of the jurisdiction in which the service is performed at the statutory limits required by said jurisdiction.
(2) Professional liability insurance in the amount as described in the solicitation for this Contract.
(3) Commercial general liability [CGL] insurance from an insurance company authorized to do business in the State of Utah. The limits of the CGL insurance policy will be no less than one million dollars ($1,000,000.00) per person per occurrence and three million dollars ($3,000,000.00) aggregate.
(4) Commercial automobile liability [CAL] insurance from an insurance company authorized to do business in the State of Utah. The CAL insurance policy must cover bodily injury and property damage liability and be applicable to all vehicles used in your performance of Services under this Agreement whether owned, non-owned, leased, or hired. The minimum liability limit must be $1 million per occurrence, combined single limit. The CAL insurance policy is required if Contractor will use a vehicle in the performance of this Contract.
(5) Any other insurance described in the solicitation for this Contract.
22.3 Any type of insurance or any increase of limits of liability not described in this Contract which the Contractor requires for its own protection or on account of any statute, rule, or regulation shall be its own responsibility, and shall be provided at Contractor’s own expense.
22.4 The carrying of insurance required by this Contract shall not be interpreted as relieving the Contractor of any other responsibility or liability under this Contract or any applicable law, statute, rule, regulation, or order.
22.5 Certificates of Insurance, showing up-to-date coverage, shall be on file with Fairpark before the Contract services may commence. Failure to provide proof of insurance as required is deemed a material breach of this Contract. Contractor’s failure to maintain all insurance requirements for the Contract term will be grounds for immediate termination.
23. STANDARD OF CARE: The services of Contractor and its subcontractors and subconsultants shall be performed in accordance with the standard of care exercised by licensed members of their professions having substantial experience providing similar services which similarities include the type, magnitude and complexity of the services that are the subject of this Contract. Contractor shall be liable for claims, liabilities, penalties, damages or third party claims, to the extent caused by wrongful acts, negligence or omissions that do not meet this standard of care.
24. SALES TAX EXEMPTION: Fairpark’s sales and use tax exemption number is N11498. The tangible personal property or services are being paid from Fairpark funds and used in the exercise of its essential functions. If the items being purchased are construction materials, they will be converted into real property.
25. PUBLIC INFORMATION: This Contract, related proposals, bids, attachments, sales orders, and invoices are public records in accordance with the Utah Government Records Access and Management Act (GRAMA). Except to the extent that Contractor complies with Utah Code 63G-2-309 and receives written notice that certain records or portions of records have been classified as private or protected under GRAMA, copies may be given to the public upon request. GRAMA takes precedence over any statements or notations of confidentiality.
26. Intellectual Property Indemnification: Contractor warrants and represents that any good or services furnished by Contractor under this Contract will not infringe any copyrights, patents, trade secrets, or other proprietary rights. Contractor will release, indemnify and hold the State, Fairpark, their officers, agents and employees harmless from liability of any kind or nature, including the Contractor's use of any copyrighted or un-copyrighted composition, secret process, patented or un-patented invention, article or appliance furnished or used in the performance of this Contract. Contractor shall indemnify and hold harmless Fairpark and the State of Utah for any judgments, settlements, costs, and reasonable attorneys’ fees resulting from such a claim or liability, and pay all costs and expenses. If there are any limitations of liability in this Contract, such limitations will not apply to this section.
27. ASSIGNMENT/SUBCONTRACT: Contractor will not assign, sell, transfer, subcontract or sublet rights, or delegate responsibilities under this Contract, in whole or in part, without the prior written approval of the Fairpark.
28. DEFAULT AND REMEDIES:
28.1 In the event Contractor is in default of this Contract for nonperformance of a contractual requirement; or a breach of any term or condition of this Contract, Fairpark will issue a written notice of default and may provide a ten (10) day period in which Contractor will have an opportunity to cure. Time allowed for cure will not diminish or eliminate Contractor's liability for damages. If the default remains after Contractor has been provided the opportunity to cure, the State may: (1) Exercise any remedy provided by law; (2) Terminate this Contract and any related contracts or portions thereof; (3) Impose liquidated damages, if liquidated damages are listed in the Contract; (4) Suspend Contractor from receiving future solicitations, and (5) demand a full refund of the goods, and Services that are defective or inadequately performed.
29. FORCE MAJEURE: Neither party to this Contract will be held responsible for delay or default to the extent the delay or default is caused by circumstances beyond that party's reasonable control, without its fault or negligence, and which could not have been prevented by reasonable precautions, including insurrections or riots; acts of war; acts of terrorism; catastrophic fires, floods, storms, explosions, or earthquakes; major epidemics; strikes causing cessation of work (except for strikes by Contractor’s employees); extensive failures in electrical power or telecommunication equipment. Fairpark may immediately terminate this Contract after determining such delay will likely prevent successful performance of this Contract.
30. CONFLICT OF TERMS: Contractor’s terms and conditions must be in writing and attached to this Contract. No other terms and conditions of the Contractor will apply to this Contract, including terms listed or referenced on a Contractor’s website, terms listed in a Contractor quotation/sales order, purchase order or invoice. In the event of any conflict in the Contract terms and conditions, the order of precedence is: (1) this Attachment A; (2) Contract Signature Page(s); (3) Additional Terms and Conditions of Fairpark; (4) Terms and Conditions of the Contractor attached to this Contract, if any.
31. ENTIRE CONTRACT: This Contract is the entire agreement between the parties and supersedes any prior and contemporaneous agreements and understandings between the parties, whether oral or written. Any additional or conflicting terms or provisions on Contractor’s forms or documents are deemed void, even if such forms or documents have been signed or initialed by Fairpark. The terms of any such Contractor forms or documents are not amendments of this Contract.
32. DISPUTE RESOLUTION: In the event of any dispute under this Contract and prior to filing any judicial proceedings, the parties shall participate in good faith efforts to cooperatively resolve the dispute. The parties may appoint experts to assist in the resolution of the dispute and shall equally share the costs of any experts or mediators. The parties shall cooperate in good faith in providing information and documents to the expert or mediator in an effort to resolve the dispute
