1. Amy Larson, Esq. Risk and Litigation Manager City of Bloomington, MN
Contract Mechanics
Amy Larson, Esq.
Risk and Litigation Manager
City of Bloomington, MN

2. Disclaimer
The material being provided in this presentation is for your general information, and is not a substitute for legal advice. Consult your entity’s attorney for advice concerning specific situations.

3. Basics….. What is a contract?
A legally binding agreement with specific terms between two or more parties in which there is a promise to do something in return for a valuable benefit known as consideration.

4. Basics…. What kind of contract is it?
Service (including professional services)
Construction
Joint Powers/Inter-Agency/MOU
Grant

5. Identify the Parties Use the parties “legal” names
“THIS AGREEMENT is made this ______ day of __________, 201__ between the City of ________________, a municipal corporation located at _______________(hereinafter referred to as “City”), and ______________________, located at ______________ (hereinafter referred to as “Contractor”).”

6. Recitals
“WHEREAS, the City desires to enter into an agreement with to receive temporary staffing personnel; and
WHEREAS, the Contractor represents that it has the professional expertise and capabilities to provide temporary staffing personnel; and…..
NOW, THEREFORE, in consideration for the terms and conditions expressed herein, the parties agree as follows:”

7. Term of the Agreement
“The term of the Agreement shall be from ___________ to _____________________, subject to termination as provided in ___________. The term of the Agreement may be extended for two (2) additional terms upon mutual consent of the Parties.”

8. Obligations of the Parties
Specifically identify what each party is required to do to complete their obligations under the Agreement, and
Introduce any schedules, exhibits or attachments.
“Contractor agrees to complete the project, as proposed, and perform all other terms and conditions according to the Proposal and Specifications incorporated by references herein as Exhibits A and B.”

9. Payment Terms
Describe the specific services that will be provided for what price, and how the parties will pay/be paid during the term of the Agreement.
“The Contractor shall provide____________ for the not-to- exceed amount of ________________ ($_____). Contractor agrees that the City will pay the Contractor when the City has received this executed Agreement, signed by both parties, from the Contractor and the services have been fully performed and accepted by the City.”

10. Hold Harmless/Indemnification
Used to transfer responsibility for payment to another party
Three different types:
Broad
Intermediate
Limited
Only effective if the indemnifying party has the capability to honor its financial commitment.

11. Broad Form Indemnification
“To the fullest extent permitted by law, Contractor agrees to defend and indemnify the City, and its officers, employees and volunteers from and against all claims, damages, losses, and expenses, including attorney fees arising out of or resulting from the performance of work under this Agreement regardless of whether or not it is caused in part by the negligent acts, errors or omissions of the City, and its officers, employees or volunteers. Contractor agrees this indemnity obligation shall survive the completion or termination of this Agreement.”

12. Intermediate Form Indemnification
“To the fullest extent permitted by law, Contractor agrees to defend and indemnify the City, and its officers, employees and volunteers, from and against all claims, damages, losses, and expenses, including attorney fees, arising out of or resulting from the performance of work under this Agreement, but only to the extent caused in whole or in part by the negligent acts, errors, or omissions of Contractor, regardless of whether or not caused in part by the negligent acts, errors or omissions of the City and its officers, employees, or volunteers. Contractor agrees this indemnity obligation shall survive the completion or termination of this Agreement.”

13. Limited Form Indemnification
“To the fullest extent permitted by law, Contractor agrees to defend and indemnify the City, and its officers, employees and volunteers from and against all claims, damages, losses and expenses, including attorney fees, arising out of or resulting from the performance of work under this Agreement, but only to the extent caused in whole or in part by the negligent acts, errors or omissions of the Contractor, its employees, agents, volunteers and/or subcontractors. Contractor agrees that this indemnity obligation shall survive the completion or termination of this Agreement.”

14. Independent Contractor
“It is agreed that nothing herein contained is intended to, or should be construed in any manner as creating or establishing the relationship of co-partners between the parties, or as constituting the Contractor’s staff as the agents, representatives or employees of the City for any purpose whatsoever. The Contractor an its staff are to be and shall remain an independent contractor with respect to all services performed under this Agreement.”

15. Insurance Types of insurance Identify acceptable minimum limitsGL
Auto
Workers’ Compensation
Professional (aka Errors and Omissions)
Builder’s Risk (construction contracts)
Umbrella/Excess
Identify acceptable minimum limits
Include an additional insured requirement

16. Insurance
“To the fullest extent allowed by law, Contractor agrees to maintain the following insurance coverages, in an amount equal to, or greater than, the minimum limits described below. Contractor will provide the City with a certificate of insurance evidencing such coverages prior to performing any duties included under the terms and conditions of this Agreement. Contractor also agrees to keep a valid certificate of insurance on file, referencing these limits, throughout the entire term of this Agreement.”

17. Insurance
“Commercial General Liability Insurance in an amount equal to, or greater than, the minimum limits of $1,000,000 per occurrence for bodily injury or death arising out of each occurrence, as well as $1,000,000 per occurrence for property damage.
To meet the above requirements, the Contractor may use a combination of Commercial General Liability and Umbrella coverage, as long as the City approves such use and it is evidenced on the certificate of insurance naming the City as an additional insured on both policies. The Umbrella needs to be a following form policy and provide a thirty (30) day notice of cancellation.”

18. Performance and Payment Bonds
Performance Bond
Payment Bond
Reference what form you want them to use, and what forms cannot be used
“Contractor agrees to provide a performance bond and a separate payment bond, each in the amount of ______________. The bonds shall be furnished by a corporate surety company authorized to do business in the State of __________ and must be approved by the City Attorney prior to the execution of this Agreement.”

19. Ownership of Products Who owns the completed product?
Especially important if something tangible is produced, i.e. data, reports, brochures, pamphlets, survey results, etc.
“The Contractor agrees that the City will own and have the right to use, reproduce and apply as it desires, any data, reports, analyses and materials which are collected or developed by the Contractor or anyone acting on behalf of the Contractor as a result of this Agreement.”

20. Termination When can the agreement be terminated?
“Either party may terminate this Agreement for any reason upon giving thirty (30) days advance written notice to the other party.”
What are the consequences of the early termination?
“The City reserves the right to cancel this Agreement at any time in event of default or violation by the Contractor or any provision of this Agreement. The City may take whatever action, at law or in equity, that may appear necessary or desirable to collect damages arising from a default or violation of the terms by the Contractor, or to enforce performance of this Agreement.”

21. General Provisions Entire Agreement Execution and Modification
“This Agreement represents the entire Agreement between the parties and supersedes and cancels any and all prior agreements or proposals, written or oral, between the parties relating to the subject matter hereof.”
Execution and Modification
“This Agreement is binding only when signed by both parties. Any modifications or amendments must be in writing and signed by both parties.”

22. General Provisions Applicable Laws Assignment
“This Agreement shall be interpreted using the laws of the State of ___________. The Contractor agrees to comply with all applicable local, state and federal laws, rules, regulations and ordinances in performance of the duties of this Agreement.”
Assignment
“This Agreement shall not be assignable except with the written consent of the City.”

23. General Provisions Examination of Documents Data Practices Act
“The books, records, documents and accounting procedures of the Contractor, relevant to this Agreement, are subject to examination by the City, and either the legislative or state auditor as appropriate.”
Data Practices Act
“The Contractor will comply with all applicable provisions of the ________ Data Practices Act, (and include statutory reference).”

24. General Provisions Americans With Disability Act Conflict Resolution
Mediation, Arbitration, Court
“Both parties agree to submit all claims, disputes and other matters in question between the parties arising out of or relating to the Agreement to mediation. The mediation shall be conducted through __________. The parties hereto shall decide whether mediation shall be binding or non-binding. If the parties cannot reach agreement, mediation shall be non-binding.”

25. General Provisions Adherence to City Policies
“The Contractor agrees, as a condition of being awarded this Agreement, to require each of its agents, officers and employees to abide by the City’s policies prohibiting sexual harassment, firearms and smoking, as well as all other reasonable work rules, safety rules or policies regulating the conduct of person on City property at all times while performing duties pursuant to this Agreement. The Contractor agrees and understands that a violation of any of these policies or rules constitutes a breach of the Contract and sufficient grounds for immediate termination of the Agreement by the City.”

26. General Provisions Payment of Subcontractors Severability
“The Contractor agrees that it must pay any subcontractor within ___ days of the prime contractor’s receipt of payment from the municipality for undisputed services provided by the subcontractor.”
Severability
“If any provision or term of this Agreement, for any reason is declared invalid, illegal or unenforceable, such decision shall not affect the validity of any remaining terms or conditions in this Agreement.”

27. General Provisions Force Majeure
“Each party shall be excused from any breach of this Agreement which is proximately caused by war, strike, acts of God or similar circumstances normally deemed outside the control of well-managed businesses.”

28. General Provisions Heading and Captions Notice
“Headings and captions appear solely for convenience of reference. Such headings and captions are not part of this Agreement and shall not be used to construe it.”
Notice
“Any notices required by this Agreement shall be delivered to the following addresses:……”

29. General Provisions Signatory
“Each person executing this Agreement on behalf of a party hereto represents and warrants that such person is duly and validly authorized to do so on behalf of such party, with full right and authority to execute this Agreement and to bind such party with respect to all of its obligations hereunder. In the event the Contractor did not authorize the Signatory to sign on its behalf, the Signatory agrees to assume responsibility for the duties and liability of the Contractor, as set forth herein, personally. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.”

30. Signature Lines
“IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.”
CONTRACTOR
By:__________________________
Title:_____________________
Date:_______________
CITY
Date:________________

31. Exhibits, Amendments and Extensions
Identify Exhibits using letters.
Exhibit A
For Amendments, be sure to reference the effective date of the original Agreement and which paragraph in the original Agreement is being amended.
For Extensions, reference the effective date of the original Agreement and the “mutually agreed to” term of the extension.

32. Waivers, are they worth the paper they are written on????

34. What Is A Waiver
A waiver is a legal document that a person who participates in an activity my be required to sign acknowledging the risks involved in his or her participation.
By signing the waiver, the participant accepts the risks and agrees to not sue the party providing the services.

35. Why Use A Waiver?
Transfer Risk
Act as a deterrent

36. When To Use A Waiver Use of public buildings or fields
Recreation events
Athletic events
Special events
Hazardous activities
Group events

37. Types of Waivers Stand-alone/Participant Agreement
Hold Harmless Agreements
Group Waivers
Disclaimer/Exculpatory Clauses
Releases

38. Stand-Alone

39. Stand Alone

40. Group Waiver
Waiver:
I understand that participation in activity or program is completely voluntary and that the activity or program being offered is for the betterment of the participant. The City of ______________ shall not be liable for any claims, injuries, damages of whatever nature, incurred by the participant, which are directly or indirectly attributable to the negligence, whether passive or active, of the City, their agents and employees, arising out of, or in connection with the activity or programs.
On behalf of myself, I expressly release and discharge the City of __________________, their agents or employees from any such claims, injuries or damages. I also understand this waiver includes any injuries that may result from the condition of the facility used in the activity or program.

41. Who Signs?
Participant?
Parent?
Team Captain/Group Organizer?
Minors?

42. Disclaimers or Exculpatory Clauses

43. Releases
Usually used as part of a settlement agreement

44. Enforcement
What needs to be included in every waiver to make sure it if enforceable?
The language must be clear and unambiguous;
The person signing the waiver must be doing so voluntarily and must comprehend the effect(s) of the waiver;
The person should be given ample time to review and the ability to consult with an attorney prior to signing if they wish;
There is no disparity in bargaining power; and finally,
Must not be waiving an essential service (i.e. police, fire or utilities).

45. Questions?
Contact Info:
Amy Larson
City of Bloomington
1800 W. Old Shakopee Road
Bloomington, MN
(952)