SAMPLE CONTRACT BETWEEN THE BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS AND CONTRACTOR NAME FOR SERVICES On this day of, 2017, the Board of Commissioners of the Port of New Orleans hereinafter sometimes referred to as The Board, and [Contractor s name and legal address], hereinafter sometimes referred to as Contractor, do hereby enter into a Contract under the following terms and conditions. 1 SCOPE OF SERVICES 1.1 CONCISE DESCRIPTION OF SERVICES [Complete Scope of Services to be provided, OR attach Scope of Services as an Attachment A] 1.1.1 GOALS AND OBJECTIVES [List Goals and Objectives of this contract] 1.1.2 PERFORMANCE MEASURES The performance of the Contract will be measured by, the Board s Project Manager, for the contact (hereafter Project Manager ) authorized on behalf of the Board, to evaluate the Contractor s performance against the criteria in the Scope of Work and are identified as: 1.1.3 MONITORING BY BOARD The Project Manager will monitor the services provided by the Contractor and the expenditure of funds under this Contract and will be primarily responsible for the day-to-day contact with Contractor and day-to-day monitoring of Contractor s performance. 1.1.4 DELIVERABLES The Contract will be considered complete when Contractor has delivered and the Board has accepted all deliverables specified in the Scope of Services. [May also include list and description of the project deliverables or expected outcomes including any required timetables] dollar amount of each.
1.1.5 SUBSTITUTION OF KEY PERSONNEL Contractor s key personnel assigned to this Contract may not be removed, replaced, or substituted without the prior written consent of the Board and, if so, provided an equally qualified replacement is offered. In the event that any Contractor personnel become unavailable because of resignation, illness, or other factors outside of Contractor s control, excluding assignment to a project outside of the Contract, Contractor shall be responsible for providing an equally qualified replacement to the Board s satisfaction to avoid delays in completing tasks. Any such replacement of key personnel must be approved by the Board in writing in advance. 2. ADMINISTRATIVE REQUIREMENTS 2.1 TERM OF CONTRACT This Contract shall begin on [Date] and shall terminate on [Date] unless modified by a fully executed supplemental agreement. Notwithstanding the foregoing, in no event shall this Contract be valid until it has been approved in writing by the Board. Such approval authorizes a Contract term for not more than 36 months. 2.2 THE BOARD FURNISHED RESOURCES The Project Manager shall provide oversight of the activities conducted hereunder. Notwithstanding Contractor s responsibility for management during the performance of this Contract, the Project Manager shall be the principal point of contact on behalf of the Board and will be the principal point of contact for Contractor concerning Contractor s performance under this Contract. 2.3 TAXES Contractor hereby agrees that it shall be responsibility for payment of taxes from the funds received under this Contract and/or legislative appropriation shall be Contractor s obligation. 3 COMPENSATION, MAXIMUM AMOUNT OF CONTRACT, & PAYMENT TERMS 3.1 COMPENSATION In consideration of the services described above, the Board hereby agrees to pay to Contractor a maximum of $ for the actual work performed. 3.2 PAYMENT TERMS Payments to Contractor for services rendered for this Contract shall be made monthly based on an itemized invoice showing line item costs incurred. Any labor charges for approved services shall include the names of the employees, their classification, description of services provided, and the time worked. These shall be reimbursed at the approved billable rate. These rates shall be used for the duration of the Contract. The monthly invoice shall show the total mount earned through the date of submission with the amount previously paid broken down by hours and hourly rate. Itemized invoice must reference Work Order No.. Any invoice received without
Work Order number referenced will be returned. The last invoice that is submitted must say FINAL INVOICE. The original and two copies of the invoice reflecting the amount and value of work, accomplished to the date of such submission shall be submitted directly to the Project Manager. The invoice must be signed and dated by a principal member of Contractor s firm. The invoice shall also show the total of previous payments because of Contract, and the amount due and payable as of the date of the current invoice. On receipt and approval of each invoice, the Board shall pay the amount due within thirty (30) calendar days. 4. TERMINATION 4.1 TERMINATION FOR CAUSE The Board may terminate this Contract for cause based on the failure of Contractor to comply with the terms and/or conditions of the Contract provided that the Board shall give Contractor written notice specifying Contractor s failure. If within thirty (30) days after receipt of such notice, Contractor shall not have either corrected such failure or, in the case of failure which cannot be corrected in thirty (30) days, begun in good faith to correct said failure and thereafter proceeded diligently to complete such correction, then the Board may, at its option, place Contractor in default and the Contract shall terminate on the date specified in such notice. Failure to perform within the time agreed on in the Contract may constitute default and may cause cancellation of the Contract. Contractor may exercise any rights available to it under Louisiana law to terminate for cause on the failure of the Board to comply with the terms and conditions of this Contract, provided that Contractor shall give the Board written notice specifying the Board s failure and a reasonable opportunity to cure the default. 4.2 TERMINATION FOR CONVENIENCE The Board may terminate this Contract at any time without penalty by giving thirty (30) days written notice to Contractor of such termination or negotiating with Contractor an effective date. Contractor shall be entitled to payment for deliverables to date of termination. 5. DEFENSE AND INDEMNITY (i) Contractor shall protect, defend, indemnify, and keep, save, and hold harmless the Board, its officers, agents, servants, representatives and employees from any and all losses, costs, claims, damages, demands, attorney's fees, expenses, penalties, fines, suits and actions of any kind and nature arising out of any accident or any occurrence, negligent or otherwise, including environmental liability, causing injury including death, to any person or persons or damage to
property, directly or indirectly caused by, resulting from, or growing out of the actions or inactions of Contractor or its officers, agents, servants, representatives, employees, contractors, subcontractors and invitees and the use of or presence on Board property or the work to be done under this Agreement, including such as may be imposed for the violation of any law, ordinance, or regulation (federal, state or local); and Contractor shall defend and indemnify the Board from and against any and all costs and expenses in connection with the foregoing, including court costs, related litigation expenses and reasonable attorney's fees that may be incurred by the Board, provided, however, that nothing herein shall be construed as indemnifying the Board against its own negligence or that of its officers, agents, servants, representatives, employees, contractors, subcontractors and invitees. (ii) Contractor hereby acknowledges that the duty to defend is a separate and distinct obligation herein and, on the filing of any action, claim, suit or proceeding of any nature or kind against the Board, shall defend the Board from and against any and all of the foregoing actions, claims, or suits of whatever nature or kind, directly or indirectly caused by, resulting from, or growing out of Contractor s actions or inactions or its presence on or use of Board property or the performance of Contractor s obligations under this Agreement, whether or not there is insurance coverage for the actions, claims or suits. (iii) When, in the course of fulfilling its obligations under this section, Contractor must engage attorneys to defend the Board, Contractor shall obtain the prior written consent of the Board to the attorneys to be engaged, such consent not to be unreasonably withheld. (iv) Furthermore, Contractor shall be liable for all attorney's fees and costs incurred by the Board if it must file suit or retain counsel to enforce the terms of this indemnity. (v) Contractor shall cause a provision to be put in all contracts which it enters into in fulfilment of its obligations under this Agreement to cause its contractors also to defend and indemnify the Board to the same extent as Contractor is providing a defense and an indemnity pursuant to this Section. (vi) Contractor shall not be obligated to indemnify that portion of a claim or dispute based on: i) any unauthorized modification or alteration of a product; ii) use of the product in combination with other products not furnished by Contractor; iii) use in other than the specified operating conditions and environment. In addition to the foregoing, if the use of any item(s) or part(s) thereof shall be enjoined for any reason or if Contractor believes that it may be enjoined, Contractor shall have the right, at its own expense and sole discretion to take action in the following order of precedence: (i) to procure for the Board the right to continue using such item(s) or part (s) thereof, as applicable; (ii) to
modify the component so that it becomes non-infringing equipment of at least equal quality and performance; or (iii) to replace said item(s) or part(s) thereof, as applicable, with non-infringing components of at least equal quality and performance, or (iv) if none of the foregoing is commercially reasonable, then provide monetary compensation to the Board to the full amount of the Board s loss for Contractor s failure to provide the items or parts it is obligated to provide. 6. OWNERSHIP All records, reports, documents and other material delivered or transmitted to Contractor by the Board shall remain the property of the Board, and shall be returned by Contractor to the Board at Contractor's expense at termination or expiration of this Contract. All records, reports, documents, or other material related to this Contract and/or obtained or prepared by Contractor in connection with the performance of the services contracted for herein shall become the property of the Board, and shall on request, be returned by Contractor to the Board, at Contractor's expense, at termination or expiration of this Contract. 7. NON-ASSIGNABILITY Contractor shall not assign any interest in this Contract by assignment, transfer, or novation, without prior written consent of the Board. This provision shall not be construed to prohibit the Contractor from assigning to a bank, trust company, or other financial institution any money due or to become due from approved Contracts without such prior written consent. Notice of any such assignment or transfer shall be furnished promptly to the Board in writing. 8. RIGHT TO AUDIT Board auditors, and/or the State Legislative auditor shall have the option to audit all accounts directly pertaining to this Contract for a period of five (5) years from the date of the last payment made under this Contract. Records shall be made available during normal working hours for this purpose. 9. CONTRACT MODIFICATION No amendment or variation of the terms of this Contract shall be valid unless made in writing, signed by the parties and approved as required by law. No oral understanding or agreement not incorporated in the Contract is binding on any of the parties. 10. FORCE MAJEURE Neither the Board nor Contractor shall be considered in default in the performance of any duty or obligation under this Agreement if such performance is prevented or delayed during the pendency of any force majeure event, but for no longer time period. Force Majeure (hereafter and above
Force Majeure ) shall mean acts of God, lightning, earthquakes, fires, storms, floods, explosions, epidemics, riots, civil disturbances, wars, acts of terrorism, or any other causes not within the reasonable control of a party and occurring without its fault. Any delay caused by Force Majeure shall not be recognized unless the party so affected shall notify the other within ten (10) working days after the event of Force Majeure. The parties shall use commercially reasonable efforts to remedy the Force Majeure with all due diligence. Neither economic impracticality nor the inability of a party to perform in whole or in part for economic reasons shall constitute an event of Force Majeure. 11. CONFIDENTIALITY OF DATA All financial, statistical, personal, technical and other data and information relating to the Board s operations made available to Contractor in order to carry out this Contract, which Contractor creates or which become available to Contractor in carrying out this Contract shall be protected by Contractor from unauthorized use and disclosure. Contractor shall not use any of the information which it collects, gathers or creates in the performance of its obligations and the provision of requisite services under this Contract for any other purpose without in every case the prior written approval of the Board. Contractor shall regard all such information confidential and shall not release it without in every case the prior written approval of the Board. Furthermore, Contractor agrees that it shall insure in all agreements it makes with subcontractors working on this Contract that Contractor includes a provision in the subcontracts imposing on Contractor s subcontractors these obligations. 12. COST RECORDS Contractor and its subcontractors if any shall maintain all books, documents, papers, accounting records and other evidence pertaining to cost incurred relative to this project. Contractor shall retain all records until such as an audit is made by the Board or the Contractor is released in writing by the Board s Director of Internal Audit, at which time Contractor may dispose of such records. Contractor shall, however, retain such records for a minimum of five (5) years from the date of payment of the last estimate under this Contract or the release of all retainage for this Contract, whichever occurs later, for inspection by the Board and/or the Legislative Auditor. Contractor shall by its contract with any subcontractors, require subcontractors to obligate themselves to the same provisions. 13. SUBCONTRACTORS Contractor may, with prior written permission from the Board, enter into subcontracts with third parties for the performance of any part of Contractor s duties and obligations. In no event shall the existence of a subcontract operate to release or reduce the liability of Contractor to the Board for any breach in the performance of Contractor s duties. Contractor shall be the single point of contact for all subcontractor work. 14. COMPLIANCE WITH LAWS, RULES AND REGULATIONS
Contractor shall comply with all federal, state, and local laws, rules and regulations in the performance of this Contract. Contractor shall not engage and shall cause its personnel and/or any subcontractors (in the event that Contactor is using subcontractors with the prior written approval of Board) not to engage during the Term of this Contract, either directly or indirectly, in fraudulent behavior, corrupt practices, illegal actions or any other activity that is incompatible with the legal and proper discharge of its services provided to the Board, or in any work, business or professional activities which would conflict with the activities performed by Contractor under this Contract. 15. INSURANCE I. General Insurance Requirements A. Insurance Companies: All insurance shall be written with insurance companies authorized and licensed to do business in the State of Louisiana and acceptable to the Board (Best s rating A-, IV, or better). Self-insurance programs authorized by the Commissioner of Insurance of the State of Louisiana for workers compensation insurance are acceptable with a certified copy of Contractor s authority to self-insure. B. Primary Insurance: All insurance required herein shall be primary to any similar insurance that may be carried by the Board for its own protection. C. Insurance Certificates: Before this Contract becomes effective, Contractor shall furnish to the Board s risk manager certificates evidencing that it has procured the insurance herein required. D. Named Insured: Except for the workers compensation, the Board shall be named as an additional insured on all policies required herein. E. Waiver of Subrogation: All insurance policies required herein, shall provide that the insurers waive any rights of subrogation against the Board with respect to deductibles under such policies and with respect to damage to equipment including the loss thereof, whether insured or not. F. Notice of Cancellation: All policies required herein shall provide for thirty (30) days written notice of cancellation or material change to be sent to the Board at P.O. Box 60046, New Orleans, LA 70160, Attention: Risk Manager. G. Maintaining Insurance: All insurance policies herein required shall remain in full force and effect until during the term of this Contract. If any insurance required herein is canceled or materially changed and not immediately replaced during the term of this Contract, Board reserves the right to purchase insurance at the expense of Contractor to protect Board s interest. The furnishing of insurance shall not relieve Contractor of the responsibility for losses not covered by insurance. H. Subcontractor s Insurance: Contractor shall require that any and all subcontractors, which are not protected under the Contractor s own insurance policies, take and maintain insurance of
the same nature and in the same amounts as required of Contractor. I. No Representation or Warranty: The Board makes no representation or warranty that the insurance set forth in this section will be sufficient to protect Contractor s interests. J. Commercial General Liability Insurance: Contractor shall procure and maintain at contractor s sole cost and expense commercial general liability insurance (on an occurrence basis) with limit of liability of not less than two million dollars ($1,000,000) for all injuries or deaths resulting to any one person or from any one occurrence. The aggregate limit for products and completed operations shall be not less than two million dollars ($1,000,000). The limit of liability for property damage shall be not less than two million dollars ($2,000,000) for each occurrence and aggregate. Coverage under such insurance shall also include damage hazards. A combination of primary and excess liability insurance may be used to satisfy the conditions of this section. K. Commercial Motor Vehicle Liability Insurance - Contractor shall procure and maintain its sole cost and expense commercial motor vehicle liability insurance which shall include hired car and non-ownership coverage with limit of liability of not less than one million dollars ($1,000,000) for all injuries or deaths resulting to any one person or from any one occurrence. The limit of liability for property damage shall be not less than one million dollars ($1,000,000) for each occurrence and aggregate. L. Workers' Compensation Insurance - Contractor shall procure and maintain at its sole cost and expense. Workers compensation insurance will protect Contractor from claims under the Louisiana Workers Compensation Act. The limit of liability under the employer's liability section of the workers' compensation insurance policy shall be not less than one million dollars ($1,000,000). M. Professional Liability Insurance - Contractor shall procure and maintain errors and omissions /professional liability insurance in the amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) annual aggregate. Contractor must maintain this coverage in full force and effect for a period of three years after termination of this Agreement. Contractor shall notify the Board in the event of expected cancellation of coverage. 15. APPLICABLE LAW This Contract shall be governed by and interpreted in accordance with the laws of the State of Louisiana. Venue of any action brought with regard to this Contract shall be in the Civil District Court, Parish of Orleans, State of Louisiana. 16. CODE OF ETHICS Contractor acknowledges that Chapter 15 of Title 42 of the Louisiana Revised Statutes (R.S. 42:1101 et seq., Code of Governmental Ethics) applies to Contractor in the performance of services called for in this Contract. Contractor agrees to immediately notify the Board if potential violations of the Code of Governmental Ethics arise at any time during the term of this Contract.
17. SEVERABILITY If any term, covenant, condition, or provision of this Contract or the application thereof to any person or circumstance shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Contract or the application of such term, covenant, condition or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, condition, and provision of this Contract shall be valid and enforced to the fullest extent permitted by law. 18. COMPLETE CONTRACT This is the complete agreement between the parties with respect to the subject matter and all prior discussions and negotiations are merged into this Contract. This Contract is entered into with neither party relying on any statement or representation made by the other party not embodied in this Contract and there are no other agreements or understanding changing or modifying the terms 19. ENTIRE AGREEMENT & ORDER OF PRECEDENCE This Contract together with the RFP and Contractor s Proposal which are incorporated herein shall, to the extent possible, be construed to give effect to all of its provisions; however, where provisions are in conflict, first priority shall be given to the provisions of the Contract, excluding the RFP, its amendments and the Proposal; second priority shall be given to the provisions of the RFP and its amendments; and third priority shall be given to the provisions of the Contractor s Proposal. IN WITNESS THEREOF, the parties have caused these presents to be executed by their respective officers thereunto duly authorized as of the day and year first above written. CONTRACTOR Witness for First Party Witness for First Party BY: Typed or Printed Name DATE: BOARD OF COMMISSIONERS PORT OF NEW ORLEANS Witness for Second Party BY: Brandy D. Christian President and Chief Executive Officer
Witness for Second Party DATE: RECOMMENDED FOR APPROVAL: BY: Insert name of head of division doing this project BY: Attorney for Board