SERVICE AGREEMENT # _________________ FOR CONSULTING

SERVICES FOR A DESIGN AND IMPLEMENTATION PLAN

FOR DATA WAREHOUSE SOLUTIONS

THIS AGREEMENT, entered into as of this _____ day of ____________, _____, by

and between the ________________________ COUNTY PUBLIC SCHOOLS, a political sub-

division of the Commonwealth of Virginia ("COUNTY") and XYZ Business Consulting

Services, ("CONSULTANT").

WITNESSETH:

WHEREAS, by Request for Proposal No. ___________________ (the "RFP"), the

COUNTY solicited interested firms to submit proposals for Consulting Services for a Design

and Implementation Plan for Data Warehouse Solutions; and

WHEREAS, CONSULTANT has represented to the COUNTY that it is fully capable of

performing the services described in this Agreement, and the COUNTY has relied on such

representation to select CONSULTANT to provide the services; and

WHEREAS, the COUNTY and CONSULTANT now desire to enter into an agreement

setting forth their rights and obligations with regard to CONSULTANT's performance of the

service.

NOW, THEREFORE, for and in consideration of the mutual agreements contained

herein, the parties agree as follows.

1. Scope of Services. CONSULTANT shall furnish all labor, materials, and

services necessary to satisfy the requirements of the COUNTY as set forth in the RFP, this

Agreement, and as more fully described in CONSULTANT's proposed Statement of Work

entitled “Consulting Services for a Design and Implementation Plan for Data Warehouse

Solutions,” dated ______________________and any revisions thereto, hereinafter referred to

as “Proposal”. The terms of the RFP and the Proposal are incorporated by reference into this

Agreement and attached, in part or in whole, hereto. The work to be performed by the

CONSULTANT is described in detail in the RFP and the Proposal, and shall be referred
collectively as the “Services”. CONSULTANT represents that it will perform the Services in

accordance with generally accepted professional standards. In the event of any conflict between

the terms of this Agreement and the RFP and/or Proposal, the terms of this Agreement, the

Proposal and the RFP shall control in that order.

2. Authorization. CONSULTANT warrants that it has the right to enter into this

Agreement and to perform all obligations hereunder. CONSULTANT represents that the

execution of this Agreement and performance of any of its obligations hereunder are duly

authorized and in compliance with applicable federal, state and local laws, rules and

regulations. CONSULTANT represents that it holds all valid licenses and permits necessary to
perform the Services and will promptly notify the COUNTY in the event any such license or

permit expires, terminates or is revoked.

3. COUNTY's Obligations. The COUNTY shall furnish CONSULTANT, upon

request, with any information, data, reports, and records which are reasonably available to the

COUNTY and necessary for carrying out CONSULTANT's responsibilities, so long as the

provision of such information, data, reports, and records to CONSULTANT is consistent with

applicable law. The COUNTY shall designate a person to act as the COUNTY's contact with

respect to the Services. The COUNTY's representative shall have the authority to transmit

instructions, receive information and interpret and define the COUNTY's policies and decisions

pertinent to CONSULTANT's Services.

4. Time of Performance. All Services to be performed and any reports to be

prepared hereunder by CONSULTANT shall be undertaken and completed promptly pursuant

to a schedule to be agreed upon between the COUNTY and the CONSULTANT.

5. Contract Terms. The completion of the tasks in this SOW is estimated at three

(3) to six (6) months and can be extended by CCPS upon request for additional services as

defined in Appendix E of the Proposal, Project Change Control Procedure.

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 6. Compensation. COUNTY shall pay CONSULTANT, provided that

CONSULTANT performs to the satisfaction of the COUNTY, fee(s) as follows: See section

3.1 of the attached Statement of Work.

7. Time of Payment. CONSULTANT shall submit invoices, in duplicate, in

accordance with schedule mutually agreed upon between CONSULTANT and COUNTY. The

COUNTY shall make payments to CONSULTANT subject to the terms of this Agreement

within thirty (30) days of receipt of CONSULTANT’s correct invoice. CONSULTANT

understands and accepts that the COUNTY will not pay any finance charges imposed on any

invoices submitted by the CONSULTANT for services performed under this Agreement. If the
Agreement is terminated by the COUNTY and not in any way through the fault of

CONSULTANT, payments due CONSULTANT for services rendered prior to termination

shall be paid to CONSULTANT and shall constitute total payment for such services. If this

Agreement is terminated in whole or in part due to the fault of CONSULTANT,

CONSULTANT shall have no right to claim payment due for services performed but

uncompensated at the time of termination provided that the COUNTY is not delinquent in its

payments to CONSULTANT. Payments made to CONSULTANT shall not be considered as

evidence of satisfactory performance of the work by CONSULTANT, either in whole or in

part, nor shall any payment be construed as acceptance by the COUNTY of inadequate

services.

8. Non-Appropriations. The continuation of the terms, conditions, and provisions

of this contract beyond the fiscal year is subject to approval and ratification by the

___________________________ COUNTY Board of Supervisors (and the

___________________________ COUNTY School Board, as applicable) and appropriation by

them of the necessary money to fund this Agreement for each succeeding year.

9. Termination. It shall be the sole right of the COUNTY to terminate this

Agreement at any time for any reason upon written notification to the CONSULTANT. If for

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cause, such notification shall provide a ten (10) day cure period during which time the

CONSULTANT may remedy the circumstances having led to the termination for cause.

10. Records and Inspection. CONSULTANT shall maintain full and accurate

records with respect to all matters covered under this Agreement including, without limitation,

accounting records, written policies and procedures, time records, telephone records,

reproduction cost records, travel and living expense records and any other supporting evidence

necessary to substantiate charges related to this Agreement. CONSULTANT's records shall be

open to inspection and subject to audit and/or reproduction, during normal working hours, by

the COUNTY and its employees, agents or authorized representatives to the extent necessary to
adequately permit evaluation and verification of any invoices, payments or claims submitted by

CONSULTANT pursuant to this Agreement. For the purpose of audit rights granted by this

clause, “records” are exclusively defined as invoices, supplements, transaction documents,

copies of correspondences between the parties, copies of the RFP and resulting contract

(including amendments thereto), rather than confidential information, such as CONSULTANTs

internal cost data. CONSULTANT shall have no obligation to provide access to

CONSULTANT (or third party) confidential or proprietary information.

The COUNTY shall have access to such records from the effective date of this Agreement, for

the duration of the Agreement, and until two (2) years after the date of final payment by the

COUNTY to the CONSULTANT pursuant to this Agreement. The COUNTY's employees,

agents or authorized representatives shall have access to the CONSULTANT's facilities, shall

have access to all necessary records, and shall be provided adequate and appropriate work

space, in order to conduct audits in compliance with this paragraph.

11. Insurance. The CONSULTANT shall purchase and maintain in force, at his

own expense, such insurance as will protect him and the COUNTY from claims which may

arise out of or result from the CONSULTANT’s execution of the work. The CONSULTANT

shall furnish a Certificate of Insurance, naming ___________________________ COUNTY as

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an additional insured for general liability and excess liability coverage. Should any of the

policies be canceled before the expiration date, the issuing company will mail 30 days written

notice to the certificate holder. The CONSULTANT shall furnish insurance in satisfactory

limits, and on forms and of companies which are acceptable to the COUNTY’s Attorney and/or

Risk Management and shall require and show evidence of insurance coverages on behalf of any

subcontractors (if applicable), before entering into any agreement to sublet any part of the work

to be done under this Agreement.

12. Confidentiality. Unless expressly authorized by the COUNTY,

CONSULTANT, its officers and employees, shall not divulge to anyone other than COUNTY
officials in either written or verbal form any information obtained as a result of performing

services pursuant to this Agreement.

13. When Rights and Remedies Not Waived. In no event shall the making by the

COUNTY of any payment to CONSULTANT constitute or be construed as a waiver by the

COUNTY of any breach of covenant, or any default which may then exist, on the part of the

CONSULTANT, and the making of any such payment by the COUNTY while any such breach

or default exists shall not impair or prejudice any rights or remedies available to the COUNTY

in respect to such breach or default.

14. Non-Discrimination Provision. During the performance of this Agreement,

CONSULTANT agrees as follows:

(a) CONSULTANT will not discriminate against any employee or applicant

for employment because of race, religion, color, gender, national origin, or disability, except

where religion, gender, or national origin is a bona fide occupational qualification reasonably

necessary to the normal operation of CONSULTANT. CONSULTANT agrees to post in

conspicuous places, available to employees and applicants for employment, notices setting

forth the provisions of this nondiscrimination clause.

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 (b) CONSULTANT, in all solicitations or advertisements for employees

placed by or on behalf of CONSULTANT, will state that CONSULTANT is an equal

opportunity employer.

(c) Notices, advertisements and solicitations placed in accordance with

federal law, rule or regulation shall be deemed sufficient for the purpose of meeting the

requirements of this section.

CONSULTANT shall include the provisions of the foregoing subparagraphs a, b, and c

in every subcontract or purchase order over $10,000 so that the provisions will be binding upon

each subcontractor or vendor.

15. Drug Free Workplace. During the performance of this contract, the

CONSULTANT agrees to:

(a) Provide a drug-free workplace for the CONSULTANT’s employees.

(b) Post in conspicuous places, available to employees and applicants for

employment, a statement notifying employees that the unlawful manufacture, sale, distribution,

dispensation, possession, or use of a controlled substance or marijuana is prohibited in the

CONSULTANT’s workplace and specifying the actions that will be taken against employees

for violations of such prohibition.

(c) State in all solicitations or advertisements for employees placed by or on

behalf of the CONSULTANT that the CONSULTANT maintains a drug-free workplace.

(d) Include the provisions of the foregoing clauses in every subcontract or

purchase order over $10,000, so that the provisions will be binding upon each subcontractor or

vendor.

For purposes of this section, “drug-free workplace” means a site for the performance of

work done in connection with a specific contract awarded to a CONSULTANT in accordance

with this chapter, the employees of who are prohibited from engaging in the unlawful

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manufacture, sale, distribution, dispensation, possession or use of any controlled substance or

marijuana during the performance of the contract.

16. Illegal Aliens. In accordance with the Code of Virginia, Section 2.2-4311.1,

Contractor hereby agrees that he does not and shall not, during the performance of this contract,

knowingly employ unauthorized aliens as defined in the federal Immigration Reform and

Control Act of 1986.

17. Governing Law. CONSULTANT and the COUNTY agree that this Agreement

shall be deemed to have been made in Virginia and that the validity and construction of this

Agreement shall be governed by the laws of the Commonwealth of Virginia excluding

Virginia’s laws governing conflict of laws. CONSULTANT and the COUNTY further agree

that any legal action or proceeding arising out of this Agreement shall be commenced and tried

in the Circuit Court of the COUNTY of ___________________________ to the express

exclusion of any otherwise permissible forum.

18. Notices. Any notices, bills, invoices or reports required by this Agreement shall

be sufficient if sent by the parties in the United States mail, postage paid, to the address noted

below:

If to the COUNTY:

**
**
**
**

If to the CONSULTANT:

**
XYZ Business Consulting Services
**
**

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 19. Assignment. The COUNTY and CONSULTANT bind themselves and any

successors and assigns to this Agreement. The employees of the CONSULTANT will perform

the work necessary to fulfill this agreement. Other than the work identified in the Proposal to

be performed by subcontractors, CONSULTANT shall not assign, sublet, subcontract or

transfer any of its interest in this Agreement. Nothing herein shall be construed as creating any

personal liability on the part of any officer or agent of the COUNTY, nor shall it be construed

as giving any rights or benefits hereunder to anyone other than the COUNTY and

CONSULTANT.

20. Entire Agreement. This Agreement and any additional or supplementary

documents incorporated herein by reference, contain all the terms and conditions agreed upon

by the parties hereto, and no other agreements, oral or otherwise, regarding the subject matter

of this Agreement or any part thereof shall have any validity or bind any of the parties hereto.

This Agreement shall not be modified, altered, changed or amended unless in writing and

signed by the parties hereto.

21. Subcontractors. The COUNTY reserves the right to reject any subcontractor

selected by CONSULTANT. The COUNTY shall exercise this right in good faith and for a

legitimate reason. Upon such rejection, the subcontractor shall immediately cease any work on

the Project. A subcontractor selected by CONSULTANT to replace a rejected subcontractor

must be approved in writing by the COUNTY prior to performing any work on the Project.

Such approval will not be unreasonably withheld.

22. Taxes, Unemployment Insurance and Related Items. CONSULTANT hereby

accepts full and exclusive responsibility for the payment of any and all contributions or taxes,

or both, for any unemployment insurance, medical and old age retirement benefits, pensions,

and annuities now or hereinafter imposed under any law of the United States or any State,

which are measured by the wages, salaries or other remuneration paid to persons employed by

CONSULTANT on the work covered by this Agreement or in any way connected therewith.

0425:80405.1 8
CONSULTANT shall comply with all administrative regulations and rulings thereunder with

respect to any of the aforesaid matters; and CONSULTANT shall reimburse the COUNTY for

any of the aforesaid contributions or taxes, or both, or any part thereof, if by law the COUNTY

may be required to pay the same or any part thereof.

23. Independent CONSULTANT. CONSULTANT’s relationship with the

COUNTY shall at all times be that of an independent CONSULTANT. The method and

manner in which CONSULTANTs Services hereunder shall be performed shall be determined

by CONSULTANT and the COUNTY will not exercise control over CONSULTANT or its

employees except insofar as may be reasonably necessary to ensure performance and

compliance with this Agreement. Nothing in this Agreement shall be construed to make

CONSULTANT, or any of its employees, employees or agents of the COUNTY.

24. Environmental Management. CONSULTANT shall be responsible for

complying with all federal, state, and local environmental regulations, if any. Additionally, the

CONSULTANT must meet all ___________________________ COUNTY Environmental

Management System (EMS) requirements. For questions or additional information, contact the

Office of Environmental Management at (804) 717-6531.

25. Warranty for CONSULTANT Services. CONSULTANT warrants that it

performs each CONSULTANT Service (as defined in the SOW) using reasonable care and skill

and according to its current description (including any completion criteria) contained in the

Statement of Work. However, non-CONSULTANT suppliers may provide their own

warranties to the COUNTY.

26. Patents and Copyrights. If a third party claims that Materials (as defined in

SOW) CONSULTANT provides to the COUNTY infringe that party’s patent or copyright,

CONSULTANT will defend the COUNTY against that claim at its expense and pay all costs,

damages, and attorney’s fees that a court finally awards or that are included in a settlement

approved by CONSULTANT, provided that the COUNTY:

0425:80405.1 9
 1. promptly notify CONSULTANT in writing of the claim; and

2. allow CONSULTANT to control, and cooperate with CONSULTANT in, the

defense and any related settlement negotiations.

Remedies

If such an infringement claim is made or appears likely to be made, the COUNTY agrees to

permit CONSULTANT to enable the COUNTY to continue to use the Materials, or to modify

them, or replace them with Materials that are at least functionally equivalent. If

CONSULTANT determines that none of these alternatives is reasonably available, the

COUNTY agrees to return the Materials to CONSULTANT on its written request.

CONSULTANT will then give the COUNTY a credit equal to the amount the COUNTY paid

CONSULTANT for the creation of the Materials.

This is CONSULTANT’s entire obligation to the COUNTY regarding any claim of

infringement.

Claims for Which CONSULTANT is Not Responsible

CONSULTANT has no obligation regarding any claim based on any of the following:

1. anything the COUNTY provides which is incorporated into the Materials or

CONSULTANT’s compliance with any designs, specifications, or instructions

provided by the COUNTY or by a third party on the COUNTY’s behalf;

2. the COUNTY’s modification of the Materials; or

3. the combination, operation, or use of the Materials with any product, data,

apparatus, or business method that CONSULTANT did not provide, or the

distribution, operation or use of the Materials for the benefit of a third party

outside the COUNTY’s Enterprise.

27. Limitation of Liability. Circumstances may arise where, because of a default or

other acts or omissions on CONSULTANT’s part or other liability, the COUNTY is entitled to

recover damages from CONSULTANT. In each such instance, regardless of the basis on which

0425:80405.1 10
the COUNTY is entitled to claim damages from CONSULTANT (including fundamental

breach, negligence, misrepresentation, or other contract or tort claim), CONSULTANT is liable

for no more than:

1. for infringement claim, payments referred to in the Patents and Copyrights

section above;

2. all damages for bodily injury (including death), and damage to real property and

tangible personal property; and

3. for breach of contract for the services contemplated by this agreement, the

amount of actual direct or indirect damages.

Items for Which CONSULTANT is Not Liable

Under no circumstances is CONSULTANT or its subcontractors liable for any of the following

even if informed of their possibility:

1. loss of, or damage to, data;

2. lost profits, business, revenue or goodwill.

IN WITNESS WHEREOF, the COUNTY and CONSULTANT have executed this

Agreement as of the date first written above.

_________________COUNTY PUBLIC
SCHOOLS

By:____________________________________

____________________________________

Title:___________________________________

Approved as to form:

_________________________
Assistant COUNTY Attorney

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 XYZ Business Consulting Services
CONSULTANT

By:____________________________________

____________________________________

Title:___________________________________

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