04062000 436 PM

By June Lane,2014-05-07 11:42
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04062000 436 PM


    (General Usage For Firm-Fixed Price, Non-"Expert" Services, Short Format)

     This Agreement is entered into this day of , 200 , between the Federal Deposit Insurance Corporation ("FDIC") and [Insert the name of the Service Provider or Contractor], [Address], [Service Provider’s or Contractor’s verified Federal Tax Identification Number or, if

    none, social security number]. (Service Provider or Contractor hereafter is also referred to as

    "Contractor”). The purpose of this Agreement is to engage Contractor for the provision of

    services in support of pending or ongoing [Select one of the following actions: litigation or transactional] matters. The parties (FDIC and Contractor) agree to comply with the following

    terms and conditions:

    SALE AND PURCHASE OF SERVICES 2. All services shall be subject to review and acceptance by 1. Contractor agrees to undertake the following services the FDIC. (and, if applicable, sell and deliver goods consequential to 2.1 If any services performed hereunder are not in substantial conformity with the written requirements of this Agreement, those services). [Describe in detail all services and products the FDIC shall have the right to require Contractor to correct to be provided under this Agreement by the Contractor or the services in conformity with the requirements of the state that a Statement of Work for services will be attached Agreement within a reasonable time, at no additional cost. as Schedule A. State also the quantity, the date, and place When the services to be performed are of such a nature that of delivery.] (the "Services"). Contractor agrees to complete the defect cannot be corrected or re-accomplished, reasonably the specified services and deliver the required product to the in the time available to FDIC, the FDIC shall have the right to: FDIC at the identified place of delivery on the date designated (1) require Contractor immediately to take all necessary steps above or in the Statement of Work. Thereafter, following to ensure future performance of the services in conformity inspection and acceptance, the FDIC will pay for the tendered with the requirements of this Agreement; and (2) reduce this services. FDIC agrees to pay Contractor an amount not to firm fixed price to reflect the reduced value of the services exceed US $ . The agreed price includes all performed. In the event Contractor fails promptly to correct taxes, insurance, transportation, and delivery charges. the services, or to take necessary steps to ensure future 1.1 Contractor shall routinely report, as directed by the performance of the services in conformity with the Oversight Attorney, the status of the Contractor’s work upon requirements of this Agreement, the FDIC shall have the right request by FDIC at no cost to the FDIC. Contractor shall to reprocure the services by agreement with a third party or provide FDIC with such assistance and consultations as the otherwise. The FDIC's reprocurement of the services in FDIC may require in connection with the Services. conformity with this Agreement's requirements shall result in Contractor shall prepare written reports regarding the a charge to Contractor of any excess costs occasioned to the Services as may be required by the FDIC. FDIC that are directly related to the performance of such 1.2 Upon direction of the FDIC, Contractor will provide such services. In addition, the FDIC may terminate this Agreement data and/or reports as the FDIC may require to monitor for default as provided in the provision of this Agreement Contractor's performance for this engagement, without entitled Termination for Default. additional charge. Failure to progress on the Services or CONTRACTOR'S COMPENSATION failure to transmit required reports shall be a material breach 3. This is a firm fixed price Agreement. Contractor agrees of this Agreement. that it will not seek payment and that it will not be paid for 1.3 Contractor agrees to furnish the goods or services any excess time or materials expended in completion of its ordered under this Agreement. obligation under this Agreement. ACCEPTANCE OF SERVICES 3.1 Contractor shall be compensated for the delivered


services identified in paragraph 1, above on fixed price basis. an Agreement (Contract) number (if any), an itemized and Any claim for additional compensation based on any detailed description of the services performed, an invoice subsequent changes in the Statement of Work (see number, and the signature of a representative of the Attachment ___) or in the specifications for services (and Contractor. The Contractor is required, as a condition to any associated price changes) must have been reduced to writing payment under this Agreement, to provide the FDIC with the and signed by the Contractor and FDIC. information required to make payment by Electronic Funds 3.2 Contractor acknowledges that the FDIC will not pay for Transfer (“EFT”) as described in the following provision. any of Contractor's discrete or separately itemized Overhead 4.1 The FDIC prefers to make payments under this or General & Administrative (G&A) expenses. In addition, Agreement by EFT. Accordingly, unless amounts added by Contractor to a product or service's base Contractor certifies to FDIC's payment office that the price and thereafter billed to FDIC are markups. Markups on Contractor does not have an account with a financial any supplies or services procured by Contractor are institution or an authorized payment agent, Contractor shall considered additional nonreimbursable overhead or G&A provide the information required on the Vendor Information expenses. Contractor agrees that any markups (as defined for Automatic Deposit of Payment Form and Substitute W-9 above) found in Contractor's invoices after payment by FDIC, (see, Schedule B). In the exceptional case in which the its auditors, or staff, will be returned with interest to the FDIC Contractor does not have an account with a financial on FDIC's demand. institution, the FDIC will also forward the associated payment 3.3 Compensation shall be limited to payment of the agreed information by EFT. The FDIC may make payment by EFT price for work performed at the specific written direction of through either an Automated Clearing House (“ACH”) the FDIC and agreed upon in writing by Contractor. Bills subject to the banking laws of the United States or the Federal submitted following delivery, inspection, and acceptance shall Reserve Wire Transfer System at the FDIC's option. The comply with FDIC's prescribed format. See, Legal Support Contractor may supply this data for this or multiple Services Deskbook ("LSS Deskbook"). Agreements. Until receipt of the correct EFT information, 3.4 The FDIC agrees to process for payment timely upon any invoice shall be deemed to be an improper invoice. receipt all undisputed invoices submitted by the firm. TERMINATION FOR CONVENIENCE OF THE FDIC However, Contractor agrees that it shall submit its invoices in 5. The FDIC may terminate this Agreement, in whole or in proper order (that is, consistent with the LSS Deskbook part, at any time and in its sole discretion, if the Oversight direction) and with all required supporting documentation for Attorney determines that such termination is in the best expenses. Contractor agrees that it will state in its final billing interests of the FDIC. The FDIC shall terminate this that all works made for hire under this Agreement have been Agreement by delivering to Contractor a notice of termination transferred to the Oversight Attorney. for the convenience of the FDIC specifying the extent of 3.5 Contractor agrees that its fee bills, the documentation termination and the effective date. The notice of termination supporting charges in the fee bills, and all invoices paid under (that may contain a stop work order) shall be delivered to this Agreement by the FDIC are subject to audit by the FDIC Contractor. After receipt of the notice, Contractor shall Office of Inspector General, the United States General complete performance of work not terminated and shall take Accounting Office, or are subject to a review amounting to whatever action is necessary for an orderly and timely audit by the FDIC Legal Division. Contractor agrees that discontinuation of the work terminated, and shall cooperate disallowed overpayments (such as markups on components of with any follow-on contractors. Contractor shall deliver to services) shall be promptly returned to the FDIC Legal the FDIC, completed or partially completed, any plans, Division in the amount demanded. drawings, information, data, materials, or equipment that, if 3.6 In order to ensure that Contractor's work is handled in a the Agreement had been completed, would have been cost-effective manner and that it is conducted in a manner required to be furnished to the FDIC. consistent with the objectives to be achieved. Contractor TERMINATION FOR DEFAULT shall assist the FDIC in good faith and without charge to the 6. Time is of the essence in Contractor’s performance of its FDIC in the development of an amended price for additional duties under this Agreement, and the FDIC may, subject to services that were directed in writing. paragraphs 6.1 and 6.2 below, by written notice of default to 3.7 The Contractor agrees that this Agreement incorporates Contractor, terminate this Agreement in whole or in part if by reference the provision referred to as the Anti-Kickback Contractor fails to: Act of 1986 (41 U.S.C. ?? 51-58). (a) Deliver the supplies or perform the services within INVOICE/PAYMENT BY ELECTRONIC FUNDS the time specified in this Agreement or any extension; TRANSFER (EFT) (b) Make sufficient progress to ensure performance of 4. Contractor shall submit an original invoice upon this Agreement (but see subparagraph 6.1 below); or completion, delivery, and acceptance of the services to the (c) Perform any of the other provisions of this FDIC or monthly within ten (10) business days after the end Agreement (but see subparagraph 6.1 below). 6.1 The FDIC’s right to terminate this Agreement under of the month. [Select billing option best suited for this subdivisions 6(b) and 6(c) above may be exercised if effort.] All invoices shall be sent to the designated Contractor does not cure such failure within ten (10) days (or Information Specialist (“IS”) and shall include Contractor's more if authorized in writing by the Oversight Attorney) after name, address, telephone number, tax identification number,


receipt of the notice from the Oversight Attorney specifying created under this Agreement. Contractor must state in its the failure. final billing that all works made for hire have been transferred 6.2 If the FDIC terminates this Agreement in whole or in part to the Oversight Attorney. as provided in paragraph 6 of this Agreement, the FDIC may TERMS AND CONDITIONS INCORPORATED BY acquire, under the terms and in the manner the Oversight REFERENCE Attorney considers appropriate, supplies or services similar to 10. Contractor agrees to be bound by the policies, those terminated, and Contractor shall be liable to the FDIC requirements, practices, and procedures set forth in the LSS for any excess costs for those supplies or services. However, Deskbook previously provided to it. The terms and Contractor shall continue the performance of the work under conditions in those documents, as from time to time amended, this Agreement which has not been terminated. modified or changed, are incorporated herein by reference. 6.3 Except for defaults of subcontractors at any tier, However, provisions in this Agreement have priority in Contractor shall not be liable for any excess costs described at interpretation over contrary provisions asserted in the LSS paragraph 6.2 above if the failure to perform this Agreement Deskbook, in which case the provision in this Agreement arises from causes beyond the control and without the fault or shall be binding. negligence of Contractor. 10.1 This Agreement and all agreements and documents 6.4 If the failure to perform is caused by the default of a contemplated or stated to be incorporated herein constitute subcontractor at any tier, and if the cause of the default is one Agreement and are interdependent upon each other in all beyond the control of both Contractor and the subcontractor, respects. and without the fault or negligence of either, Contractor shall 10.2 All exhibits and schedules attached hereto are not be liable for any excess costs for failure to perform, unless incorporated by reference and are made part of this the subcontracted supplies or services were obtainable from Agreement for all purposes as if fully set forth herein. other sources in sufficient time for Contractor to meet the WARRANTIES, REPRESENTATIONS, AND required delivery schedule. CERTIFICATIONS NOTICE AND CERTIFICATION OF CLAIMS 11. Contractor warrants that it currently possesses all 7. Contractor agrees that it will provide written notice to the necessary licenses, permits, and approvals required in the Oversight Attorney of any claim it may have against the FDIC applicable jurisdictions to perform this Agreement and has the arising under or in connection with this Agreement and that it authority to enter this Agreement. will refrain from filing suit with respect to any such claim for 11.1 Contractor represents, warrants, and covenants that: (i) a period of sixty (60) days following FDIC’s receipt of such Contractor has no conflict with the interests of the FDIC or notice, that it will promptly meet with the FDIC after the former Resolution Trust Corporation that has not been providing such notice in a good faith effort to resolve the disclosed in writing to the FDIC; (ii) Contractor will advise claim and that the written notice of the claim shall be the Oversight Attorney immediately of all conflicts that accompanied by a certificate signed by an officer or general develop in the future; (iii) each person who provides services partner or senior official of Contractor that: (a) The claim is to the FDIC under this Agreement has reviewed, understands, made in good faith; (b) Supporting data are accurate and and agrees to act strictly in compliance with all provisions, complete to the best of Contractor’s knowledge and belief; requirements, and policies (including statutory and regulatory and (c) The amount requested accurately reflects the provisions) identified in the LSS Deskbook. Agreement adjustment for which Contractor believes the 11.2 Contractor agrees that the FDIC may require Contractor FDIC is liable. This clause is implemented on Agreement to execute additional warranties, representations, and execution for post-award relief and survives Agreement certifications. When Contractor executes additional termination. warranties, representations, and certifications, the executed CONFIDENTIALITY document will be incorporated by reference into this 8. Contractor agrees to comply with the regulations set forth Agreement. at 12 C.F.R. Part 366 (copy attached). BYRD AMENDMENT WORKPAPER AND DOCUMENT OWNERSHIP - 12. Contractor agrees to comply with the provisions of 31 ASSIGNMENT OF RIGHTS U.S.C. ?1352 (Byrd Amendment) and the implementing 9. All workpapers and other documents relating to this regulations at 24 C.F.R. Part 87. Contractor agrees that it engagement, which were prepared by the Contractor or under will complete either the attached Certification or the Contractor's direction, belong to the FDIC. The FDIC and Disclosure Form, as applicable. the Contractor agree that all of the Contractor's workpapers, INSURANCE AND BONDS correspondence, and all other documents (whether on paper, 13. Contractor shall maintain at all times during the period of tape, disc, or other electronic media) created under this performance of this Agreement, at its own expense, insurance, Agreement shall be "works made for hire." Contractor agrees such as comprehensive, liability, and worker's compensation, and assigns to the FDIC, by execution of this Agreement, all as may be necessary to protect the interests of the FDIC and rights and title it has or may have in the works made for hire Contractor. If this Agreement requires Contractor or its created under this Agreement. The assignment of rights to agent(s) to handle FDIC funds, Contractor shall maintain FDIC includes, but is not limited to, all copyright interest in reasonable coverage under a fidelity bond to cover potential the workpapers, correspondence, and other documents losses to the FDIC. Proof of insurance shall be in the form of


a binder or policy and shall be provided by Contractor upon should receive pertinent notices request of the Oversight Attorney. regarding contract matters.] DURATION OF THE AGREEMENT 14. The effective date of this Agreement is Federal Deposit Insurance Corporation ___________________________. This Agreement shall 1910 Pacific Avenue remain in effect for from the effective date Dallas, TX 75201 subject, however, to earlier termination by the FDIC as set herein. Contractor: [Insert the name of the responsible 14.1 Upon Agreement expiration or termination, Contractor individual who should receive pertinent agrees to forward to the FDIC all files and documents notices regarding contract matters. In concerning this engagement, including all work product of addition, insert the individual's address, the firm produced under this Agreement. Contractor agrees business telephone, pager, and e-mail that it shall not retain any materials created for the FDIC, address.] without the written consent of the FDIC. 14.2 This Agreement may be extended on its existing terms COUNTERPARTS by mutual agreement of the parties as shown from the parties’ 16. This Agreement may be executed in any number of intent to continue work under the ongoing Schedule rates or counterparts, each of which shall be deemed an original but by written agreement asserting a intention to continue work all of which shall constitute one and the same instrument. under this Agreement. HEADINGS NOTICES 17. Headings in this Agreement are for convenience of the 15. All notices to the parties pursuant to this Agreement shall parties only, and shall be given no substantive effect be sent by certified or registered mail or delivered by whatsoever. commercial courier to the address indicted below: ASSIGNABILITY FDIC: [Insert the name and business telephone 18. Contractor agrees that this Agreement cannot be of the responsible individual who assigned to any other party. should receive pertinent notices GOVERNING LAW regarding contract matters.] 19. This Agreement shall be governed by and construed in accordance with all applicable Federal laws and regulations Federal Deposit Insurance Corporation and, to the extent applicable, the laws of the State or District 550 17th Street, NW in which the FDIC office executing this Agreement is located. Washington, DC 20429 [Insert the name and business telephone of the responsible individual who


Therefore, the parties have caused this instrument to be executed by their duly authorized

    representatives on the dates set forth below.


By: _________________________________ Date: __________


     Typed or Printed


     Federal Deposit Insurance Corporation

By: Date: ________


     Typed or Printed


(The Schedules and Miscellaneous Documents Incorporated by Reference follow this page.)





Schedule A: Statement of Work or Specifications of the services to be performed with quantity

    (if any), delivery dates and place(s) of delivery.

Schedule B: Contractor Deposit of Payment Form and Substitute Form W-9

    Miscellaneous Documents Incorporated by Reference:

    Legal Support Services (“LSS”) Deskbook

Statement of Work

12 CFR Part 366

FDIC Eligibility Representations and Certifications {FDIC 3700/12 (10/00)}

Byrd Amendment forms


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