Contract Number Mr. Michael S. Berman President The Duberstein Group 2100 Pennsylvania Avenue, NW Suite 500 Washington, DC 20037 RE: Consulting services related to the industry and trade issues, and associated matters of importance to Fannie Mae Dear...
Exhibit 99.2
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Contract Number
Xx. Xxxxxxx X. Xxxxxx
President
The Xxxxxxxxxx Group
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
President
The Xxxxxxxxxx Group
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
RE: Consulting services related to the industry and trade issues, and associated matters of
importance to Xxxxxx Xxx
Dear Xx. Xxxxxx:
This letter confirms the agreement (the “Agreement”), effective as of January 1, 2007 (the
“Effective Date”) between The Xxxxxxxxxx Group (“you” or “Contractor”) and Xxxxxx Xxx concerning
services you have agreed to provide to Xxxxxx Xxx according to the terms and conditions set forth
below.
(a) Contractor shall provide services (the “Services”), including the furnishing of Deliverables
(as defined in Section 8 below), if applicable, as outlined in the statement of work (“Statement of
Work”) and/or purchase order (“Purchase Order”), which is/are attached as Exhibit 1 and made a part
of this Agreement, as well as any subsequent Statements of Work agreed upon by the parties or any
subsequent Purchase Order issued by Xxxxxx Xxx. References in this Agreement to a “Statement of
Work” shall include any document signed by both parties that describes work to be performed under
this Agreement. References herein to an “Order Form” shall mean either a Purchase Order or a
Statement of Work, whichever is applicable, all of which are incorporated into this Agreement by
reference. Except as otherwise noted in this Agreement, if there are any contradictions or
inconsistencies between this Agreement and the Order Form(s), the provisions of this Agreement
shall control, except as to provisions specifically identified in a particular Order Form as
modifying or amending specified provisions of this Agreement. Any such modifications or amendments
in an Order Form will control for purposes of that Order Form only.
(b) The Services shall be performed and completed to Fannie Mae’s reasonable satisfaction. If
Xxxxxx Xxx notifies Contractor of deficiencies in the Services, Contractor shall exercise its best
efforts to correct such deficiencies to Fannie Mae’s reasonable satisfaction within ten (10)
business days of receiving notice of such deficiencies. Xxxxxx Xxx shall not be required to pay for
Services until all deficiencies in the Services have been remedied to Fannie Mae’s reasonable
satisfaction.
(c) If Contractor reasonably believes that a request by Xxxxxx Xxx for a change in the Services
would cause an increase in the fees payable under the applicable Order Form or a change in the
schedule for
performance, Contractor shall immediately notify Xxxxxx Xxx and shall obtain Fannie
Mae’s written consent with respect to any such increase in fees or change in schedule.
(d) A Deliverable will be deemed accepted by Xxxxxx Xxx if Xxxxxx Xxx accepts the Deliverable in
writing or does not reject the Deliverable within thirty (30) days following receipt of the
Deliverable from Contractor, clearly and conspicuously marked “NOTICE OF DELIVERY.” If, within
twelve (12) months following Fannie Mae’s acceptance of a Deliverable, Xxxxxx Xxx discovers and
notifies Contractor of errors in the Deliverables, Contractor shall promptly correct such errors to
Fannie Mae’s reasonable satisfaction at no additional charge. If, after ten (10) calendar days
following receipt of notice of errors, Contractor has not cured all errors, Xxxxxx Xxx, at its sole
election, shall be entitled to: (i) immediately receive a full refund of all amounts paid with
respect to the defective Deliverable(s), upon return of such Deliverable(s) to Contractor; or (ii)
keep the defective Deliverables and deduct from amounts payable to Contractor the amounts that
would be required to cure the defects using third party services.
(a) The point of contact for each party regarding contract or business issues related to this
Agreement shall be the “Business Point of Contact” listed on the attached Order Form. The point of
contact for each party regarding billing issues related to this Agreement shall be the “Billing
Point of Contact” listed on the attached Order Form. The point of contact for each party regarding
Ethics and Disclosure, as described in Section 5 below, shall be the “Business Point of Contact”
listed on the attached Order Form. Either party may change its points of contact by written notice
to the other party signed by a Vice President of the party giving notice.
(b) Any notice(s) furnished in connection with this Agreement shall be in writing, shall be sent to
the other party’s Business Point of Contact listed on the applicable Order Form, or such other
Points of Contact designated as described in Section 2(a) above, and shall be deemed to have been
received: (i) upon the date of delivery, when delivered in person or by commercial courier or
overnight delivery service for which proof of delivery is furnished; (ii) when sent by confirmed
facsimile; or (iii) five (5) days after having been sent, postage prepaid, via certified mail,
return receipt requested.
Contractor agrees to provide the Services according to the schedule described in the applicable
Order Form. Unless otherwise specified in an Order Form, time is of the essence for completion of
Contractor’s obligations under this Agreement.
(a) Xxxxxx Xxx agrees to compensate Contractor for Services rendered in the amount and according to
the schedule described in the applicable Order Form.
(b) Except as provided below or in an Order Form, all of Contractor’s expenses incurred in
performing the Services under each Order Form are included in the hourly rates or fixed fees
described in the Order Form. If an Order Form specifies that expenses are to be separately
reimbursed, Xxxxxx Xxx will reimburse Contractor for actual, reasonable and documented
out-of-pocket expenses that were necessary for the performance of Services under this Agreement,
subject to the Contractor Travel Expense Reimbursement Guidelines in effect at the time the
expenses were incurred. The current version of such Guidelines is attached as Exhibit 3. Travel,
lodging and meal expenses of Contractor personnel engaged in performing Services under this
Agreement will be reimbursed only if such expenses are incurred in response to a special request by
Xxxxxx Xxx that such personnel travel to a particular location outside the Washington, D.C.
metropolitan area or such other location(s) specified in the Order Form at which Services are to be
provided. If such request by Xxxxxx Xxx is due to a problem with the Services attributable to
Contractor, there will be no such reimbursement.
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(c) Invoices as to any amounts due under this Agreement shall be provided on a monthly basis
(unless otherwise specified in an Order Form) to the Xxxxxx Xxx Billing Point of Contact listed on
the Order Form, with an electronic and/or paper copy of the invoice to the Xxxxxx Xxx Business Point of Contact, as
directed by such point of contact. Each invoice shall identify the Contract Number of this
Agreement and shall provide a detailed description of the Services and expenses for which charges
are due. Invoices shall be payable by Xxxxxx Xxx thirty (30) days after receipt of Contractor’s
invoice and required supporting documentation. Xxxxxx Xxx shall not be obligated to pay disputed
amounts, unless and until such dispute is resolved in Contractor’s favor. At Fannie Mae’s option,
payments of invoices shall be made by check or by electronic funds transfer (such as an ACH credit)
to Contractor’s bank account. In the event of an overpayment, Contractor (i) agrees to immediately
issue a refund to Xxxxxx Xxx by means acceptable to both parties, and (ii) if the overpayment was
made by electronic funds transfer, authorizes Xxxxxx Xxx to initiate an electronic debit transfer
from the Contractor’s account to correct the overpayment. If payments are made electronically,
Contractor agrees that Contractor shall receive remittance notices by electronic mail, only, and
will not receive a written remittance notice in the U.S. mail or otherwise.
(a) Xxxxxx Xxx adheres to the highest standards of ethical conduct and disclosure in its
interaction with government. Xxxxxx Xxx requires Contractor to comply with all applicable lobby,
gift, conflict of interest, ethics, and campaign contribution statutes, laws, and regulations and
to avoid any appearance of impropriety. Contractor understands that failure to comply with such
laws, and with the specific provisions of this section, may result in immediate termination of this
Agreement, delayed payment by Xxxxxx Xxx or other sanctions.
(b) Contractor agrees to comply with the following specific requirements in regard to direct or
indirect lobbying of any government entity.
(1) | The Statement of Work must indicate if Contractor expects to lobby, register as a lobbyist, or engage in lobby activity on behalf of Xxxxxx Xxx. If Contractor expects to change its status in this regard, Contractor must provide an amended Statement of Work or Order Form to the Xxxxxx Xxx Business Point of Contact reflecting that change in status prior to engaging in lobbying on behalf of Xxxxxx Xxx. | ||
(2) | Contractor shall respond in a timely manner to requests for information from Fannie Mae’s, Business Point of Contact as identified in accordance with Section 2, for the purpose of ensuring Fannie Mae’s compliance with applicable federal, state and local law, as well as conflict of interest laws, gift laws, tax laws, and laws pertaining to political contributions. Xxxxxx Xxx will similarly respond to any such requests from Contractor. | ||
(3) | In regard to federal lobbying activity, Contractor shall provide to Fannie Mae’s Business Point of Contact an accounting of any and all fees and services to be disclosed by Xxxxxx Xxx under the Federal Lobby Disclosure Act on each monthly invoice, or in another mutually agreed upon manner in writing. | ||
(4) | In regard to any state or local lobbying, Contractor shall obtain prior written approval from Fannie Mae’s Business Point of Contact prior to engaging in state or local lobbying on behalf of Xxxxxx Xxx, and further provide any information requested by Xxxxxx Xxx in questionnaires provided for the purpose of full and adequate disclosure of lobby activity. |
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(5) | Contractor shall, provide copies of any public filing disclosing the lobbying activities of Contractor on behalf of Xxxxxx Xxx. Any such document requiring an authorized signature by a representative of Xxxxxx Xxx shall be provided to Fannie Mae’s Business Point Contact for signature. | ||
(6) | Contractor shall not engage in grassroots lobbying, or any contact with the general public with the intent of directly or indirectly influencing a government decision, person or entity without advance written approval from Fannie Mae’s Business Point of Contact. It is generally the policy of Xxxxxx Xxx not to engage in grassroots lobbying, either directly or indirectly through its Contractors and their employees. | ||
(7) | Xxxxxx Xxx recognizes that standards for lobbying vary greatly and may be subject to interpretation and circumstance. Contractor shall consult with Fannie Mae’s Business Point of Contact on these matters, with the understanding that Contractor does not advise Xxxxxx Xxx in regard to ethics compliance, and that Xxxxxx Xxx has final authority to determine any issue of lobby compliance or disclosure in regard to this Agreement. |
(c) Xxxxxx Xxx recognizes that Contractor may engage in independent political, charitable, and
entertainment activity. However, Contractor may not engage in such activity on behalf of Xxxxxx
Xxx without explicit prior written approval from Fannie Mae’s Business Point of Contact. It is
generally the policy of Xxxxxx Xxx not to authorize contractors to make gifts of entertainment or
other items of value to any public official or employee on behalf of Xxxxxx Xxx.
(1) | Contractor shall not discuss campaign finance activities, or any gift or gratuity, or make any charitable contribution, while discussing any governmental decision with a public official or employee. | ||
(2) | Xxxxxx Xxx will not reimburse Contractor for any federal, state, or local campaign or charitable contribution, including charitable donations made at the behest of a public official, even when Xxxxxx Xxx may legally do so. | ||
(3) | Any request for campaign or charitable activity on behalf of Xxxxxx Xxx should be immediately referred to Fannie Mae’s Business Point of Contact. | ||
(4) | Xxxxxx Xxx recognizes that gifts of meals, travel, informational items and other gratuities may be both legal and appropriate. Any such payment shall be pre-approved by Fannie Mae’s Business Point of Contact. |
(d) Contractor shall comply with all applicable conflict of interest laws, including “revolving
door” prohibitions and limitations, in regard to current or former government employment by any
employee of Contractor. If Contractor employs current or former government officials or
employees, whether elected or appointed, or the immediate family members of such officials or
employees, Xxxxxx Xxx requires that Contractor inform Fannie Mae’s Business Point of Contact if
those individuals will work on matters covered by this Agreement.
(e) Contractor agrees to respond in full to a background survey provided in Exhibit 6 and provide
Xxxxxx Xxx with updates within 30 days if conditions or circumstances arise during the term of this
letter agreement and any extension which change any of the answers provided on the survey.
(f) Contractor shall comply with Xxxxxx Xxx Contractors’ Code of Business Conduct as detailed in
Exhibit 2.
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(g) Contractor understands that Xxxxxx Xxx may require Contractor to attend training concerning
matters of public sector ethics, and other issues of common interest to Xxxxxx Xxx.
Contractor hereby represents, warrants, covenants, and agrees that:
(a) Contractor’s performance of the Services will not violate any applicable law, rule, or
regulation; Contractor will have obtained all permits required to comply with such laws and
regulations; and Contractor, its subcontractors and their respective personnel are duly licensed
and authorized to perform the Services in the jurisdiction(s) where the Services are to be
rendered.
(b) Contractor is duly organized and authorized to enter into this Agreement and perform all
obligations set forth in this Agreement and Contractor’s performance under this Agreement will not
violate any contractual obligations Contractor may have to a third party;
(c) Neither the delivery to, nor use by, Xxxxxx Xxx of the Deliverables or Services as contemplated
by this Agreement will violate or in any way infringe upon the rights of other parties, including
proprietary and non-disclosure rights or trademark, trade secret, copyright, patent or other
intellectual property rights, and there are no existing, pending, or, to Contractor’s best
knowledge, threatened claims relating to the infringement of any such rights in connection with the
Deliverables or Services; provided, however, that this representation and warranty shall not apply
to portions of Deliverables furnished by Xxxxxx Xxx (without additions or modifications by
Contractor);
(d) All Deliverables will be free from defects in design, workmanship and materials, and all
Deliverables and Services will substantially conform with and perform according to any and all
descriptions, specifications or other documentation provided by Contractor and/or relied upon by
Xxxxxx Xxx, or which are otherwise incorporated into this Agreement or any Order Form;
(e) The Services shall be completed in a professional, workmanlike manner, with a degree of skill
and care that conform with industry standards; and
(f) Neither Contractor, nor any of its subcontractors, agents or employees is subject to any
non-competition, non-solicitation, non-disclosure or other similar agreements with any party that
would be breached upon the execution or performance of any of the terms of this Agreement.
Contractor shall not publish, or cause to have published, or make public use of Fannie Mae’s name,
logos, trademarks or any information about its relationship with Xxxxxx Xxx without the prior
written permission of Xxxxxx Xxx, which permission may be withdrawn at any time in Fannie Mae’s
sole discretion.
(a) For purposes of this Agreement, “Deliverables” shall include (i) all work products created in
connection with this Agreement by Contractor alone or with others (the “Work Products”) and (ii)
all other products, items or materials developed independently of this Agreement by Contractor
and/or third parties, without reference to Fannie Mae’s Confidential Information, equipment,
supplies or facilities, and provided to Xxxxxx Xxx in connection with performance by Contractor
under this Agreement (the “Pre-Existing Works”).
(b) All Work Products shall belong solely and exclusively to Xxxxxx Xxx, which will possess all
ownership rights in and to such Work Products and all related Intellectual Property Rights. For the
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purposes of this Agreement, “Work Products” shall include, without limitation, all designs,
drawings, discoveries, creations, reports, notes, tools, methods, technologies, data, data formats,
data compilations, methodologies, documentation, inventions, products, computer programs, systems, program names,
procedures, improvements, developments, drawings, notes, documents, business processes, information
and materials made, conceived or developed by Contractor, alone or with others, which result from
or relate to the Services performed under this Agreement. “Intellectual Property Rights” shall
mean, on a worldwide basis, all copyrights, patents, trademarks, service marks, trade secrets and
other proprietary and intellectual property rights of whatever nature.
(c) All Work Products shall be works made for hire under the U.S. copyright laws and all
Intellectual Property Rights in and to each Work Product shall vest in Xxxxxx Xxx on the date such
Work Product is created. If, under applicable law, all Intellectual Property Rights do not vest in
Xxxxxx Xxx, Contractor (on its own behalf and on behalf of its current and future employees, agents
and subcontractors) hereby irrevocably transfers, conveys and assigns in perpetuity to Xxxxxx Xxx
(including its successors and assigns) any and all present and future Intellectual Property Rights
that such persons may have in or to any Work Products, and irrevocably waives all moral rights in,
and all other Intellectual Property Rights to, all Work Products. Neither Contractor, its
employees, agents nor subcontractors shall have the right to copy or use the Work Products in any
manner except as reasonably necessary to provide Services under this Agreement.
(d) Xxxxxx Xxx (including its successors and assigns) shall have the right to obtain and to hold in
its own name patents, copyrights, registrations, or such other Intellectual Property Rights and
protection for the Work Products as Xxxxxx Xxx may xxxx appropriate. Contractor agrees to: (i)
assist Xxxxxx Xxx in every reasonable way requested by Xxxxxx Xxx, at Fannie Mae’s expense, to
obtain, apply for, register, secure, maintain, enforce and defend all Intellectual Property Rights
and statutory rights for the Work Products that Xxxxxx Xxx xxxxx appropriate; and (ii) otherwise
treat all Work Products as Confidential Information, as described below. Contractor irrevocably
agrees not to directly or indirectly contest the ownership rights of Xxxxxx Xxx (or its successors
or assigns) regarding the Work Products or related Intellectual Property Rights.
(e) Pre-Existing Work shall not be considered Work Products subject to ownership by Xxxxxx Xxx
under this Section 8. Unless specified otherwise in a separate agreement governing the Pre-Existing
Works, Xxxxxx Xxx shall have a non-exclusive, irrevocable, perpetual, royalty-free, fully paid-up,
transferable, worldwide license: (i) for internal purposes, to use, copy, display, operate,
maintain, support, modify, enhance, and prepare derivative works of the Pre-Existing Works (whether
or not incorporated into the Work Products); and (ii) for internal or external purposes, to use,
copy, display, operate, maintain, support, modify, enhance, prepare derivative works of,
sublicense, and distribute Pre-Existing Works that are incorporated into the Work Products
furnished by Contractor to Xxxxxx Xxx under this Agreement. If the Pre-Existing Works include works
owned by third parties, Contractor shall take all steps necessary to procure for Xxxxxx Xxx from
such third parties the rights described in this paragraph.
(f) Without Fannie Mae’s prior written approval, no Work Products will incorporate, link to or call
upon any works (including, without limitation, Pre-Existing Works) subject to copyleft licenses,
open source licenses or any other agreements that may give rise to any third party’s right to use
any of the Work Products or to limit Fannie Mae’s right to use the Work Products in any respect.
(g) Contractor agrees to include and enforce appropriate provisions in all agreements with
employees, agents and subcontractors to ensure the exclusivity of Fannie Mae’s ownership of Work
Products as described in this Section and the protection of Confidential Information, as described
in the Section below entitled “Confidential Information.”
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(a) If a party (the “Receiving Party”) obtains access to Confidential Information (as defined
below) of the other party (the “Disclosing Party”) in connection with the negotiation of or
performance under this Agreement, the Receiving Party agrees: (i) not to directly or indirectly
disclose the Confidential Information to any third party without the Disclosing Party’s prior
written consent; and (ii) to use the Confidential Information only as reasonably necessary to
perform its obligations under this Agreement.
(b) “Confidential Information” shall mean (i) all tangible or intangible information about or
belonging to the Disclosing Party or a third party, that is disclosed or otherwise becomes known to
the Receiving Party in connection with this Agreement and that is not a matter of public knowledge;
(ii) all trade secrets, customer information and intellectual property owned or licensed by the
Disclosing Party; (iii) the Work Products, which are the Confidential Information of Xxxxxx Xxx;
(iv) all personal information about individuals contained in the Disclosing Party’s
records (including, without limitation, names, addresses, social security numbers, and credit card
and other financial information); and (v) information concerning the existence and terms
of this Agreement (as well as all information regarding the negotiation of this Agreement), which
shall be construed as the Confidential Information of both parties. The Receiving Party shall use
at least the same degree of care to protect the Confidential Information of the Disclosing Party
from unauthorized disclosure or access that the Receiving Party uses to protect its own
Confidential Information, but not less than reasonable care. The Receiving Party shall promptly
notify the Disclosing Party of any loss, unauthorized use of, or access to Confidential Information
of the Disclosing Party of which the Receiving Party becomes aware.
(c) Information of the Disclosing Party shall not be considered Confidential Information if it: (i)
was previously rightfully known by the Receiving Party free of any obligation to keep it
confidential; (ii) is or becomes publicly known through no wrongful act of the Receiving Party;
(iii) is independently developed by the Receiving Party without reference to the Confidential
Information of the Disclosing Party; or (iv) is subject to disclosure pursuant to a subpoena,
judicial or governmental requirement, or order, provided that the Receiving Party has given the
Disclosing Party sufficient prior notice of such subpoena, requirement, or order, to permit the
Disclosing Party a reasonable opportunity to object to the subpoena, requirement, or order and to
allow the Disclosing Party the opportunity to seek a protective order or other appropriate remedy.
To the extent that Contractor has access to Fannie Mae’s records, Contractor agrees to maintain,
and to ensure that all of its subcontractors and agents maintain, appropriate measures to protect
the security, confidentiality and integrity of such records, including measures to protect against
the unauthorized use, access, destruction, loss or alteration of such records. Xxxxxx Xxx retains
the right to review audits, test results or other equivalent evaluations related to these measures.
Contractor and all parties acting on its behalf will at all times be and act as independent
contractors of Xxxxxx Xxx and, as such, no law, contract or other arrangement that has the effect
of conferring benefits upon officers or employees of Xxxxxx Xxx will be applicable in connection
with the Services rendered under this Agreement.
(a) Contractor may not subcontract any of its obligations under this Agreement without Fannie Mae’s
prior written consent, which may be withheld for any reason. References in this Agreement to
“subcontractors” shall mean not only parties that contract directly with Contractor, but also
parties that contract with subcontractors. Xxxxxx Xxx reserves the right to revoke its prior
approval of a subcontractor and direct Contractor to replace such subcontractor if the
subcontractor’s performance is deficient in any
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material respect. Contractor shall remain
responsible for Services or Deliverables provided by subcontractors to the same extent as
if such Services or Deliverables were provided by Contractor’s employees and, for purposes of this
Agreement, such work shall be deemed work performed by Contractor. Contractor shall be responsible
and liable for any and all costs associated with enforcing Fannie Mae’s rights under this Agreement
against Contractor’s agents and subcontractors. If Xxxxxx Xxx approves the use of subcontractors,
Contractor shall: (i) establish procedures to ensure compliance by both parties with the terms of
its subcontracts, including, without limitation, the timely payment of amounts due to
subcontractors; and (ii) comply with Fannie Mae’s policies concerning subcontracts with minority-and
women-owned business enterprises, as described on Exhibit 4, which may be revised from time to
time, and shall, upon request, submit reports to Xxxxxx Xxx, in the form requested by Xxxxxx Xxx,
regarding such compliance.
(b) Contractor’s agreements with agents and subcontractors approved to provide Services shall
provide Xxxxxx Xxx at least as much protection with respect to each such agent and subcontractor
that the following Sections of this Agreement provide Xxxxxx Xxx with respect to Contractor:
Section 6 (Representations and Warranties), Section 7 (Use of Name), Section 8 (Ownership of
Deliverables), Section 9 (Confidential Information), Section 10 (Protection of Records), Section 12
(Subcontracts/Assignments), Section 15 (Audit Rights), Section 16 (Non-Solicitation of Xxxxxx Xxx
Employees), Section 17 (Non-Competition), Section 18 (Xxxxxx Xxx Operations and Procedures),
Section 19 (Limitation of Liability), Section 20 (Indemnification), Section 21 (Liability
Insurance), Section 22 (Injunctive Relief) and, if applicable, the Section of the Statement of Work
regarding Fannie Mae’s option to hire.
(c) Upon request, Contractor shall provide to Xxxxxx Xxx copies of proposed and executed agreements
with agents and subcontractors.
(d) Neither party may assign this Agreement (by operation of law or otherwise) without the prior
written consent of the other party, and any attempted assignment without such consent shall be
void.
Xxxxxx Xxx hereby represents that, under Section 309(c)(2) of the Federal National Mortgage
Association Charter Act, 12 U.S.C. §1723a(c)(2), Xxxxxx Xxx is exempt from all state and local
taxes, except certain taxes on real property owned by Xxxxxx Xxx. Xxxxxx Xxx will not be
responsible for any such taxes paid on its behalf and Contractor will not bill or charge Xxxxxx Xxx
for any such taxes.
(a) This Agreement will become effective on the Effective Date and will terminate upon the
completion of the Services under all Order Forms to Fannie Mae’s reasonable satisfaction, unless
terminated earlier as described below.
(b) Notwithstanding any other provision of this Agreement, Xxxxxx Xxx has the right to terminate
this Agreement or any Order Form: (i) immediately, by written notice, upon material breach by
Contractor of the Agreement, if such breach cannot be remedied; (ii) at any time, by written
notice, if Xxxxxx Xxx, determines, in its absolute and sole discretion, that the Services are being
performed in a manner that is unsatisfactory to Xxxxxx Xxx, provided Xxxxxx Xxx has given
Contractor notice and ten (10) calendar days to correct such unsatisfactory performance; (iii)
automatically, if Contractor ceases to do business or is declared insolvent or bankrupt; (iv) at
any time, for convenience, upon at least ninety (90) calendar days’ prior written notice to
Contractor; or (v) immediately, by written notice, if Contractor breaches its obligations under
Section 9 (Confidential Information) or Section 10 (Protection of Records).
(c) Contractor shall have the right to terminate this Agreement or an Order Form for cause upon
written notice to Xxxxxx Xxx if Xxxxxx Xxx fails to pay Contractor according to the terms of this
Agreement or
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otherwise materially defaults in fulfilling its obligations under this Agreement and
does not cure such default within ninety (90) calendar days following receipt of written notice of
default.
(d) The termination of any particular Order Form shall not affect the parties’ respective duties
and obligations under any other Order Forms then in effect. Unless otherwise specified in a
termination notice, the termination of this Agreement shall terminate all Order Forms in effect on
the date of such termination. If a termination notice provides that specified Order Forms are not
terminated or affected by the termination of the Agreement, then such Order Forms shall be
performed until completed as provided in such Order Forms or until the Order Forms are terminated
in accordance with this Section, in each case subject to the terms of this Agreement, which will
remain in effect for such Order Forms until completion or termination.
(e) If this Agreement or an Order Form is terminated prior to completion of the Services, Xxxxxx
Xxx will pay Contractor only for those authorized Services rendered to Fannie Mae’s reasonable
satisfaction prior to termination. Within five (5) days of termination of this Agreement or an
Order Form, Contractor shall deliver to Xxxxxx Xxx, to the extent relevant to Order Forms affected
by such termination, all: (i) work in progress; (ii) Xxxxxx Xxx property; and (iii) materials
containing or embodying Xxxxxx Xxx Confidential Information or Work Products. Contractor shall not
make or retain any partial or entire copies of any of the foregoing and will destroy all computer
files containing such data or information. The parties will continue to be bound by those sections
of this Agreement that survive termination.
Contractor will provide Xxxxxx Xxx, its designated independent audit firm, and its government
regulators access, upon reasonable prior notice, to any facility at which either Contractor or any
of its subcontractors is providing the Services and to data, records, equipment, software, and
personnel for the purpose of performing audits and inspections relating to the performance of the
Services under this Agreement.
During the term of this Agreement, Contractor will not, without the prior written consent of Xxxxxx
Xxx, solicit any employee of Xxxxxx Xxx who is directly engaged in the receipt of Services under
this Agreement, during the period in which such employee is so engaged, to seek employment with
Contractor. This restriction shall not apply to employees responding, on their own initiative, to
internal job postings of Contractor or to advertisements made in job fairs or in media circulated
to the general public at large.
Considering the highly confidential and proprietary nature of Fannie Mae’s information as to which
Contractor is likely to have access hereunder and the highly competitive marketplace in which
Xxxxxx Xxx participates, Contractor agrees that, during the term of this Agreement and for a period
of one (1) year after completion of performance under this Agreement, it shall not, directly or
indirectly, provide to the Federal Home Loan Mortgage Corporation (“Xxxxxxx Xxx”), Government
National Mortgage Association (“Xxxxxx Xxx”), any of the Federal Home Loan Banks, or other
competitors of Xxxxxx Xxx listed on the applicable Order Form, any services or deliverables that
are similar to the Services and Deliverables provided under this Agreement. The foregoing
obligation is in addition to, and not in substitution for, Contractor’s obligations under this
Agreement to maintain Xxxxxx Xxx Confidential Information in confidence. Before assigning any
individual to perform Services hereunder, Contractor will require such individual to execute the
Certification Form attached as Exhibit 5, under which such individual agrees to be bound by the
foregoing non-compete obligations and certain other obligations under this Agreement. Contractor
shall promptly provide a copy of such Certification Form to Xxxxxx Xxx and shall maintain a copy in
Contractor’s records.
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Contractor shall schedule all work under this Agreement to avoid interruption of normal Xxxxxx Xxx
operations. Contractor shall ensure that its employees, subcontractors and agents that perform
Services under this Agreement will abide by all reasonable directives issued by Xxxxxx Xxx, all
on-site rules of behavior, work schedules, security procedures and other standards and procedures
for contractors as established or revised by Xxxxxx Xxx from time to time. The current version of
the Xxxxxx Xxx security procedures and on-site rules of behavior for contractors is attached as
Exhibit 2 and is incorporated into this Agreement by reference.
Except with respect to indemnification obligations under Section 19, or breach of any obligations
under Sections 8, 9 or 10, neither party, nor any of its affiliates, partners, officers, directors,
employees, contractors, agents or representatives, shall be liable for any incidental, indirect,
punitive, exemplary, or other special or consequential damages arising under or in connection with
this Agreement, the Services or the Deliverables, whether based upon contract, tort, breach of
warranty or any other legal or equitable grounds, even if such party has been advised of the
possibility of such damages.
Contractor agrees to indemnify, hold harmless, and defend Xxxxxx Xxx, its affiliates, and their
respective partners, officers, directors, employees, contractors, agents and representatives (each
of whom is referred to as an “Indemnified Party”) against all liability, costs, actions, suits,
judgments, damages, and expenses (including reasonable attorneys’ fees and court costs) arising out
of or resulting from any third party claim in connection with:
(a) allegations that the Deliverables or Services infringe or violate any Intellectual Property
Rights or other proprietary, confidentiality or non-disclosure rights of a third party;
(b) Contractor’s negligence, willful misconduct, breach of any representation or warranty under
this Agreement, or failure to perform its obligations under this Agreement; or
(c) any injuries to persons (including death) or damages to property caused by the negligent or
willful acts or omissions of Contractor or its employees, agents or subcontractors (except to the
extent that such injuries or damages are caused by the gross negligence or willful misconduct of
Xxxxxx Xxx or any of its employees).
Contractor shall not settle any such suit or claim without Fannie Mae’s prior written consent if
such settlement would be adverse to Fannie Mae’s interest. Contractor agrees to pay or reimburse
all costs that may be incurred by Xxxxxx Xxx in enforcing this indemnity, including attorneys’
fees. Xxxxxx Xxx may, at its option, conduct the defense in any third party action arising as
described above and Contractor agrees fully to cooperate with such defense.
During the term of this Agreement (and, to the extent that any insurance is carried on a claims
made basis, for such period thereafter that claims may be legally made with respect to occurrences
during the term) and in any event prior to commencement of work under this Agreement, Contractor
shall have and maintain in force, at Contractor’s expense, at least the following insurance
coverage and provide to Xxxxxx Xxx Certificates of Insurance from companies acceptable to Xxxxxx
Xxx evidencing:
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(a) Workers’ Compensation — (Coverage A) insurance (and similar coverage outside of the
United States) as required by statute in the state or jurisdiction in which employees are located
and Employer’s Liability (Coverage B) insurance, with limits of not less than $1,000,000 — each
accident, $1,000,000 each employee — disease, and $1,000,000 — policy limit.
(d) Fidelity Bond — covering loss due to dishonest acts of Contractor, Contractor’s
employees, agents or subcontractors, with limits of not less than $5 million. Xxxxxx Xxx will be
named as a loss payee with respect to its interests.
The insurance described above shall be primary and non-contributory with respect to any insurance
or self-insurance that may be maintained by either party and shall waive all rights of subrogation
against Xxxxxx Xxx and its affiliates. The limits required above may be shown as a combination of
primary and umbrella coverage. The insurers selected by Contractor shall each have an A.M. Best &
Co. rating of not less than “A-” or be otherwise acceptable to Xxxxxx Xxx. Contractor shall require
its insurers to provide Xxxxxx Xxx no less than thirty (30) days’ written notice prior to any
modification, cancellation, or non-renewal of the policies. Contractor will cause its insurers to
issue Certificates of Insurance, issued by an authorized representative of the insurer, evidencing
that the coverage and policy endorsements required under this Agreement are maintained in force.
Contractor shall assure that its subcontractors, if any, maintain insurance coverage as specified
in this Section or are endorsed as additional insureds on all required Contractor policies and
provide evidence of such upon request by Xxxxxx Xxx. If at any time Contractor or any
subcontractor, insured or insurance carrier fails to procure or maintain the required insurance,
Xxxxxx Xxx, at its option, may procure such insurance on behalf of Contractor and Contractor shall
reimburse Xxxxxx Xxx for the cost of such insurance upon demand.
The minimum limits of coverage described in this Section are not intended, and shall not be
construed, to limit any liability or indemnity of Contractor under this Agreement.
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Contractor understands and agrees that Xxxxxx Xxx will suffer irreparable harm if Contractor
breaches any of the obligations imposed by Sections 7, 8, 9, 10, 16 or 17 of this Agreement and
that monetary damages will be inadequate to compensate Xxxxxx Xxx for any such breach.
Accordingly, Contractor agrees that, in the event of a breach or threatened breach of any of such
provisions, Xxxxxx Xxx, in addition to and not in limitation of any other rights, remedies or
damages available to Xxxxxx Xxx at law or in equity, shall be
entitled to preliminary and permanent injunctive relief in order to prevent or restrain any such
breach without the necessity of proving irreparable harm or posting bond.
No failure to contest a breach of a term, provision, or clause of this Agreement will be deemed to
waive or excuse such breach unless such waiver or consent is in writing and executed by a duly
authorized representative of each party. Any consent by any party to, or waiver of, a breach by
the other, whether express or implied, will not constitute consent to, waiver of, or excuse for any
other breach.
This Agreement shall be governed by and construed solely and exclusively in accordance with the
laws of the District of Columbia, without reference to or application of its conflicts of law
principles. In the event that any provision of this Agreement conflicts with the law under which
this Agreement is to be construed or if any such provision is held invalid, void or unenforceable
by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to
be restated to reflect as nearly as possible the original intention of the parties in accordance
with applicable law, and the remainder of this Agreement shall remain in full force and effect.
Neither party shall have any continuing obligations to the other upon the effective date of
termination of this Agreement, except that any provisions of this Agreement that contemplate their
continuing effectiveness, including, without limitation, Sections 6, 7, 8, 9, 10, 16, 17, and 19
through 27, shall survive termination or expiration of this Agreement for any reason and continue
in full force and effect.
The parties consent to the jurisdiction and venue of the District of Columbia courts or federal
courts sitting in the District of Columbia. The parties agree further that all disputes or
controversies that may arise in connection with this Agreement shall be determined exclusively by
such courts of the District of Columbia.
The parties agree that this Agreement, together with all Purchase Orders, Statements of Work and
other Exhibits, including any modifications, attachments and documents incorporated by reference,
sets forth the entire understanding between Xxxxxx Xxx and Contractor and supersedes all prior
agreements between them with respect to the subject matter of this Agreement. Any modification to
this Agreement must be in writing and signed, by non-electronic means, by authorized
representatives of both parties. If requested by Xxxxxx Xxx, Contractor will provide written or
electronic certification of its compliance with the terms of this Agreement.
If you agree to the terms contained in this letter Agreement, please sign below and on the last page of the Order
Form to note your acceptance and return two (2) originals to the Business Point of Contact listed
on the Order Form. A fully executed Agreement will be forwarded to you for your files.
Should you have any questions or require additional information, please contact the Business Point
of Contact listed on the Order Form.
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Very truly yours,
XXXXXX XXX
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President, Corporate Procurement
Date: May 22, 2007
Name: Xxxxxxx Xxxxxx
Title: Vice President, Corporate Procurement
Date: May 22, 2007
AGREED TO AND ACCEPTED:
CONTRACTOR: THE XXXXXXXXXX GROUP
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President
Date: May 11, 2007
Name: Xxxxxxx X. Xxxxxx
Title: President
Date: May 11, 2007
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EXHIBIT 1
STATEMENT OF WORK
STATEMENT OF WORK
This Statement of Work is part of and is governed by the terms of the letter agreement (the
“Agreement”) between the undersigned parties with an Effective Date of the 1st day of January,
2007. The Agreement remains in full force and effect, as supplemented or modified by this Statement
of Work. Capitalized terms in this Statement of Work shall have the meanings defined in this
Statement of Work or in the Agreement. Purchase Orders that are issued in connection with this
Statement of Work shall be read together with this Statement of Work and deemed to be Order Forms
issued under the Agreement.
Contractor began or shall begin performing Services under this Statement of Work on the
1st day of January, 2007 (the “Effective Date” of this Statement of Work). This
Statement of Work shall remain in effect until the Statement of Work or the Agreement is
terminated, in accordance with the Agreement
2. Points of Contact
Contractor’s Business Point of Contact | Fannie Mae’s Business Point of Contact | |||||||
Name:
|
Xx. Xxxxxxx X. Xxxxxx | Name: | Xxxxx Xxxxxxx | |||||
Title:
|
President | Title: | Sr. Vice President — Communications | |||||
Phone:
|
(000) 000-0000 | Phone: | 000-000-0000 | |||||
Fax:
|
(000) 000-0000 | Fax: | ||||||
Email:
|
Email: | Xxxxx_Xxxxxxx@XxxxxxXxx.xxx | ||||||
Address:
|
The Xxxxxxxxxx Group 0000 Xxxxxxxxxxxx Xxxxxx, XX Xxxxx 000 Xxxxxxxxxx, XX 00000 |
Address: | 0000 Xxxxxxxxx Xxxxxx, XX X/X: 0X-000 Xxxxxxxxxx, XX 00000-2892 |
Contractor’s Billing Point of Contact | Fannie Mae’s Billing Point of Contact | |||||||
Name: |
Xx. Xxxxxxx X. Xxxxxx | Name: | Xxxxx Xxxxxxx | |||||
Title: |
President | Title: | Sr. Vice President — Communications | |||||
Phone: |
(000) 000-0000 | Phone: | 000-000-0000 | |||||
Fax: |
(000) 000-0000 | Fax: | ||||||
Email: |
Email: | Xxxxx_Xxxxxxx@XxxxxxXxx.xxx | ||||||
Address: |
The Xxxxxxxxxx Group |
Address: | 0000 Xxxxxxxxx Xxxxxx, XX |
|||||
0000 Xxxxxxxxxxxx Xxxxxx, XX |
X/S: 1H-128 |
|||||||
Suite 500 |
Washington, DC 20016-2892 | |||||||
Washington, DC 20037 |
Contractor shall provide consulting services related to industry and trade issues associated with
Xxxxxx Xxx. Contractor will not engage in “lobbying contacts” or “lobbying activities” as defined
under the Lobbying Disclosure Act of 1995 and will not register as a federal or state lobbyist on
behalf of Xxxxxx Xxx.
Date Services to Begin:
|
January 1, 2007 | |||
Date Services to End:
|
December 31, 2007 | |||
Milestone Dates (if applicable): |
Letter Agreement Form 032306
5. Fees for Services — Complete one of the following subsections A, B, or C:
A. Fixed Fee
|
à | Total Fixed Fee to be Paid: $400,000, payable in quarterly installments of $100,000.00 each. | ||
à | For clarification, if Contractor is to be compensated based on a fixed fee, Contractor will be responsible for successfully completing the Deliverables and other Services under this Statement of Work for not more than the fixed fee amount listed above (subject to any adjustments to this amount to which Xxxxxx Xxx has consented in writing pursuant to Section 1(c) of the Agreement to account for scope changes or additional Services required by Xxxxxx Xxx). | |||
à | If the Fixed Fee is payable in a lump sum, the payment is due upon completion of the Services and Deliverables to Fannie Mae’s reasonable satisfaction. | |||
à | If the Fixed Fee is payable in installments, payments are due in the following amounts on the following dates or upon completion of the following milestones, subject to Fannie Mae’s acceptance of the related Services and Deliverables: |
Installment Amount |
Due Date or Milestone Description | |||
$100,000.00/calendar quarter | Billable quarterly in advance during the term of this SOW. |
B. Hourly
Rate
|
à | Total Fees Due Shall Not Exceed: $ Not applicable | ||
à | Hourly Rates shall not exceed the rates per person or per job category listed on the attached rate card. | |||
à | For clarification, when Xxxxxx Xxx issues a Purchase Order or Statement of Work for Services to be rendered on a time and materials basis, unless expressly stated to the contrary in such Purchase Order or Statement of Work, any reference to a total charge or dollar amount for the Services (e.g., an amount set forth in the “Quantity,” “Item Total,” or “Total PO Amount” sections of a Purchase Order) shall be considered to be a non-binding, good faith estimate of the total charges for the Services under such Purchase Order or Statement of Work based on the rates set forth therein, and do not represent a minimum total charge for the Services. |
C. Other — If
fees are payable on
any |
||
basis other than fixed fee or hourly
|
No other fees or expenses are payable under this SOW. | |
rates, describe the payment terms here. |
6. Ethics and Disclosure — If this Agreement includes services for attempting to influence
government action, or any other form of lobbying, then the following are required. Please also
see Section 5 of the Agreement
Check If Applicable or
indicate “N/A”:
|
N/A | Federal Lobbying: Contractor will timely provide Xxxxxx Xxx the amount of fees and services which are reportable as lobby activities under the Federal Lobby Disclosure Act. | ||
N/A | State/Local Lobbying: Contractor will not engage in any state or local lobbying requiring registration or disclosure by Contractor or Xxxxxx Xxx under a state or local lobby law without such prior approval in a letter signed by Fannie Mae’s Business Point of Contact. |
7. Documents Incorporated by Reference — In addition to the documents that are included in the
definition of “Agreement,” the following are documents (proposals, marketing materials, etc.) that
are incorporated by reference into the Agreement with respect to this Statement of Work. If there
are any contradictions or inconsistencies between any such documents and any other terms of the
Agreement, the latter shall control:
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List here any other special terms agreed to by the parties:
This Statement of Work and the Agreement supersede all prior agreements, representations and
understandings between the parties with respect to the subject matter of this Statement of Work.
Agreed to by:
XXXXXX XXX | CONTRACTOR: THE XXXXXXXXXX GROUP | ||||||
By:
|
/s/ Xxxxxxx Xxxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | ||||
Name:
|
Xxxxxxx Xxxxxx | Name: | Xxxxxxx X. Xxxxxx | ||||
Title:
|
Vice President, Corporate Procurement | Title: | President | ||||
Date: May 22, 2007 | Date: May 11, 2007 |
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