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HomeMy WebLinkAboutContractual Services Agreement - Diversity Compliance Officer (Trinal, Inc.)RESOLUTION 4195 -12 Passed by the Common Council of the City of South Bend, Indiana July 9, 12 20 Attest: Presented by me to the Mayor of the City of South Bend, Indiana July 10, 2012 City Clerk President of Common Council Approved and signed by me '7 v t i 1 1 20 -!—Z City Clerk =- Aw RESOLUTION q �- I �- Bill No. 12- (0 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, APPROVING THE CONTRACTUAL SERVICES AGREEMENT SUBJECT TO BUDGETARY APPROPRIATIONS FOR THE DIVERSITY COMPLIANCE OFFICER Gry/" on April 12, 2011, the South Bend Common Council passed ordinance No. 10081 -11 addressing "Minority and Women Business Enterprise "Diversity Development Programs" which have been codified into the South Bend Municipal Code as § 14.5 -1 through§ 14.5 -12; and GA" on May 14, 2012, the South Bend Common Council adopted Resolution No. 4180 -12 approved the Minority /Women Business Enterprise Utilization Board's recommendation for the engagement of a Diversity Compliance Officer, subject to an Agreement being approved by the Common Council; and. 6A South Bend Municipal Code as §14.5-9 and §14.5-10 set forth the roles and responsibilities of the Diversity Compliance Officer; and GA" on May 29, 2012, the Board of Public Works of the City of South Bend entered into an Agreement with Trinal, Inc. to provide services as the Diversity Compliance Officer which are being sent to the Council for approval. r i . r r. ..r i.r r r (fr r (fr r r [frr r tJr a .i• . r r r r � � r r Section I. The "Agreement for Professional Services by and between the City of South Bend, Indiana and Trinal, Inc." was approved by the Board of Public Safety on May 29, 2012, and is attached for review by the Council. Section II. The Council approves said Agreement subject to yearly budget appropriations as set forth therein. Section III. This Resolution shall be in full force and effect from and after its adoption by the Council and approval by the Mayor. Member of the Common ouncil Pete Buttigi a ?!��- ,aff inClerk'a Office _ South Bend, Indiana JUL -3 ZQ1Z PRESEN*U- City Clerk -C —a- J4­0 APPROVED JOHN VOORDE CITY CL FIK, SOUTH BEND, IN TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 12 -61 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, APPROVING THE CONTRACTUAL SERVICES AGREEMENT SUBJECT TO BUDGETARY APPROPRIATIONS FOR THE DIVERSITY COMPLIANCE OFFICER Respectfully report that they have examined the matter and that in their opinion, this bill is being recommended to the full Council with a favorable recommendation. This bill was heard by the Personnel & Finance Committee. Karen L. White Chairperson, Committee of the Whole Soil T8 B� %1 City of South Bend MACE /j Common Council ' 1g65 R 441 County -City Building • 227 W. Jefferson Blvd South Bend, Indiana 46601 -1830 Derek D. Dieter President Oliver J. Davis Vice - President Karen L. White Chairperson, Committee of the Whole Tim Scott First District Henry Davis, Jr. Second District Valerie Sch ey Third District Fred Ferlic Fourth District David Varner Fifth District Oliver J. Davis Sixth District July 3, 2012 The South Bend Common Council 4th Floor County -City Building South Bend, Indiana 46601 Dear Council Members: (574) 235 -9321 Fax (574) 235 -9173 http://www.southbendin.gov On May 9th I filed a cover letter with the first resolution addressing the MBEWBE Utilization Board's recommendation for a Diversity Compliance Officer. The attached resolution is the 2nd step to needed to finalize the contractual arrangement for the Diversity Compliance Officer Contractual Services. The resolution makes all such services subject to proper budgetary appropriations. I request that this proposed resolution be referred to the Personnel and Finance Committee so that it may be heard next Monday. Thank you. Mos s' cerely, Derek D. Dieter - At Large K en L. White, Chairperson Gavin Ferlic Personnel and Finance Committee At Large South. Bend Common Council Karen L. White Attachments At Large -0 � 6 Foie in C- 0 � J0 4V Cliiit.E • ' F 5, AGREEMENT FOR PROFESSIONAL SERVICES BY AND BETWEEN THE CITY OF SOUTH BEND, INDIANA AND TRINAL, INC. (Diversity Compliance Officer) THIS AGREEMENT is made effective the 7 01hay of f (,c, , 2012 by and between the City of South Bend, Indiana, a municipal corporation organized and operating under the laws of the State of Indiana, acting by and through its Board of Public Works ( "City ") and TRINAL, INC., a For - Profit Foreign Corporation registered to conduct business in Indiana and having its principal place of business at 329 West 18th Street, Suite 401 Chicago, Illinois 60616 ( "Contractor "). For and in consideration of the mutual covenants and promises contained herein, the City and Contractor hereby agree as follows: Section 1. Duties of the Contractor. The Contractor shall provide the Services which are more particularly described at Exhibit "A" attached hereto and incorporated herein. The Contractor shall execute its responsibilities by following and applying at all times the highest professional and technical guidelines and standards. Section 2. Consideration. The Contractor will be paid as set forth at Exhibit "A ". The total consideration under this Agreement shall not exceed the sums of Sixty -seven Thousand Four Hundred and 00 /100 Dollars ($67,400.00) for 2012, Sixty -six Thousand One Hundred Thirty -six and 00 /100 Dollars ($66,136.00) for 2013, and Fifty Thousand Seven Hundred Seventy -three and 00 /100 Dollars ($50,773.00) for 2014. The grand total consideration under this Agreement shall not exceed the total sum of One Hundred Eighty -four Thousand Three Hundred and Nine 00 /100 Dollars ($184,309.00) for the three (3) year period. Any payment that the City may deny or withhold or delay shall not be subject to penalty or interest under Indiana Code § 5 -17 -5. Section 3. Term (and Renewal Option, if Applicable). This Agreement shall be effective for a period of approximately Thirty (30) months commencing on June 1, 2012, ('Effective Date ") and shall end on December 31, 2014 ( "Expiration Date "). The Parties may mutually agree in writing to extend the term of this Agreement for an additional period of time after the Expiration Date, subject to the same terms and conditions set forth in this Agreement unless otherwise mutually agreed by the Parties in writing. Section 4. 'Assignment; Successors. The Contractor shall not assign or subcontract the whole or any part of this Agreement without the prior written consent of the City. Section 11. E- Verify. The Contractor affirms under the penalties of perjury that he /she /it does not knowingly employ an unauthorized alien. The Contractor shall enroll in and verify the work eligibility status of all his/her /its newly hired employees through the E -Verify program as defined in IC 22- 5- 1.7 -3. The Contractor shall not knowingly employ or contract with an unauthorized alien. The Contractor shall not retain an employee or contract with a person that the Contractor subsequently learns is an unauthorized alien. The Contractor is not required to participate in the E -Verify program should the E -Verify program cease to exist. Additionally, the Contractor is not required to participate if the Contractor is self - employed and does not employ any employees. The Contractor shall require his/her /its subcontractors, who perform work under this contract, to certify to the Contractor that the subcontractor does not knowingly employ or contract with an unauthorized alien and that the subcontractor has enrolled and is participating in the E -Verify program. The Contractor agrees to maintain this certification throughout the duration of the term of a contract with a subcontractor. The City may terminate for default if the Contractor fails to cure a breach of this provision no later than thirty (30) days after being notified by the City. Section 12. Minority and .Women's Enterprise Diversity Development. Persons, partnerships, corporations, associations, or joint venturers awarded a contract by the City of South Bend through its agencies, boards, or commissions shall not discriminate against any employee or applicant for employment in the performance of a City contract with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of race, sex, religion, color, national origin, ancestry, age, or disability that does not affect that person's ability to perform the work. In awarding contracts for the purchase of work, labor, services, supplies, equipment, materials, or any combination of the foregoing including, but not limited to, public works contracts awarded under public bidding laws or other contracts in which public bids are not required by law, the City, its agencies, boards, or commissions may consider the Contractor's good faith efforts to obtain participation by those Contractors certified by the State of Indiana as a Minority Business ( "MBE ") or as a Women's Business Enterprise ( "WBE ") as a factor in determining the lowest, responsible, responsive bidder. In no event shall persons or entities seeking -the award of a City contract be required to award a subcontract to an MBE/WBE; however, it may not unlawfully discriminate against said WBE /MBE. A finding of a discriminatory practice by the City's MBE /WBE Utilization Board shall prohibit that person or entity from being awarded a City contract for a period. of one (1) year from the date of such determination, and such determination may also be grounds for terminating the contact for which the discriminatory practice or noncompliance pertains. Notwithstanding the foregoing, the award and performance of all City contracts shall comply with applicable federal, state, and local laws. Services- Professional TRINAL.doc 3 Section 13. Corporate Authority. The person signing on behalf of the Contractor represents that he /she has been duly authorized to execute this Agreement on behalf of the Contractor, and has obtained all necessary and applicable approvals to make this Agreement fully binding upon the Contractor after acceptance by the City. IN WITNESS WHEREOF, the Parties hereto, through their duly authorized representatives, have caused this Agreement to be executed as of the day and year first written above. The parties have read and understand the foregoing terms of this Agreement and do, by their respective signatures hereby agree to its terms. TRINAL, INC. gna w-e Printed Name and Due street Address SIU � � � C ' i hn" stzrte Zip Jeep tone ax ' CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS 4. A A i Gary ilot, President 1tatlrrvn'RdM. Member Don I s ber O A EST. Martin, Signature Pa e to Service Agreement by and between Board of Public Works and Trinal, Iric., datedG /� . Services - Processional TRINAL.doc 4 EXHIBIT A Scope of Services F TRINAL® EXHIBIT A SERVICES Trinal, Inc. proposes to provide professional services to the City of South Bend, Indiana in response to its Request for Proposals for Diversity Compliance Officer Contractual Services for the Diversity Utilization Board (DUB) and the Common Council of the City of South Bend. Based upon the criteria outlined in the RFP for such services and our company's experience in developing, implementing, monitoring and reporting on diversity initiatives for the public and private sectors, we propose to execute our scope in the following manner. 2012 - SCOPE OF SERVICES I. OUTREACH a. Develop MBE/WBE/DBE outreach program b. Implement MBE/WBE /DBE outreach program c. Report outcomes of MBE/WBE/DBE outreach program in mutually agreed upon format d. Coordinate two(2) outreach initiatives, such as MBE/WBE/DBE networking events and Capacity building workshops e. Create outreach materials for public distribution f. Establish linkages with Professional and Trade Associations, and Community-Based Organizations, such as the South Bend NAACP Branch, Urban League of South Bend & St. Joseph County, and the Chamber of Commerce of St. Joseph County g. Assist in identifying existing and potentially certifiable MBE/WBE/DBE firms h. Create brochure outlining City's Diversity program and goals II. REPORTING a. Create reporting format to capture MBE/WBE/DBE spend on federally funded projects b. Assist in the compilation and completion of the MBE/WBE Participation Report to be filed with the Office of the City Clerk by third (3rd) Wednesday of each January, beginning January 2013 c. Draft and submit 2012 Diversity Compliance Report in a mutually agreed upon format d. Create MBE/WBE procurement forms for departments to report MBE/WBE spend e. Provide monthly report of project activity III. MEETINGS a. Initial kick -off meeting with project stakeholders to discuss targeted outreach and diversity tracking goals and objectives b. Conference Calls with project stakeholders. Average of two (2) per month for 2012 c. Attend meetings, as requested, with Professional and Trade Associations to present City's new outreach program d. Attend meetings, as requested, with identified City representatives and other key project stakeholders e. Attend and present at one (1) meeting with St. Joseph Valley Building Trades Council and the Building and Construction Trades Local Unions of St. Joseph County f. Develop and prepare meeting handouts relative to City outreach program TR I NAL® IV. PROGRAM ADMINISTRATION a. Review MBE/WBE Diversity Development Program as outlined in Ordinance No. 1008 1 -11 for compliance with industry best practices b. Provide recommendations regarding best practices and assist in the design and implementation of recommendations c. Provide technical guidance to City Administration, Public Works Director, Procurement/Purchasing Director on MBE/WBE Diversity Development Program d. Assist in developing capacity building programs and mentor - protege programs e. Provide technical guidance in annual review of Program V. GPTSTM (Global Project Tracking System) a. Initial set -up of Trinal's proprietary, web -based MBE/WBE and Workforce Compliance system 2013 - SCOPE OF SERVICES I. GPTSTM A. Full rollout of web -based compliance tracking and reporting system II. Training A. Train City staff on utilization of GPTSTM III. Reporting A. Assist City staff with development of MBE/WBE- related reports B. Assist City staff with preparation of reports 2014 - SCOPE OF SERVICES 1. GPTSTM A. Maintenance of GPTSTM IL Training A. Additional training of City staff on utilization of GPTSTM III. Program Administration a. Conduct audit of Program for compliance with said goals and objectives TR 1 NAL® FEES Trinal, Inc. proposes to provide professional services to the City of South Bend, Indiana (City) in response to its Request for Proposals for Diversity Compliance Officer Contractual Services for the Diversity Utilization Board (DUB) and the Common Council of the City of South Bend. Based upon our understanding of South Bend's Ordinance No. 10081 -11 addressing Minority and Women Business Enterprise Diversity Development Programs, as amended, and in response to the tasks as outlined in the RFP, and our experience in developing, implementing, monitoring and reporting on diversity initiatives for the public and private sectors, we propose the following costs to perform our proposed scope of services contained herein (Section 4) Scope of Services and to initiate the implementation of our proprietary web -based diversity management system, GPTSTM. YEAR DESCRIPTION COST 2012 Professional Services (Outreach, Meeting, Reporting and Program Administration.) *Based on Hourly Rates for Services determined by the City with an estimated not to exceed amount of $66,000.00 for services rendered from May 1St — December 31, 2012. GPTSTM Software License/Hosting Fee Waived Report Customization $1,400.00 Total Costs for Professional Services and the GPTSTM 2012 $67,400.00 2013 Professional Services *Based on Hourly Rates for Services determined by the City with an estimated not to exceed amount of $40,000.00 for services rendered from January I` — December 31, 2013. GPTSTM On -Site Training for South Bend staff $2,345.00 Initial Training for Vendors $3,345.00 Software License/Hosting Fee $20,638.00 Customer Support Fee $8,400.00 On -Site Setup & Data Loading $3,608.00 Report Customization $1,400.00 Total Costs for Professional Services $66,136.00 and the GPTSTM 2013 TR I NA L® 2014 Professional Services *Based on Hourly Rates for Services Determined by the City with an estimated not to exceed amount of $20,000.00 retainer to be applied against fees charged for services rendered from January 1 S` — December 31, 2014. GPTSTM Initial Training for Vendors $3,345.00 Software License/Hosting Fee $14,920.00 Customer Support Fee $8,400.00 On -Site Setup & Data Loading $4,108.00 Total Costs for Professional Services $50,773.00 and the GPTSTM 2014 *HOURLY RATES FOR PROFESSIONAL SERVICES Hourly Rates for Professional Services Trinal, Inc.'s rates are as followed: In an effort to demonstrate that we truly seek the opportunity to work with the City we have identified our hourly rate below, which would permit you to customize specific tasks as outlined in Section 4 Scope of Services of our response. • Principle: $166.00 per hour • Client Manager: $121.00 • Project Manager: $84.00 per hour • Site Visit Coordinator: $70.00 Customized Computer Programming Services: $130.00 per hour • Clerical Assistant: $55.00 per hour The hourly rates cited above shall be effective through December 31, 2012. The hourly rates for January 1 — December 31, 2013 shall increase based on the CPI for 2013. The hourly rate for January 1 — December 31, 2014 shall increase based on the adjusted hourly rate for 2013 and the increase based on the CPI for 2014. The foregoing fees do not include the fees for reports and services not cited hereon, which may be requested by South Bend Department of Public Works and which would be generated through either the GPTS Legacy and/or the GPTS Web based solution. The foregoing fees do not include fees and the cost for licensing other modules of the GPTS Web based solution, which generates workforce -hiring payroll, related reporting. Such cost can be provided upon request. The usage of Trinal's GPTS is subject to City of South Bend's representatives agreeing, via the GPTS web site, to Trinal's license and terms of use agreement and paying the license related fees. The foregoing fees do not include our reimbursable cost, which shall be paid separately in accordance with the Agreement which shall include the reimbursable such costs associated with outreach efforts e.g. trade and professional association related fees and costs, vendor and interest fairs, postage, and the boxing, labeling, and preparation costs related to designated project notifications, and travel costs. LICENSE AND TERMS OF USE Trinal, Inc. ( "Trinal ") welcomes You and any legal entity You represent in connection with this License to Trinal's web -based Global Project Tracking System (the "GPTS "). Article I. Agreement Section 1.01 On Your own behalf and on behalf of any legal entity You represent (including its members, partners, officers, directors, agents, and employees), in connection with this License and use of the GPTS, You represent, warrant, and agree that (a) You are above the age of 18, (b) You have read, understand, and agree to all of the terms and conditions set forth in this License and Terms of Use (this "License "), and (c) You have full legal authority to bind Yourself and the legal entity You represent (including its members, partners, officers, directors, and employees) to the terms of this License. (Hereinafter as used in this License the terms "You," Yourself, and "Your" shall mean You and any legal entity You represent (including its members, partners, officers, directors, agents, and employees), in connection with this License and use of the GPTS.) Section 1.02 This License shall become effective and binding upon You upon Trinal's issuance of a password to You (as set forth below) and /or upon Your payment of an agreed -upon license fee to Trinal Section 1.03 Trinal may, at any time, change the terms and conditions of this License set forth herein. Your continued use of the GPTS, after You receive notice of any such changes, constitutes Your acceptance of, and agreement to, such changes. Article II. Ownership. The GPTS and all software, codes, graphics, and all other information embodied in the GPTS (collectively, the "Software ") are the intellectual and proprietary property of Trinal and are protected by the copyright and other laws and treaties of the United States of America. Article III. License. Subject to the terns and conditions hereof, Trinal grants You a non - transferable, non - exclusive license to access and use the GPTS solely for the purpose of uploading, submitting, reviewing, compiling, storing, accessing, and printing (a) information relating to' construction and other projects which You own, which You manage, on which You perform, and /or (b) information You are required to collect and /or submit in connection with such projects (collectively, all such information is referred to herein as "Your Information "). Article IV. Third -Party Fees and Equipment. You are responsible for obtaining access to the GPTS. You must provide and are responsible for all labor, equipment, and third -party software necessary for You to access and use the GPTS. If such labor, equipment, or software involves any costs or third party fees (such as internet provider fees), You are solely responsible and liable for those costs and fees. Article V. Registration and Password Section 5.01 Prior to Your use of the GPTS, You shall provide true, accurate, current, and complete information about Yourself ( "User Information" or "Your User Information "). You shall maintain and promptly update Your User Information to keep it true, accurate, current, and complete. If You provide any User Information that is untrue, inaccurate, not current, or incomplete, or if You fail to maintain and promptly update the User Information to keep it true, accurate, current, and complete, and /or if Trinal has reasonable grounds to suspect that such User Information is untrue, inaccurate, not current, or incomplete, Trinal may deny, suspend, and /or terminate Your license to use the GPTS without any liability to You. Section 5.02 Once You have registered, You will receive a log -on name and initial password. You are responsible for changing that initial password to a password that is known only to You. You are solely responsible for maintaining the confidentiality of the password and are fully and responsible for all activities that occur under Your password. You will immediately notify Trinal of any unauthorized use of Your password or any other breach of security. Trinal cannot and will not be liable for any loss or damage arising from Your failure to comply with this Section. Article VI. Your Information Section 6.01 You, and not Trinal, are entirely responsible for the accuracy of Your Information. Under no circumstances shall Trinal be liable in any way for the accuracy or content of any Your Information, including, but not limited to, any errors or omissions in Your Information. Section 6.02 If You submit, upload, or make available in the GPTS information or forms that are "certified" or are required to be "certified," then You agree that You are verifying, under penalty of criminal perjury under the laws of the State of Illinois, that such information is, in fact, true and correct. Article VII. improper Use. When accessing or using the GPTS, You shall not Section 7.01 Impersonate any person or entity or falsely state or otherwise misrepresent Your affiliation with any person or entity; Section 7.02 Copy, modify, create a derivative work of, reverse engineer, disassemble, reverse assemble, or otherwise attempt to discover any Software and /or (b) sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Software and /or the GPTS; Section 7.03 Access or attempt to access information submitted or uploaded to the GPTS by other users; Section 7.04 Modify or attempt to modify the Software and /or the GPTS in any manner or form; Section 7.05 Attempt to access the GPTS by any means other than through the interface that is provided or designated by Trinal for use in accessing the GPTS; Section 7.06 Submit, upload, post, email, transmit, or otherwise make available (a) any information from or on the GPTS that You do not have a right to make available under any law or under contractual or fiduciary relationships, (b) any information on the GPTS that would infringe upon any patent, trademark, trade secret, copyright or other proprietary rights of any party, and /or (c) any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; Section 7.07 Use the GPTS to make or deliver any unsolicited or unauthorized advertising, promotional materials, junk mail, unsolicited bulk e-mail, unsolicited commercial e-mail, or any other form of solicitation; Section 7.08 Interfere with or disrupt the GPTS or servers or networks connected to the GPTS, or disobey any requirements, procedures, policies, or regulations of networks connected to the GPTS; Section 7.09 Intentionally or unintentionally violate any applicable local, state, national, and /or international law; Section 7.10 Provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; Section 7.11 Attempt to override, circumvent, or interfere with any security component of the GPTS; and /or Section 7.12 Except for Your Information, reproduce, print, publish, distribute, duplicate, copy, sell, trade, resell, and /or exploit any information stored on the GPTS. Article VIII. Privacy Policy: This License is subject to and incorporates Trinal's Privacy Policy. To review Trinal's Privacy Policy, please see our Privacy Policy. {INSERT LINK} Article IX. Suggestions. By submitting ideas, suggestions, and /or proposals regarding the GPTS ( "Suggestions ") to Trinal through its suggestion or feedback web pages, email, or any other method of communication, You acknowledge and agree that: (a) Your Suggestions do not contain confidential or proprietary information; (b) Trinal is not under any obligation of confidentiality, express or implied, with respect to the Suggestions; (c) Trinal shall be entitled to use or disclose (or choose not to use or disclose) such Suggestions for any purpose, in any way, in any media worldwide; (d) Trinal may have something similar to the Suggestions already under consideration or in development; (e) Your Suggestions automatically become the property of Trinal without any obligation of Trinal to You; and (f) You are not entitled to any compensation or reimbursement of any kind from Trinal under any circumstances. Article X. Indemnity. You shall defend, indemnify, and hold Trinal and its subsidiaries, affiliates, directors, officers, members, shareholders, agents, representatives, partners, joint venturers, consultants, and employees harmless against any claim or demand of any nature whatsoever, including reasonable attomeys' fees, (a) made by any third party due to or arising out of information, including but not limited to Your User Information and Your Information, that You submit to, upload to, or make available for inclusion on, the GPTS, (b) Your access to, or use of, the GPTS, (c) Your violation of any of the terms of this License, and /or (d) Your violation of any federal, state, or local law or ordinance. This indemnity obligation will survive the termination and /or expiration of this License. Article XI. No Duplication or Resale. You shall not reproduce, assign, duplicate, copy, sell, trade, resell, or exploit for any commercial, non - commercial, or any other purpose, any portion of the GPTS (including Your Trinal ID), use of the GPTS, or access to the GPTS. Article XII. General Practices Regarding Use And Storage. You acknowledge that Trinal may establish general practices and limits concerning use of the GPTS, including without limitation the maximum number of days User Information and Your Information will be stored and retained by the GPTS, the maximum amount of User Information or Your Information that may be sent from or received by an account on the GPTS, the maximum size of any User Information or Your Information that may be sent from an account on the GPTS, the maximum disk space that will be allotted on Trinal's servers on Your behalf, and the maximum number of times (and the maximum duration for which) You may access the GPTS in a given period of time. You agree that Trinal has no responsibility or liability for the deletion or failure to store any Your User Information or Your Information maintained by or transmitted to the GPTS. You acknowledge that Trinal reserves the right to log off Your account if it is inactive for an extended period of time. You further acknowledge that Trinal may modify these general practices and limits from time to time with or without notice to You. Article XIII. Modifications to the GPTS. Trinal reserves the right at any time and from time to time to modify, temporarily or permanently, the GPTS (or any part thereof) with or without notice to You. You agree that Trinal shall not be liable to You or to any third party for any such modification of the GPTS. Article XIV. Links. The GPTS may provide links to other World Wide Web sites or resources. Because Trinal has no control over such sites and resources, You acknowledge and agree that Trinal is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Trinal shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource. Article XV. Termination Section 15.01 Trinal's Termination At Will. Trinal may, at any time at will and at its sole discretion, suspend or discontinue, temporarily or permanently, the GPTS or any part thereof and /or terminate this License immediately upon notice to You. Trinal shall not be liable to You for any such suspension, discontinuation, or termination unless You have paid Trinal a fee for this license (a "License Fee "), then, if Trinal permanently discontinues the GPTS or terminates this License for any reason except those set forth in Section 15.02 hereof, Trinal will thereafter refund a portion of the License Fee on a pro rata basis by taking the number of days remaining in the license period divided by the total number of days of the license period, which factor will then be multiplied by Your License Fee to arrive at the refund amount; and You agree that this shall be Your sole and exclusive remedy. Section 15.02 Trinal's Termination For Cause. Trinal may, immediately upon notice to You, terminate Your use and access to the GPTS and terminate this License, without any liability whatsoever to You, in the event of any of the following: (a) You breach or violate any of the terms or conditions of this License, (b) You have engaged in fraudulent or illegal activities, and /or (c) Trinal is requested or required to do so by law enforcement or other governmental action. Section 15.03 Your Termination. You may, at any time at will and at Your sole discretion, suspend or discontinue, temporarily or permanently, Your use of the GPTS or any part thereof and /or terminate this License immediately upon notice to Trinal. If such termination is due to the failure of the GPTS to function properly after a period of five (5) business days and if You have paid a License Fee, then Your sole and exclusive remedies are (a) to discontinue using the GPTS, (b) to terminate this License, and (c) to receive a refund of a portion of the License Fee on a pro rata basis by taking the number of days remaining in the license period divided by the total number of days of the license period, which factor will then be multiplied by your license fee to arrive at the refund amount. If such termination is for any other reason, then Trinal shall have no liability to You whatsoever. Section 15.04 Expiration. If You and Trinal have entered into a contemporaneous written agreement relating to this License and Your use of the GPTS and if such agreement specifies a fixed date or period for the expiration of this License, then such agreement shall govern the expiration of this License. Article XVI. Limitation of Warranties and Remedies Section 16.01 THE GPTS IS PROVIDED "AS -IS," "WITH ALL FAULTS," AND "AS AVAILABLE. Section 16.02 TRINAL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS, NON - INFRINGEMENT, COURSE OF DEALING, AND /OR USAGE OF TRADE. TRINAL MAKES NO WARRANTY THAT (A) THE GPTS WILL MEET ANY REQUIREMENTS, (B) GPTS ACCESS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR -FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE GPTS WILL BE ACCURATE OR RELIABLE. Section 16.03 TRINAL SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF INFORMATION OR DATA, GOODWILL, OR ANY OTHER TYPE OF LOSSES, EVEN IF TRINAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Section 16.04 THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, (4) STRICT LIABILITY, AND /OR (5) ANY OTHER CAUSE OF ACTION. Section 16.05 IF YOU ARE DISSATISFIED WITH THE GPTS OR IF YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST TRINAL WITH RESPECT TO, OR ARISING OUT OF, THIS LICENSE OR THE GPTS, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE GPTS. PROVIDED, HOWEVER, IF THE GPTS FAILS TO FUNCTION PROPERLY AFTER A PERIOD OF FIVE (5) BUSINESS DAYS AND IF YOU HAVE PAID A LICENSE FEE TO TRINAL, THEN YOUR SOLE AND EXCLUSIVE REMEDIES ARE (A) TO DISCONTINUE USING THE GPTS, (B) TO TERMINATE THIS LICENSE, AND (C) TO RECEIVE A REFUND OF A PORTION OF THE LICENSE FEE ON A PRO RATA BASIS BY TAKING THE NUMBER OF DAYS REMAINING IN THE LICENSE PERIOD DIVIDED BY THE TOTAL NUMBER OF DAYS OF THE LICENSE PERIOD, WHICH FACTOR WILL THEN BE MULTIPLIED BY YOUR LICENSE FEE TO ARRIVE AT THE REFUND AMOUNT. EXCEPT AS SET EXPRESSLY FORTH IN THIS SECTION, TRINAL SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. Section 16.06 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF REMEDIES OR DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND ECLUSIONS MAY NOT APPLY TO YOU. Article XVII. General Terms Section 17.01 Choice of Law and Forum. This License and the relationship between You and Trinal shall be governed by the laws of the State of Illinois without regard to its conflict of law provisions. If any dispute arises under this License, You agree to submit to the personal and exclusive jurisdiction of the courts located within the City of Chicago, County of Cook, State of Illinois. Section 17.02 Waiver and Severability of Terms. The failure of Trinal to exercise or enforce any right or provision of this License shall not constitute a waiver of such right or provision. If any provision of this License is found by a court of competent jurisdiction to be invalid or unenforceable, then the invalid or unenforceable provision shall be deemed superseded by a valid and /or enforceable provision that most closely matches the intent of the original provision and the remainder of this License will continue in full force and effect. If any part of this License is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this License will continue in full force and effect. Section 17.03 Assignment. Trinal may assign this License, in whole or in part, at any time with or without notice to You. You may not assign this License, or assign, transfer, and /or sublicense Your rights, if any, under this License; any such attempted assignment, transfer, or sublicense shall be null and void. You agree that Your license is not transferable. Section 17.04 Statute of Limitations. Any claim or cause of action You may have arising out of or related to the use of the GPTS or this License must be filed within one (1) year after such claim or cause of action accrued or will be forever barred. Section 17.05 Injunctive and Other Relief. You acknowledge that, if You breach or violate any of Your obligations under this License, it may be difficult or even impossible to determine the damage that Trinal would suffer as a result. Therefore, in the event that You breach or violate of any of Your obligations under this License, then Trinal will be entitled to seek and obtain injunctive relief, in addition to any other relief that may be available to Trinal at law or in chancery, and will not be required to post any bond. Section 17.06 No Third Party Beneficiaries. There are no third party beneficiaries to this License. Section 17.07 Notices. Trinal may provide You with notices, including those regarding changes to this License, by either email and /or regular mail. In the case of email, such notices shall be deemed received by You one (1) hour after transmission by Trinal; in the case of regular mail, such notices shall be deemed received by You on the third (3) calendar day after mailing. Section 17.08 Entire Agreement. Upon agreeing to this License and the terms and conditions set forth herein, You do not rely upon any warranty, representation, or statement that may have been made by or on behalf of Trinal except as may be expressly set forth in this License and /or a contemporaneous written agreement between You and Trinal. This License and any contemporaneous written agreement between You and Trinal (a) constitute the entire and complete agreement between You and Trinal respect to the GPTS and Your license to use of the GPTS and (b) supersedes and replaces any and all prior written or oral, understandings, communications, representations, and /or proposals, whether electronic, oral, or written, between You and Trinal with respect to the GPTS and /or Your license and use of the GPTS. In the case of conflict between this License and a contemporaneous written agreement between You and Trinal regarding this License and /or Your use of the GPTS, then the terms of such contemporaneous written agreement shall control. END TRINAL, INC. 329 W. 18TH STREET, SUITE 401, CHICAGO, IL 60616 312/738 -0500 FAX: 312/738 -1840 E -MAIL: TRINALL @MSN.COM WEBSITE: WWW.TRINALINC.COM June 6, 2012 Linda M. Martin Clerk, Board of Public Works City of South Bend County -City Building 13th Floor, Room 1316 227 W. Jefferson Blvd. South Bend, IN 46601 Re: Agreement for Professional Services - Diversity Compliance Officer Dear Ms. Martin: On behalf of Trinal, Inc., I submit the attached original executed Agreement for Professional Services - Diversity Compliance Officer. Please note that Exhibit A has been attached. Also, note that a clarification has been provided on page 2 of Exhibit A, paragraph 4 which makes reference to Trinal's license and terms of use agreement, which is attached hereto. We greatly appreciate the opportunity to provide the City of South Bend with our services. Please contact Tammi Davis, Chief of Operations, or me at 312- 738 -0500 extensions 223 and 225 respectively, if you have any questions or concerns, and when the Common Council has approved the contract. Signed: Alicia Garcia - Abner, President / CVO VED {._.!4: "`D On behalf of Trinal, Inc., I submit the attached original executed Agreement for Professional Services - Diversity Compliance Officer. Please note that Exhibit A has been attached. Also, note that a clarification has been provided on page 2 of Exhibit A, paragraph 4 which makes reference to Trinal's license and terms of use agreement, which is attached hereto. We greatly appreciate the opportunity to provide the City of South Bend with our services. Please contact Tammi Davis, Chief of Operations, or me at 312- 738 -0500 extensions 223 and 225 respectively, if you have any questions or concerns, and when the Common Council has approved the contract. Signed: Alicia Garcia - Abner, President / CVO July 2, 2012 Members of the Common Council of the City of South Bend 4th Floor County -City Building South Bend, Indiana 46601 RE: Resolution Approving the Contractual Services Agreement for the Diversity Compliance Officer Dear Council Members: On behalf of the members of the Minority /Women Business Enterprise Utilization Board, it is my privilege to present the attached resolution for your review and favorable recommendation. In May of this year, the Minority /Women Business Enterprise Utilization Board ( "MWUB ") recommended to Common Council and the Department of Administration and Finance that the City of South Bend engageTrinal, Inc. as the Diversity Compliance Officer for the City of South Bend. The recommendation was adopted by Common Councilon May 14, 2012, subject to: (1) Common Council's approval of the contractual services agreement to be prepared by the Board of Public Works of the City of South Bend; and (2) yearly budget appropriations. The agreement was prepared and approved by the Board of Public Works. We now present that agreement for review and favorable recommendation by Common Council. The MWUB is committed to working with Common Council, the Mayor's Office and the Department of Administration and Finance to enhance economic development in the City of South Bend by increasing the City's utilization of Minority and Women Business Enterprises. We ask for your enthusiastic support to maintain the momentum of our efforts. Thank you. Sincerely, Anthony Fitts _ President, Minority /Women Business Enterprise Utilization Board