Loading...
HomeMy WebLinkAboutMaster Services Agreement - Crowe Horwath LLP1316 COUNTY -CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND. INDIANA 46601-1830 CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR BOARD OF PUBLIC WORKS January 10, 2017 Kendra York Crowe Horwath LLP 10 West Market Street, Suite 2000 Indianapolis, IN 46204 RE: Master Services Agreement Dear Ms. York: PHONE 574/235-9251 FAX 574/235-9171 The Board of Public Works, at its meeting held on January 10, 2017, approved the above referenced agreement for general business and financial consulting with services to be set out in any statement of work. Enclosed please find a copy of the agreement for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, Linda M. Martin, Clerk Enclosure c: Aaron Kobb, Community Investment GARY A. GILOT SUZANNA M. FRITZ13ERG ELIZABETH A. MARADIK JAMES A. MUELLER THERESE J. DORAU Crowe Horwath, Crowe Horvath LLP Independent Member Crowe Horvath International 10 West Market Street, Suite 2000 Indianapolis, Indiana 46204-2975 Tel 317.632.1100 Fax 317.635.6127 w .crowehorwath.wnn MASTER SERVICES AGREEMENT This Master Services Agreement, effective July 1, 2016 ("Effective Date'), is between the City of South Bend, Indiana ("Client"), and Crowe Horwath LLP, an Indiana limited liability partnership with offices at 10 West Market Street, Suite 2000, Indianapolis, Indiana 46204 ("Crowe"). WHEREAS, Client desires to retain Crowe to provide certain Services (defined herein) in accordance with the terms and conditions of this Agreement; and WHEREAS, Crowe desires to perform such Services in accordance with the terms and conditions of this Agreement; THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the parties to this Agreement mutually agree as set forth below. Definitions. a. "Agreement" means this agreement, each Statement of Work, and all documents incorporated herein by reference. b. "Inventions" means discoveries, concepts, and ideas, whether patentable or not, including, but not limited to, apparatus, processes, methods, compositions of matter, techniques, and formulae, as well as improvements thereto or know-how related thereto which are made, conceived, created, or acquired by Crowe or its officers, employees, agents, and sub -contractors in the course of performing Services pursuant to an Statement of Work. "Inventions" does not include any discovery, concept, or idea conceived, created, or acquired by Crowe or its officers, employees, agents and sub -contractors prior to the date of an SOW, nor does it include any modifications, changes, enhancements, conversions, upgrades or additions thereto, unless such discovery, concept, or idea was conceived, created or acquired in the course of performing Services pursuant to a prior Statement of Work under this Agreement. c. "Services" means various professional consulting services, including without limitation, services for accounting assistance, budgetary assistance, municipal advisory, utility consulting, redevelopment consulting, and general business consulting services, to be performed by Crowe as set out in any Statement of Work. d. "Statement of Work" or "SOW" means a detailed statement of Services, similar in form to Exhibit A, to be performed by Crowe and will be attached hereto and made a part hereof, setting forth the fallowing: a senior representative from Client's management responsible for determining the scope of the Services to be performed and responsible for reviewing, supervising, and approving Crowe's performance of Services ("Management Representative"); specific Services to be performed by Crowe; a schedule for completion of the Services; the fees and expenses to be paid by Client (e.g., hourly rate or fixed fee); and a list of the specific deliverables (including without limitation any written reports), if any, to be developed by Crowe and delivered to Client ("Deliverables"). Either party may elect not to accept an SOW. Any process for testing or acceptance of Deliverables will be set forth in the applicable SOW. The format set forth in Exhibit A can be modified by the parties to fit the MSA Page I of 14 needs of a specific project. e. "Works" means works of authorship fixed in any tangible medium of expression by Crowe or its officers, employees, agents, and sub -contractors in the course of performing Services pursuant to an SOW, including, but not limited to, notes, specifications, drawings, blueprints, flow charts, memoranda, correspondence, records, notebooks, computer programs, data bases, documentation, reports, and charts, regardless of the medium in which they are fixed, and all copies, in whole or in part, thereof. "Works" does not include any work of authorship which was fixed in a tangible medium of expression by Crowe or its officers, employees, agents and sub -contractors prior to the date of an SOW, nor does it include any modifications, changes, enhancements, conversions, upgrades or additions thereto, unless such work of authorship was fixed in a tangible medium of expression in the course of performing work or services pursuant to a prior SOW under this Agreement. 2. Statements of Work. a. Client hereby engages Crowe as an independent contractor to provide Services on a project -by -project basis as set forth in individual executed Statements of Work. Only SOWs executed by the parties will be effective, and each SOW is a separate engagement. No third party or organization is intended to rely on the Services rendered by Crowe under this Agreement or under any SOW. b. Crowe will supply Client with the Services as described in an SOW. Each executed SOW will reference this Agreement, be numbered consecutively, will be attached hereto and incorporated as part of this Agreement, and must be subject to the terms and conditions of this Agreement. If there is any inconsistency between a term in an SOW and this Agreement, the term in the SOW will control, except that the terms and provisions of Paragraph 7 (Disclaimer of Warranties), Paragraph 8 (No Punitive or Consequential Damages), Paragraph 9 (Limitation of Liability), and Paragraph 10 (Third -Party Indemnification) will control over any inconsistent terms in an SOW and nothing in an SOW will be deemed to change or supersede the terms and provisions in Paragraphs 7, 8, 9, and 10. Further, nothing in any SOW will be construed as modifying the responsibilities set forth in Paragraph 3 ("Crowe's Responsibilities") and/or Paragraph 4 ("Client's Responsibilities") unless such paragraph is specifically identified in the SOW. C. Crowe will not perform Services until an SOW for such Services is executed by the parties. Any changes that affect the Services set forth in an SOW will be documented and agreed upon in writing by the parties. Because a change could affect the cost, schedule or other terms of an SOW, the parties must approve each change in writing before implementing the change. While a change is being reviewed and until the parties approve the change in writing, the parties will continue to proceed in accordance with the SOW and schedule then in effect. If Client requests that Crowe re-examine work previously performed, such re-examination will be Services separate from the previous SOW and will be performed under a separate SOW. 3. Crowe's Responsibilities. a. Crowe will meet with the Management Representative and assist in developing the scope of Services to be rendered under an SOW. All Services and the scope of such Services will be approved by the Management Representative identified in the applicable SOW. Each SOW will establish the scope and frequency of the Services to be performed. Crowe will direct, supervise, and perform the day-to-day performance of the Services, and the Management Representative will be responsible for reviewing and approving the scope and the results of the Services, in accordance with parameters included in the SOW. MSA Page 2 of 14 b. Crowe's Services may include the concepts of selective sampling and testing. Crowe's Services are not designed to detect fraud, errors, irregularities, malfeasance, or defalcation. Crowe's Services will not guarantee that fraud, errors, irregularities, malfeasance, or defalcation will not occur and the Services will not be expected to, or relied upon, to detect fraud, errors, irregularities, malfeasance, or defalcation that may exist. Client has not retained Crowe to identify and address abuses of management discretion, including the exercise or failure to exercise management discretion or business judgment by Client. C. Any information, advice, recommendations or other content of any Deliverable Crowe, other than Client's original information, is for Client's internal use only, consistent with the purpose of the Services. Client may not rely on any Deliverable until it is in its final form as indicated by Crowe as final. Crowe will not be required to update any final Deliverable for circumstances of which we become aware or events occurring after delivery. Crowe specifically notes that no advice Crowe may provide should be construed to be investment advice. d. Crowe will provide to the Management Representative any periodic updates regarding Services in progress and any Deliverables as Crowe deems necessary or as requested by the Management Representative. e. Nothing contained in this Agreement will be construed as limiting, expanding, or otherwise modifying Client's responsibility and authority for promptly reviewing the Services and Deliverables generated by Crowe, responding to and implementing the results of any Services performed by Crowe, and for ensuring that all necessary and proper action is taken in response to the Services rendered by Crowe. Crowe will not perform management functions, make any management or policy decisions, or act or appear to act in any capacity as a Client employee or manager. Crowe will not be asked to perform activities such as authorizing, executing, or consummating transactions or otherwise exercising authority on Client's behalf. f. As a regulated professional services firm, Crowe must follow certain professional standards where applicable, including the Code of Professional Conduct promulgated by the American Institute of Certified Public Accountants ("AICPA"). Therefore, if circumstances arise that, in Crowe's professional judgment, prevent it from completing this engagement, Crowe retains the right to take any course of action permitted by professional standards, including declining to express an opinion or issue other work product, or terminating the engagement. 4. Client's Responsibilities. a. Client will designate a Management Representative knowledgeable in all laws, regulations, and industry practices applicable to the respective SOW. The Management Representative will determine and approve the risk, scope, and expected timeframe of Services to be performed, and the Management Representative will coordinate, review, and approve Crowe's performance of Services. The Management Representative will be responsible for promptly evaluating the Deliverables or the results of the Services and for reporting any issues or deficiencies to Crowe and the appropriate level of the Client's management. Client will be solely responsible for determining when, whether, and how any recommendations made by Crowe are to be implemented. b. Client represents that all information provided to Crowe in connection with this Agreement and each SOW is accurate and complete in all respects, contains no omissions, and will be updated on a prompt and continuous basis. Client represents that it has all rights and authority to permit Crowe to access or use any systems or third party products during performance of Services. As between Crowe and Client, Client will be responsible for the accuracy and completeness of all documentation, projections, or any other information MSA Page 3 of 14 provided to Crowe relating to Services, Deliverables or other work, and Client agrees that Crowe may rely upon any information provided to Crowe, whether provided by Client or by any other party, in connection with its Services, Deliverables, or other work, without independent investigation or verification. C. If required, Client will provide reasonable workspace for Crowe personnel at the project locations for the performance of Services, and Client will promptly make its personnel and representatives available for Crowe as needed for the Services. Completion of Crowe's work depends on appropriate and timely cooperation from Client's personnel; complete, accurate and timely responses to Crowe inquiries; and timely communication by of all matters that may materially affect the Services. If for any reason this does not occur, Crowe may expend additional time in performing the Services, resulting in increased fees, and Client will hold Crowe harmless against all matters that arise in whole or in part from any resulting delay. d. Crowe may periodically communicate changes in laws, rules, or regulations to Client. However, Client has not engaged Crowe to do so, and Crowe does not undertake an obligation to advise Client of changes in laws, rules, regulations, and industry or market conditions. 5. Confidentiality a. Each of the parties acknowledge that one party may possess and may continue to possess information having commercial value in the party's business or is not otherwise in the public domain, and any such information that is disclosed by such party (the "Disclosing Party") to the other party (the "Recipient") in connection with the performance or use of the Services is "Confidential Information." Confidential Information may have been discovered or developed by the Disclosing Party or provided to it by a third party, or the Disclosing Party may hold property rights in such information by assignment, license or otherwise. b. The Receiving Party will refrain from unauthorized disclosure of the Disclosing Party's Confidential Information, will hold it as confidential and will use the same level of care to prevent unauthorized disclosure to and use by third parties of the Confidential Information of the Disclosing Party as the Receiving Party employs to avoid unauthorized disclosure, publication, dissemination or use of its own information of a similar nature, which in any event will be no event less than a reasonable standard of care. The concept of a "reasonable standard of care" will include compliance by the Receiving Party with all US state or federal laws applicable to the disclosure and use of Confidential Information in the Receiving Party's possession. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to its respective agents, contractors and subcontractors as reasonably necessary so long as: (i) such agents, contractors and subcontractors agree in writing to observe the confidentiality and restricted use and disclosure covenants and standards of care set forth herein and (ii) the Receiving Party assumes responsibility for the acts or omissions of the agents, contractors and subcontractors to which the Receiving Party discloses the Confidential Information. C. Neither Client nor Crowe will use the other parry's Confidential Information except (i) in the case of Crowe, in connection with the performance of the Services or as otherwise specifically permitted in this Agreement, or (ii) in the case of Client, in connection with the use of the Services. d. Neither the Receiving Party nor the persons and entities to which it makes authorized disclosures of the Confidential Information of the Disclosing Party will be restricted in disclosing and using general knowledge, know-how and experience, developed, conceived or acquired by the Receiving Party, its affiliates or its agents, contractors and subcontractors, MSA Page 4 of 14 in the course of the performance of this Agreement and the performance and use of the Services, which are retained in the minds of its employees who have had access to the Disclosing Party's Confidential Information (without reference to any physical or electrical embodiment of such information), unless such disclosure and/or use (i) will infringe any of the patent rights, copyrights, mask works rights or trade secrets, (ii) will constitute a violation of any applicable law, or (iii) will comprise any design or structural aspects, or source or object code, of any computer software which is a part of the Disclosing Party's Confidential Information. e. Confidential Information will not include any information the Receiving Party can demonstrate was or is: (i) at the time of disclosure, in the public domain; (ii) after disclosure to it, published or otherwise becomes part of the public domain through no fault of the Receiving Party; (iii) without a breach of duty owed to the Disclosing Party, in the possession of the Receiving Party at the time of disclosure; (iv) received after disclosure by a third party having a lawful right to and, without a breach of duty owed to the Disclosing Party, did disclose such information to it; (v) independently developed by the Receiving Party without reference or use of the Confidential Information; (vi) a graphical user interface or other screen display that appears on monitors and provides user/operator interfaces to the Services; or (vii) user/operator instructions for the use of the Services. f. Notwithstanding anything to the contrary, nothing in this Agreement will preclude any party from disclosing Confidential Information as required by law (including, without limitation, any applicable public access laws) The Receiving Party may disclose the Disclosing Party's Confidential Information to the extent required by law, regulation, professional standard, discovery process, order of a court, governmental agency, or national stock exchange rule. However, the Receiving Parry will give the Disclosing Party prompt notice (to the extent such notice is not prohibited by law or applicable order) to permit the Disclosing Party an opportunity to obtain a protective order or otherwise protect the confidentiality of such information, all at the Disclosing Party's cost and expense. g. The covenants of confidentiality set forth herein will apply after the Effective Date of this Agreement to any Confidential Information disclosed to the Receiving Party before, on or after the Effective Date and will continue and must be maintained from and after the Effective Date until the sooner to occur of (i) such Confidential Information entering the public domain through no fault of Receiving Party or its representatives, or (ii) the date on which such Confidential Information is no longer required to be kept confidential by applicable law. The Receiving Party will not be responsible for the security of the Confidential Information of the Disclosing Party during transmission via public communications facilities, except to the extent that such breach of security is caused by the failure of the Receiving Party to perform its obligations under this Agreement, or results from acts or omissions in breach of this Agreement. Each party will use fax, encrypted email, and voicemail to communicate both sensitive and non -sensitive matters. The receipt of Confidential Information under this Agreement will not limit or restrict assignment or reassignment of employees of the Receiving Party within or between the Receiving Party and its affiliates. h. The Disclosing Party will use best efforts to disclose to the Receiving Party only the minimum Confidential Information necessary for the Receiving Parry to provide Services. 6. Use of Subcontractors. All Services will be performed by Crowe and its employees and subcontractors, provided that Crowe will be responsible for the performance of any sub- contractors. Client will have the right to demand the reassignment of any employee or independent contractor selected by Crowe to perform Services. MSA Page 5 of 14 DISCLAIMER OF WARRANTIES. a. CROWE MAKES NO WARRANTIES HEREIN, EXPRESS OR IMPLIED, AND CROWE SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON -INFRINGEMENT. ANY THIRD PARTY SOFTWARE OR HARDWARE PROVIDED BY CROWE TO OR FOR CLIENT UNDER THIS AGREEMENT IS PROVIDED "AS IS." CROWE MAKES NO WARRANTY UNDER THIS AGREEMENT WITH RESPECT TO THIRD PARTY SOFTWARE OR HARDWARE. MANUFACTURERS OR DISTRIBUTORS OF THIRD PARTY SOFTWARE AND HARDWARE MAY PROVIDE WARRANTIES OF THEIR PRODUCTS THAT WILL EXTEND TO CLIENT, BUT IT IS CLIENT'S RESPONSIBILITY TO ACQUIRE AND IMPLEMENT SUCH WARRANTIES. TO THE EXTENT CROWE CAN DO SO, CROWE WILL ASSIGN ANY RIGHTS IT MAY HAVE IN AND TO ANY SUCH THIRD PARTY WARRANTIES, OR ASSIST CLIENT IN ASSERTING ITS RIGHTS IF SUCH ASSIGNMENT IS NOT EFFECTIVE. b. CROWE IS EXPRESSLY NOT LIABLE FOR THE FAILURE OF ANY THIRD PARTY SOFTWARE OR HARDWARE PROVIDED HEREUNDER TO FULFILL ANY OF CLIENT'S REQUIREMENTS. CROWE IS EXPRESSLY NOT LIABLE FOR CLIENT'S DATA INTEGRITY OR FOR ANY DAMAGES THAT MAY OCCUR TO CLIENT'S DATA, BUSINESS, OR BUSINESS RELATIONSHIPS DUE TO MALFUNCTIONING OR UNAVAILABLE THIRD PARTY SOFTWARE OR HARDWARE, PROVIDED SUCH UNAVAILABILITY OR MALFUNCTION WAS NOT CAUSED BY THE ACTS OR OMISSIONS OF CROWE. 8. No Punitive or Consequential Damages. Crowe will not be liable for: (a) any special, indirect, consequential, incidental, exemplary, or punitive damages; or (b) any lost profits, lost savings, or lost business opportunity. The limitations of liability contained in this section are intended to apply to any alleged or actual claim, liability or damages, including without limitation claims, liabilities, or damages based in negligence or other tort, contract, warranty, fiduciary principles, statute or common law. This provision will survive termination of this Agreement, in whole or in part. 9. Limitation of Liability. Except where it is judicially determined that Crowe acted with gross negligence or intentional misconduct, Crowe's liability and any liability of its personnel will not exceed the fees actually paid to Crowe under the applicable SOW, and a return of fees paid will be the exclusive remedy for any damages. This limitation of liability will apply to the fullest extent allowed by law and will apply to any claim, liability, or damages including, without limitation, claims, liabilities, or damages based in negligence or other tort, contract, warranty, fiduciary principles, statute or common law. This provision will survive termination of this Agreement, in whole or in part. 10. Third Party Indemnification. Except where it is judicially determined that Crowe acted with gross negligence or intentional misconduct, Client will indemnify and hold harmless Crowe, its personnel, and its subcontractors against all costs, fees, expenses, damages, and liabilities, including without limitation attorney fees, defense costs and legal fees, associated with a third -party claim arising from or relating to any services or work provided under this Agreement. This indemnification will apply to the extent permitted by law and will apply to any claim, liability, or damages including, without limitation, claims, liabilities, or damages based in negligence or other tort, contract, warranty, fiduciary principles, statute or common law. This provision will survive termination of this Agreement, in whole or in part. 11. Independent Contractor Relationship. The parties are and will be independent contractors to one another, and nothing herein will be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties. Nothing in this MSA Page 6 of 14 Agreement will be interpreted or construed as creating or establishing the relationship of employer and employee between Client and either Crowe or any employee, agent, or subcontractor of Crowe. Crowe will bear sole responsibility for payment of compensation to its employees and subcontractors. Crowe will report for all of its employees performing Services under this Agreement, federal and state income tax withholding, social security taxes, and unemployment insurance applicable to such employees. Crowe will bear sole responsibility for health or disability insurance, retirement benefits, or other welfare or pension benefits, if any, to which such employees may be entitled and will require any of its subcontractors to have the same responsibilities. 12. Fees and Payment. a. As set forth in the applicable SOW, Client will pay Crowe's fees for Services, at the rates identified in the SOW, on either (i) a fixed fee basis or (ii) a time and materials basis. Crowe will submit to Client invoices for the Services performed under each SOW and for actual reimbursable expenses incurred. All amounts contained in invoices will be paid by Client, and invoices are due upon receipt. Client will pay a finance charge equal to the lesser of 1 Y% per month, or the amount permitted by law, on the balance not received by Crowe within thirty (30) days of the date of an invoice. b. Any fee estimates in an SOW assume that personnel of Client will cooperate with and assist Crowe in gathering accurate and complete information necessary to perform the Services, including obtaining supporting documents, pulling vendor files, following up on exceptions, and in other similar ways. Fees are also based upon the assumption that no irregularities will be discovered, no non-standard procedures requiring additional expenditure of time or expense will be required, internal controls of the oversight and administration of the Services being provided is reasonably adequate, and there will be no substantial changes in the nature of the Services to be provided. G. Crowe will not be required to deliver any Deliverables or continue Services until all outstanding amounts are paid. If any portion of any invoice remains unpaid after thirty (30) days, Crowe in its sole discretion may cease performance of Services until outstanding amounts are paid. 13. Term and Termination. a. This Agreement will be effective on the Effective Date, and will remain in effect for four years unless terminated as set forth herein. b. Either party may terminate this Agreement and discontinue Services at any time (including prior to completion of an SOW) for any reason, including convenience, upon thirty (30) days written notice to the other party. Further, the parties may mutually agree to terminate an SOW or this Agreement at any time for any reason. The termination of an SOW by either party without termination of the entire Agreement will not affect the other terms of this Agreement. Crowe may terminate this Agreement at any time for any reason consistent with applicable professional standards as determined by Crowe provided, however, in the event of such a termination, Crowe agrees to use reasonable efforts to assist the Client in not incurring additional fees. C. At Client's request and to the extent consistent with applicable professional standards, Crowe will assist Client, on a time and materials basis, in winding up any Services and/or in transitioning any Services to a new provider. Crowe will invoice Client for such amounts on a weekly basis, and Client will pay all such amounts upon receipt of Crowe's invoice. d. Either party may terminate this Agreement immediately without notice if the other files for bankruptcy protection or has an involuntary petition for bankruptcy filed against MSA Page 7 of 14 it, becomes unable to pay its bills, sells or transfers property to creditors, is forced into receivership, has a liquidator or receiver appointed by the court, or is a part of any other similar legal proceeding, provided that termination is permitted by law. e. Termination of the entire Agreement will terminate all SOWs unless the parties agree in writing. Paragraphs 3-5, 7-10, 12, and 15-37 will survive termination of this Agreement for any reason. 14. Ownership. Except as set forth in the applicable SOW, any Deliverables, Works, Inventions, working papers, or other work product conceived, made or created by Crowe in rendering the Services under this Agreement ("Work Product"), and all intellectual property rights in such Work Product will be owned by Crowe. Nothing in this Agreement will be construed as an implied license to any intellectual property rights of one party to the other party, all such licenses, permission or uses will be expressly set forth in the Agreement or any applicable SOW. The foregoing ownership will be without any duty of accounting of one party to the other. Crowe will retain ownership of all materials owned by Crowe prior to entering into this Agreement or developed by Crowe independently of this Agreement. 15. Data Aggregation. Client agrees that Crowe may from time to time use and process Client's confidential information for data aggregation and/or industry benchmarking purposes. In using Client's confidential information for data aggregation and/or industry benchmarking purposes, Crowe will maintain Client's information as confidential unless Crowe removes data that specifically identifies Client and Client's customers. 16. Publicity. Publication, and Announcements. a. Neither Crowe nor Client will, without the prior written consent of the other, in any manner whatsoever advertise or publish the terms of this Agreement, except for disclosure required by law and required by governmental agencies and except for disclosures to professional advisors. b. Crowe may place advertisements in financial and other newspapers and journals at its own expense describing its Services to Client hereunder, provided that Crowe will submit a copy any such advertisements to Client so that it can consent to the form and content of the advertisements. Without such consent, Crowe will not make any public representations regarding the Services rendered to Client, other than including Client in a list of clients served. 17. Client -Required Cloud Usage If Client requests that Crowe access files, documents or other information in a cloud -based or web -accessed hosting service or other third -party system accessed via the internet, including, without limitation iCloud, Dropbox, Google Docs, Google Drive, a data room hosted by a third -party, or a similar service or website (collectively, "Cloud Storage"), Client will confirm with any third -parties assisting with or hosting the Cloud Storage that either such third -party or Client (and not Crowe) is responsible for ensuring the confidentiality of all information while utilizing the Cloud Storage, complying with all applicable laws relating to the Cloud Storage and any information contained in the Cloud Storage, providing Crowe access to the information in the Cloud Storage, and protecting the information in the Cloud Storage from any unauthorized access to the information, including without limitation unauthorized access to the information when in transit to or from the Cloud Storage. Client warrants that it has authority to provide Crowe access to information in the Cloud Storage and that providing Crowe with access to information in the Cloud Storage complies with all applicable laws, regulations, or duties owed to third -parties. Client agrees to indemnify and hold harmless Crowe from any claims, lawsuits, losses, damages, penalties, fines, or other liability, including without limitation reasonable attorney fees, defense costs, or other legal expenses relating to or arising from Client's use of the Cloud Storage (collectively, "Liabilities'). This indemnification is intended to apply to the extent permitted by law, MSA Page 8 of 14 regardless of the grounds or nature of any Liabilities asserted, including, without limitation, to Liabilities based on principles of contract, negligence or other tort, fiduciary duty, warranty, indemnity, statute or common law. This indemnification will also apply after termination of this agreement 18. No Assignments. Except for any entity which succeeds to the business or assets of a party, neither party may assign this Agreement without the prior written consent of the other party, which will not be unreasonably withheld. Any prohibited assignment, sublicense or transfer will be null and void. This Agreement will be binding upon the successors and permitted assigns of the parties. 19. Response to Legal Process. If Crowe is requested by Client, any third parry, or any other person or entity, by subpoena, investigation, other legal process, or other request to produce documents or testimony pertaining to Client or the Services, Client will pay Crowe for its professional time, plus out-of-pocket expenses, costs, and fees, as well as reasonable attorney fees, incurred in responding to such request, except that this provision will not apply in the event of a lawsuit brought by Client against Crowe. This paragraph is not applicable to responses to legal processes provided as Services and described in a SOW. 20. Legal and Regulatory Change. The scope of Services to be rendered hereunder is based on current laws and regulations. If changes in laws or regulations change Client's requirements or the scope of Crowe's Services, the parties agree to work in good faith to amend the affected SOW(s), provided that if an agreement on amendment cannot be reached within a reasonable time, the parties may terminate the affected SOW without penalty. 21. Notices. Any notice or demand required or permitted to be given under this Agreement will be in writing and will be deemed effective immediately upon the receipt thereof, as evidenced by a written record of delivery from (a) a nationally recognized overnight courier for the next business day delivery, (b) certified or registered mail or (c) a signed delivery receipt in the case of delivery by hand. All notices will be sent to: If to Crowe: Crowe Horwath LLP 10 West Market Street, Suite 2000 Indianapolis, Indiana 46204 Attention: Kendra W. York If to Client: City of South Bend, Indiana 227 West Jefferson Boulevard, Suite 1400 N South Bend, Indiana 46601 Attention: Brian Pawlowski Copy to: Crowe Horwath LLP One Mid America Plaza, Suite 700 Oakbrook Terrace, IL 60181 Attention: General Counsel 22. Force Majeure. Except for payment obligations, neither party will be liable under this Agreement for any failure of or delay in performance of its obligations hereunder, if performance is delayed or prevented by acts of God, fire, explosion, war, terrorism, earthquakes, riots, governmental laws or regulations, or other similar causes beyond such party's control (each, a "Force Majeure Event"), but only to the extent of and during continuance of such event and only provided such party gives the other party prompt notice of such Force Majeure Event. During the pendency of any Force Majeure Event, the party affected will work diligently to cure the Force Majeure Event to the extent commercially reasonable. However, if the Force Majeure Event continues for thirty (30) consecutive days, the party not directly affected by it may terminate this Agreement immediately without penalty. MSA Page 9 of 14 23. No Construction Against Drafter. The parties acknowledge that each has participated, and each has been represented by counsel, in preparation and execution of this Agreement and any applicable SOW, and for purposes of the rule of contract interpretation that construes a document against its drafter, neither Client nor Crowe nor their respective counsel will be considered the drafter of this Agreement or any SOW. Each party represents to the other that it has carefully read this Agreement, will carefully read each SOW, understands the Agreement's binding effect, and that it is voluntarily entering into this Agreement and each SOW. 24. Headings. The headings in this Agreement are for reference only and are not intended to be a part of or to affect the meaning, application or interpretation of this Agreement or any portion thereof. 25. Severability. The provisions of this Agreement will be severable and, if any provision of this Agreement is held or declared to be illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability will not affect any other provision hereof, and the remainder of this Agreement, disregarding such invalid portion, will continue in full force and effect as though such void provision had not been contained in it if the rights and obligations of the parties contained herein are not materially prejudiced and the intentions of the parties continue to be effective. 26. Waiver. No provision of this Agreement will be deemed waived, unless such waiver will be in writing and signed by the party against which the waiver is sought to be enforced. The waiver will not be construed to be a waiver of any succeeding breach of any such provision, a waiver of the provision itself, or a waiver of any other provisions of this Agreement. No delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have under this Agreement will operate as a waiver of any breach or default. 27. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended or will be construed to confer upon any person other than the parties hereto any right, remedy or claim under or by reason of this Agreement. 28. Entire Agreement. This Agreement and any SOWs attached hereto contain the entire understanding between the parties with respect to the subject matter hereof and supersede all previous written or oral understandings, agreements, negotiations, commitments, or any other writing or communications with respect to such subject matter. 29. Non -Reliance. Client acknowledges that (a) there are no representations or warranties other than those expressly set forth in this Agreement; and (b) it has not relied or will rely in respect of this Agreement or the Services contemplated hereby upon any document or written or oral information previously furnished to it, other than this Agreement, including the Exhibits hereto. Crowe will not have or be subject to any liability to Client or any other person resulting from the distribution to Client, or Client's use of, any information not contained in this Agreement. 30. Written Modifications. This Agreement (and any SOWs) may not be changed or modified except through a written and properly executed instrument in writing entered into by duly authorized representatives of the parties. 31. Counterparts. This Agreement or any SOW may be executed in two or more actual or electronically copied counterparts, all of which together will be one and the same instrument and all of which will be considered duplicate originals. Signatures transmitted and received via facsimile, email, or other means of transmission will be treated for all purposes of this Agreement as original signatures and will be deemed valid, binding and enforceable by and against all parties. Transmitted copies (reproduced documents that are transmitted via scanning, email, photocopy, facsimile or a process that accurately transmits the original) will MSA Page 10 of 14 be considered documents equivalent to original documents. 32. Time Limits on Claims. No action against Crowe arising from or relating the Services, a specific SOW, or this Agreement generally, may be brought after the earlier of (a) two (2) years after the date on which occurred the act or omission alleged to have been the cause of the injury alleged; or (b) the expiration of the applicable statute of limitations or repose. 33. RESERVED 34. Choice of Law. This Agreement, including any dispute arising out of or related to this Agreement, will be governed and construed in accordance with the laws of the State of Indiana applicable to agreements made and wholly performed in that state, without giving effect to its conflicts of laws rules to the extent those rules would require applying another jurisdiction's laws. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and will not apply to this Agreement or any Services hereunder. 35. Consent to Jurisdiction and Forum Selection. All court actions or proceedings arising from or relating to this Agreement will be tried and litigated exclusively in the state and federal courts located in St. Joseph County, Indiana, and each party hereby consents to personal jurisdiction in such courts. This choice of venue is intended to be mandatory and is not permissive in nature. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar argument, and each party waives any objection to venue. Each party stipulates that the state and federal courts in St. Joseph County, Indiana, will have personal jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement. 36. JURY TRIAL WAIVER. FOR ALL DISPUTES RELATING TO OR ARISING BETWEEN THE PARTIES, THE PARTIES AGREE TO WAIVE A TRIAL BY JURY TO FACILITATE JUDICIAL RESOLUTION AND TO SAVE TIME AND EXPENSE. EACH PARTY AGREES IT HAS HAD THE OPPORTUNITY TO HAVE ITS LEGAL COUNSEL REVIEW THIS WAIVER. THIS WAIVER IS IRREVOCABLE, MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND APPLIES TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A BENCH TRIAL WITHOUT A JURY. HOWEVER, AND NOTWITHSTANDING THE FOREGOING, IF ANY COURT RULES OR FINDS THIS JURY TRIAL WAIVER TO BE UNENFORCEABLE AND INEFFECTIVE IN WAIVING A JURY, THEN ANY DISPUTE RELATING TO OR ARISING FROM THIS ENGAGEMENT OR THE PARTIES' RELATIONSHIP GENERALLY WILL BE RESOLVED BY ARBITRATION AS SET FORTH IN THE PARAGRAPH BELOW REGARDING "ARBITRATION." MSA Page 11 of 14 IN WITNESS WHEREOF, the parties have duly executed this Master Services Agreement as of the date first written above. City of South Bend, Indiana Signature APPRDw,. Printed Name _ a� d of R,t a;, rk-- �-ff! .:� .j -ffa—t a0 Crowe Horwath LLP iK Signature Kendra W. Yo Printed Name Director Title August 9 2016 Date EXHIBIT A STATEMENT OF WORK to that certain Master Services Agreement dated as of 20_ • Description of Services and Deliverables: • Assumptions/Client Responsibilities: • Management Representative: Name/Title • Fees and Expenses: • Crowe Horwath Subcontractors to be used to complete Services: • Disclosure of Conflicts of Interest and Other Information: Pursuant to MSRB Rule G-42, if any known material conflicts of interest based on the exercise of reasonable diligence by Crowe are determined, Crowe will provide a written statement to the Client to that effect. As a Municipal Advisor, Crowe is required to file a Form MA pertaining to Crowe and Form MA - I for each employee engaged in Municipal Advisory activities. These forms include information about any criminal actions, regulatory actions, investigations, terminations, judgments, liens, civil judicial actions, customer complaints, arbitrations and civil litigation. Such information can be viewed on the U.S Securities and Exchange Commission EDGAR Company Filings. Crowe Horwath LLP CIK#: 0001620621 filings can be viewed at: httl2://www.sec,,qov/cqi-bin/browse- edqar?action=qetcomr)anV&C I K=0001 620621 &owner=exclude&count=40 Crowe's latest MA -A was filed on June 18, 2015. The date, triggering event, or means for the termination of the municipal advisory relationship shall be stated or if none, a statement that there is none. City of South Bend, Indiana Signature Printed Name ritle Date Crowe Horwath LLP Signature Printed Name BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 1/3/17 Name Department Community Investment BPW Date 1/10/17 Phone Extension 5823 Required Prior to Submittal to Board Legal Attorney Name Ben Dougherty Controller review is required for all Contracts $5,000.00 or more Controller ❑ and greater than one year in length per the City Purchasing Policy Purchasing ❑ Check the Appropriate Item Type — Required for All Submissions——� ® Agreement ❑ Contract ❑ Proposal ❑ Addendum ❑ Professional Services ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet ❑ Quote Opening ❑ Quote Award ❑ Chg Order No. ❑ C/O & PCA No. ❑ PCA ❑ Ease./Encroach. ❑ Traffic Control ❑ Resolution ❑ Other: I-1 Claim Company or Vendor Name Crowe Horwath ❑ Yes ❑ If Yes, Approved by Purchasing New Vendor ❑ No MBE/WBE Contractor ❑ MBE Completed E-Verify Form Attached El Yes ❑ WBE ❑ No Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Master services agreement with Crowe Horwath for financial services related to city projects Auk For Change Orders Only _A& Amount of ❑ Increase $ ❑ Decrease $ Previous Amount $ Current Percent of Change: % New Amount $ Total Percent of Change: % Time Extension: Dispersal After Approval Copy Original ® ❑ Aaron Kobb ❑ ❑ ❑ 11