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HomeMy WebLinkAboutProfessional Services Agreement - Calfee Zoning - South Bend Zoning Ordinance Updates1316 COUNTY -CITY BUILDING 227 W.JEFFERSON BOULEVARD SOUTH BEND. INDIANA 46601-1 930 C11 Y' oil., Sm 1'1"11 BEND, PE'rE BU T161W,, MAYOR BOARD OF PUBLIC WORKS December 11, 2018 Sean Suder Calfee Zoning 2800 First Financial Center 255 E 5th Street Cincinnati, OH 45202 RE: Professional Services Agreement Dear Mr. Suder: NONE 574/ 235-9251 FAx 574/ 235-9171 The Board of Public Works, at its meeting held on December 11, 2018, approved the above referenced agreement regarding the administrative process and legal and peer review of South Bend Zoning Ordinance updates in the amount of $31,000. 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 GARY A. Gflu.yD SUZANNA M. 1;"1?,ITZB'ERG C;.l.119i:BlETH A. MARADIK JAWis A, MlJl.l..LER 1 H'z rSE J. 1301(AI.I AdC:REEMEN'r FOR PROFESSIONAL ESSI+t NAL SERVICES This Agreement for Professional Services (this "Agreement") is made effective as of December 11, 2018 (the "Effective Date"), 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 (the "City"), and Calfee Strategic Solutions LLC (the "Provider") (each a "Party" and collectively the "Parties"). For and in consideration of the mutual covenants and promises contained herein, the Parties agree as follows: 1. Services. The Provider will provide to the City the professional services (the "Services") set forth in the Provider's proposal attached hereto as Exhibit A (the "Scope of Work"). In the event of any conflict between the terms of this Agreement and the terms of the Scope of Work, the terms of this Agreement will prevail. The Provider will execute its obligations under this Agreement in accordance with the prevailing professional standard of care for projects of similar design and complexity. 2. Compensation. In exchange for the Provider's performance of the Services, and subject to the terms and conditions of this Agreement, the City will pay the Provider a total sum not to exceed Thirty -One Thousand Dollars ($31,000.00) (the "Contract Amount"). The City will pay the Contract Amount in installments upon regular invoicing by the Provider (each a "Contract Installment"). The City will not be required to pay any Contract Installment if the City is not reasonably satisfied with the Provider's performance under this Agreement or any default or breach of this Agreement by the Provider exists, as the City may determine in its sole discretion. The sum of all Contract Installments will not exceed the Contract Amount, and the Provider will not incur or seek reimbursement for any expenses in excess of the Contract Amount. 3. Term, Termination. Unless earlier terminated in accordance with its terms, this Agreement will commence on the Effective Date and end upon the Provider's completion of all its obligations hereunder and the City's final payment therefor. Notwithstanding the foregoing, effective immediately upon delivery of a written termination notice to the Provider, the City may terminate this Agreement, in whole or in part, for any reason, if the City determines that such termination is in the best interest of the City. In addition, in accordance with applicable laws, payments are subject to annual appropriation. If the City Controller makes a written determination that funds are not appropriated or are otherwise unavailable to support the continuation of this Agreement, it shall be cancelled. A determination by the City Controller that funds are not appropriated or are otherwise unavailable to support the continuation of performance shall be final and conclusive. The City will not be required to pay any Contract Installment or be otherwise liable for any cost associated with the Provider's performance of any Services after the effective date of termination. 4. Remedies for breach ol'Contract. The Provider's failure to complete the Services in accordance with this Agreement will be considered a material breach. In the event of any breach of this Agreement by the Provider, the City may suspend all payments to the Provider and may pursue any and all remedies available at law or in equity. 5. Point of Contact. The City employee identified in Section 10 below will serve as the City's principal point of contact for purposes of this Agreement. 6. Relationsh The Provider shall at all times be an independent contractor for the performance of the Services rather than an employee of the City, and no act or omission to act by the Provider shall in any way bind or obligate the City. No employee of the Provider will be considered or deemed to be an employee of the City. This Agreement is strictly for the benefit of the Parties and not for any third party or person. This Agreement was negotiated by the Parties at arm's length and each of the parties hereto has reviewed the Agreement after the opportunity to consult with independent legal counsel. Neither party shall maintain that the language in the Agreement shall be construed against any signatory hereto. The City and the Provider hereby renounce the existence of any form of agency relationship, joint venture, or partnership between the Provider and the City and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between the City and the Provider. 7. lncler nification of C. t The Provider hereby agrees to indemnify, defend, and hold harmless the City and its officials, employees, and agents, from any and all claims of any nature which arise from the performance by the Provider under this Agreement and from all costs and attorney fees in connection therewith, except for claims arising out of the negligence or intentional acts or omissions of the City or its officials, directors, employees, or agents. The obligations of the Provider under this section shall survive the termination of this Agreement. 8. Work Product• Ownership. The Provider will submit it work product to the City in accordance with the terms of the Scope of Work. Any and all work product submitted by the Provider to the City as part of the Provider's performance of the Services shall be free from claims of infringement and will become the exclusive property of the City. The City will have the right to use and reproduce copies of the Provider's work product as the City determines in its sole discretion without compensation to the Provider except the compensation expressly provided for in this Agreement. The City agrees, to the fullest extent permitted by law, to indemnify, defend, and hold harmless the Provider against any damages, liabilities, or costs, including reasonable attorneys' fees, arising from or allegedly arising from or in any way related to or connected with the reuse or modification of the deliverables by the City. The City will credit the Provider each time the deliverables are used. 9. ALsipinient. The Provider shall not assign or subcontract the whole or any part of this Agreement or its obligations hereunder without the prior written consent of the City. 10. Notices. Any notice required or permitted to be delivered hereunder shall be deemed to be delivered when deposited in the United States Postal Service, postage prepaid, registered or certified mail, return receipt requested, addressed to the City or the Provider, as the case may be, at the address set forth below. Provider: C!tv: Calfee Zoning City of South Bend 2800 First Financial Center 227 W. Jefferson Boulevard, Suite 1400 S. 255 E. Fifth Street South Bend, 1N 46601 Cincinnati, OH 45202 Attn: Michael Divita Attn: Sean Suder 11. EC ual O mortunit � on-1 iscriminatiow Compliance. The Provider shall comply with all applicable laws and regulations in its hiring and employment practices and policies for any activity covered by this Agreement. The Provider shall comply with all federal, state, and municipal laws, regulations, and standards applicable to its activities purguant to this Agreement including, but not limited to, the requirements imposed by Ind. Code 22-9-1-10 (non- discrimination), the provisions of Ind. Code 5-22-16.5 (disqualification for dealings with the government of Iran), and the provisions of Ind. Code 22-5-1.7 (requiring E-Verify for new employees and prohibiting employment of unauthorized aliens), Each of tlic foregoing provisions is incorporated herein as if set forth in full, and the provider certifies that she is in compliance with each such provision and shall remain in compliance through the term of this Agreement. 12. Contractor's Affidavit. The Provider agrees, as a condition precedent to the effectiveness of this Agreement, that its authorized representative will execute and submit to the City and any other appropriate bodies an affidavit in the form attached hereto as Exhibit B. 13. Qru -Free Workplace. The Provider hereby agrees to make a good faith effort to provide and maintain a drug -free workplace. The Provider will give written notice to the City within ten (10) days after receiving actual notice that the Provider or an employee of the Provider within the State of Indiana has been convicted of a criminal drug violation occurring in the workplace. 14. No Waiver. No failure or delay on the part of either Party in exercising any right under this Agreement will operate as a waiver of, or impair, any such right. No single or partial exercise of any such right will preclude any other or further exercise thereof or the exercise of any other right. No waiver of any such right will have effect unless given in a written document signed by the Party waiving such right. No waiver of any right will be deemed a waiver of any other right hereunder. 15. Severibility. In the event any portion of this Agreement shall be held illegal, void, or ineffective, the remaining portions hereof shall remain in full force and effect. If any of the terms or conditions of this Agreement are in conflict with any applicable statute or rule of law, then such terms and conditions shall be deemed inoperative to the extent that they may conflict therewith and shall be deemed to be modified to conform to such law. 16. Entire Agreement- Anra:ndNentA licalle C..aw. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understandings of any and every nature between them. This Agreement may be amended only by separate writing, signed by authorized representatives of both the Provider and the City. This Agreement will be construed and interpreted according to the laws of the State of Indiana. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement for Professional Services to be effective as of the Effective Date stated above. CITY: CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS Gary A. Gilot, President N Elizabeth Maradik, Member Suzanna M. Fritzberg, Member James Mueller, Member Therese Dorau, ember Arf ESL. )-(_a M M artin Cleo°lc Lind , PROVIDER: CALFEE STRATEGIC SOLUTIONS, LLC D/B/A CALFEE ZONING Printed: Title: EXHIBIT A Scope of Work [See attached.] EXHIBIT B Contractor's Affidavit [See attached.] CALFEE ZONING . Mik'�9��Nd1�FCa�NB�"+WurtA6fN¢ti.�p,fq.,t> TO: Tim Corcoran, Planning Director Michael Divita, AICP, Principal Planner FROM: Sean Suder, Lead Principal, Calfee Zoning DATE: November 6, 2018 RE: City of South Bend, IN — Professional Services Proposal Thank you for reaching out to Calfee Zoning to provide a proposal to the City of South Bend for the following professional services related to the on -going update of the city's Zoning Ordinance: • Legal Review: Review new code for legal concerns, including consistency with state and federal law and constitutional principles. • Administrative Process Review: Review existing and draft zoning procedural provisions and provide recommendations on any efficiency gains/process improvements. • Peer Review: Review and audit new code, providing suggestions on improvements to code's clarity, structure, or individual standards based on practical experience and best practices. More specifically, Calfee Zoning proposes to provide the following services related to the aforementioned scope of services: Tasks Estimate Fee Estimated Completion Date Project Kick -Off Teleconference (1.50 $500 On or before February 1, 2019 hours); meeting with city staff and other key stakeholders to gather information necessary to undertake and complete review; gather all relevant documents, including, all draft codes, plans, forms, and rules of procedures for review; discuss and decide upon comment format and final timeline Review all relevant information and $5,500 On or before March 1, 2019 drafts Provide written comments and summary $13,000 On or before April 15, 2019 report to city staff for review and comments/feedback In -person meeting with cit staff and key $4,500 On or before Ma 31, 2019 �l 3 8N) First B7tirod�,,fl Cemt r 255 PE, RM) SlueEA, �,1hkA41r1@ Z � r, 452021 (513) 693-488 3 4847-0927-0649, v.1 CALFEE ZONING stakeholders to present report and discussing implementation of recommendations; overnight stay in South Bend noon to noon Draft summary report consolidating comments and makin recommendations $7,500 On or before June 30, 2019 TOTAL FEE ESTIMATE: $31,000 COMPLETION DATE- On or before June 30, 2019 The City may desire to engage Calfee Zoning for the following additional services at the additional costs below: Optional Overnight Trip to South Bend (noon to noon): $4,500 Optional Zoning Board and Commissions Rules of Procedure Review and Update: $7,500 Optional Planning and Zoning Application Forms Review and Update: $7,500 Optional Additional Teleconferences (1.50 hours): $500 All fees are on a guaranteed maximum price basis and are inclusive of Consultant's preparation time, materials, and travel costs and expenses. Additional scope items will require additional discussion and a separate proposal. This is a proposal only and is not an offer to provide services or a binding agreement. If acceptable, the terms of this proposal will be memorialized in a professional services agreement between the City and us to be agreed upon and executed prior to the commencement of work. We look forward to the opportunity to assist the City of South Bend with this important project. Please let me know if there is any additional information that we can provide or any questions that we can answer as you consider this proposal. Thank you, Sean Although some of our professionals .are attorneys who may be separately engaged to provide legal representation and services in Jurisdictions where they are licensed to practice law, Calfee Strategic Solutions, LLC d/b4'a Calfee Zoning (TZ°") (an affiliate of the law firm of Calfee, Halter & Griswold LLP with its principal place of business at 1405 East Sixth Street, Cleveland, Ohio 44114) is not a law firm and does not provide any legal representation or legal services, and the fees collected by CZ in performing consulting services are, therefore, not legal fees. Engaging or otherwise contracting with CZ or its principals or employees does not form an attorney -client relationship and, therefore, the protections of the attorney -client relationship donot apply. If you are seeking to create an attorney -client relationship, you are encouraged to engage an attorney of your choosing. Engaging or otherwise contracting with CZ or its principals or employees does not require you to engage, hire, or retain any attorney in partnership with or employed by CZ's affiliate law firm, Calfee, Halter & Griswold LLP, or in any way limit, affect, or impact your ability to engage, hire, or retain an attorney of your choosing. 2800 l` ir:I t FM,,,r lA . , , ,l 4847-0927-0649, v.1 When the prospective Contractor is unable to cent fy to any of the statements below, it shall attach an a planotion to llrrs Affldavit CONTRACTOR'S NON -COLLUSION AND NON -DEBARMENT AFFIDAVIT, CERTIFICATION REGARDING INVESTMENT WITH IRAN, EMPLOYMENT ELIGIBILITY VERIFICATION, NON-DISCRIMINATION COMMITMENT AND CERTIFICATION OF USE OF UNITED STATES STEEL PRODUCTS OR FOUNDRY PRODUCTS (Must be completed for all quotes and bids. Please type or print) V STATE OF SS: COUNTY ) The undersigned Contractor, being duly sworn upon his/her/its oath, affirms under the penalties of peijury that; I. Contractor has not, nor has any other member, representative, or agent of the firm, company, corporation or prtnership represented by him, entered into any combination, collusion or agreement with any person relative to ti,ic price to be hid by anyone fit such letting note to prevent tiny person frown bidding nor to induce anyone to refrain li`t,m lidding, and that this bid is trade witltotit reference to any other bid and without any agreement, understanding or combination with any other person in reference to such bidding. Contractor further says that no person or persons, firms, or corporation has, have or will receive directly or indirectly, any rebate, fee, gift, commission or thing, of value on account of such sale; and 2. Contractor certifies by submission of this proposal that neither contractor nor any of its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily exclude(] 1'rom. participation in this transaction by any Federal department or agency; and 3. Contractor has not, nor has any successor to, nor an affiliate of, Contractor,, engaged in investment activities in Tran. a. For purposes of this Certification, "Iran" means the government of Iran and any agency or instrumentality of Tran, or as otherwise defined at Ind. Code § 5-22-16.5-5, as amended from titne-to-time. b. As provided by Ind. Code § 5-22-16.5-8, as amended fi•oni tithe -to -time, a Contractor is engaged in investment activities in Iran if either: i. Contractor, its successor or its affiliate, provides goods or services of twenty million. dollars ($20,000,000) or more in value in the energy sector of Iran; or ii. Contractor, its successor or .its affiliate, is a f"rnancial institution that extends twenty million dollars ($20,000,000) or more in ei,edit to another person for forty-five (4 ) days or more, if that Iaerson will (i) use the credit to provides goods and services in Non -Collusion Nun-Debmimit Affidavit Non ]ran Pbrni the energy sector in Iran; and (ii) at the time the financial institution extends credit, is a person identified on list published by the Indiana Department of Administration. 4. Contractor does not knowingly employ or contract with an unauthorized alien, nor retain any employee or contract with a person that the Contractor subsequently learns is an unauthorized alien. Contractor agreesthat lie/she/it shall eliroll in and verify the work, eligibility status of all of Contractor's newly hired employees through the E-Verity program as defined by T.C. 22-5-1.7-3. Contractor's documentation of enrollment and participation in the E-Verify: Program is included and attached as part of this bid/quote; and 5. Contractor shall require his/her/its subcontractors performing work under this public contract to certify that the subcontractors do not knowingly employ or contract with an unauthorized alien, not- retain any employee or contract with a person that the subcontractor subsequently learns is an unauthorized alien, and that the subcontractor has enrolled in and is participating in the E-Verify Program. The Contractor agrees to maintain, this certification throughout the term of (lie contract with the (1ty of SOUth Bend, acid understands that the City in ay terminate the contract for default if the Contractor fails to core a breach of this provision no later than thirty (30) days attar being notified by the City. G. Pei -sons, 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 perf"'ormance 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, gender expression, gender identity, sexual orientation or disability that does not affect that person's ability to perform the work, In awarding contracts for the purchase of work, labor, set -vices, 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 o [" a City contract be required to award 4 Subcontract to an M1,11YWRE; 11owever, it may not iudawfully discriminkite against said WB V, MBE. A finding of discriminator), 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. 7, The undersigned contractor agrees that the following nondiscrimination commitment shall be made a part of any contract which it may henceforth enter into with the City of South Bend, Indiana or any of its agencies, boards or commissions. Non-CollusionNonwDebannent Affidavit Non Iran Form Contractor agrees not to discriminate against or intimidate any employee or applicant for employment in the performance of this contract with privileges of employment, or any matter directly or indirectly related to employment, because of race, religion, color, sex, gender expression, gender identity, sexual orientation, handicap, national origin or ancestry. Breach of this provision may be regarded as material breach of contract. 1, the undersigned bidder or agent as contractor on a public works project, understand my statutory obligations to the use of steel products or foundry products made in the United States (LC. 5-16-8-1). 1 hereby certify that I and all subcontractors employed. by nee for this project will use steel products or foundry products on this project if awarded. I understand that violations hereunder may result in forfeiture of contractual payments. I hereby affirm under the penalties of perjury that the facts and information contained in the foregoing bid for public works are true and correct. Dated this , &,," y of f 20 .� t.,untractol/liiddew (Firm) S Ilc ra actor/l3iddcr or Its Agent Printed Name r� and Tit e Subscribed and sworn to before me this b1h— day of ,, 2O-8 My Commission Expires l-q ..a ----- p-z)blot Ir Yublic y County of Residence t .a. _m,____— J@Illlif@f MW Notary PLW State of Ohio My Conr"m Expires 09.20.2020 Non -Collusion Non -Debarment Affidavit Non tran Form TO: Tim Corcoran, Planning Director Michael Divita, AICP, Principal Planner FROM: Sean Suder, Lead Principal, Calfee Zoning DATE: November 6, 2018 RE: City of South Bend, IN — Professional Services Proposal Thank you for reaching out to Calfee Zoning to provide a proposal to the City of South Bend for the following professional services related to the on -going update of the city's Zoning Ordinance: • al Review: Review new code for legal concerns, including consistency with state and federal law and constitutional principles. • Administrative Process Review: Review existing and draft zoning procedural provisions and provide recommendations on any efficiency gains/process improvements. • Peer Review: Review and audit new code, providing suggestions on improvements to code's clarity, structure, or individual standards based on practical experience and best practices. More specifically, Calfee Zoning proposes to provide the following services related to the aforementioned scope of services: Tasks Fee Estimated Completion Date Estimatem� _ Project Kick -Off Teleconference (1.50 $500 On or before February 1, 2019 hours); meeting with city staff and other key stakeholders to gather information necessary to undertake and complete review; gather all relevant documents, including, all draft codes, plans, forms, and rules of procedures for review; discuss and decide upon comment format and final timeline I Review all relevant information and $5,500 On or ... before March 1, 2019 drafts Provide written comments and summary $13,000 On or before April 15, 2019 report to city staff for review and comments/feedback In- erson meetin with cit staff and key$4,500 On or before Ma 31, 2019 1 MY) E :, I' 4847-0927-0649, M CA-LIEE ZONINGo,ob0,lGranGfitl&.,ur'.YfPsrsx-, stakeholders to present report and discussing implementation of recommendations; overnight stay in South Bend noon to noon Draft summaryreport consolidating $7,5 p g 00 ' On or before June 30, 2019 comments and makin recommendations TOTAL FEE ESTIMATE: $31,000 �.. COMPLETION DATE: On or before June 30, 2019 The City may desire to engage Calfee Zoning for the following additional services at the additional costs below: Optional Overnight Trip to South Bend (noon to noon): $4,500 Optional Zoning (Board and Commissions Rules of Procedure Review and Update: $7,500 Optional Planning and Zoning Application Forms Review and Update: $7,500 Optional Additional Teleconferences (1.50 hours): $500 All fees are on a guaranteed maximum price basis and are inclusive of Consultant's preparation time, materials, and travel costs and expenses. Additional scope items will require additional discussion and a separate proposal. This is a proposal only and is not an offer to provide services or a binding agreement. If acceptable, the terms of this proposal will be memorialized in a professional services agreement between the City and us to be agreed upon and executed prior to the commencement of work. We look forward to the opportunity to assist the City of South Bend with this important project. Please let me know if there is any additional information that we can provide or any questions that we can answer as you consider this proposal. Although some of our professionals are attorneys who may be sepa ,,Aely engaged to provide legal representation and services to jurisdictions where they are licensed to practice lava, Calfee Strategic Solutions, LLC tt iAl Calfee Zoning ("CZ") (an affiliate of the law funs of Calfee, Halter & Griswold ILLP with its princ,,if4al place of busInt,,,ss at 1405 East Sixth Street, Cleveland, Ohio 44114) is not a taw firm arid does riot provide any legal representation or legal services, and the fees collected by CZ in performing consulting services are, therefore, riot legal fees. Engaging eor d:atiie; wise contracting with CZ or its principals or employees does riot form an atlerney-client relationship and, therefore, the protections of the attorney -client relationship donot apply. if you are seeking to create an attorney r lieant relationship, you are, encouraged to engage, are attorney of your choosing. Engaging or otherwise contractiiag with CZ or its principals or employees �.k:aes not require you to engage, hire„ or retain any attorney In partnership with or e.wnployod by Cis aaftillate law lima, Callee:, 11aiter & t° riswold kt.P, or in any way limit, affect, or Impact your ability to engage, hire, or retain an altaornc-:y of your choosing. 2 4847-0927-0649, M BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date November 28, 2018 Name Michael Divita Department DCI BPW Date December 11, 2018 Phone Extension 5843 �M 00�m . ..... '—R 6 - i. i d �-05ir i o ��rto S u ��bm ii t —�talio B—oard­­—­------ Legal Attorney Name Sandra Kennedy Controller review is required for all Contracts $5,000.00 or more Controller El and greater than one year in length per the City Purchasing Policy Purchasing E] Check the A E Agreement F-1 Professional Services Bid Opening Quote Opening El Chg Order No. Ease./Encroach. Other: Company or Vendor Name New Vendor MBE/WBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract iropriate Item Type - [I Contract F-1 Amendment El Bid Award El Quote Award El C/O & PCA No. R Traffic Control for All Submissions Proposal E] Req. to Advertise El PCA F-1 Resolution F-1 Claim Addendum El Title Sheet Required Information ... ....... . ......... iffa-lf6e Strateqic Solutions (dba Calfee Zonin_C s EJ If Yes, Approved by Purchasing -O-Y6 " -'— . ..................... F-1 No WBENos EIF-1 Completed E-Verify Form Attached Zoning Ordinance Updates: Process & Legal Review EDIT 408.1001.460.31.06 / 18JO28 ........... $31,000