HomeMy WebLinkAboutStatement of Work - Crowe Horwath LLP - Annual Tax Abatement Report1316 COUNTY -CITY BUILDING
227 W. JEFFERSON BOULEVARD
SOUTH BEND. INDIANA 46601-1830
January 22, 2019
Shawn Kane
Crowe Horwath LLP
10 West Market Street, Suite 2000
Indianapolis, IN 46204
RE: Statement of Work
Dear Mr. Kane:
PHONE 574/235-9251
FAx 574/235-9171
The Board of Public Works, at its meeting held on January 22, 2019, approved the
above referenced agreement to coordinate, input and review all compliance forms for
the annual tax abatement report in the amount of $25,000.
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. GILOT SUZANNA M. FRITZBERG ELIZABETH A. MARADIK LAURA O'SULLIVAN THERESE J..
DORAU
71
1021,
(,..rowe
Statement of Work ("SOW') # 003
Dated January 7, 2019
City of South Bend
Crowe LLP
STATEMENT OF WORK ("SOW') NUMBER 003
to that certain Master Services Agreement dated as of July 11, 2016 (A copy of which is attached)
Services:
1. We will track all 2019 CF-1 s filed by taxpayers who have current property tax abatements with the City of
South Bend against the master list as provided by the City of South Bend.
2. We will handle any necessary communications with taxpayers who have current property tax abatements
including sending out initial 2019 CF-1 filing request letters/e-mails as well as any follow up
communications via letters, e-mails, or phone calls to ensure taxpayers file their annual CF-1 on a timely
basis.
3. As the 2019 CF-1 forms are received we will input and compare the taxpayer's current project
investment and employment levels against their initial 5I3-1 commitments as stated in their original tax
abatement request documents and update the master CF-1 tracking file.
4. We will provide the City of South Bend a summary report by taxpayer documenting each taxpayer's 2019
CF-1 information against their initial project estimates so that the City can determine which taxpayers are
in compliance and make their annual presentation to the City Council in June of 2019.
Assumptions/Client Responsibilities:
The City of South Bend will:
• Provide Crowe with accurate and reliable information, data, documents and records, such as a list of all
taxpayers who currently have a tax abatement with the City of South Bend as well as well as a copy of
an abatement form filing reminder e-mail sent to these taxpayers.
• Provide a liaison to facilitate the dissemination of information;
• Be responsible for all tax and property related functions other than those Crowe are providing under this
SOW;
• Be responsible for obtaining appropriate legal advice, if required;
All data requests and copies of tax abatement schedules must be provided to Crowe with sufficient time for
processing. If information is not provided as indicated this will result in additional `out -of -scope" billings.
It is understood that you will provide us with the basic information required for completion of this project. The
tax laws provide that the obligation of a preparer is based only on information of which the preparer has
knowledge. The completeness and accuracy of the information you provide to us remains the responsibility
of your management. By signing below, you are warranting the accuracy and completeness of such
information.
Management is responsible for the proper recording of transactions in the books of accounts, for the
safeguarding of assets, and for the substantial accuracy of the financial records. To the extent the results of
the Tax Consulting Services may, be included in one or more tax returns, you have the final responsibility for
the income tax returns, estimated tax payments if applicable, and positions therein; therefore, you should
review them carefully before you sign and file them. You must retain records supporting the filed retum(s).
In connection with performing this service, you agree to: assume all management responsibilities including
making all management decisions; oversee the service by designating an individual, preferably within senior
management, who possesses suitable skill, knowledge, and/or experience; evaluate the adequacy and results
of the services performed; accept responsibility for the accuracy and completeness of all information provided
by you to us; accept responsibility for the timely submission to Crowe of all information necessary to perform
our work and accept responsibility for the results of, and how you use the results of, the Tax Consulting
Services- and establish and maintain internal controls, including monitoring of ongoing acfivities. Because of
the importance of management's representations, you agree to release Crowe and its personnel from any
liability and costs relating to our services under this letter attributable to any misrepresentations by
management.
SOW # 003
Page 1 of 3
Your returns may be selected for review by the taxing authorities. Any proposed adjustments by the
examining agent are subject to certain rights of appeal. In the event of such government tax examination, we
will be available upon request to assist you in responding to taxing authorities and to provide expert
knowledge and information. We will render additional invoices for the time and expenses incurred.
Client Representative: An elina Billo City of South Bend
Name/Title
Timeline/Schedule:
Work will commence upon signing of the enclosed Statement of Work #003
Fees and Expenses:
Our fee to provide the services described in the "SCOPE OF SERVICES TO BE PERFORMED" is as
follows:
2019 Indiana Property Tax Abatement Compliance Services - $125 per CF-1 processed
We will invoice 25% of our property tax consulting fees for 2019 upon commencement of the SOW. The
balance of our property tax consulting fees will be invoiced as the work is completed. Our invoices are due
and payable on receipt. Bills that are not paid within 30 days of receipt are subject to a monthly interest
charge of one percent per month or the highest interest rate allowed by law, whichever is less, which we may
elect to waive at our sole discretion, plus costs of collection including reasonable attomeys' fees.
Upon City of South Bend's request for additional services beyond the scope mentioned in this SOW, Crowe
will estimate fees for the additional project(s) and obtain City of South Bend's approval with subsequent
SOW(s).
Out-of-pocket expenses, including travel costs will be billed separately as incurred.
Our estimate of fees for the property tax consulting services includes limited research with respect to proper
tax return disclosure and presentation. Additionally, we typically encounter minor technical research that is
done in connection with property tax consulting services. However, the above fee estimate does not include
significant tax research with respect to non -recurring items and other matters of tax significance that may
arise in the course of our consulting services. As items of this nature arise, we will apprise you of the nature
of the matter and arrange for appropriate fees before we invest significant professional time.
General Data Protection Regulation Compliance.
If and to the extent that Client provides personal data to Crowe subject to the European Union General Data
Protection Regulation ("GDPR"), then in addition to the requirements of the above Data Protection section, this
section will apply to such personal data ("EU Personal Data"). The parties agree that for purposes of processing
the EU Personal Data, (a) Client will be the "Data Controller" as defined by the GDPR, meaning the organization
that determines the purposes and means of processing the EU Personal Data; (b) Crowe will be the "Data
Processor" as defined by GDPR, meaning the organization that processes the EU Personal Data on behalf of and
under the instructions of the Data Controller; or (c) the parties will be classified as otherwise designated by a
supervisory authority with jurisdiction. Client and Crowe each agree to comply with the GDPR requirements
applicable to its respective role. Crowe has implemented and will maintain technical and organizational security
safeguards reasonably designed to protect the security, confidentiality and integrity of the EU Personal Data.
Client represents it has secured all required rights and authority, including consents and notices, to provide such
EU Personal Data to Crowe, including without limitation authority to transfer such EU Personal Data to the U.S. or
other applicable Country or otherwise make the EU Personal Data available to Crowe, for the duration of and
purpose of Crowe providing the Services. The types of EU Personal Data to be processed include name, contact
information, title, and other EU Personal Data that is transferred to Crowe in connection with the Services. The EU
Personal Data relates to the data subject categories of individuals connected to Client, Client customers, Client
vendors, and Client affiliates or subsidiaries ("Data Subjects"). Crowe will process the EU Personal Data for the
following purpose: (x) to provide the Services in accordance with this Agreement, (y) to comply with other
documented reasonable instructions provided by Client, and (z) to comply with applicable law. In the event of a
Crowe breach incident in connection with EU Personal Data in the custody or control of Crowe, Crowe will
promptly notify Client upon knowledge that a breach incident has occurred. Client has instructed Crowe not to
contact any Data Subjects directly, unless required by applicable law. In the event that a supervisory authority with
SOW # 003
Page 2 of 3
jurisdiction makes the determination that Crowe is a data controller, Client will reasonably cooperate with Crowe to
enable Crowe to comply with its obligations under GDPR. Crowe will reasonably cooperate with Client in
responding to or addressing any request from a data subject, a supervisory authority with jurisdiction, or the Client,
to the extent necessary to enable Client to comply with its obligations under GDPR as the Data Controller. Client
will promptly reimburse Crowe for any out-of-pocket expenses and professional time at Crowe's then -current
hourly rates. Client will provide prompt written notice to Crowe (with sufficient detailed instructions) of any data
subject request or other act that is required to be performed by Crowe as the Data Processor on behalf of Client as
the Data Controller. Crowe shall promptly delete or procure the deletion of any EU Personal Data after the
cessation of any Services involving the processing of Client's EU Personal Data. Notwithstanding the forgoing,
Crowe may retain a copy of the EU Personal Data as permitted by applicable law or professional standards,
provided that such EU Personal Data remain subject to the terms of this Agreement.
Signing and returning this Statement of Work to the following indicates acceptance of the terms identified in
this SOW:
Mr. Shawn Kane
Crowe LLP
shawn.kane@crowe.com
Please retain the original for your files. If you have any questions or comments regarding the terms of this
SOW, please call Brian Kanouse at (574) 235-6855.
We are pleased to have this opportunity to serve you, and we look forward to a continuing relationship. If the
terms of this SOW are acceptable to you, please sign below and return one copy of this document at your
earliest convenience. Please contact us with any questions or concerns.
ACCEPTANCE:
have reviewed the arrangements outlined above and in the attached Master Services Agreement dated
July 1, 2016, and I accept on behalf of the Client the terms and conditions as stated. By signing below, I
represent and warrant that I am authorized to accept the terms and conditions as stated.
IN WITNESS WHEREOF, City of South Bend and Crowe have duly executed this SOW effective the date
first written above.
City of South Bend
Signaturefluird Of 11 .) of. �-.
Date
Crowe LLP
Signature
Shawn M. Kane
Printed Name
Partner
Title
Janua 7, 2019
Date
SOW # 003
Page 3 of 3
''' Crowe Horwatha
Crowe Horwath LLP
Indepondmi, MeffiharCrowa Homan International
10 West Market Street, Suite 2000
Indianapolis, Indiana 46204-2975
Tet 317,632 1100
Fax 317.635.6127
wwwcrowehumsth,corn
This Master Services Agreement effective July 1, 201 ("Effective Date"), is between the City
of South Rend, Indiana ("Client"), and Crowe Horwath I .L..P, an Indiana limited liability partnership
with offices at 10 West Market Street, Suite 2000, Indianapolis„ Indiana 4620 ("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.
I efnitiol°ts,
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 L titbit , to be performed by Crowe and will be attached hereto and made a part
hereof, setting forth the following: 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
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
Damage ), Paragraph 9 (Limitation of Liability), and Paragraph 10 (1 hird-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 Res orrtsi Afiti .
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.
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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 autl°iorit'y 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, nr 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, R,, 5a�s�b�lrtie .
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
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. onfidontialih
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 pary'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,
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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 Party 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 Party 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.
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7. DISCLAIMER GPI 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 W1LL 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. O Punit:ive or Cone ,trentigl Ua r�!gcs. 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. L�;,_irrrit�ation Q Lei ilmaty. 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.
19. T h'irrN f art Nr lemnifi�c; tior�. 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 fries, defense costs and legal foes, associated
with a third -party claim arising from or relating to any services or work provided tinder 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. Ind contractors �enrl nt Contractor Rela, 6onshi„p. The parties are and will be independent
e
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
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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 Fawnent.
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'/z% 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 he provided.
C. 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 trarlsitioning 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
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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. Ownersh% . 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 c rer#atic r . 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. PubllcitY. _Pu ltgatao .. nd A rn noun r r l a tints.
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-1 equired 1pusd_ sgjcIf 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,
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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 A i rlmeril . 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
parry, 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. Pest to Legal Pro e s. If Crowe is requested by Client, any third party, 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. Laeg alar1d R_g_q�latgryhargg. 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: Copy to
Crowe Horwath LLP Crowe Horwath LLP
10 West Market Street, Suite 2000 One Mid America Plaza, Suite 700
Indianapolis, Indiana 46204 Oakbrook Terrace, IL 60181
Attention: Kendra W. York Attention: General Counsel
If to Client:
City of South Bend, Indiana
227 West Jefferson Boulevard, Suite 1400 N
South Bend, Indiana 46601
Attention: Brian Pawlowski
22. Frrr�r,e 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.
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23. No Construction Agg Ap§t 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. Id_eading . 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. SeverabOty. 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 Pally 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. -tire A q(qc l Lcq!. 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. Co nt , reams. 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
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be considered documents equivalent to original documents.
32 J meMiLimits 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 taw. This Agreement, including any dispute arising out of or related to this
m Agreeent, 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 Forurn 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 PARTIFS AGRFF 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."
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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
Printed Name .art Pi fj-j;;
Crowe Horwath LLP
w
\'2
m . ...�...... ....... .. _ .....
Signature
Kendra W. York_
Printed Name
Director
Title -
Title
�' August 9 2016
Date Date _m...
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Date January 11, 2019
........�.
Name Angelma Billo Department DCI
BPW Date January 22 2019 Phone Extension 5838
R MIWA.— mmmuuumumueJmumimmmmmmimi m� i���Ommmmmmmmmm�m ssexmrnnn�cur.mumuuuuuuuuI ...
Required Pnor to Submittal to Board
Legal ® Attorney Name Sandra Kennedy
Controller ❑ Controller review is required for all Contracts $5,000.00 or more anc
greater than one year in length per the City Purchasing Policy
Purchasing
Check the
Agreement
® Professional Services
�] Bid Opening
[-1 Quote Opening
Change Order No. _
El Ease/Encroach.
E Other:
ir priate Item Type Re !
Contract
Resolution
❑ Bid Award
❑ Quote Award
0 C/O & PCA No.
F1 Traffic Control
Company or Vendor Name Crowe LLP
for All Submissions
Proposal ❑ Addendum
❑ Req. to Advertise ❑ Title Sheet
ired Information
❑ PCA
New Vendor [:] Yes ® No ❑ If Yes, Approved by Purchasing
MBE/WBE Contractor ❑ MBE ❑ WBE
ent Consulting Services
Project Name Tax Abatem ...........mw—..........--
Project Number
Funding Source
Account No. 21�.�� ,� � � � � .��.....................w�-,..m,,.._A,_A�........................................................... _.�..
1.06
.....,,........... 3 �.r��W__ . ..............�
Amount $ 25,000
Terms of Contract
Purpose/Description Crowe LLC will coordinate, input and review all compliance forms for the
annual tax abatement report.
❑ Required Contractor's Certification Form Attached (Non -
Collusion, Non -Discrimination, Non -Debarment, E-Verify, Iran, etc).
ew uired For Change Orders Only
Amount of El Increase $
❑ Decrease $
Previous Amount $
Current Percent of Change:
New Amount $
Total Percent of Change:
Copy Original
® ❑] Angelina Billo
�...J._.... ......
uc�iy Love ......................
®
Dispersal After App
roval