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HomeMy WebLinkAboutConsulting Agreement - enFocus Inc - Bloomberg Mayors Challenge Operational Support1316 COUNTY-CrrY BUILDING 227 W.JEFFERSON BOULEVARD SO[rrH BEND. INDIANA 46601-1830 Daniel Collins enFocus, Inc. Studebaker Building 113 635 S. Lafayette Blvd South Bend, IN 46601 RE: Consulting Agreement Dear Mr. Collins:. �C'IU`Ftt I?A Y 186 June 25, 2019 PHONE 574/235-9251 FAx 574/235-9171 The Board of Public Works, at its meeting held on June 25, 2019, approved the above referenced agreement regarding operational support for the Bloomberg Mayors Challenge in the amount of $234,500. 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 GENEVIEVE E. MILLER ELIZABETH A. MARADIK LAURA L. O'SULLIVAN THERESE J. DORAU INTER -OFFICE MEMORANDUM Department of Innovation & Technology City of South Bend 227 W Jefferson Blvd 1865 TO: Board of Public Works, Linda Martin CC: Brian Donoghue, Sandra Kennedy, Aaron Steiner FROM: Denise Linn Riedl SUBJECT: enFocus — Operational Support for Bloomberg Mayors Challenge Transportation as a Benefit Program DATE: 6/18/2019 Linda and Members of the Board: We are submitting for review and approval this agreement with enFocus, Inc. for professional services related to the support and operation of the City's Bloomberg Mayors Challenge program. This program will allow employees of select area employers to access transportation to work funded by the associated Bloomberg grant and employer/employee contribution. Employees will access transportation through customer accounts hosted by enFocus. In addition to provisioning transportation services in this way, enFocus will commit staff resources to assist the City in the development of this program. Please feel free to reach out if there are any questions. Thank you, Denise Linn Riedl Chief Innovation Officer C 0 N LJ i1..-. 9 N C. ) A C) a � Il E f°/I d...��_ This Consulting Agreement (the "Agreement") is entered into on April so, 2o19, by and between The Qy_j2LSouth Bend, Indiana. an Indiana municipal corporation, acting by and through its Board of Public Works, having its principal offices 22Z W. Jefferson, Blvd., South Bend IN 6oi (hereinafter referred to as "Sponsor"), and enFocus, a 501(c)(3) organization, having its principal offices at Studebaker Building 113, 635 S Lafayette Boulevard, South Bend, IN 466o1(hereinafter referred to as "Consultant"). F oi'°"I's a �'6 irH] WHEREAS, the Sponsor desires to obtain the services of Consultant, and Consultant r u 4i rya '',fin l" desires to provide consulting services to the Sponsor upon the terms and conditions in this Agreement. AGREEMENT Page'' SECTION 1--CONSULTING PERIOD s of -1. (a) Term - The Sponsor hereby retains the Consultant and Consultant agrees to render to the Sponsor those services described in Scope of Services, Exhibit A, incorporated by reference and attached hereto, for the period (the "Consulting Period") commencing on April so, 2oig and ending on July 31, 2020. (b) Termination - At any time, either party may terminate, without liability, the Consulting Period for any reason, with or without cause, by giving 21 days advance written notice to the other party. The Sponsor shall pay Consultant for work completed as of the date of termination, provided, however, that the Sponsor will have no obligation to pay the Consultant for any portion of the Consultant's work with which the Sponsor is dissatisfied, as determined in the Sponsor's sole discretion. SECTION 2 — DUTIES AND RESPONSIBILITIES (a) Consultant hereby agrees to provide and perform for the Sponsor those services set forth in Exhibit A. (b) Consultant will execute its obligations under this Agreement in accordance with the prevailing professional standard of care for projects of similar design and complexity. SECTION 3 —COMPENSATION, EXPENSES, PAYMENT, BENEFITS (a) In consideration of the services rendered by the Consultant under this Agreement, the Sponsor shall pay the Consultant an amount not to exceed Two Hundred Thirty -Four Thousand Five Hundred Dollars ($234,5oo.00) (the "Contract Amount"), as further specified in Exhibit A. Notwithstanding the foregoing sentence, the Sponsor will not be required to pay any portion or installment of the Contract Amount if the Sponsor is not satisfied with the Consultant's performance under this Agreement or any default or breach of this Agreement by the Consultant exists, as the Sponsor may determine in its sole discretion. (b) Payment Terms. Invoices shall be presented as set forth in Exhibit A, and payments are due within 3o days. (c) Sponsor hereby agrees to reimburse the Consultant for reasonable business expenses incurred by Consultant in performing its work under this Agreement, provided that the Sponsor will not reimburse the Consultant for any expenses unless said expenses were approved in writing by the Sponsor (or its representative) before being incurred by the Consultant and such expenses do not exceed the amount set forth in Exhibit A. (d) Benefits. Other than the compensation specified in Sections 3(a), Consultant shall not be entitled to any direct or indirect compensation for services performed '`g eu G'P4" nt hereunder. SECTION 4 - CONFIDENTIAL INFORMATION (a) "Confidential Information" means: Page (i) any information given to enFocus by Sponsor and clearly marked, in 2 Of :.L writing as confidential; and (z) any information given to enFocus by Sponsor orally that, at the time given, is stated to be confidential, and such statement of confidentiality is reduced to writing within thirty (3o) days; or (3) any information that, by its nature, is considered confidential. (b) enFocus agrees to keep Confidential Information confidential for a period of five (5) years from date given to enFocus, not to give in any form to a third party, and only to give to enFocus employees who have a need to know such Confidential Information. (c) Confidentiality, as stated in SECTION 4 (b), will not apply to information which: (i) is at the time of receipt public knowledge, or after receipt becomes public knowledge through no act of omission on the part of enFocus; (z) was known to enFocus, as shown by written records, prior to disclosure by Sponsor; (3) is received by enFocus from a third party who did not obtain the information from Sponsor; or (4) is required by law to be disclosed. Consultant hereby acknowledges and agrees that all property, including, all books, manuals, records, reports, notes, contracts, lists, blueprints, and other documents, or materials, or copies thereof, that is produced under this Agreement (collectively, the "Proprietary Information"), and equipment furnished to or prepared by Consultant in the course of or incident to rendering of services to the Sponsor, belong to the Sponsor and shall be promptly returned to the Sponsor upon request. (d) Consultant agrees to hold all Sponsor's Proprietary Information in strict confidence and trust for the sole benefit of the Sponsor and not to, disclose, use, copy, publish, summarize, or remove from Sponsor's premises any Proprietary Information (or remove from the premises any other property of the Sponsor) during the Consulting Period except (i) to the extent necessary to carry out Consultant's responsibilities under this Agreement or (ii) after termination of the Consulting Period or (iii) when the information falls within the guidelines of this Agreement. SECTION 5 — NOTICES All notices or other communications required or permitted hereunder shall be made in writing and shall be deemed to have been duly given if delivered by hand or mailed, postage prepaid, by certified or registered mail, return receipt requested, and addressed to the Sponsor at: ATTN: City of South Bend, Indiana, Board of Public Works 227 W. Jefferson Blvd.,13oo N South Bend, IN 466o1 With copies to: ATTN: Denise Riedl, Chief Innovation Officer City of South Bend, Indiana Dept. of Innovation & Tech. 227 W. Jefferson Blvd.,lzoo N South Bend, IN 466o1 ATTN: Corporation Counsel City of South Bend, Indiana Legal Dept. 227 W. Jefferson Blvd., 1200 S South Bend, IN 466os or to the Consultant at: ATTN: Daniel Collins, Business and Special Projects Analyst enFocus Studebaker Building 113 635 S Lafayette Boulevard South Bend, IN 466o1 Notice of change of address shall be effective only when done in writing and sent in accordance with the provisions of this Section. SECTION 6 - AMENDMENTS AND WAIVERS This Agreement may not be modified or amended except by an instrument in writing, signed by a duly authorized representative of the Sponsor and the Consultant. By an instrument in writing similarly executed, either party may waive compliance by the other party with any provision of this Agreement that such other party was or is obligated to comply with or perform, provided, however, that such waiver shall not operate as a waiver of, or estoppel with respect to, any other or subsequent failure. No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. Ayr ei4"4+''r't Page Of 11 G 6 r SECTION 7— INTERRUPTION OF SERVICE Either party shall be excused from any delay or failure in performance required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, laws proclamations, edits, ordinances or regulations, strikes, lock -outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such C o 1i',i If 6I1'lt� events have abated, the parties' respective obligations hereunder shall resume. SECTION 8—SEVERABILITY, ENFORCEABILITY If any provision of this Agreement, or the application thereof to any person, place, or April circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such provisions as Paige applied to other persons, places, and circumstances shall remain in full force and 4 of„ 3. effect. SECTION y — GOVERNING LAW The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Indiana. SECTION io— INDEPENDENT CONTRACTOR The Consultant shall operate at all times as an independent contractor of the Sponsor. No employee of the Consultant will be considered or deemed to be an employee of the Sponsor. This Agreement does not authorize the Consultant to act for the Sponsor as its agent or to make commitments on behalf of the Sponsor. The Sponsor shall not withhold payroll taxes, and Consultant shall not be covered by health, life, disability, or worker's compensation insurance of the Sponsor. SECTION 11—ABILITY TO ENTER INTO CONTRACT Each party represents and warrants to the other party that this Agreement has been duly authorized, executed and delivered and that the performance of its obligations under this Agreement does not conflict with any order, law, rule or regulation or any agreement or understanding by which such party is bound. SECTION lz- LIMITATION OF LIABILITY; INDEMNIFICATION (a) As a professional organization, the Consultant will perform the services described in Exhibit A to the best of their ability, striving to ensure great quality work and minimize errors or omissions. As a result, the Consultant shall not be liable to Sponsor for any loss incurred in the performance of his/her services hereunder unless caused by Consultant's negligence or intentional acts or omissions. Notwithstanding any provision to the contrary, the limit of Consultant's liability under this Agreement will be equal to the total amount paid by Sponsorto Consultant underthis Agreement, except with regard to any claims related to a breach of confidentiality related to third party data acquired by Consultant and provided to Sponsor for Sponsor's use. (b) Sponsor agrees, at its sole cost, to indemnify and defend Consultant from and against any damages, claims or suits by third parties against Consultant arising from 1",. the performance of Consultant's services hereunder unless caused by Consultant's negligence or intentional acts or omissions. Subject to the limitation of liability stated in Section iz(a), Consultant agrees, at its sole cost, to indemnify and defend Sponsor (and its officials, employees, and agents) from and against any damages, claims or suits by third parties against Sponsor arising from the performance of Consultant's services hereunder unless caused by the negligence or intentional acts or omissions of Sponsor (or its officials, employees, or agents) SECTION 13— ENTIRE AGREEMENT 4 This Agreement is the final expression of the parties' agreement with respect to the q I,'.,� uq A I,m� znt retention of Consultant by the Sponsor for the services specified herein and may not be contradicted by evidence of any prior or contemporaneous agreement. "'n cn /l) SECTION 14 --- REMEDIES FOR BREACH OF CONTRACT Page The Consultant's failure to complete the services in accordance with this Agreement S of 1.;I. will be considered a material breach. In the event of such breach, the Sponsor may suspend all payments to the Consultant, terminate this Agreement, and/or pursue any and all remedies available at law or in equity. The Consultant shall comply with all applicable laws and regulations in its hiring and employment practices and policies for any activity covered by this Agreement. The Consultant shall comply with all state, federal, and municipal laws, regulations, and standards applicable to its activities pursuant to this Agreement including, but not limited to, the requirements imposed by Ind. Code 22-9-1-3.0 (non-discrimination), the provisions of Ind. Code 5-22-1.6.5 (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 the foregoing provisions is incorporated herein as if set forth in full, and the Consultant certifies that it is in compliance with each such provision and shall remain in compliance through the term of this Agreement. The Consultant agrees, as a condition precedent to the effectiveness of this Agreement, that its authorized representative will execute and submit to the Sponsor a contractor's affidavit in the form provided by the Sponsor. A JdI'ju,' as rrita 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 supportthe continuation of performance shall be final and conclusive. enFocus agrees to make a good faith effort to provide and maintain a drug -free workplace and will give written notice to the City within ten (1o) days after receiving actual notice that enFocus or an employee of enFocus within the State of Indiana has been convicted ofacriminal drug violation occurring inthe workplace. {-QIsU11Ij A DO�At /,�pri|�ozc�'l Pa�� The parties have duly executed this Agreement as of the date first written above-, Name: City of South Bend. Indiana Title: Board of Public Works (-OOsU|tiO� Signature:~ Agreement Gary Gilot, President Apri|zo19 Genevieve MI'ller, Member Page Therese Dorau, Member Date: CONSULTANT: enFocus Name: Daniel Collins Title: Business and Special Proiects Analyst at enFocus Inc, Signature: 7 �� Exhibit A Engagement Background and Business Need Background In 2o18, the City of South Bend (City) was one of 35 finalist cities in the Bloomberg Philanthropies Mayors Challenge. a nationwide competition that encourages city leaders to uncover bold, inventive ideas that confront the toughest problems cities face. The City's proposal centered around the lack of reliable, affordable transportation for workers. At least 35 percent of low- income workers in South Bend point to the lack of reliable transportation as the primary barrierto finding and maintaining employment. In response to this issue, the City proposed a new, data -driven collaboration between the City, employers, and ride -sharing companies to give workers consistent transportation access. The City contracted enFocus (using part of the ssoo,000 provided by Bloomberg Philanthropies) to manage the pilot phase and operate a ride - sharing platform for the employees of several local employers. The purpose of the pilot phase was to test, refine, and build support for the solution. The City then applied for the final round of the competition in August 2o18 and was one of nine cities awarded s1 million to expand its pilot over three years and establish a sustainable long-term solution. Business Need The City requires a third -party organization to operate an innovative transportation platform forthe employees of local employers that have agreed to participate in the expanded pilots. This consists of professional services (project management, analytics, and administrative) to assist with the coordination of the Bloomberg Mayors Challenge project and the provision of transportation services (ride -sharing, dockless bikes/scooters, and other services) for pilot participants. The costs incurred in operating the transportation platform (i.e. the cost of providing rides to participants and any related administrative expenses) should be paid for by the third -party and then reimbursed by the City using the s1 million award from Bloomberg Philanthropies. ,(",:iI"il ) o j. ) P age 8ofi1 III Project Description The City, enFocus, and local employers have agreed that enFocus will operate existing transportation platforms such as Uber For Business. enFocus will engage with transportation providers to establish a customer account and to acquire the right to use and provide certain data to the City for the City's use, as determined by the City. enFocus will then engage with local employers (identified by the City) to invite their employees to this opt -in program and onboard those employees into the transportation platforms. Participants will be able to use the platforms for subsidized rides to and from their place of work during the testing period. Various controls and limits on usage will be established by enFocus through the platforms. Data analysis and iterations on the design of the program will be performed to meet the requirements of the Bloomberg Mayors Challenge. Anonymized data and overall findings will be communicated to the City to inform its program design. Funding and Timeline The fee for this engagement is not to exceed $234,500. • enFocus will subsidize rides for participants through various transportation platforms (such as Uber For Business) up to a maximum Of $70,000. • Project management professional services will not exceed $94,500 and will be billed at a rate of $45 per hour with a maximum of 2,100 hours. • enFocus Fellow/Analyst professional services will not exceed $56,000 and will be billed at a rate of $40 per hour with a maximum of 1,400 hours. • enFocus will spend a maximum of $5,000 on any legal expenses (e.g. legal review of participant waivers). The standard rate for legal services is $300 per hour. • enFocus will spend a maximum of $5,000 on liability insurance expenses related to providing transportation services. • enFocus will spend a maximum of $4,000 on miscellaneous expenses associated with operating the pilot. These will be approved by the City as they arise. Examples include: o Communication expenses (e.g. text message or survey platforms) required to interact with participants. o Travel expenses (e.g. mileage reimbursement at the standard IRS rate for overall enFocus mileage exceeding ioo miles per month) incurred when traveling to meet participating employers or employees. • enFocus will waive some additional overhead costs such as hours spent on accounting activities and participation of enFocus leadership in 1 A fe k h 11 E' :,,I:,ri! u.]f", building and maintaining strategic partnerships associated with the program. Employer and Employee Contributions The City is currently investigating the possibility of requiring participating employers and employees to contribute financially towards the transportation services provided through this pilot. If this occurs, enFocus will accept the financial contributions from the employers/employees in lieu of reimbursement from the City. However, enFocus is unwilling to take on any overall financial risk related to non-payment from employers/employees. If payment is not received from participating employers/employees within 45 days of its due date, enFocus will request reimbursement from the City. If payment arrives from employers/employees after the 45 days, enFocus will return this amount to the City through a process determined by the City. Duration Initiate engagement on April 10, 2019 End engagement on July 31, zolg Billing enFocus will invoice the City on the last day of each month for all expenses incurred. Payment will be due within 3o days. enFocus Resources enFocus staff assigned to this project will continue to operate as independent enFocus employees operating underthe enFocus employee handbook, wages, benefits, working conditions and any/all other enFocus policies. Entrepreneurial Project Flexibility At enFocus, we place value on our entrepreneurial focus and approach to projects. We have had historical success for clients when we reserve the option to initiate conversation with the client for a project pivot when we see a better path or opportunity to pursue that can lead to greater success. This is not meant to mitigate enFocus of project responsibility but rather to create a scenario that will produce the most valued outcome for the City. Stakeholder Management The stakeholders from the City are recognized to be: i) Denise Riedl, Chief Innovation Officer, City of South Bend 2) Brian Donoghue, Director of Civic Innovation 3) Aaron Steiner, Founding Director, Bloomberg Mayors Challenge Key-1Sulllo°7CJ a'"'4 f:�l I"E�, CFI r1en, ApnI Page io of .t]. 1.0 In client engagements, enFocus identifies a champion on the client side to ensure seamless project execution. The client champion will be responsible for project communication and billing clearance. Denise Riedl is the Project Champion. Feedback enFocus places greatvalue on the relationship with the City. Please let us know how we can continue to support the City and its initiatives. We are very excited rl S l ii`r to participate in whatever way we can to create the highest degree of success A g r n e n for the City. Page a..' of :..ti. BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 6/18/2019 Name Denise Linn Riedl Department Innovation & Technolo BPW Date 6/25/2019 Phone Extension 7652 Required Prior to Submittal to Board .......... n �. BPW Attorney [J Attorney Name Dept. Attorney Attorney Name Sandra Kenned Purchasing ............ .._ ...... Check the Appo ariat Item T e ui""All Submissions Z Professional Services Agreement n Contract E]Proposal Open Market Contract n Amendment/Addendum Special Purchase, QPA Bid Opening Bid Award Req. to Advertise ❑ Title Sheet EJ Quote Opening Quote Award ❑ Reject Bids/Quotes Proposal Opening C/O & PCA No. PCA Chg. Order, No. Traffic Control Resolution Other:, Ease./Encroach ......... _ ......_.._ Reuired Information Company or Vendor Name enFocus Inc. New Vendor ❑ Yes If Yes, Approved by Purchasing ® No MBE/WBE Contractor ❑ MBE Completed E-Verify Form Attached Nos Project Name Bloomberg Mayors Challenge .............. ....... Project Number n/a ........ ........... _._..................... ....... ............ Bloomberg Mayors Challenge Award — Gift, Donation, Bequest Fund Funding Source 217 _..... ............ ....... ��...m. Account No. 217-0674-415.31-06 Amount $234,500 Terms of Contract 4/1 ........................ ....-.._....- ......... ...... � _........... 0/2019 — 7/31 /2020 _ Purpose/Description Operate transportation as a benefit platform on behalf of City of South Bend; provide project management and operational management capacity For Chm,ge Orders Only Amount of Increase $ ❑ Decrease ($ ) Previous Amount $ Increase % Current Percent of Change: Decrease % New Amount $ .........,., Increase _ ...........% Total Percent of Change: Decrease Time Extension Amount: New Completion Date: