HomeMy WebLinkAboutenF_signed Transportation Program Agreement _VPA Youth Jobs SB_6.10.2020
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CONSULTING AGREEMENT
This Consulting Agreement (the “Agreement”) is entered into on June 15, 2020,
by and between The City of South Bend, Indiana Venues Parks & Arts
Department, by and through its governing Board, the Board of Park
Commissioners, having its principal offices at 219 S St. Louis Boulevard, South
Bend, IN 46617 (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 46601 (hereinafter referred to as
“Consultant”).
WHEREAS, the Sponsor desires to obtain the services of Consultant, and
Consultant desires to provide services to the Sponsor upon the terms and
conditions in this Agreement.
AGREEMENT
SECTION 1 – CONSULTING PERIOD
(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 June 14, 2020 and ending on December
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 14 days
advance written notice to the other party. The Sponsor shall pay Consultant for
services rendered as of the date of termination.
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 five
hundred dollars ($500.00) (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 breach of this Agreement
by the Consultant exists.
(b) Payment Terms. Invoices shall be presented as set forth in Exhibit A,
and payments are due within 30 days.
(c) Benefits. Other than the compensation specified in Sections 3(a),
Consultant shall not be entitled to any direct or indirect compensation for
services performed hereunder.
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SECTION 4 - CONFIDENTIAL INFORMATION
(a) “Confidential Information” means:
(1) any information given to enFocus by Sponsor and clearly
marked, in writing as confidential; and
(2) 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 (30) 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:
(1) is at the time of receipt public knowledge, or after receipt
becomes public knowledge through no act of omission on the part of enFocus;
(2) 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.
(d) 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: Jonathan Jones, Director of Recreation
Venues Parks & Arts, City of South Bend, Indiana
219 S St. Louis Boulevard
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South Bend, IN 46617
With copies to:
or to the Consultant at:
ATTN: Jack Jacobs, Project Manager
enFocus
Studebaker Building 113
635 S Lafayette Boulevard
South Bend, IN 46601
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.
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 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 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
applied to other persons, places, and circumstances shall remain in full force
and effect.
SECTION 9 – 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.
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SECTION 10 – 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 12 – 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 Sponsor to Consultant under this 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 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 12(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
This Agreement is the final expression of the parties’ agreement with respect to
the retention of Consultant by the Sponsor for the services specified herein and
may not be contradicted by evidence of any prior or contemporaneous
agreement.
SECTION 14 – REMEDIES FOR BREACH OF CONTRACT
The Consultant’s failure to complete the services in accordance with this
Agreement 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.
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SECTION 15 – EQUAL OPPORTUNITY; NON-DISCRIMINATION;
COMPLIANCE
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
22-9-1-10 (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 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.
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The parties have duly executed this Agreement as of the date first written above:
SPONSOR:
CITY OF SOUTH BEND, INDIANA
VENUES PARKS & ARTS DEPARTMENT
__________________________________________
Aaron Perri, Executive Director
Date:______________________________________
CITY OF SOUTH BEND, INDIANA
BOARD OF PARK COMMISSIONERS
__________________________________________
Mark Neal, President
__________________________________________
Consuela Hopkins, Vice President
__________________________________________
Aimee Buccellato, Member
__________________________________________
Dan Farrell, Member
ATTEST:
__________________________________________
Eva Ennis, Clerk
Date:______________________________________
CONSULTANT:
enFocus
Name: Andrew Wiand
Title: Executive Director at enFocus, Inc.
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Signature:
Date: 6/10/2020
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Exhibit A
enFocus Engagement
Bloomberg Mayors Challenge
Background and Business Need
Background
The City of South Bend has proposed a new, data-driven collaboration
between the City, employers, and transportation providers to provide shift
workers with consistent transportation access. The City contracted
enFocus (using part of the $1 million provided by Bloomberg
Philanthropies) to manage the program and operate a transportation pilot
program for the benefit of local workers. The purpose of the pilot is to
test, refine, and build support for the solution.
Consultant will operate this transportation platform for participants
selected by Sponsor that have agreed to the terms of the agreement set
forth in Exhibit C. 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 for program participants. Sponsor has
agreed to participate in this program.
For the purposes of the Program governed by this agreement,
participation will be limited to those employees participating in the City’s
2020 Youth Jobs SB, which means employees aged 21 and under
working on a temporary basis within Venues Parks & Arts. This program
may only be extended to other City employees through a separate
agreement.
Business Need
Sponsor will contribute an agreed-upon amount to support delivery of the
pilot program. Consultant will collect an agreed-upon set of administrative
data—including personally-identifiable information (PII)—from Sponsor
and work with Sponsor to interpret the impact of the program. Consultant
will treat this PII as confidential and de-identify it before sharing any
analysis with any third-party partners, including the City of South Bend.
The data requested for this engagement is outlined in Exhibit B.
Project Description
Consultant will coordinate delivery of one or more transportation solutions
for selected participants. These platforms will include a technology-
supported carpool reimbursement program and access to local bus
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system passes. Client will engage with transportation providers to
establish customer accounts and to acquire the right to use and provide
certain data to third parties, including the City of South Bend. Consultant
will engage with Sponsor to invite up to 80 selected participants from
Sponsor’s organization, located at selected VPA locations only, to this
opt-in program and onboard those participants into the transportation
platforms. Participants will be able to use the platforms for free or
subsidized rides to and from their place of work. Various controls and
limits on usage will be established by Consultant through the platforms.
Sponsor will provide data to Consultant and assist with analysis of this
data to quantitatively validate the value of this program. Anonymized,
non-identifiable data and overall findings will be communicated to third
parties to inform its program design. Consultant will provide to Sponsor
monthly reports describing program usage in aggregate, including
discounts and subsidies provided and trips taken. Consultant will not
provide any participant-specific trip details without consent of participant
as per the terms in Exhibit C.
Duration
• Initiate engagement on June 14, 2020
• End engagement on December 31, 2020
Billing
Consultant will invoice Sponsor within 30 days of the first ride being
provided to a Sponsor participant. Payment will be due within 30 days of
the invoice’s transmission.
enFocus Resources
Consultant staff assigned to this project will continue to operate as
independent enFocus employees operating under the enFocus
employee handbook, wages, benefits, working conditions and any/all
other enFocus policies.
Stakeholder Management
The stakeholder from Sponsor is recognized to be:
1) Jonathan Jones, Director of Recreation
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. The
stakeholder listed herein is the Project Champion.
Feedback
enFocus places great value on the relationship with Sponsor. Please let
us know how we can continue to support Sponsor and its initiatives. We
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are very excited to participate in whatever way we can to create the
highest degree of success for Sponsor.
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Exhibit B
Sponsor Data Sharing
Data Sharing Request
As part of this pilot, Sponsor agrees designate a Data Champion in
Sponsor’s organization to facilitate data transfers. The selected data will
be used as inputs to an evaluation to be conducted by Consultant of the
estimated financial impact of this program. The data requested is
outlined below. Consultant acknowledges that the eventual report
structure will depend on Sponsor’s employee data reporting systems.
Thus, Sponsor will work to collaboratively define the specific data to be
shared with Consultant, understanding that the data outlined below may
not be available or may not able to be shared due to employee privacy
considerations.
All data transfers prescribed by this Exhibit between Sponsor and
Consultant will occur on a regular basis and according to a secure data
transfer method that is mutually agreed-upon in advance.
Scope:
All participating employees
Time Periods:
• All pay periods for which participant is enrolled in the Program
Employee Attendance Report
• Employee ID (anonymized by Sponsor or Consultant)
• Department or Business Unit (if applicable)
o
• Time period (Pay Period or other standard time period)
• Total shifts or total hours worked
o Absence occurrences
o Tardiness occurrences
▪ Time missed, if possible
• Separations with date
• Additions (new hires) with date
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Exhibit C
Prior to participation in the program, enFocus will require any employee
participant to execute the agreement below, either digitally or on
physical copy. This agreement is intended to cover the duration of
current or future pilots where enFocus provisions similar transportation
services, with prior consent of Sponsor. In the case of minors
participating, a parent or guardian must sign.
Participant Terms and Conditions, Waiver
Background
The City of South Bend has partnered with enFocus, Inc. (enFocus), to create
a program that provides eligible participants with transportation options for
getting to and from their workplace.
Terms and Conditions
From this point on, the transportation program will be referred to as “The
Program.” Transportation providers will be referred to as “Providers.” Eligible
participants will be referred to as “Users.” Participation in The Program is
optional.
• Users of The Program will access some Providers’ technology
platforms to request transportation services from Providers. enFocus is
responsible for maintaining Users’ access to limited discounts on
Providers’ transportation services. These discounts can be changed or
canceled at any time. Because enFocus does not provide
transportation, it cannot guarantee availability, timeliness, or other
services on behalf of Providers.
• enFocus will have access to certain data from Providers that will
provide detailed trip information of Users. This information may include
name, trip request time and date, drop-off time and date, pick-up and
drop-off address, trip route, distance, duration, fare amount, and
service type. enFocus may analyze this data and provide it to third
parties, including the City of South Bend.
• Users must be at least 18 years old.
Text Messaging Terms & Consent
As part of The Program, enFocus, on behalf of the City of South Bend, may
text Users at their provided mobile telephone number. These texts will provide
information, give surveys, and collect feedback. Message and data rates may
apply. Users will be asked to opt in to further messages. Users may text
‘STOP’ to stop receiving texts. Users may text ‘HELP’ for additional
information.
Assumption of Risks
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My optional participation in The Program involves certain risks that cannot be
eliminated. I have read this document and acknowledge and understand these
risks.
Indemnification and Hold Harmless
I agree that enFocus and my employer are not liable for any actions, suits,
procedures, costs, expenses, damages or liabilities, including attorney’s fees,
associated with participation in The Program. In addition, I agree to reimburse
enFocus and my employer for costs associated with claims and to provide
enFocus and my employer with a defense of such claims.
Severability
The terms and conditions, waiver, assumption of risks, and indemnity
agreements are as broad and inclusive as allowed by the State of Indiana. If
any section is ruled invalid, the remaining sections will still be in effect.
Acknowledgement of Understanding
I have read this document in full. I understand that I may be giving up
substantial rights, such as the right to sue. I agree that I am signing this
document voluntarily. My digital signature represents my understanding of this
document’s information.
For Completion by Participant
Who is your employer? _______________________________
Signature: _______________________________
Printed Name: _______________________________
Date: _______________________________
Email Address: _______________________________
Cell Phone Number: _______________________________
[ ] I agree to receive text messages related to The Program. Message and
data rates may apply.
Parental Consent (required for participants under the age of 18)
And I, the parent and/or legal guardian of the minor listed above, in
consideration of them being a User in The Program, further agree that enFocus
and my employer are not liable for any actions, suits, procedures, costs,
expenses, damages or liabilities, including attorney’s fees, associated with the
minor’s participation in The Program. In addition, I agree to reimburse enFocus
and my employer for costs associated with claims on behalf of the minor and to
provide enFocus and my employer with a defense of such claims.
Signature: _______________________________
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Printed Name of Parent/Guardian: ______________________________
Date: ________________________________