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HomeMy WebLinkAbout6. D (1) Contract with Project Impact`- ,I I \1 AGREEMENT FOR SERVICES BY AND BETWEEN THE CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT, ACTING BY AND THROUGH THE SOUTH BEND REDEVELOMENT COMMISSION AND PROJECT IMPACT - SOUTH BEND, INC. THIS AGREEMENT is made effective the 1 st day of January, 2009, by and between the City of South Bend, Department of Redevelopment, Acting By and Through the South Bend Redevelopment Commission, having its offices at 1200 County -City Building, 227 West Jefferson, South Bend, Indiana 46601 (the "Commission ") and PROJECT IMPACT - SOUTH BEND, INC., a not - for - profit domestic corporation organized under the laws of the State of Indiana ( "Project Impact" or the "Provider "), and having its principal place of business at South Bend, Indiana. WITNESSETH: WHEREAS, the Commission is the governing body of the City of South Bend Department of Redevelopment ( "Department ") and exists and operates under the provisions of I.C. 36 -7 -14, commonly known as the "Redevelopment of Cities and Towns Act of 1953 ", as amended from time to time (the "Act'); and WHEREAS, pursuant to the Act, specifically, I.C. 36- 7- 14- 39(b)(2)(K) and I.C. 36- 7- 14- 39(g), the Commission has the power and duty to allocate funds for job training expenses; and WHEREAS, under the authority of I.C. 36 -7 -14, the Commission has declared the Airport Economic Development Area ( "AEDA ") to be an area in need of economic development within the meaning of the Act and has adopted the Airport Area Economic Development Plan ( "Development Plan") in order to facilitate economic development of the Area; and WHEREAS, part of the AEDA is located in an Enterprise Zone ( "UEZ ") created under I.C. 5- 28 -15. A map of the AEDA and UEZ is attached hereto and made a part hereof as Exhibit "A "; and WHEREAS, the Commission desires to undertake certain actions and promote certain activities within the AEDA and UEZ that are necessary to carry out the Development Plan for the AEDA and facilitate development of the AEDA by providing funds for job training pursuant to I.C. 36 -7 -14 (the "Project "); and WHEREAS, Project Impact is a not - for - profit domestic corporation created to promote job training within the AEDA and UEZ and has knowledge, experience and expertise in job training; and WHEREAS, the Commission has determined that due to Project Impact's knowledge, experience and expertise, it is in the best interests of the Commission to retain Project Impact's services to assist the Commission in accomplishing the Project; and WHEREAS, Project Impact is willing to assist the Commission in its efforts by providing the Job Training Services which are more specifically described below and in Exhibit "A" and are subject to the terms and conditions of this Agreement; and WHEREAS, the Commission has appropriated funds for the Project in the amount of Six Hundred Twenty -three Thousand Eighty -six Dollars ($623,086), for the Project. NOW, THEREFORE, it is agreed between the parties as follows: SECTION 1. Definitions. For purposes of this Agreement, the following terms have the meanings referred to in this Section: City Controller: The term "City Controller" shall mean the City Controller or Acting City Controller appointed pursuant to Indiana Code § 36 4 -9 -6. City's Internal Auditor: The term "City's Internal Auditor" shall mean the City Controller or any person appointed or retained by the City Controller or the Commission for the purpose of auditing the Provider for this Agreement or other agreements of the Commission. Commission: The term "Commission" shall mean the South Bend Redevelopment Commission, the governing body of the City of South Bend, Department of Redevelopment. Contract Administrator: The term "Contract Administrator" shall mean Don Inks, Director of Economic Development for the Community and 2 Economic Development Department. Effective Date: The term "Effective Date" shall have the meaning ascribed to such term in the opening paragraph of this Agreement. Expiration Date: The term "Expiration Date" shall mean December 31, 2009. Job Training Services: The term "Job Training Services" shall mean the services described in Exhibit "B" as well as other related expertise and assistance rendered to the Commission by the Provider. Project Impact: The term "Project Impact" shall mean Project Impact - South Bend, Inc., a not - for -profit corporation organized under the laws of the State of Indiana and having its offices in South Bend, Indiana. Taxes: All governmental assessments, franchise fees, excises, license and permit fees, levies, charges and taxes, of every kind and nature whatsoever, which at any time during the Term may be assessed, levied, or imposed on, or become due and payable out of or in respect of activities conducted on behalf of the Commission. SECTION 2. Retention and Acceptance of Provider, Schedule of Services. A. The Commission hereby retains the Provider to provide to the Commission the Job Training Services that are more specifically described in Exhibit "B" attached hereto and incorporated herein. The Provider hereby accepts the appointment to provide the Job Training Services to the Commission and agrees to provide the Job Training Services under the terms and conditions set forth in this Agreement. All services provided by the Provider pursuant to this Agreement shall comply with the requirements in I.C. 36- 7- 14- 39(b)(2)(K) and I.C. 36- 7- 14- 39(g). B. Upon receipt of a notice to proceed from the Contract Administrator, the Provider shall commence the Job Training Services in accordance with the terms and conditions of this Agreement including, but not limited to, the procedures prescribed by Indiana Code § 36 -7 -14, et seq., or as mutually agreed by the parties in writing. The Provider hereby certifies that it has sufficient experience, expertise and financial aptitude to complete the Job Training Services in the manner set forth in Exhibit "B ". 3 C. Should the Provider fail to complete the Job Training Services in accordance with the terms and conditions of this Agreement, the Contract Administrator may withhold payments due the Provider. Further, if any damages are imposed against the Provider, any monies due and payable to the Commission thereby, may be retained out of any monies earned by the Provider under the terms of this Agreement. An extension of time may be granted in the event of extenuating circumstances by the Provider applying for and receiving written permission for an extension of time from the Commission. SECTION 3. Parties' Responsibilities. A. Information and Communications. The Commission shall provide all data requested by the Provider necessary for the Provider to accomplish the Job Training Services. The Commission and the Provider agree that the Commission shall be permitted to obtain at no additional cost and to retain any and all documents prepared or caused to be prepared by the Provider in connection with the services to be provided by the Provider and the Provider agrees to provide the Commission with said documents upon request by the Commission. Said documents may be used by the Commission or others with respect to the Commission's undertakings with respect to the Project. B. Reports and Bud ets. The Provider agrees to provide the Contract Administrator and the Internal Auditor with a report regarding the performance of the Job Training Services and the status of the Project in relation thereto, at least every thirty (30) days following the Effective Date of this Agreement or upon the written request of the Contract Administrator or the Internal Auditor. The report must describe the Provider's progress in completing the Job Training Services. The report shall specify the relation of each service rendered by the Provider to the requirements of I.C. 36- 7- 14- 39(b)(2)(K) and I.C. 36- 7- 14- 39(g). C. Project Budget. In exchange for the consideration set forth herein, the Provider hereby agrees to abide by the Project Budget as set forth in Exhibit "C" to this Agreement in delivering the Job Training Services (the "Project Budget "). D. Final Report. The Provider shall provide to the Commission a final report within thirty (30) days of the Termination Date of this Agreement summarizing the successes or failures of this engagement and the Provider's delivery of the Job Training Services in addition to a final accounting of all revenues and expenditures as described above. E. Records. The Provider agrees to keep and maintain, for a period of not less than two (2) years after the termination of this Agreement, at its business office, separate and independent records, reasonably satisfactory to the Internal Auditor and in compliance with Indiana law, consistent with generally accepted accounting principles. 4 F. Point of Contact. The Commission hereby designates Don Inks (the "Contract Administrator ") as the Provider's point of contact with the Commission for purposes of this Agreement. The Contract Administrator shall be responsible for the provision of information to the Provider under this Agreement. G. Auditing Requirements. The Provider agrees to make all information available to the Internal Auditor or any other entity as required by Indiana law. The Provider understands and acknowledges that the City's Internal Auditor may perform, at any reasonable time and for a period extending to two (2) years after the termination of this Agreement, a review of outstanding and completed contracts for compliance with contract provisions and hereby agrees to provide the City's Internal Auditor prompt access to all information and documents (whether electronic or otherwise) requested by the City's Internal Auditor for the purposes of completing such audit, which such access must be provided at least during normal business hours. Further, the Provider shall permit the City's Internal Auditor to audit, examine and make excerpts of transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. At regular intervals during the term of this Agreement, the Commission may conduct reviews of the content and progress of the Job Training Services. K Form 990. The Provider agrees to file its annual Form 990 required under the Internal Revenue Code and its accompanying regulations promptly with the Internal Revenue Service and to submit a copy of said Form 990 (and all amendments thereto) to the City's Internal Auditor within five (5) days of their filing. L Revision of Job Training Services. If, as a result of any review hereunder, it is the opinion of the Commission that revisions to the scope of the Job Training Services are necessary or the methods employed by the Provider are inappropriate, the Commission may require such revisions to the scope or methods by notifying the Provider in writing. J. Additional Auditing Requirements for Not -For -Pro it Organizations. The Provider understands that not - for -profit entities receiving City of South Bend funds, including funds received from the Commission, equal to or greater than $100,000.00 are required to supply an independent audit. Audited financial reports must be provided to the City's Internal Auditor on an annual basis, including any A -133 Audits. If the Provider is required to submit an E -1 form to the Indiana State Board of Accounts, the Provider shall also forward a copy of the E -1 to the City's Internal Auditor. The Commission may also make an examination of the Provider's fidelity bonding and fiscal and accounting procedures to determine whether these procedures meet the requirements of this Agreement. 5 K. Competitive Bidding Requirements. To the extent funds provided to Project Impact are used for construction, reconstruction, alteration, repair or renovation of a structure or improvement, Competitive Bidding Requirements shall be followed. SECTION 4. Compensation. A. Fees for Services. As compensation for services performed pursuant to this Agreement, the Commission agrees to pay the Provider a fee of Six Hundred Twenty -three Thousand Eighty -six Dollars ($623,086) for services rendered(the "Contract Amount "). B. Invoices. Commission shall pay Provider one -sixth (1/6) of the Contract amount to Provider upon approval of the Contract. Beginning with the fifth (5th) day of each month thereafter, one - twelfth (1/12) of the Contract amount shall be disbursed to Provider until the entire Contract amount is disbursed to Provider. However, the Provider shall submit an invoice for the payments outlined above to the Commission detailing the services performed under this Agreement, and shall include at a minimum, the identification of the Project task and description of the services completed consistent with Section 3(B) of the Agreement. Commission, in its sole discretion, shall evaluate whether or not the services performed by Provider justify the progress payments made pursuant to Section 4(B) of this Agreement. Upon receipt and review of the final report pursuant to Section 3(D) of the Agreement, and in the event the Commission determines services provided do not justify amounts paid to Provider, Commission shall withhold payment, and any excess amounts previously paid to Provider shall be returned to Commission. In the event of termination of this Agreement as provided in Section 6, Provider will not be entitled to any amounts remaining to be paid, and will return to Commission any amounts previously paid for which services have not been provided pursuant to terms of this Agreement. SECTION 5. Term. The Term of this Agreement shall commence on the Effective Date, and shall terminate on the earlier of the Expiration Date or Termination Date, as described at SECTION 6, below. This Agreement shall be renewable on such terms and for such period as the Parties shall agree in writing. Notwithstanding the foregoing, this Agreement is subject to annual appropriations of the Commission.. SECTION 6. Termination and Default. A. Termination. This Agreement shall expire on the earlier of: (i) the Expiration Date without notice to either party; or (ii) within twenty (20) days of an offending party's receipt of a Default Notice (as defined below) if such default or failure continues and remains uncured as discussed in Section 6(B) below through no fault of the party initiating the termination (the "Termination Date "). Gel Upon termination of this Agreement for any reason, copies of all data, electronic files, documents, procedures, reports, estimates, summaries other work papers, and any other supporting documents, whether completed or in process, accumulated by the Provider or prepared or provided by the Commission or the Provider relating to this Agreement or the Job Training Services shall be and remain the property of the Commission and be delivered to the Commission upon request in a usable form within sixty (60) days of the Termination Date of this Agreement. The Commission shall retain or be granted by the Provider without restriction all title, ownership, or intellectual property rights, including copyright, patent, trademark, and trade secret rights, in any data gathered or generated by the Provider in performance of the Job Training Services under this Agreement. B. Default. Any failure by either party to perform any term or provision of this Agreement, which failure continues uncured for a period of Twenty (20) Days following written notice of such failure from the other party (the "Default Notice "), unless such period is extended by written mutual consent, shall constitute a default under this Agreement. Any Default Notice given pursuant to the preceding sentence shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 20 -Day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within such 20 -Day period. Upon the occurrence of a default under this Agreement, the non - defaulting party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured, then no default shall exist and the noticing party shall take no further action. C. Misrepresentations. Notwithstanding any other provision of this Agreement to the contrary, if a party intentionally, knowingly or recklessly makes a written misrepresentation materially related to the provision of the Job Training Services or the obligations of said party under this Agreement, the other party may terminate the agreement immediately upon delivery of a Default Notice. D. Project Close -Out. In the event that the Provider expends funds or perform services that are less than the Contract Amount or if the Project is canceled, expired or terminated for any reasons, the Contract Amount not incurred or claimed by the Provider shall be no longer available under this Agreement after all compensation earned and reimbursable expenses incurred as of the date the Provider received written notification of the cancellation or termination have been paid. E. Continuation of Funding If the City Controller makes a written determination that funds are not appropriated or are otherwise unavailable to support the continuation of this Agreement, it shall be cancelled. A determination by the City Controller that funds are not appropriated or are otherwise unavailable to support the 7 continuation of performance shall be final and conclusive. SECTION 7. Confidentiality, Conflict of Interest, and Disclosure. A. Confidential Information. The Provider acknowledges that information which the Commission regards as confidential or proprietary in nature (the "Information "), may come to the knowledge of the Provider during the Provider's performance of services. The Provider shall treat the Information as strictly confidential and agrees that the Provider will not, at any time or in any manner, either directly or indirectly, (i) use, or allowed to be used, any Information for the Provider's own benefit or the benefit of any director, official, employee or agent or any third party, or (ii) divulge, disclose or communicate in any manner any Information to any third party without the written consent of the Commission. The Provider shall be responsible for maintaining the confidentially of any Information in its possession, including taking appropriate measures to secure said Information against such uses and dissemination and to inform any person to which it allows to access such information of its confidentiality. The Provider shall be responsible for any actions taken by those individuals or organizations who or which receive or obtain such Information from the Provider. A violation of this SECTION 7 shall be deemed to be a material breach of this Agreement. B. Covenants Survive Agreement. The confidentiality provisions of this Agreement remain in full force and effect after, and survive the termination of this Agreement. C. Conflict of Interest. The Provider hereby certifies and agrees that no member, officer, or employee of the Commission, or its designees or agents, (and no one with whom they have family or business ties) who exercises any functions or responsibilities with respect to the Project during his or her tenure, shall have any financial benefit, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the Project. The Provider further agrees that it will incorporate into every written contract the following provision: "INTEREST OF CONTRACTOR AND EMPLOYEES: The Contractor covenants that no person who presently exercises any functions or responsibilities in connection with the Community Development Program, and no one with whom they have family or business ties, has any personal financial benefit, direct or indirect in this Contract." D. Uniform Conflict of Interest Disclosure Statement. The Provider acknowledges that each of its directors, officers, employees and agents may potentially be deemed to be a "public servant" as defined by Indiana Code § 35- 41 -1 -24. The Provider hereby represents and certifies that it may enter into this Agreement under Indiana Code § 35 --44 -1 and, to the extent applicable, will execute and file with the Commission and any other appropriate bodies a Uniform Conflict of Interest Disclosure E Statement, the form of which is attached hereto and incorporated herein as Exhibit "D ". SECTION 8. Relationship. A. Independent Contractor. The Provider, and each of its directors, officers, employees and agents, shall at all times be an independent contractor rather than an employee of the Commission, and no act, action or omission to act by the Provider shall in any way bind or obligate the Commission, except as specifically provided under the terms of this Agreement. It is understood and agreed by the parties that the Provider will not be entitled to any benefits enjoyed by the Commission or the staff of the Commission in the normal course of their employment. B. Tax Obligations. The Provider is solely responsible for compliance with federal, state and local laws and regulations relating to taxes and social security payments that may be required to be made in connection with the compensation provided under this Agreement. The Commission, however, may file informational returns with the United States Internal Revenue Service or similar state agency regarding payments made to the Provider in accordance with this Agreement under conditions imposed by federal, state or local laws applicable to such payment. The Commission shall provide IRS Form 1099 if applicable. SECTION 9. Indemnification. The Provider hereby agrees to defend, indemnify, and hold harmless the Commission, its officials, directors, employees, and agents from any and all claims of any nature which arise from the performance by the Provider under this Agreement and from all costs and attorney fees in connection therewith, excepting for claims arising out of the negligence of the Commission, its officials, directors, employees, and agents. The obligations of the Provider under this Section shall survive the termination or expiration of this Agreement. SECTION 10. Equal Opportunity. The Provider shall comply with federal, state and local law in its hiring and employment practices and policies for any activity covered by this Agreement. SECTION 11. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understanding of any and every nature between them. SECTION 12. Law Governing. This Agreement shall be construed and interpreted according to the laws of the M State of Indiana and any suit based upon the rights and obligations contained in this Agreement shall be filed in the courts of St. Joseph County, Indiana SECTION 13. Assignment. The Provider's obligations under this Agreement may not be assigned or transferred to any other person or entity without the prior written consent of the Commission. SECTION 14. Amendment. This Agreement may be amended only by separate writing, approved by both the Provider and the Commission. SECTION 15. Notices. All notices or other communications which are required or permitted under the terms of this Agreement shall be sufficient if delivered personally, by registered or certified mail, return receipt requested, or by generally recognized, prepaid, overnight air courier services, to the address and individual set forth below. All such notices to either party shall be deemed to have been provided when delivered, if delivered personally, three (3) days after mailed, if sent by registered or certified mail, or the next business day, if sent by generally recognized, prepaid, overnight air courier services. Commission: Don Inks Director of Economic Development 12th Floor, County -City Building South Bend, Indiana 46601 With a Copy to: City Attorney 14th Floor, County-City Building South Bend, Indiana 46601 Provider Project Impact - South Bend, Inc. 55501 Moss Road South Bend, Indiana 46628 With a Copy to: SECTION 16. Counterparts. This Agreement may be executed in counterparts, all of which shall be deemed originals. 10 SECTION 17. Corporate Authority. The undersigned persons executing and delivering this Agreement on behalf of the Provider represent and certify that they are the duly authorized officers of the Provider with authority to execute this Agreement; that the Provider has the full legal right, power and authority to enter into this Agreement and to grant the rights and perform the obligations of the Provider herein; that no third party consent or approval is required to grant such rights or perform such obligations hereunder; that this Agreement has been duly executed and delivered by the Provider and constitutes a valid and binding obligation of the Provider, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles. The undersigned persons executing and delivering this Agreement on behalf of the Commission represent and certify that they are the duly authorized officers of the Commission with authority to execute this Agreement, that they have been fully empowered, by proper resolution or action of the Commission to execute and deliver this Agreement and that all necessary action has been taken and done by the Commission to enter into this Agreement. SECTION 18. Miscellaneous. [RESERVED]. (remainder ofpage intentionally left blank) 11 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the day and year first above written. PROJECT IMPACT - SOUTH BEND, CITY OF SOUTH BEND, INC. DEPARTMENT OF REDEVELOPMENT Printed Name aml 7'a e rime ame and Title Gi bney \proj ectlmpact \sery i cesAG R3. doc 010709 12 South Bend Redevelopment Commission ATTEST: Signature rinte ame an it e South Bend Redevelopment Commission EXHIBIT A AEDA/UEZ MAP EXHIBIT `B" Job Training Services The PowerPoint presentation is not sufficient to define the scope of services for this agreement. 14 EXHIBIT "C" Project Budget 15 6. Description(s) of Contract(s) or Purchase(s) (Describe the kind of contract involved, and the effective date and term of the contract or purchase if reasonably determinable. Dates required if 4(a) is selected above. If "dependent" is involved, provide dependent's name and relationship): 7. Description of My Financial Interest (Describe in what manner the public servant or "dependent" expects to derive a profit or financial benefit from, or otherwise has a pecuniary interest in, the above contract(s) or purchase(s); if reasonably determinable, state the approximate dollar value of such profit or benefit.): (Attach extra pages if additional space is needed) 8. Approval of Appointing Officer or Body (To be completed if the public servant was appointed by an elected public servant or the board of trustees of a state - supported college or university): 1 (We) being the (Title of Off cer or Name of Governing Body) and having the power to appoint (Name of Governmental Entity) of the above named public servant to the public position to which he or she holds, hereby approve the participation to the appointed disclosing public servant in the above described contract(s) or purchase(s) in which said public servant has a conflict of interest as defined in Indiana Code 35- 44-1-3; however, this approval does not waive any objection to any conflict prohibited by statute, rule, or regulation and is not to be construed as a consent to any illegal act. Elected Official Office 9. Effective Dates (Conflict of interest statements must be submitted to the governmental entity prior to final action on the contract or purchase.): Date Submitted Date of Action on Contract or Purchase 17 10. Affirmation of Public Servant: This disclosure was submitted to the governmental entity and accepted by the governmental entity in a public meeting to the governmental entity prior to final action on the contract or purchase. I affirm, under penalty of perjury, the truth and completeness of the statements made above, and that I am the above named public servant. Signed: (Signature of Public Servant) Date: Within 15 days after final action on the contract or purchase, copies of this statement must be filed with the State Board of Accounts, Indiana Government Center South, 302 West Washington Street, Room E418, Indianapolis, Indiana, 46204 -2765 and the Clerk of the Circuit Court of the county in which the governmental entity executed the contract or purchase. A copy of this disclosure will be forwarded to the Indiana State Ethics Commission. 19 EXHIBIT "D" (2/93) Form 236 Uniform Conflict of Interest Disclosure Statement Indiana Code 35- 44 -1 -3 A public servant who knowingly or intentionally has a pecuniary interest in or derives a profit from a contract or purchase connected with an action by the governmental entity served by the public servant commits conflict of interest, a Class D Felony. A public servant has a pecuniary interest in a contract or purchase if the contract or purchase will result or is intended to result in an ascertainable increase in the income or net worth of the public servant or a dependent of the public servant who is under the direct or indirect administrative control of the public servant; or receives a contract or purchase order that is reviewed, approved, or directly or indirectly administered by the public servant. "Dependent" means any of the following: the spouse of a public servant; a child, stepchild, or adoptee (as defined in I.C. 31- 3 -4 -1) of a public servant who is unemancipated and less than eighteen (18) years of age; and any individual more than one -half (1 /2) of whose support is provided during a year by the public servant. The foregoing consists only of excerpts from I.C. 35- 44 -1 -3. Care should be taken to review I.C. 35- 44 -1 -3 in its entirety. 1. Name and Address of Public Servant Submitting Statement: 2. Title or Position With Governmental Entity: 3 a. Governmental Entity: b. County: 4. This statement is submitted (check one): a. as a "single transaction" disclosure statement, as to my financial interest in a specific contract or purchase connected with the governmental entity which I serve, proposed to be made by the governmental entity with or from a particular contractor or vendor; or b. as an "annual" disclosure statement, as to my financial interest connected with any contracts or purchases of the governmental entity which I serve, which are made on an ongoing basis with or from particular contractors or vendors. 5. Name(s) of Contractor(s) or Vendor(s):