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HomeMy WebLinkAbout6. B(2) Phase II Consulting Agreement with Blue Waters Group(~,~. ~z> InoBluotGaCorsGroup A Communications Consultancy Serving the Knowledge Industry CONSULTING AGREEMENT (Phase II) This Consulting Agreement (this "Agreement") is made effective the 1St day of May, 2009, by and between the South Bend Department Redevelopment, acting by and through its Redevelopment Commission, having its offices at 1200 County-City Building, 227 W. Jefferson Blvd., South Bend, Indiana 46601 (the "City") and the Blue Waters Group, Inc., ("BWG"), a Wisconsin corporation with offices in South Bend, Indiana. WITNESSETH WHEREAS, the City desires to retain the services of BWG specifically to work with the Department and its staff to provide marketing consultation and communications services to position South Bend to make the most of the opportunity offered by the Midwest Institute for Nanoelectronics Discovery (MIND); and WHEREAS, the City has established aeight-month period for the completion of this Agreement, beginning May 1, 2009, and continuing through December 31, 2009. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the parties covenant and agree as follows: Section 1. Services BWG agrees to assist the City in the following specific areas: A. Entrepreneur/business outreach, including a speakers' bureau, seminars and networking opportunities B. Enhancement of www.I~nitionPark.com C. Various electronic communications initiatives, including an e-mail newsletter and continued enhancement to portions of the City of South Bend's web site D. Relations with national public and industry-specific media E. An identity-promotion campaign related to Ignition Park F. Research into the industry's economic opportunities and measurement of marketing/ communications activities - 1 - Section 2. Consideration A. Fees. 1) the City agrees to pay BWG for professional services rendered under Section 1 of this Agreement, based on the total number of hours worked on behalf of the City and BWG's rates for professional services 2) BWG agrees that the total amount to be paid for its services, including labor and production expenses as described under Section 2 B of this Agreement, shall not exceed Four Hundred Twenty Thousand Dollars ($420,000.00) 3) BWG will submit a detailed invoice for services rendered at the end of each month under the Agreement 4) the City shall pay to BWG amounts shown on each such statement within thirty (30) days after receipt thereof. B. Reimbursement of Production Costs and Related Expenses. 1) the City shall reimburse BWG for all reasonable, necessary and approved expenses incurred or paid by BWG in connection with the performance of services under this Agreement; 2) BWG shall provide the City with a statement of actual expenses, receipts and other necessary documentation to substantiate such expenses as they are incurred; 3) BWG agrees to provide the City with a monthly summary of the status of the total operating budget, inclusive of labor and production expenses; and 4) the City shall pay to BWG amounts shown on each such statement within thirty (30) days after receipt thereof and, if convenient to the City, such payments to be made via direct deposit into BWG's business banking account. C. Benefits. BWG shall not be entitled to any benefits or privileges, including without limitation social security, unemployment, medical or pension payments, made available to employees of the City. - 2 - D. Ownership of Materials BWG warrants that Consideration as outlined above constitutes full payment for services rendered. Any rewards, monetary or otherwise, received from any materials produced will belong to the City. Section 3. Warranties and Representations A. the City warrants and represents to BWG that it has the right and authority to enter into this Agreement and that this Agreement does not conflict with any other agreement or obligation of the City. B . BWG warrants and represents to the City that it has the right and authority to enter into this Agreement and to provide the City with the services described in Section 1, and that this Agreement does not conflict with any other agreement or obligation of BWG. Section 4. Confidentiality A. BWG agrees to treat as confidential any work produced by BWG hereunder, as well as any information the City has provided to BWG, whether now or in the future, in connection with the performance of services under this Agreement (the "Information"). This provision shall survive termination of this Agreement. B. The confidentiality and use obligations set forth above apply to all or any part of any Information provided before or after the effective date of this Agreement except to the extent that: 1) BWG can show by written record that it possessed the Information prior its receipt from the City; 2) The Information was already available to the public or became so through no fault of BWG; 3) The Information is subsequently disclosed to BWG by a third party that has the right to disclose it to BWG free of any obligations of confidentiality; or 4) Five (5) years have elapsed from the later of the date of this Agreement or the disclosure of the Information to BWG by the City. - 3 - Section 5. Term; Termination A. The term of this Agreement shall commence on May 1, 2009, and shall expire as of December 31, 2009, unless otherwise terminated as provided in Section SB. B. This Agreement is in effect for the period provided for herein unless terminated by either party, giving 60 days termination notice in writing in compliance with Section 9 of this agreement. In the event the City terminates this Agreement, all out-of-pocket and contracted expenses incurred by BWG will be reimbursed by the City, according to Section 2A of this Agreement. C. If either party commits any material breach of any covenant contained herein and fails to remedy any such default or material breach within sixty (60) days after written notice thereof by the other party, the other party may, at its option, terminate this Agreement upon giving written notice of termination to the breaching party. D. Either party may terminate this Agreement, without cause, upon thirty (30) days written notice delivered to the other party in the manner provided hereinafter. Section 6. Assignment This Agreement is not assignable by either party without the prior written consent of the other party. Section 7. Independent Contractors BWG shall perform all services under this Agreement as an "independent contractor" and not as an employee or agent of the City. BWG shall not act as the City's agent, and is not authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the City, or to bind the City in any manner, except to reimburse BWG for any production and related expenses as approved in advance and in writing by the City. Section 8. Miscellaneous This Agreement shall be construed in accordance with the laws of the State of Indiana. If any provisions of this Agreement are or shall come into conflict with the laws or regulations of any jurisdiction or any governmental entity - 4 - having jurisdiction over the parties or this contract, those provisions shall be deemed automatically deleted, if such deletion is allowed by relevant law, and the remaining terms and conditions of this Agreement shall remain in full force and effect. If such a deletion is not so allowed or if such a deletion leaves terms thereby made clearly illogical or inappropriate in effect, the parties agree to substitute new terms as similar in effect to the present terms of this Agreement as may be allowed under the applicable laws and regulations of the governmental entity involved. Section 9. 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. To the City: City of South Bend, Indiana Department of Community and Economic Development Attn: Jeffrey V. Gibney Suite 1200 SCounty-City Building 227 West Jefferson Blvd. South Bend, Indiana 46601 With a Copy to: City Attorney City of South Bend, Indiana Legal Department 1400 County-City Building 227 West Jefferson Blvd. South Bend, Indiana 46601 To BWG: The Blue Waters Group, Inc. Attn: Patrick Strickler President 1290 East Ireland Road, Suite V-100 #210 South Bend, Indiana 46614 - 5 - Section 10. Integration This document constitutes the full understanding between the parties with reference to the subject matter hereof, and no statements or agreements whether, oral or written, made prior to or at the signing hereof, shall vary or modify the written terms of this Agreement. Neither party shall claim any amendment, modification, or release from any provisions of this Agreement by mutual agreement, acknowledgement, or otherwise, unless such mutual agreement is in writing, signed by the other party, and specifically states that it is an amendment to this Agreement. Section 11. Access to Records BWG, its subcontractors and agents, if any, shall maintain all books, documents, papers, records and reports and shall provide copies of all testing results to the City no later than the last business day of each month in which such testing is conducted during the term of this Agreement. BWG shall also make such materials available to the City for review at BWG's offices at all reasonable times during the term of this Agreement and for a period of three (3) years from the Expiration Date. Section 12. Audits BWG understands and acknowledges that it may be required to submit to an audit of funds paid through this Agreement. Any such audit shall be conducted in accordance with Indiana Code § 5-11-1, et seq. and audit guidelines specified by the Indiana State Board of Accounts. Section 13. Changes in Scope of Services BWG understands and agrees that it shall not commence any additional work or change the scope of the Services provided unless authorized in writing by the City. No claim for additional compensation shall be made by BWG in the absence of prior written approval of the Parties. Section 14. Compliance with Laws BWG shall comply with all applicable federal, state and local laws, rules, regulations and ordinances, and all provisions required thereby are hereby incorporated herein by reference. The enactment of any state or federal statute or the promulgation of any rules or regulation subsequent to execution of this Agreement shall be reviewed by the City and BWG to determine whether the provisions of this Agreement shall require formal modification. - 6 - BWG warrants that it and its subcontractors, if any, shall obtain and maintain all required permits, licenses, registrations and approvals, as well as comply with all health, safety, and environmental statutes, rules or regulations in performance of the Services. BWG understands and acknowledges that failure to do so shall constitute a material breach of this Agreement and shall be grounds for immediate termination of the Agreement and may result in denial of further work with the City. Section 15. Condition of Payment The City shall not be required to pay for Services that are inconsistent with or in violation of this Agreement nor for any Services performed in violation of federal, state or local statute, ordinance, rule or regulation. Section 16. Confidentiality and Disclosure of Information BWG understands and agrees to comply with the legal requirements of Indiana Code § 5-14-3-1 et seq. (commonly known as Indiana's Access to Public Records Act), to the extent applicable, with respect to all documentation. Section 17. Conflict of Interest BWG acknowledges that he or she (or it and its directors, officer, employees and agents), may potentially be deemed to be a "public servant" as defined by Indiana Code § 35-41-1-24. BWG hereby represents and certifies that it may enter into this agreement under Indiana Code § 3514-1 and, to the extent applicable, has executed and filed with the City and the appropriate bodies a Uniform Conflict of Interest Disclosure Statement, the form of which is attached hereto and incorporated herein as Exhibit A, prior to the City's approval of this Agreement. Section 18. Drug-Free Workplace BWG hereby agrees to make a good faith effort to provide and maintain a drug-free workplace. BWG will give written notice to the City within ten (10) days after receiving actual notice that BWG or an employee of BWG within the State of Indiana has been convicted of a criminal drug violation occurring in the workplace. - 7 - Section 19. Relationship/Independent Contractor Both parties, in the performance of this Agreement, shall act in an individual capacity and not as agents, employees, partners, joint venturers or associates of one another. The employee(s) or agent(s) of one party shall not be deemed or construed to be the employee(s) or agent(s) of the other party for any purpose whatsoever. Neither party will assume liability for any injury (including death) to any person(s), or damage to any property, arising out of the acts or omissions of the agents, employees or subcontractors of the other party. BWG shall be solely responsible for providing all necessary unemployment and workers' compensation insurance for BWG's employees. BWG 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 City, however, may file informational returns with the United States Internal Revenue Service or similar state agency regarding payment made to BWG in accordance with this Agreement under conditions imposed by federal, state or local laws applicable to such payment. The City shall provide IRS Form 1099 if applicable. Section 20. Insurance BWG shall secure and keep in force during the term of this Agreement, the following insurance coverage, covering BWG for any and all claims of any nature which may in any manner arise out of or result from this Agreement: (a) Commercial general liability, including contractual coverage, and products or completed operations coverage, if applicable, with minimum liability limits of $700,000 per person and $5,000,000 per occurrence unless additional coverage is required by statute; (b) Prior to commencement date of the Services provided herein, BWG shall provide proof of such insurance coverage naming the City of South Bend, Indiana as a co-insured by tendering to the City a certificate of insurance prior to the commencement of this Agreement; (c) The insurance coverage required under this Agreement shall include a provision that the policy and endorsements may not be cancelled or modified without prior written notice to the City. Section 21. Indemnification BWG hereby agrees to defend, indemnify, and hold harmless the City, its officials, directors, employees, and agents from any and all claims of any - 8 - nature which arise from the performance by BWG under this Agreement and from all costs and attorney fees in connection therewith, excepting for claims arising out of the negligence of the City, its officials, directors, employees, and agents. The obligations of BWG under this Section shall survive the termination or expiration of this Agreement. Section 22. Equal Opportunity BWG shall comply with federal, state and local law in its hiring and employment practices and policies for any activity covered by this Agreement. Section 23. Force Majeure In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster or decrees of governmental bodies not the fault of the affected party ("Force Majeure Event"), the party who has been so affected shall immediately give notice to the other party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall immediately be suspended. If the period of non-performance exceeds thirty (30) calendar days from receipt of notice of the Force Majeure Event, the party whose ability to perform may terminate this Agreement by giving written notice to the other party. Section 24. Funding Cancellation and Payments In accordance with I.C. 36-1-12.5-5(d)(4), payments by the City are subject to annual appropriation by its fiscal body. Section 25. Counterparts This Agreement may be executed in counterparts, all of which shall be deemed originals. Section 26. Non-Collusion and Acceptance The undersigned attests, subject to the penalties for perjury, that he/she is BWG, or that he/she is the properly authorized representative, agent, member or officer of BWG, that he/she has not, nor has any other member, employee, representative, agent or officer of BWG, directly or indirectly, to the best of the undersigned's knowledge, entered into or offered to enter into any - 9 - combination, collusion or agreement to receive or pay, and that he/she has not received or paid, any sum of money or other consideration for the execution of this Agreement other than that which appears upon the fact of this Agreement. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the dates indicated below. CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT ATTEST: ignature Prime Name an it e South Bend Redevelopment Commission ignature Prince Name an Tit e South Bend Redevelopment Commission Date: May 1, 2009 BLUE By: Date: - 10 - Patrick Strickler, President ~ ~ ~~ ExhibitA (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 LC. 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): 6. Description(s) of Agreement(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): - 11 - 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 aatate-supported college or university): I (We) being the of (Title of Officer or Name of Governing Body) and having the power to appoint (Name of Governmental Entity) 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 Agreement or Purchase 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) - 12 - 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. - 13 -