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HomeMy WebLinkAboutEnterprise Solutions Consulting, LLC Master Consulting Services Agreement; ESC PartnersFuelingUtilityInnovation www.esc-partners.com CzKpoPcfsmboefsbu22;2:bn-Bvh16-3132 MASTER CONSULTING SERVICES AGREEMENT isentered into this , 2021 1130 Crosspointe Lane, Suite 9A, Webster, New York 14580, and City ofCarmel byand through itsBoard ofPublic Works and Safety IndianaMunicipalC, 30West Main Street, Suite 220, Carmel, Indiana 46032. 1. SERVICES 1.1 Scope of Work. Supplier will provide theservices described inone ormore Statements ofWork into, and will begoverned by the provisions of, this Agreement. Supplier will perform only work that is documented inaSOW. Supplier may authorize a parent, subsidiary, oraffiliate ofSupplier toenter into aSOW l schedule, the charges and such additional information asthe parties agree upon. In the event of inconsistency between this Agreement and aSOW, the SOW will govern astothe inconsistent matter(s). 1.2 Change Orders. Ifeither party desires amodification totheServices, Work Product orschedule set forth inaSOW, orthe addition of out-of-scope work toaSOW, such party will submit itsrequested modifications inwriting totheother party. The recipient ofrequested modifications may accept orreject the requested modifications, orpresent acounterproposal, initssole discretion. Rejection ofchange order does not relieve either party ofcommitments toservices, deliverables orschedule asdocumented inthe SOW. Supplier may bill Customer, ona time and materials basis, for the work involved in analyzing the impact ofanymodification proposed by Customer. Changes to aSOW will beeffective only when an authorized representative ofeach party executes awritten amendment tothe SOW that sets forth the changes tothe Services and/orWork Product and Change Order work until aChange Order iseffective. 1.3 MethodofPerformance. Supplier will determine the method, details, andmeans ofperforming the Services andproviding the Work Product, observe personnel. Designation ofaSupplier orCustomer individual inaSOW does notpreclude Supplier orCustomer termination orre-assignment ofthe individual, that Supplier orCustomer replaces the individual with a person with appropriate skills. 2. CUSTOMER RESPONSIBILITIES 2.1 Access andCooperation. Customer will provide the office accommodations, facilities, equipment, suitably configured computers (hardware and software) andpersonnel described inthe SOW orotherwise Services and/orprovide any Work Product inati 1130 Crosspointe Lane, Suite 9A Webster, NY14580 585.413.4302 info@esc-partners.com DocuSign Envelope ID: 590D0BF9-FB77-43A8-955D-3B08FBF84A88 FuelingUtilityInnovation www.esc-partners.com atimely manner the resources required ofit inthe SOW, making available the assistance and cooperation of Customer'sofficers, agents, and employees and providing complete and accurate Customer information and time equal tothe impact ofthe delay onthe schedule. 2.3 Health andSafetyHazards. Customer willprovide Supplier with written notice ofanyknown health 2.4 Work Rules and Conduct. Customer will provide Supplier with written copies ofany applicable policies and procedures, including without limitation those that govern safety and security, use ofequipment, sexual harassment and non-discrimination, alcohol and drug use, and integrity so that any personnel supplied by Supplier andCustomer agree that should itbedetermined that the Alleged Violation isaresult ofthe action orinaction ofCustomer, Customer shall indemnify and hold harmless Supplier from any liability incurred asa result ofsaid violation. Supplier and Customer further agree thatshould itbedetermined that the Alleged Violation is aresult ofthe action orinaction ofSupplier, Supplier shall indemnify and hold harmless Customer from any liability incurred asaresult ofsaid violation. 2.5 Personnel Changes a. Personnel Schedule Changes. Customer may, inwriting, request changes to the schedules ofSupplier Personnel, Supplier will charge Customer for Services that were tobeperformed bythe affected Supplier Personnel ifCustomer does not provide such request atleast five (5) business days prior to the schedule change. b. Open-ended Assignments. Customer may, inwriting, request the end ofanassignment of Supplier Personnel toopen-ended projects, Supplier will charge Customer for upto15days of Services that were tobeperformed bythe affected Supplier Personnel ifCustomer does not provide such request atleast thirty (30) days prior totheend ofthe assignment. c. Extensions ofAssignments. Supplier considers itspersonnel for new deployments thirty 30) days prior tothe expiration ofanassignment. IfCustomer desires toextend the assignment ofany Supplier Personnel toaCustomer project, Customer must notify Supplier atleast thirty (30) days before the scheduled expiration toassure continued availability. Supplier will use commercially reasonable efforts toaccommodate extension requests received less than thirty (30) days inadvance. 3. TERM AND TERMINATION 1130 Crosspointe Lane, Suite 9A Webster, NY14580 585.413.4302 info@esc-partners.com DocuSign Envelope ID: 590D0BF9-FB77-43A8-955D-3B08FBF84A88 FuelingUtilityInnovation www.esc-partners.com 3.1 Term. The term ofthis Agreement commences onthe Effective Date and continues until the date this Agreement isterminated asprovided below. Termination of aSOW will not terminate the entire Agreement unless sostated inthe termination notice. 3.2 Termination Without Cause. Either party may terminate this Agreement upon advance written notice. Furthermore, unless otherwise stated inthe applicable SOW, either party may terminate performance has been completed anddeliver any work inprogress. Supplier will bepaid for all work performed and expenses incurred through the date oftermination, including charges for materials ordered bySupplier that cannot bereturned for afull refund. If Customer terminates aSOW orthe Agreement without cause while any SOW remains uncompleted, Customer will pay any cancellation fee applicable tothe affected SOW as set forth insuch SOW. 3.3 Termination forCause. Either party may, without prejudice tothe otherrights orremedies available toit, immediately terminate thisAgreement ifthe other party: a. fails toperform itsobligations under this Agreement, orany SOW and such failure continues for aperiod ofthirty (30) days after written notice; b. ceases tocarry onitsbusiness substantially assuch business wasconducted onthe date of thisAgreement; c. institutes orsuffers the institution against itofbankruptcy, reorganization, liquidation, receivership, insolvency orsimilar proceedings; or d. becomes generally unable topay itsdebts asthey become due. Additionally, Supplier may suspend work orterminate this Agreement orany SOW ifCustomer fails topay reasonably undisputed amounts toSupplier within fifteen (15) days ofSupplie undisputed amounts. 4. RELATIONSHIP OFTHE PARTIES Supplier isanindependent contractor and nothing inthis Agreement will beconstrued tomake either Supplier or Customer partners, joint ventures, principals, agents oremployees ofthe other. No officer, director, Agreement will bedeemed tobeanemployee, agent orcontractor ofCustomer. Neither party will have any right, power or authority, express or implied, tobind ormake representations onbehalf ofthe other. 5. COMPENSATION Charges for allServices, Work Product andexpenses are set forth ineach SOW. 1130 Crosspointe Lane, Suite 9A Webster, NY14580 585.413.4302 info@esc-partners.com DocuSign Envelope ID: 590D0BF9-FB77-43A8-955D-3B08FBF84A88 FuelingUtilityInnovation www.esc-partners.com 5.1 Time and Materials. Customer will make payments atthe hourly rates set forth inthe applicable SOW, based onaminimum per day charge ofeight (8) hours, exclusive ofsales, use and similar taxes. Customer acknowledges and agrees that travel time toand Customer sixty (60) days prior written notice of anychange in hourly rates or prices. Supplier may impose a higher rate for Services exceeding forty (40) hours per week orona weekend orholiday. Supplier does not guarantee estimates in any way or toany extent. 5.2 Invoice andPayment. Supplier will invoice charges for third-party materials purchased pursuant to aSOW upon delivery ofsuch materials toCustomer. Supplier will invoice charges for Services orWork Product provided onatime and materials basis ona bi-weekly basis. Supplier will invoice charges for Services orWork Product provided on afixed price basis inaccordance with the agreed payment schedule set forth inthe Customer, willbe dueand payable within fouty five(45) days from the date ofinvoice. Customer must raise any concern ordispute inwriting within five (5) days from the date ofthe invoice orthe invoice willbe presumed Supplier. IfCustomer defaults in payment ofany sum due Supplier, Supplier may suspend further performance under any orallSOWs. 5.3 Taxes and Expenses. Charges donot include, and Customer will reimburse Supplier for alltaxes, including, butnot limited to, sales, use, gross receipts, and advalorem taxes, duties orsimilar charges imposed onthe Services or Work Product (exclusive oftaxes based onthe property ornet income ofSupplier). Unless expressly set forth inaSOW asincluded inafixed price, Customer willreimburse Supplier for reasonable out-of- pocket expenses such aslong-distance telephone charges, postage, shipping, and reasonable travel and living expenses. Allprices andrates exclude costs incurred for additional requirements orexpectations ofthe Customer not anticipated bythe parties atthe execution ofthis Agreement ora SOW; Supplier will invoice all such expenses and special charges onabi-weekly basis. 5.4 Interest; Collection Costs. Interest willaccrue on amounts past due atthe lower ofone percent 1%) per annum orthe maximum permitted byapplicable law. In any proceeding brought bySupplier to collect 6. CONFIDENTIALITY AND OWNERSHIP 6.1 Confidentiality. As used -public technical ible medium, the Disclosing Party has marked Party indicates asconfidential orproprietary atthe time ofdisclosure and subsequently, within twenty (20) days after the date ofsuch oral disclosure, confirms asconfidential orproprietary ina writing sent tothe Receiving Party that describes the information that istobe kept confidential. Each party will maintain all Confidential Information itreceives from the other inconfidence using commercially reasonable standards andnoless care than ituses with its own information and willuse and disclose such information only ascontemplated bythis Agreement orasauthorized bytheDisclosing Party. Each party will require itspersonnel todo likewise. These 1130 Crosspointe Lane, Suite 9A Webster, NY14580 585.413.4302 info@esc-partners.com DocuSign Envelope ID: 590D0BF9-FB77-43A8-955D-3B08FBF84A88 FuelingUtilityInnovation www.esc-partners.com obligations donot apply to information that: (a) isgenerally available tothe public other than byabreach ofthis Agreement; (b) isrightfully received from athird party lawfully inpossession of theinformation andnot subject toaconfidentiality ornonuse obligation; (c) isindependently developed bythe Receiving Partyor itspersonnel, the persons developing the information have not had access tothe information ofthe Disclosing Party; or (d) was already known tothe Receiving Party prior toitsreceipt from the Disclosing Party. Inaddition, the Receiving Party will beallowed todisclose Confidential Information ofthe Disclosing Party tothe extent that such disclosure is: (x) approved inwriting bythe Disclosing Party; (y) necessary for the Receiving Party toenforce its rights under this Agreement inconnection with alegal proceeding; or (z) required bylaw orby theorder ofa court ofsimilar judicial oradministrative body, theReceiving Party notifies theDisclosing Party of such required disclosure promptly andinwriting and cooperates with the Disclosing Party, atthe Disclosing disclosure. Inaddition, Supplier shall not berequired tokeep confidential any ideas, concepts, know-how or techniques developed during the course ofthis Agreement bySupplier personnel orjointly bySupplier and Customer personnel. 6.2 Return of Confidential Material. request, the Receiving Party will promptly return any Confidential Information ofthe other party ordestroy such attherequest ofthe Disclosing Party. 6.3 Ownership. Unless Supplier andCustomer agree otherwise inwriting, the Work Products developed for Customer bySupplier pursuant tothis Agreement and any SOW will belong toSupplier. This provision does not apply tothird party works orproducts Supplier provides toCustomer ortoSupplier Materials asdefined below). Customer acknowledges that Supplier isinthebusiness ofproviding information technology consulting services and has accumulated expertise in this field and agrees that Supplier will retain allright, title ries, concepts and ideas, whether ornot registrable under patent, copyright orsimilar statutes, including, without limitation, patents, copyright, trademarks, trade secrets, processes, methods, formulae, techniques, tools, solutions, programs, data and documentation, and related modifications, improvements and know-how, that Supplier, alone, orjointly with others, itsagents or employees, conceives, makes, develops, acquires orobtains knowledge of atany time before, after orduring theterm ofthisAgreement without breach ofSupplier 'sduty ofconfidentiality to Customer. IfSupplier Materials are included with orembodied inany Work Product, Customer will have a perpetual, irrevocable, nonexclusive, worldwide, royalty-free license touse, execute, reproduce, display, U.S.C. §101, based upon, the Supplier Materials ineach case solely inconjunction with the Work Product delivered hereunder. Any interest inthe Services andWork Products granted hereunder bySupplier toCustomer shall beeffective upon andtothe extent ofpayment byCustomer ofthe fees and expenses invoiced bySupplier pursuant tothis Agreement. 6.4 Residual Rights. Notwithstanding anything tothecontrary inthis Agreement, Supplier and its personnel are free touse and employ their general skills, know-how, andexpertise, and touse, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, orskills gained orlearned during the course of thisAgreement solong asthey acquire andapply such information without any unauthorized use or disclosure ofconfidential orproprietary information ofCustomer. 1130 Crosspointe Lane, Suite 9A Webster, NY14580 585.413.4302 info@esc-partners.com DocuSign Envelope ID: 590D0BF9-FB77-43A8-955D-3B08FBF84A88 FuelingUtilityInnovation www.esc-partners.com 7. LIMITATIONS OF LIABILITY 7.1 Limitations ofLiability. NEITHER PARTY WILL BELIABLE TOTHE OTHER PARTY FOR ANY LOST DATA, LOST PROFITS OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OROTHER INDIRECT DAMAGES OFANY KIND FOR ANY REASON WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES BASED UPON NEGLIGENCE, BREACH OFWARRANTY, STRICT LIABILITY, OR ANY OTHER THEORY EVEN IFAPARTY HAS BEEN ADVISED OFTHE regardless ofthe form ofaction, willnot exceed thetotal amount actually paid for Services and Work Product under theSOW giving rise tothe damages. Notwithstanding theabove, theliability of Customer may beincreased toinclude Supplier'scosts ofcollection ofServices fees, including without limitation reasonable attorney'sfees and court costs. The parties agree that amounts stated herein are fair under the circumstances and that the prices reflect thislimitation ofliability. 8. NONSOLICITATION During the term ofthis Agreement and for aperiod ofone (1) year after itstermination, neither party inthe provision orreceipt ofServices under thisAgreement or (b) hire orengage any person orentity who is or wasemployed orengaged bythe other party and whowas involved in the provision orreceipt ofServices under based internet site. IfCustomer hires or engages, directly orindirectly, any personnel ofSupplier inviolation of (b) per month) for such personnel. 9. NONDISCRIMINATION Vendor represents and warrants that itandall ofitsofficers, employees, agents, contractors and subcontractors shall comply with all laws ofthe United States, the State ofIndiana and City prohibiting discrimination against any employee, applicant for employment or other person inthe provision of any Goods and Services provided bythis Agreement with respect to their hire, tenure, terms, conditions and privileges of employment and any other matter related totheir employment orsubcontracting, because ofrace, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and/orVietnam era veteran status. 10. E-VERIFY Pursuant to I.C. § 22-5-1.7etseq., asthesame may be amended from time totime, and as is work eligibility status ofitsnewly-hired employees using the E-Verify program, and toexecute the Affidavit attached herein asExhibit A, affirming that itisenrolled and participating inthe E-verify program and does not knowingly employ unauthorized aliens. Insupport ofthe Affidavit, Vendor shall provide the City with documentation indicating that it hasenrolled and isparticipating inthe E-Verify program. Should Vendor 1130 Crosspointe Lane, Suite 9A Webster, NY14580 585.413.4302 info@esc-partners.com DocuSign Envelope ID: 590D0BF9-FB77-43A8-955D-3B08FBF84A88 FuelingUtilityInnovation www.esc-partners.com subcontract for the performance of anywork under and pursuant tothis Agreement, itshall fully comply with theIndiana E-Verify Law asregards each such subcontractor. Should the Vendor orany subcontractor violate the Indiana E-Verify law, the City may require acure ofsuch violation and thereafter, ifnotimely cure is performed, terminate this Agreement inaccordance with either the provisions hereof or those set forth inthe Indiana E-Verify Law. The requirements ofthis paragraph shall not apply should the E-Verify program cease to exist. 11. DEBARMENT AND SUSPENSION The Vendor certifies byentering into this Agreement that neither itnor itsprincipals nor any ofits subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible orvoluntarily excluded from entering intothis Agreement byany federal agency orbyany department, agency orpolitical poses ofthis Agreement means anofficer, director, owner, partner, key employee or other person with primary management orsupervisory responsibilities, oraperson who has acritical influence onorsubstantive control over the operations ofthe Vendor. The Vendor certifies that ithas verified thestate and federal suspension and debarment status forall subcontractors receiving funds under thisAgreement and shall besolely responsible for any recoupment, penalties orcosts that might arise from useofasuspended ordebarred subcontractor. The Vendor shall request, take allsteps required by theCity toterminate itscontractual relationship with the subcontractor for work tobeperformed under this Agreement. 12. IRAN CERTIFICATION Pursuant toI.C. § 5-22-16.5, the Vendor shall certify that, in signing this Agreement, itdoes not engage ininvestment activities within the Country ofIran. 13 DISPUTE RESOLUTION PROVISIONS 13.1 Overview. jurisdiction, each party agrees toattempt toresolve all disputes under this Agreement inaccordance with the dispute resolution procedures set forth herein. 13.2 Informal. designated representatives will meet within ten (10) days following the receipt ofsuch written notice and will attempt toresolve the dispute within fifteen (15) days. Ifthe parties agree, adispute may bemediated. The parties willselect amediator within twenty (20) days ofagreeing tomediate. 13.3 14. GENERAL PROVISIONS 1130 Crosspointe Lane, Suite 9A Webster, NY14580 585.413.4302 info@esc-partners.com DocuSign Envelope ID: 590D0BF9-FB77-43A8-955D-3B08FBF84A88 FuelingUtilityInnovation www.esc-partners.com 14.1 Publicity. Supplier may reference itsgeneral business relationship with Customer formarketing purposes. 14.2 Applicable Laws. Each party will comply with applicable foreign, federal, state, and local laws, rules, regulations, orders, ordinances and government requirements, including without limitation, Executive Order 11246 -- Equal Employment Opportunity. 14.3 Export. Neither party will knowingly export or re-export orcause tobeexported orre-exported any Work Product, to any country for which the U.S. government requires an export license orother government approval without firstobtaining the required license orapproval. Signature Page Follows>> 1130 Crosspointe Lane, Suite 9A Webster, NY14580 585.413.4302 info@esc-partners.com DocuSign Envelope ID: 590D0BF9-FB77-43A8-955D-3B08FBF84A88 FuelingUtilityInnovation www.esc-partners.com INWITNESS WHEREOF the parties have executed this Master Consulting Services Agreement onthe date first set forth above. Approved and Adopted this day of , 20 . CITY OF CARMEL, INDIANA Enterprise Solutions Consulting, LLC Byandthrough itsBoard ofPublic Works andSafety BY: BBY: James Brainard, Presiding Officer RJKumar, President/CEO Date: Date: 07/06/2021 Mary Ann Burke, Member Date: Lori S. Watson, Member Date: ATTEST: Sue Wolfgang, Clerk Date: 1130 Crosspointe Lane, Suite 9A Webster, NY14580 585.413.4302 info@esc-partners.com DocuSign Envelope ID: 590D0BF9-FB77-43A8-955D-3B08FBF84A88 8/18/2021 8/18/2021 ------------ 8/18/2021 Not Present 8/18/2021