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HomeMy WebLinkAboutDunco Marketing, Inc (DME)/MAC/Sponsorship Agreement1 AGREEMENT FOR SPONSORSHIP SALES SERVICES THIS AGREEMENT FOR SPONSORSHIP SALES SERVICES (“Agreement”) is hereby made and entered into by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety (hereinafter "City"), and DUNCO Marketing, Inc. (hereinafter "DME"). RECITALS WHEREAS City, from time to time, enters into sponsorship agreements; and WHEREAS, DME desires to provide to City the services referenced herein; and WHEREAS, City desires to engage DME as an independent contractor for the purpose of providing to City the Services referenced herein; NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and conditions set forth herein, City and DME mutually agree as follows: SECTION 1 INCORPORATION OF RECITALS The foregoing Recitals are hereby incorporated into this Agreement and made a part hereof. SECTION 2 SCOPE OF SERVICES City agrees to engage DME as an independent contractor for the following Services: DME may introduce, broker, and assist in negotiating agreements for the sale of sponsorship or promotional rights relating to City (the “Services”) pursuant to the terms and conditions contained herein. Money paid for the sale of sponsorship or promotional rights are hereinafter referred to as “Sponsorship Funds.” SECTION 3 CITY'S RESPONSIBILITIES 3.1 City shall provide such information as is reasonably necessary for DME to understand the Services requested, including City’s current marketing materials. 3.2 City shall designate a representative to act on the City’s behalf on all matters regarding the Services. 3.3 City will make reasonable efforts to provide event credentials and access to City’s hospitality facilities for DME and Potential Sponsors. SECTION 4 DME'S RESPONSIBILITIES 4.1 DME shall perform the Services pursuant to the terms of this Agreement. 4.2 DME shall coordinate with City its performance of the Services. 2 4.3 DME shall provide the Services by following and applying at all times reasonable and lawful standards as accepted in the industry. 4.4 SECTION 5 COMPENSATION 5.1 DME shall be compensated Five Thousand Dollars ($5,000) each month, for a total of twelve (12) months. 5.2 So that DME may correctly invoice City, City shall provide DME with a summary of each Sponsorship Agreement facilitated by DME within seven (7) days of its finalization. This summary must include the length of the agreement, the consideration for the agreement, payment schedule, any renewal provisions or rights to extend, and any other material terms. 5.3 DME shall submit invoices to City each month with a detailed description of the Services provided for that time period. Invoices shall be submitted on a form containing the same information as that contained on the Professional Services Invoice attached hereto as Exhibit A, incorporated herein by this reference. City shall pay DME for all undisputed Services rendered and stated on such invoice within thirty-five (35) days from the date of City’s receipt of same. All payments and any late payments fees shall be pursuant to Indiana Prompt Payment Statute; Ind. Code 5-17-5 et al. 5.4 If City, in its sole discretion, elects to accept value-in-kind consideration instead of a monetary contribution as part of the sponsorship funds, DME is entitled to receive the Commission on the agreed retail price of the value-in-kind consideration. Value-in-kind consideration does not include the supply of mere showcase products that are placed with City at Sponsor’s request. City shall notify DME within thirty five (35) days of receipt of the value-in-kind contribution. 5.5 DME is responsible for its own expenses in conjunction with its performance of the Agreement. 5.6 In the event that a Sponsorship Agreement is terminated and City does not receive sponsorship funds pursuant to this Agreement, DME shall not be entitle to any future compensation by the City. If City has already made payments to DME prior to the termination of this Agreement, DME shall fully reimburse the City any such payments made to DME within thirty (30) days of the termination notice. SECTION 6 TERM This Agreement shall be in effect from the Effective Date to twelve months from the Effective Date, unless terminated by either party in accordance with the termination provisions set forth in this Agreement. SECTION 7 MISCELLANEOUS 7.1 Identification of Sales Prospects DME will inform City in writing (email is sufficient) of an entity or brand it desires to pursue to solicit sponsorships on behalf of City. City will have fifteen (15) business days to accept a prospect and, if City does not respond within that time, the prospect is deemed rejected. If City accepts a prospect, then that prospect is deemed a Potential Sponsor. An initial list of Potential Sponsors is attached as Schedule A. City is not obligated to accept any prospect and is not liable to DME for its rejection of a prospect. 3 7.2 Excluded Prospects City does not permit DME to seek sponsorships for any existing sponsor of City or current prospect of City (each an “Excluded Prospect”). An initial list of Excluded Prospects is attached as Schedule B. 7.3 Termination This Agreement may be terminated by City or DME, effective immediately, without cause, upon written notice. 7.4 Binding Effect City and DME, and their respective officers, officials, agents, partners and successors in interest are bound to the other as to all Agreement terms, conditions and obligations. 7.5 No Third Party Beneficiaries Nothing contained herein shall be construed to give rights or benefits to anyone other than the parties hereto. 7.6 Relationship The relationship of the parties hereto shall be as provided for in this Agreement, and neither DME nor any of its agents, employees or contractors are City employees. DME shall have the sole responsibility to pay to or for its agents, employees and contractors all statutory, contractual and other benefits and/or obligations as they become due. City and DME specifically acknowledges that DME is not a fiduciary of City. DME hereby warrants and indemnifies City for and from any and all costs, fees, expenses and/or damages incurred by City as a result of any claim for wages, benefits or otherwise by any agent, employee or contractor of DME regarding or related to the subject matter of this Agreement. This indemnification obligation shall survive the termination of this Agreement. 7.7 Liens DME shall not cause or permit the filing of any lien on any of City’s property. In the event such a lien is filed and DME fails to remove it within ten (10) days after the date of filing, City shall have the right to pay or bond over such lien at DME’s sole cost and expense. 7.8 Default In the event DME: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including DME’s warranties; or (b) becomes insolvent, files, or has filed against it, a petition for receivership, makes a general assignment for the benefit of creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right to terminate all or any part of this Agreement, without liability to DME and to exercise any other rights or remedies available to it at law or in equity. 7.9 Government Compliance DME agrees to comply with all laws, executive orders, rules and regulations applicable to DME’s performance of its obligations under this Agreement, all relevant provisions of which being hereby incorporated herein by this reference, and to indemnify and hold harmless City from any and all losses, damages, costs, liabilities, 4 damages, costs and attorney fees resulting from any failure by DME to do so. This indemnification obligation shall survive the termination of this Agreement. 7.10 Indemnification DME shall indemnify and hold harmless City and its officers, officials, employees and agents from all losses, liabilities, claims, judgments and liens, including, but not limited to, all damages, costs, expenses and attorney fees arising out of any intentional or negligent act or omission of DME and/or any of its employees, agents or contractors in the performance of this Agreement. This indemnification obligation shall survive the termination of this Agreement. 7.11 Insurance DME shall maintain general liability insurance in the amount of One Million Dollars ($1,000,000) and shall provide the City with proof of insurance. 7.12 Discrimination Prohibition DME represents and warrants that it and each of its employees, agents and contractors shall comply with all existing and future laws prohibiting discrimination against any employee, applicant for employment and/or other person in the subcontracting of work and/or in the performance of any Services contemplated by this Agreement with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, subcontracting or work performance hereunder because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status or Vietnam era veteran status. This indemnification obligation shall survive the termination of this Agreement. 7.13 E-Verify Pursuant to I.C. § 22-5-1.7 et seq., DME shall enroll in and verify the work eligibility status of all of its newly- hired employees using the E-Verify program, if it has not already done so as of the date of this Agreement. DME is further required to execute the attached Affidavit, herein referred to as Exhibit B, which is an Affidavit affirming that: (i) DME is enrolled and is participating in the E-Verify program, and (ii) DME does not knowingly employ any unauthorized aliens. This Addendum incorporates by reference, and in its entirety, attached Exhibit B. In support of the Affidavit, DME shall provide the City with documentation that it has enrolled and is participating in the E-Verify program. This Agreement shall not take effect until said Affidavit is signed by DME and delivered to the City’s authorized representative. Should DME subcontract for the performance of any work under this Addendum, DME shall require any subcontractor(s) to certify by affidavit that: (i) the subcontractor does not knowingly employ or contract with any unauthorized aliens, and (ii) the subcontractor has enrolled and is participating in the E-Verify program. DME shall maintain a copy of such certification for the duration of the term of any subcontract. DME shall also deliver a copy of the certification to the City within seven (7) days of the effective date of the subcontract. If DME, or any subcontractor of DME, knowingly employs or contracts with any unauthorized aliens, or retains an employee or contract with a person that DME or subcontractor subsequently learns is an unauthorized alien, DME shall terminate the employment of or contract with the unauthorized alien within thirty (30) days (“Cure Period”). Should DME or any subcontractor of DME fail to cure within the Cure Period, the City has the right to terminate this Agreement without consequence. The E-Verify requirements of this Agreement will not apply, should the E-Verify program cease to exist. 5 7.14 Severability If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, that provision shall be stricken, and all other provisions of this Agreement that can operate independently of same shall continue in full force and effect. 7.15 Notice Any notice, invoice, order or other correspondence required or allowed to be sent pursuant to this Agreement shall be written and either hand-delivered or sent by prepaid U.S. certified mail, return receipt requested, addressed to the parties as follows: CITY: City of Carmel City of Carmel Marketing and Community Relations Department Office of Corporation Counsel One Civic Square One Civic Square Carmel, Indiana 46032 Carmel, Indiana 46032 DME: DUNCO Marketing, Events & Entertainment, Inc. 1265 Stonehaven Drive Westfield, Indiana 46074 Attn: Scott Duncan, Chief Executive Officer With a Copy To (which such copy will not constitute notice): Zirkle Advisors 11216 Fall Creek Road Suite 135 Indianapolis, Indiana 46256 Attn: Wesley A. Zirkle Notwithstanding the above, City may orally provide to DME any notice required or permitted by this Agreement, provided that such notice shall also then be sent as required by this paragraph within ten (10) business days from the date of such oral notice. 7.16 Effective Date The effective date (“Effective Date”) of this Agreement shall be the date on which the last of the parties hereto executes same. 7.17 Governing Law; Lawsuits This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana, except for its conflict of laws provisions, as well as by all ordinances and codes of the City of Carmel, Indiana. The parties agree that, in the event a lawsuit is filed hereunder, they waive any right to a jury trial they may have, agree to file such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same. 6 7.18 Waiver Any delay or inaction on the part of either party in exercising or pursuing its rights and/or remedies hereunder or under law shall not operate to waive any such rights and/or remedies nor in any way affect the rights of such party to require such performance at any time thereafter. 7.19 Non-Assignment DME shall not assign or pledge this Agreement nor delegate its obligations hereunder without City’s prior written consent. 7.19 Entire Agreement This Agreement contains the entire agreement of and between the parties hereto with respect to the subject matter hereof, and no prior agreement, understanding or representation pertaining to such subject matter, written or oral, shall be effective for any purpose. No provision of this Agreement may be amended, added to or subtracted from except by an agreement in writing signed by both parties hereto and/or their respective successors in interest. To the extent any provision contained in this Agreement conflicts with any provision contained in any exhibit attached hereto, the provision contained in this Agreement shall prevail. 7.20 Representation and Warranties Each party hereto represents and warrants that it is authorized to enter into this Agreement and that any person or entity executing this Agreement on behalf of such party has the authority to bind such party or the party which they represent, as the case may be. 7.21 Headings All headings and sections of this Agreement are inserted for convenience only and do not form a part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof. 7.22 Advice of Counsel The parties warrant that they have read this Agreement and fully understand it, have had an opportunity to obtain the advice and assistance of counsel throughout the negotiation of same, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. 7.23 Copyright City acknowledges that various materials which may be used and/or generated by DME in performance of Services, including forms, job description formats, comprehensive position questionnaire, compensation and classification plan and reports are copyrighted. City agrees that all ownership rights and copyrights thereto lie with DME, and City will use them solely for and on behalf of its own operations. City agrees that it will take appropriate action with its employees to satisfy its obligations with respect to use, copying, protection and security of DME’s property. 7.24 Personnel DME represents that it has, or will secure at its own expense, all personnel required in performing the services under this agreement. Such personnel shall not be employees of or have any contractual relationship with City. 7 All of the services required hereunder will be performed by DME or under his supervision and all personnel engaged in the work shall be fully qualified to perform such services. 7.25 Records and Inspections DME shall maintain full and accurate records with respect to all matters covered under this agreement for three (3) years after the expiration or early termination of this Agreement. City shall have free access at all proper times to such records and the right to examine and audit the same and to make transcripts there from, and to inspect all program data, documents, proceedings and activities. 7.26 Accomplishment of Project DME shall commence, carry on, and complete the project with all practicable dispatch, in a sound economical and efficient manner, in accordance with the provisions thereof and all applicable laws. In accomplishing the project, DME shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on within City’s organization. 7.27 Debarment And Suspension 7.27.1 DME certifies by entering into this Agreement that neither it nor its principals nor any of its subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from entering into this Agreement by any federal agency or by any department, agency or political subdivision of the State of Indiana. The term “principal” for purposes of this Agreement means an officer, director, owner, partner, key employee or other person with primary management or supervisory responsibilities, or a person who has a critical influence on or substantive control over the operations of DME. 7.27.2 DME certifies that it has verified the state and federal suspension and debarment status for all subcontractors receiving funds under this Agreement and shall be solely responsible for any recoupment, penalties or costs that might arise from use of a suspended or debarred subcontractor. DME shall immediately notify the City if any subcontractor becomes debarred or suspended, and shall, at the City’s request, take all steps required by the City to terminate its contractual relationship with the subcontractor for work to be performed under this Agreement. 7.28 Access to Public Records Act DME understands and agrees that any “public record”, as that term is defined in Indiana Code 5-14-3-2(m), as amended, that is related to the subject matter of this Agreement, whether the same is in the possession or control of DME or the City, shall be subject to release under and pursuant to the provisions of Indiana’s Access to Public Records Act, as codified in Indiana Code 5-14-3-1, et seq., as amended. 7.29 Iran Certification Pursuant to I.C. § 5-22-16.5, DME shall certify that, in signing this Agreement, it does not engage in investment activities within the Country of Iran. 05.29.25 9 SCHEDULE A Initial List of Potential Sponsors TW - American Trailer World Corporation Coca-Cola Consolidated Coca-Cola Enterprises DHL Global and Express Shipping ECOLAB FES - Future Energy Solutions Ferguson Ferguson Facility Supply FXI Go-Jo/ Purell Kimberly Clark LTI Printing Stanley Black & Decker 10 SCHEDULE B Initial List of Excluded Prospects TO BE PROVIDED BY CITY Allied Solutions Structure Point Patel Brothers