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Malinowski Consulting/UTIL/3,975/COnsulting on Administration Fees p proved Ely Malinowski Consulting D Utilities-2012 Appropriation#01-6320-08; P.O.NW09764 Contract Not To Exceed$3,975.00 AGREEMENT FOR PROFESSIONAL SERVICES act THIS AGREEMENT FOR PROFESSIONAL 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 Mallnowskl Consulting(hereinafter°Professional°). RECITALS WHEREAS City owns and is responsible for the operation and maintenance of its property, personnel, public works and infrastructure;and WHEREAS, from time to time, City needs professional assistance in fulfilling its foregoing responsibilities; and WHEREAS, Professional Is experienced in providing and desires to provide to City the professional services ("Services")referenced herein; and WHEREAS, City desires to engage Professional 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 Professional 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 2.1 City desires to engage Professional as an independent contractor for the Services set forth in attached Exhibit A, incorporated herein by this reference. 2.2 Professional understands and agrees that City may, from time to time, request Professional to provide .- additional or modified Services to City. When City desires additional Services from Professional, the City shall notify Professional of such additional Services desired, as well as the time frame in which same are to be provided. Only after City has approved Professional's time and cost estimate for the provision of such additional Services, has encumbered sufficient monies to pay for same, and has authorized Professional, in writing, to provide such additional Services, shall such Services be provided by Professional to City.A copy of the City's authorization documents for the purchase of additional Services shall be numbered and attached hereto in the order In which they are approved by City. 2.3 Time is of the essence of this Agreement. IVosef°Gw a—S.wllwWMLrowsu CONSULTING-nermb.+Sena n.,llxeervumu 4&NAI Malinowski Consulting Utilities-2012 Appropriation#01-6320-08; P.O.#W09764 Contract Not To Exceed$3,975.00 SECTION 3. CITY'S RESPONSIBILITIES 3.1 City shall provide such information as is reasonably necessary for Professional to understand the Services requested. 3.2 City shall provide all data required for provision of Services. Professional may assume that all data so provided is correct and complete. 3.3. City shall arrange for Professional to enter upon public and private property as reasonably required for Professional to perform the Services. 3.4 City shall designate payment of the Services from City budget appropriation number 01-6320-08 funds. 3.5 City shall designate the Mayor or his duly authorized representative to act on City's behalf on all matters regarding the Services. SECTION 4. PROFESSIONALS RESPONSIBILITIES 4.1 Professional shall perform the Services pursuant to the terms of this Agreement and within any applicable time and cost estimate. 42 Professional shall coordinate with City its performance of the Services. 4.3 Professional shall provide the Services by following and applying at all times reasonable and lawful standards as accepted in the industry. SECTION 5. COMPENSATION 5.1 Professional estimates that the total price for the Services to be provided to City hereunder shall be no more than Three Thousand Nine Hundred Seventy Ave Dollars ($3,975.00) (the °Estimate°). Professional shall submit an invoice to City no more than once every thirty(30)days for Services provided City during the time period encompassed by such invoice. Invoices shall be submitted on a form containing the same information as that contained on the Professional Services Invoice attached hereto as Exhibit B, incorporated herein by this reference. City shall pay Professional for all undisputed Services rendered and stated on such invoice within sixty(60)days from the date of City's receipt of same. 52 Professional agrees not to provide any Services 10 City that would cause the total cost of same to exceed the Estimate,without City's prior written consent. (ab°nMNS.m A Gash S.dY46hlMWIbWSKI COGU.TXC-e,ammai&Ma I 2.3.I14mv1°UU$,AM Malinowski Consulting Utilities-2012 Appropriation#01-6320-08; P.O.#W09764 Contract Not To Exceed$3,975.00 SECTION 6. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Section 7.1 hereinbelow,this Agreement shall be in effect from the Effective Date through December 31, 2013, and shall, on the first day of each January thereafter,automatically renew for a period at one(1) calendar year, unless otherwise agreed by the parties hereto. SECTION 7. MISCELLANEOUS 7.1 Termination. 7.1.1 The obligation to provide all or any portion of the Services under this Agreement may be terminated by City or Professional,without cause, upon thirty(30)days'notice. 7.1.2 The obligation to provide all or any portion of the Services under this Agreement may be terminated by City,for cause, immediately upon Professional's receipt of Citys°Notice To Cease Services." 7.1.3 In the event of full or partial Agreement termination, and as full and complete compensation hereunder, Professional shall be paid for all such Services rendered and expenses incurred as of the date of termination that are not in dispute, except that such payment amount shall not exceed the Estimate. Disputed compensation amounts shall be resolved as allowed by law. 7.2 Binding Effect. City and Professional,and their respective officers,officials, agents,partners and successors in interest are bound to the other as to all Agreement terms, conditions and obligations. 7.3 No Third Party Beneficiaries. Nothing contained herein shall be construed to give rights or benefits to anyone other than the parties hereto. 7.4 Relationship. The relationship of the parties hereto shall be as provided for in this Agreement,and neither Professional nor any of its agents, employees or contractors are City employees. Professional 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. Professional 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 Professional regarding or related to the subject matter of this Agreement.This indemnification obligation shall survive the termination of this Agreement. IZ^Ox,Mof.Sn,•Gcem Sot lId A4ALNW9U CG Td0.Tafubtl Svwa II-I}I]bcLl/NIS 1 'NQ Malinowski Consulting Utilities-2012 Appropriation#01-6320-08; P.O.#W09764 Contract Not To Exceed$3,975.00 7.5 Insurance. Professional shall procure and maintain with an insurer licensed to do business in the State of Indiana such Insurance as is necessary for the protection of City and Professional from all claims under workers' compensation, occupational disease and/or unemployment compensation acts, because of errors and omissions, because of bodily injury, including, but not limited to, the personal injury, sickness, disease, or death of any of Professional's employees, agents or contractors and/or because of any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom. The coverage amounts shall be no less than those amounts set forth on attached Exhibit C. Such insurance policies shall not be canceled without thirty(30)days' prior written notice to City. 7.6 Jens. Professional 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 Professional 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 Professional's sole cost and expense. 7.7 Default. In the event Professional: (a) repudiates, breathes or defaults under any of the terms or conditions of this Agreement, including Professional's warranties; (b) fails to perform the Services as specified; (c) fails to make progress so as to endanger timely and proper completion of the Services and does not correct such failure or breach within five (5) business days after receipt of notice from City specifying same; or (d) 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 Professional and to exercise any other rights or remedies available to it at law or in equity. 7.8 Government Compliance. Professional agrees to comply with all laws, executive orders, rules and regulations applicable to Professional's performance of its obligations under this Agreement, all relevant provisions of which being hereby incorporated herein by this reference,to keep all of Professionals' required professional licenses and certifications valid and current, and to indemnify and hold harmless City from any and all losses, damages, costs, liabilities, damages, costs and attorney fees resulting from any failure by Professional to do so. This indemnification obligation shall survive the termination of this Agreement. 7.9 Indemnification. Professional 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 Professional 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. ,N...MU,,.e.O..m 9n#IPssN,AUwOWXI CUSLTWO.nwmm.+Sw.a ILU.,1ScL,21,,4o AM) Malinowski Consulting Utilities-2012 Appropriation#01-6320-08; P.O.#W09764 Contract Not To Exceed 53,975,00 7.10 Discrimination Prohibition. Professional represents and warrants that it and each of its employees, agents and contractors shall comply with all existing and applicable 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. 7.11 E-Verify Pursuant to I.C. § 22-5.1.7 et seq., Company shall enroll in and verify the work eligibility status of all of its newly-hired employees using the E-Verily program, if it has not already done so as of the date of this Agreement. Company is further required to execute the attached Affidavit, herein referred to as Exhibit D. which is an Affidavit affirming that: (i)Company is enrolled and is participating in the E-verify program, and (ii) Company does not knowingly employ any unauthorized aliens.This Addendum incorporates by reference, and in its entirety, attached Exhibit D. In support of the Affidavit, Company 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 Company and delivered to the City's authorized representative. Should Company subcontract for the performance of any work under this Addendum, the Company 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. Company shall maintain a copy of such certification for the duration of the term of any subcontract. Company shall also deliver a copy of the certification to the City within seven (7) days of the effective date of the subcontract. If Company,or any subcontractor of Company, knowingly employs or contracts with any unauthorized aliens, or retains an employee or contract with a person that the Company or subcontractor subsequently learns is an unauthorized alien, Company shall terminate the employment of or contract with the unauthorized alien within thirty (30) days ("Cure Period"). Should the Company or any subcontractor of Company 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. 7.12 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. [LS,(J,cf3.v&Goals 3.a'YVWIALMOW510 caauurma �Wbaas Scram 12-I-Il<ocLi/201360 AMl Malinowski Consulting Utilities-2012 Appropriation#01-6320-08; P.O.#W09764 Contract Not To Exceed$3,975.00 7.13 Notice. My 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 Cannel Douglas C. Haney Utilities Department of Cannel City Attorney One Civic Square One Civic Square Cannel, Indiana 46032 Carmel, Indiana 46032 ATTENTION:John Duffy PROFESSIONAL: Malinowski Consulting 755 W. Carmel Drive, Ste.203 Carmel, IN 46032 ATTENTION:Charles F. Malinowski Notwithstanding the above, City may orally provide to Professional 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. 7.14 Effective Date. The effective date ("Effective Date") of this Agreement shall be the date on which the last of the parties hereto executes same. 7.15 Govemino 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. 7.16 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. R"aeenars.uW�a 5MWtlpeGMLINOWSL1 CONSULTING•PratuaN Seta Il-I3-llt"NIM]of AMI Malinowsld Consulting Utilities-2012 Appropriation#01-6320-08; P.O.#W09764 Contract Not To Exceed$3,975.00 7.17 Non-Assignment. Professional shall not assign or pledge this Agreement nor delegate its obligations hereunder without City's prior written consent. 7.18 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. 7.19 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. 7.20 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 after the meaning of any provision hereof. 7.21 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. 7.22 Proprietary Information. City acknowledges that various materials which may be used and/or generated by Professional in performance of Services, including forms, formats, and reports, are proprietary. City agrees that all ownership rights thereto lie with Professional, 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 Professional's property, subject to and conditioned upon the City's obligations under Indiana's Access to Public Records Act and all other applicable laws and court orders. 7.23 Personnel. Professional 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. All of the services required hereunder will be performed by Professional or under his supervision and all personnel engaged in the work shall be fully qualified to perform such services. indunAProans&Cmw La, 4N4 MALaOWSJ CONSULITHO-Fn Sew='L1 YIZCec211Rp139711 AM) Malinowslri Consulting Utilities-2012 Appropriation#01-6320-08; P.O.#W09764 Contract Not To Exceed$3,975.00 7.24 Records and Inspections Professional 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. 7.25 Accomplishment of Project Professional 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, Professional shall take such steps as are appropriate to ensure that the work involved is property coordinated with related work being carried on within City's organization. 7.26 Iran Certification: Pursuant to I.C. § 5-22-16.5, the Vendor shall certify that, in signing this document, it does not engage in investment activities within the Country of Iran. (remainder of page intentionally left blank) [L . a.CSaa Geol.MtamO&WALINOW571 ttl6ULTING.MO!®m,1&Sag 12-13-111s2/1/2013 4916 AMA Malinowski Consulting Utilities-2012 Appropriation#01-6320-08; P.O.#W09764 Contract Not To Exceed$3,975.00 IN WITNESS WHEREOF,the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA MALINOWSKI CONSULTING by and through its Board of Public Works and Safety BY: ' BY: gfd /James Brainard, Presid jlg Officer Authorized Signature Date: 0 e5 f Printed Name: (7/-1/,z-6S 1 444-/ G cis= / • ittvk Title: 1/2-6S/,0 c� M:ry An' Burke, Member Date: — r�-0 - l 3 FIDITIN: Last Four of SSN if Sole Proprietor. Lori S.Watson, Me ber Date: 767 E6/3 z 0/ % Date: 9-�o / t 3 Attesting Lori Watson and Mary Ann Burke's ATTEST: signatures only. Did not witness Mayor signature. Diana Cordray, IA Ti -Treasurer Date: tzin.mvmrma Weds S tIiiinu1ac' UCG 11703-Prolalasal Seim(3.13.116:01/X13 el6.Wl January 23,2013 The Honorable James Brainard Mayor City of Carmel One Civic Square Cannel,IN 46032 Re: Proposal for the_Preparation_ofthe City-Wide Cost Allocation.Plan Dear Mayor Brainard: Section 1: Introduction The purpose of this letter is to provide the City of Carmel with a formal proposal outlining how Malinowski Consulting,Inc. (Malcon)can be of assistance in the area of providing technical expertise in the preparation of the City-Wide Cost Allocation Plan(CAP). Section 2: Background The City of Cannel operates a number of funds that account for the operations of the City sewer and water utilities. Over the years the City General Fund has charged various administrative costs back to these funds. In an effort to identify a more equitable and systematic approach to reimbursing the General Fund it's"fair share"of costs,it is the desire of the City elected officials and utility managers to look for alternatives to previous methods. This desire has led to the dismission of enhancing the cost methodology by utilizing Federal guidelines as a starting basis to create a City-Wide Cost Allocation Plan to recover indirect costs of operating the sewer and water utilities in an equitable and transparent manner. Section g: Objectives The objectives of the Cost Allocation Plan are to: • Perform a comprehensive review of all centrally provided resources (accounting, payroll,information technology,etc.)and equitably allocate those indirect costs to all City funds and departments. • Prepare the computation in a straight forward method that is easily understood by all stakeholders. • Actively search for sources of indirect cost reimbursement to the City General Fund. Section 4: Scope To achieve the objectives of this service,Malcon will cover all aspects of the CAP preparation. This will include the following: • CAP Data Collection: Malcon will perform all data collection activities. City staff will provide direction as to where the information can be obtained. • CAP Presentation to City Officials: After the compilation of the CAP,Malcon w�11 meet with the appropriate City Officials(Mayor,Council,Administrator,Utility Director,etc.)to review the results of the analysis. EXHIBIT ,°1- CARMEL,INDIANA-PROPOSAL FOR THE PREPARATION OF THE COST ALLOCATION PLAN Section 4: Scope(Cont.) • Audit Defense to Federal and State Auditors: In the event that State or Federal auditors have questions regarding how the CAP was prepared,Malcon is prepared to explain and defend the CAP results. Section 6: Approach The approach to this assignment will include these steps: • Identify central services(i.e.accounts payable processing,technology services,facility operations,etc.)by scheduling on-site meetings with City department managers to identify all potential central service areas. • In cooperation with the accounting staff,determine wages and fringe benefits for the central service departments. • Gather and review the appropriate activity statistics(ex.paychecks processed by department)to determine allocation statistics. • Review City expenditure claims from the General and other Funds to ensure a full costing of central services has been performed. • Compile all data collected from various City departments into an electronic format that will generate the appropriate report. • Review the CAP with City staff to foster an understanding of the CAP document • Respond quicldy to questions posed the Indiana State Board of Accounts or other auditors. Section 6: Timing The Central Service Cost Allocation Plan will be prepared and submitted to the Mayor by May 14, 2013. Section 7: Stag Malcon will utilize the expertise of our Indiana based consulting staff: • Charles Malinowski, President • Barbara Malinowski,Operations Manager • Daniel Vaughn,Consultant Section 8: Qual}fcations The following are key qualifications that make Malcon uniquely suited for this assignment: • Malcon is an Indiana Corporation serving Indiana local government since 2004 • Currently working with 21 Indiana Counties to perform County-Wide Cost Allocation Plans for Federal reimbursement purposes. • The President of Malcon has over 3o years of national experience preparing CAP for States,Counties, and Cities. Page 2 `4j CARMHL,INDIANA-PROPOSAL FOR THE PREPARATION OF THE COST ALLOCATION PLAN Section 9: Fees and Expenses Proposed Fee—non Cost Allocation Plan: $7,950.00 One-lime, Pilot Project Discount of 50%: <3,975.00> Discounted Professional Fee: $3,975.00 This fee is inclusive of all services to be performed. Section so: Closing It is a privilege to submit this proposal to the City of Cannel to provide for the preparation of the cost allocation plan. The comprehensive approach outlined above will optimize recoveries to the General Fund,meet and exceed industry guidelines and substantially enhance the reliability and defense of the Cost Allocation Plan. If this proposal meets with your approval,please have the appropriate City official sign in the acceptance section and return one signed copy. Respectfully submitted, Charles F.Malinowsld President 4 Page 3 )4� CARMEL,INDIANA—PROPOSAL FOR TEE PREPARATION OF THE COST ALLOCATION PLAN ACCEPTANCE This agreement is between the City of Carmel and Malinowski Consulting, Inc. (Malcon) to provide the preparation of the City-Wide Cost Allocation Plan(CAP)for the Year Ended December 31,2012. The professional fees shall be as follows: Proposed Fee—2012 Cost Allocation Plan: $7,950.00 One-Time, Pilot Project Discount of 50%: <3,975.00> Discounted Professional Fee: $3,975.00 This agreement shall be in effect from the date of signature,entered below,until either party wishes to change the scope of the services or the professional fee. Either party may terminate the agreement with a thirty-day(3o)written notice. This fee is inclusive of all services to be performed. An invoice will be submitted to the City after acceptance of the CAP by the Mayor and is payable within 45 days. The following signatures will be considered as evidence of the acceptance of the above-described terms. Acceptance by the City of Cannel,Indiana By Name: Title: Date of Signature: Attest Name: Title: For Malinowsld • ,ting, Inc. By: .40 Name: Charles F.Malinowsld 0(7 "rem °"3 Title: President tf Page 4 RESOLUTION NO.BPW-02-20-13-06 RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY ACKNOWLEDGING RECEIPT OF CONTRACT WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Carmel, Indiana ("City"), is authorized to enter into contracts; and WHEREAS, pursuant to Indiana Code 36-4-5-3, the City's mayor shall sign all contracts of the City; and WHEREAS, pursuant to his authority under Indiana law, the City's mayor, the Honorable James C. Brainard, has signed the City contract attached hereto as Exhibit A(the "Contract"); and WHEREAS, Mayor Brainard now wishes to present the contract to the City's Board of Public Works and Safety for it to be publicly acknowledged, filed in the Clerk-Treasurer's Office, and made available to the public for review. NOW, THEREFORE, BE IT RESOLVED by the City of Carmel Board of Public Works and Safety as follows: 1. The foregoing Recitals are incorporated herein by this reference. 2. The receipt of the Contract is hereby acknowledged. 3. The Contract shall be promptly filed in the office of the Clerk-Treasurer and thereafter made available to the public for review. '1 SO RESOLVED this c O day of 1:1"G�Q , 2013. 2013. CITY OF CARMEL, INDIANA ` By and through its Board of Public Works and Safety BY: James' rainard, Presiding Officer A ATA,„• / . „ a Ann C urke, Menge Date: L,l )01 3 Lori S. Watso , e ber Date: �1 pii ATTEST: ana Cordray, IMC Air lerk- reasurer Date: off— o//-3 ZAE Bass'My Documents\BPW-Resolutions120131AcknovAedge MALINOWSKI PSA 2-12-13 BPW 02-20-13-06.doCX2/12/2013159 PM