HomeMy WebLinkAbout5.856 Original Contract
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Change-A-Light
CFL Promotion Agreement
August 15, 2007
1. Service Contract
This Agreement is made and entered into by and between City of Port AnQeles. the
Client, and Fluid Market Strategies, Inc., the Consultant, listed below for specified
services provided by the Consultant to the Client. This Agreement shall remain in force
only for the duration of the. period specified below, unless extended in accordance with
this Agreement (Term). All obligations incurred under this Agreement shall survive the
Term until satisfied.
Proiect Name ChanQe-A-LiQht
Contract Period AUQust 15, 2007- December 15,2007
Client Name Citv of Port Anaeles
Client Representative Larry Dunbar
Telephone Number 360-417 -4 71 0
Address 321 E 5th St
City, State, Zip Port Angeles, WA 98362-0217
Consultant Name Fluid Market StrateQies, Inc.
Telephone Number 503-488-5729
Address 517 SW 4tn Ave Suite 400
City, State, Zip Portland, Or. 97204
Taxpayer Identification Number 20-3767308
2. Term
the term of this Agreement (Term) shall commence on the 15th of August, 2007 and
continue in effect until the 15th of December, 2007, unless the Parties agree in writing to
extend the Term, or unless this Agreement is earlier terminated in accordance with the
Early Termination provisions below.
3. Services
This Agreement covers the services specified in Attachment A, Scope of Work, which is
hereby included and made a part of this Agreement. The Consultant agrees to perform
the services specified in Attachment A in the manner and within the time specified therein.
Except as expressly provided elsewhere in the Agreement, any and all modifications or
revisions to Attachment A (including, but not necessarily limited to, additions, deletions,
and extensions) must be in writing and signed by both parties.
4. Billing and Payment
The Consultant shall be compensated by the client for the performance of those .services
described in Attachment A, which is hereby included and made a part of this Agreement.
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To ensure payment within 30 days after receipt by the Client, the invoice for each month
must be submitted to the Client within 10 days of receipt of retail sales data by Fluid
Market Strategies, Inc. for the month prior.
Submit all invoices to:
Attn: Accounts Payable
City of Port Anqeles
321 E 5th St
Port Angeles, WA 98362-0217
5. Documentation
The Consultant shall maintain records documentating all fees and expenses in excess of
$5.00, incurred either by Consultant or any subcontractor of Consultant in the
performance of this Agreement. During regular business hours and upon reasonable
notice, the Client, or its designee, shall have the right to inspect and audit all records
required to be maintained under this Agreement. .
6. Insurance
The Consultant, and any subcontractor engaged by Consultant in its performance of this
Agreement, shall carry and maintain fully paid commercial general liability, automobile
liability and workers compensation insurance. All policies shall be written only by insurers
admitted to do business in Washinqton and having a rating of at least "A" and a financial
rating of at least "VIII" on the most current edition of Best's Key Rating Guide or
comparable rating by another generally recognized rating agency. All policies shall be
endorsed to (a) specify the Client as an additional insured to the full extent of its right to
indemnification under this Agreement, and (b) provide that the Client shall be given no
less than thirty (30) days advance written notice of cancellation or material change in
coverage. Certificates of insurance shall be sent to the Client before work begins.
. Consultant shall obtain the following minimum insurance coverage ("Required
Insurance") prior to the Effective Date, at its expense, and keep the Required
Insurances in effect during the Term (except with respect to Professional
Liability Insurance, when they shall be kept in effect for a period of the Term
plus two years);
. Workers' Compensation Insurance in compliance with statutory requirements;
. Commercial General Liability Insurance (including contractual liability), on any
occurrence basis, with not less than $1,000,000 per occurrence for bodily injury
and property damage liability, with an annual aggregate limit of $2,000,000;
. Professional Liability Insurance, including errors and omissions coverage, with
a per occurrence and aggregate limit of not less than $1,000,000, to protect
against all loss suffered by the Client or third parties, including financial and
consequential loss, caused by error, omission, or negligent acts related to
provision of the Services;
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. Commercial Automobile Liability Insurance, with a combined single limit, or the
equivalent of not less than $1,000,000 per occurrence, for bodily injury and
property damage with respect to Consultants vehicles, whether owned, hired,
or non-owned, assigned'to, or used by Consultant in connection with the
Services; and
. Umbrella coverage in excess of the Workers Compensation Coverage B
(Employers Liability): Commercial General Liability, and Commercial
Automobile Liability insurances specified above of not less than $5,000,000.
The Required Insurances shall be with insurance companies admitted to do business in
the state of Washinqton and rated "A" or better by Bests Insurance Rating. Consultant
shall furnish the Client with certificates of insurance for each of the Required Insurances.
The Commercial General Liability, Commercial Automobile Liability, and Umbrella
Coverage shall (i) name the Client, its directors, offices, and employees, as additional
insured, (ii) provide that it is primary insurance with respect to the interests of the Client
and that any insurance maintained by the Client is excess and not contributory, (iii)
include a cross-liability and severability of interest clause, and (iv) shall include coverage
for Hazardous Substances.
In the event Contractor fails to maintain, or require its subcontractors to maintain,
insurance policies in compliance with this provision the Client may in its discretion either
purchase such insurance coverage and charge the premium to Contractor or treat such
failure as an event of default by Contractor and terminate this Agreement for breach of
contract.
7. Governing Law, Venue and Attorney's Fees
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The laws of the State of Washinqton shall govern this agreement. Exclusive venue in
case of legal suit or ac~ion is instituted to enforce compliance with any terms, covenants,
or conditions of this agreement shall lie in City of Port Anqeles, Clallam County, '
Washinqton. Both parties agree to submit to the personal jurisdiction of any court of
competent subject matter jurisdiction in City of Port Anqeles. Clallam County,
Washinqton. In the event of legal suit or action, including any appeals there from, brought
. by either party against the other to enforce any of the obligations hereunder or arising out
of any dispute concerning the terms and conditions hereby created, the losing party shall
reimburse the prevailing party for its reasonable attorney fees and costs incurred in the
suit or action including investigation costs, expert witness fees and costs of depositions.
If any part of this agreement is found to be in conflict with applicable laws, such parts
, shall be inoperative, null and void so far as it is in conflict with said laws, but the
remainder of this agreement shall be in full force and effect.
8. Good Faith Negotiation/Mediation
Prior to filing suit or initiating arbitration on any dispute, which arises between the Parties
under or relating to this Agreement, the Parties agree to attempt to resolve the dispute
through good faith negotiation. If the dispute cannot be resolved through good faith
negotiation, the Parties agree to hire an independent, trained and mutually acceptable
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mediator to mediate the dispute. The cost of the mediator will be shared equally by the
Parties. The mediation shall be conducted in Clallam County, Washinqton.
9. Suspension of Work
Suspension by the Client
The Client may suspend, in writing, all or a portion of Consultants services under
Attachment A in the event unforeseen circumstances make normal progress in the
performance of the Consultants work inadvisable in the opinion of the Client. Consultant
may request that the work be suspended by notifying the Client, in writing, of
circumstances which are interfering with normal progress of the work. The time for
completion of the remaining work shall be extended by the number of days the work is
suspended by the Client, unless both parties can mutually agree upon a new completion
time. In the event the period of suspension exceeds 90 days, the terms of this Agreement
shall be subject to renegotiation; provided, however, that if such renegotiation of a
mutually acceptable replacement contract has not occurred within 180 days after
suspension (Renegotiation Period), then either party may terminate this Agreement in
accordance with the early termination provision hereof, provided further, that the failure to
renegotiate this Agreement within the Renegotiation Period shall not be construed as a
breach of the Agreement by either Party.
Suspension by Contractor
Contractor may suspend, in writing, all or any portion of its services under this
Agreement, but only if and to the extent the Client fails to make timely payment in
accordance with the terms of this Agreement. The Client shall have a period of sixty (60)
days from the date on which payment was due (Cure Period) within which to satisfy any
arrearages in payment. Contractor shall resume performance of any suspended services
upon receipt of payment of any arrearages from the Client within the Cure Period.
10. Early Termination
Early Termination of Agreement Prior to Expiration of the Term
Either party shall have the right, but not the obligation, to terminate this Agreement, on
sixty (60) days written notice, in the event the other party's service or performance fails to
conform to the requirements of this Agreement. Contractor shall have the right, but not
the obligation, to terminate this Agreement, effective upon expiration of the Cure Period,
in the event the Client fails to pay any arrearage within the Cure Period. Either party shall
have the right but not the obligation; to terminate this Agreement in the' event work is
suspended under this Agreement for a period in excess of 90 days and no renegotiation
of this Agreement has occurred within the Renegotiation Period. Any right of early
termination shall be in addition to, not in replacement of, any and all rights and remedies
a party may have for breach of the Agreement by the other Party.
11. Subcontractors
Consultant may contract with one or more qualified subcontractors (Subcontractor
Agreement) to perform a portion of the services specified in the scope of Work; provided,
however, that Contractor shall remain solely responsible to the Client for all performance
under this Agreement and, provided further, that the Client shall have no responsibility for
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the review or supervision of the Work of any subcontractor or for any payment to any
subcontractor. All subcontractor agreements shall require the subcontractor to comply
with the invoicing, insurance, suspension of work, audit; documentation, confidentiality
and return of records obligations imposed on Contractor by this Agreement. No
subcontractor shall be deemed to be a third party beneficiary of this Agreement or to have
any other rights under this Agreement.
12. Relationship of Parties
Consultant is an independent contractor, and this Agreement is not intended to form a
partnership or joint venture between the Parties. Individuals employed by Consultant are
not employees or agents of the Client, nor are consultants subcontractors employees or
agents of the Client. Each Party is solely responsible for payment of compensation to its
employees and personnel and will withhold and pay to the appropriate authorities all
taxes, contributions, and assessments imposed or required under all laws with respect to
payment. The Consultant will require these terms in all agreements with subcontractors
for work undertaken for this Agreement.
13. Return of Records
On termination of the contract, the Consultant will consult with the project manager with
the Client about whether pertinent records should be returned. If requested, the
consultant will deliver to the Client all records, reports, data memoranda, notes models or
publications whether electronic or hard-copy, equipment and supplies of any nature, and
receipts for any and all billing made to the Client that are in possession or under control of .
the Consultant, prepared or acquired in the course of the contract with the Client. Further,
the Consultant agrees not to keep or withhold such information or data, or reproductions
of such information or data that relate to the business activities of t~e Client or to parties
in a contract relationship with the Client.:. Alternatively, if the return of records and
equipment or supplies is not requested, Consultant agrees to retain these items for three
years after the completion of this contract and to notify the Clients' project manager at the
end of that time before disposing of them. Consultant shall include a provision
substantially identical to the foregoing in all its Subcontractor Agreements.
14. Indemnification
The Consultant will indemnify, hold harmless, and defend the Client and, its officers,
employees, agents, representatives, and affiliates (each an Indemnified Party) against
any and all losses, liabilities, damages, claims, suits, proceedings, judgments,
assessments, costs, and expenses (including interest and penalties), and including
reasonable attorney fees and expenses, incurred by the client and arising from (i)
negligent or wrongful acts or omissions of the Consultant or of its officers, employees,
agents, representatives, subcontractors, or affiliates of this Agreement, or (iii) any finding,
judgment or other determination or settlement whereby the Consultant is deemed or
considered to be the employer of the other Party.
The Parties specifically agree that the provisions of this Section also apply to any claim of
injury or damage to the persons or property of the Consultants employees. Consultant
acknowledges and agrees that, as to such claims, the Consultant, with respect to the
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Client, hereby waives any right of immunity which Consultant may have under industrial
insurance (Title 51 RCW as amended and uDder any substitute or replacement statue).
This waiver was specifically negotiated by the Parties, is solely for the benefit of the /
Parties and their successors and assigns, and is not intended as a waiver of Consultants
right of immunity under said industrial insurance for any other purpose.
15. Force Majeure
Notwithstanding anything contained in this Agreement to the contrary, neither Party will
be deemed liable or to be in default for any delay or failure in performance under this
Agreement deemed to result from acts of God, acts of civil and military authority, acts of
public enemy, war, or any like cause beyond the Parties r~asonable control.
16. Severability
Should any provision of this Agreement be held by a tribunal of competent jurisdiction to
be invalid or unenforceable, the remainder of the Agreement will remain in full force and
effect.
17. Notices
Notices required to be made under this Agreement shall be served personally, by
facsimile transmission, by overnight courier to the address shown above, or by email, with
a duplicate sent by certified mail, return receipt requested. Notice shall be effective only
upon receipt by the party being served.
18. Effective Date and Term
This Agreement, including its attachments, shall be effective immediately upon execution'
by both parties.
City of Port Anqeles
Fluid Market Strateqies
.~~
Signature
~~
Signature
G,\(!,.V')f"\ A. C -T LEtl
Name
Brian Simmons
Name
J\J ., v' ,1... ,to "7
1 0/19/07
Date
Date
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Attachment A
Scope of Work
Fluid Market Strategies, Inc., the consultant, will conguct the following tasks for the City of
Port Angeles, the Client in support of a compact fluorescent (CFL) markdown promotion
in connection with Bonneville Power Administrations region-wide Change-A-Light
promotion, August 15 - December 15.
Task 1: Setup and Kickoff
. The Consultant will design and produce retail Point of Purchase (POP) materials
for participating retail locations, including those in the Client's territory.
. Marketing materials will be sent directly to the stores and phone training will occur.
Field representatives to support participating retail stores in the Client's territory
and provide on-site merchandising and sales associate training will be follow the
method chosen by the Client
The Clients field services will include:
D The administrative fee is paid by the Client for traditional field services. The
representation will be sub-contracted out to an existing firm with field agents
presently. in the field.
Task 2: Sales Data Tracking
. Program staff will receive retail sales reports from partnering retailer locations.
. Program staff will enter sales reports into the tracking database.
Task 3: SummarY Report and Invoicing
. The Client will receive detailed electronic reports of sales once a month. Sales will
be broken out by retailer and by individual product. This data will also be provided
in a hard copy along with the monthly invoice.
. Invoices for CFL sales and administrative costs per unit sold within the prior month
will be sent to the Client monthly. Invoicing is dependent upon the Consultant
receiving sales data reports from manufacturer/retailer partners in a timely manner,
due on the 15th of each month. However, the Client will be invoiced by the
Consultant within 10 working days of receipt of sales data.
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. ,.
Budget:
The 2007 Fall Change-A-Light (CAL) promotion will fund up to 2.8 million ENERG'( STAR
CFLs. We can accomplish this by setting a standard rebate fee averaged ($1.65) and an
administrative fee of $0.35 for all CFLs.
The Clientcommits to fund (check one and fill in the blank) the following, based
upon proof of sales by store at participating retailers in the attached store list:
D A maximum of
promotional CFLs sold.
D Up to $
in markdown funds for promotional CFLs sold.
D All promotional CFLs sold for the duration of the promotion.
Please return this signed agreement with your utility logo if you have not already done so.
Initial:
City of Port An~eles
Initial: BS
Date: \0111/01>.
Fluid Market Strateqies. Inc.
Date:
8
..
5.8561
I
Amendment to Attachment A
This amendment to Attachment A of the City of Port Angeles Agreement with Fluid
Market Strategies, Inc., is to extend the compact fluorescent twist (CFL) buy down
promotion in connection with Bonneville Power Administration. This region-wide
Change-A-Light promotion will continue for the time period of December 15th 2007 -
February 28th 2008. All final documentation and invoices from Fluid Market Strategies,
Inc. will be distributed by March 20, 2008.
Task 1: Setup
· Marketing materials will be sent directly to the retailer. Communication with
corporate buyers on point of purchase placement will be provided. Store level
support will be coordinated with the retailer in the City of Port Angeles territory
providing on-site merchandising and sales associate training.
Task 2: Sales Data Tracking
· Program staff will receive retail sales reports from the retailer.
· Program staff will enter sales reports into the tracking database.
· See attached store listing for retail locations in your service area.
Task 3: Summary Report and Invoicing
· City of Port Angeles will receive detailed electronic reports of sales once a month
if requested. Sales will be broken out by store location and by individual product.
This data will also be provided in a hard copy along with the monthly invoice.
· Invoices for CFL sales and administrative costs per unit sold within the prior
month will be sent to City of Port Angeles monthly. Invoicing is dependent upon
Fluid Market Strategies, Inc. receiving sales data reports from
manufacturer/retailer partners in a timely manner, due on the 15th of each month.
However, City of Port Angeles will be invoiced by Fluid Market Strategies, Inc.
within 10 working days of receipt of sales data.
Budget:
The amendment to the 2007 Fall Change-A-Light (CAL) promotion is necessary in order
to achieve the original promotional unit movement goal that was delayed due to
shipment delays and product availability issues. The promotion will fund in total 2.6
million ENERGY STAR CFLs. This will be accomplished maintaining the previous
communicated standard rebate fee averaged ($1.65) and an administrative fee of $0.35
for all CFLs.
City of Port Angeles commits to fund (check one and fill in the blank) the following,
based upon proof of sales by store at participating retailers in the attached store list:
. A maximum of
AliA
promotional CFLs sold.
"
. Up to $
{VIA
in markdown funds for promotional CFLs sold.
X All promotional CFLs sold for the duration of the promotion.
Effective Date and Term
This Agreement shall be effective immediately upon execution by both parties.
F1Uilket Strategies .
~ 0fi/U~ 7JdI #we-J
nature
City of Port Angeles
Signature
Scott McLain
Name
Selena Bell Heise
Name
1-17-08
Date
01/03/08
Date