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HomeMy WebLinkAbout000558 Original Contract/City of Port Angeles Record #000558 Fluid Market Strategies 2013 -2014 Master Services Agreement This Services Agreement "Agreement is by and between City of Port Angeles and Fluid Market Strategies, LLC (Contractor) effective as of February 1, 2013. City of Port Angeles and Contractor may also hereinafter be referred to individually as, "Party or collectively as, "Parties This Agreement shall remain in force 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. 1. Scope of Services The contractor will provide retail promotion of and provide documentation on sales of products for the Simple Steps, Smart Savings program for the City of Port Angeles. Attached Exhibit A lists the specific tasks to be performed and shall include all services and material necessary to accomplish the work. The Contractor agrees that all services performed under this Agreement shall be in compliance with applicable federal, state, and local laws. The Scope of Services may be amended upon written agreement of both parties. 2. Term of Agreement The effective date of this Agreement (Term) is February 1, 2013 and continues in effect until January 31, 2015, 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. Compensation and Payment The Parties shall specify in each Project Order executed pursuant to this Agreement the method of compensation and cost of services for Services provided pursuant to that specific Project Order. Maximum compensation for all services is $40,000. 4. Documentation The Contractor shall maintain records documenting all fees and expenses in excess of $75.00, incurred either by Contractor or any subcontractor of Contractor in the performance of this Agreement. During regular business hours and upon reasonable notice, City of Port Angeles, or its designee, shall have the right to inspect and audit all records required to be maintained under this Agreement. 5. Insurance The Contractor, and any subcontractor engaged by Contractor 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 Washington 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 City of Port Angeles as an additional insured to the full extent of its right to indemnification under this Agreement, and (b) provide that City of Port Angeles 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 City of Port Angeles before work begins. March, 2013 1 Contractor 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 City of Port Angeles or third parties, including financial and consequential loss, caused by error, omission, or negligent acts related to provision of the Services; 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 Contractors vehicles, whether owned, hired, or non owned, assigned to, or used by Contractor in connection with the Services; and The Commercial General Liability and Commercial Automobile Liability shall (i) name City of Port Angeles, its directors, offices, and employees, as additional insured, (ii) provide that it is primary insurance with respect to the interests of City of Port Angeles and that any insurance maintained by City of Port Angeles is excess and not contributory, and (iii) include a cross liability and severability of interest clause. 6. Safety Contractor will be solely and completely responsible for the training of its employees, agents and contractors "Personnel and the conditions of the work site, including safety of all persons and property during the performance of services. 7, Governing Law Venue and Attorney's Fees The laws of the State of Washington shall govern this agreement. Exclusive venue in case of legal suit or action is instituted to enforce compliance with any terms, covenants, or conditions of this agreement shall lie in Clallam County Washington. Both parties agree to submit to the personal jurisdiction of any court of competent subject matter jurisdiction in Clallam County Washington. 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 March, 2013 2 hire an independent, trained and mutually acceptable mediator to mediate the dispute. The cost of the mediator will be shared equally by the Parties. 9. Suspension of Work by City of Port Angeles City of Port Angeles may suspend, in writing, all or a portion of Contractors services under Purchase Order(s) in the event unforeseen circumstances make normal progress in the performance of the Contractors work inadvisable in the opinion of City of Port Angeles. Contractor may request that the work be suspended by notifying City of Port Angeles, 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 City of Port Angeles, 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. 10. Suspension of Work by Contractor Contractor may suspend, in writing, all or any portion of its services under this Agreement, but only if and to the extent City of Port Angeles fails to make timely payment in accordance with the terms of this Agreement. City of Port Angeles 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 City of Port Angeles, within the Cure Period. 11. Early Termination 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 City of Port Angeles 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. 12. Subcontractors Contractor 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 City of Port Angeles for all performance under this Agreement and, provided further, that City of Port Angeles shall have no responsibility for 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. March, 2013 3 13. Relationship of Parties Contractor is an independent contractor, and this Agreement is not intended to form a partnership or joint venture between the Parties. Individuals employed by Contractor are not employees or agents of City of Port Angeles, nor are Contractors subcontractors employees or agents of City of Port Angeles. 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 Contractor will require these terms in all agreements with subcontractors for work undertaken for this Agreement. 14. Return of Records On termination of the contract, the Contractor will consult with the project manager at City of Port Angeles, about whether pertinent records should be returned. If requested, the Contractor will deliver to City of Port Angeles, 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 City of Port Angeles, that are in possession or under control of the Contractor, prepared or acquired in the course of the contract with City of Port Angeles. Further, the Contractor agrees not to keep or withhold such information or data, or reproductions of such information or data that relate to the business activities of City of Port Angeles, or to parties in a contract relationship with City of Port Angeles, Alternatively, if the return of records and equipment or supplies is not requested, Contractor agrees to retain these items for three years after the completion of this contract and to notify the City of Port Angeles, project manager at the end of that time before disposing of them. Contractor shall include a provision substantially identical to the foregoing in all its Subcontractor Agreements. 15. Indemnification The Contractor will indemnify, hold harmless, and defend City of Port Angeles, 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 City of Port Angeles, and arising from (1) negligent or wrongful acts or omissions of the Contractor 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 Contractor 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 Contractors employees. Contractor acknowledges and agrees that, as to such claims, the Contractor, with respect to City of Port Angeles, hereby waives any right of immunity which Contractor may have under industrial insurance (Title 51 RCW as amended and under 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 Contractors right of immunity under said industrial insurance for any other purpose. 16. 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 March, 2013 4 result from acts of God, acts of civil and military authority, acts of public enemy, war, or any like cause beyond the Parties reasonable control. 17. 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. 18. 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. 19. Assignment Neither Party shall assign this Agreement, or any rights under it, or delegate any obligations under it, without first obtaining the written consent of the other Party. Effective Date and Term This Agreement shall be effective immediately upon execution by both parties. Cit nLPort Angeles rt re .1 rncif-te -t- Name 3/e9./ ►3 Date Fluid Market Strategies LC Signature Signature (f JAJn/ /fir' Name 3 �t 3 Date e ref S March, 2013 5 Incorporated Documents (Note: In the event of any conflict between the terms and conditions contained in this Project Order and those set forth in any Incorporated Documents, the terms and conditions of this Project Order shall prevail.) Compensation for the Services Fluid shall be compensated for the Services described above as follows: Time of Performance for the Services Commencement Date Except as provided herein, all terms and conditions of the Master Promotion Services Agreement referenced above shall be incorporated into and become a part of this Project Order. City of Port Angeles has the right to terminate this agreement at any time. Termination notice must be received in writing and will have a termination date effective at the end of the month following the month in which written notice is received. Accepted By: City of Port Angeles Dan een, City Manager Signature C r Title EXH A City of Port Angeles commits to fund the following product(s): (Select all products to include) ENERGY STAR® CFLs Promotional energy- saving showerheads ENERGY STAR® rated indoor hard -wired lighting fixtures And for the product(s) selected above commits to: (Select one funding option) Funding of 40,000.00 for promotional products selected above. February 1, 2013 Date Completion Date Approved by: Fl id Market Strategies s 9-5i 3/W/3 Title date (21.1/A- e January 31, 2014 Contractor's Authorized Representative Brian Simmons 503.688.1545 bsimmonsPfluidms.com This Project Order is entered into pursuant to the terms and conditions of the Master Services Agreement between the City of Port Angeles and Fluid Market Strategies "Fluid effective February 1, 2013. Fluid's Objective Project Order Title Simple Steps, Smart SavingsTM Project Order -01 To implement a successful retail promotion for the Simple Steps, Smart Savings promotion. Store List Allocations See Attachment A EXH A EXHIBIT A TO MSA Scope of Services The Simple Steps, Smart Savings Promotion will increase sales of ENERGY STAR® CFLs, ENERGY STAR® indoor hard -wired lighting fixtures and energy saving showerheads in the marketplace. This goal will be accomplished by providing an incentive of: $0.50 per general purpose CFL (twist, A- lamp), Up to $2.00 per specialty CFL product (Reflectors, Globes, Candelabras, Torpedoes, 3 -way, outdoor lighting), $8.00 per indoor hard -wired lighting fixture, and $7.00 on showerheads (2.0 GPM or less). Administrative fees of $0.50 per unit on general purpose CFLs, $0.25 per unit on specialty CFLs, and $0.35 per unit on showerheads and indoor hard -wired lighting fixtures will be charged. Administrative Support Services shall include development, delivery and facilitation of projected unit movement of identified SKUs at approved retail locations. Fluid staff will receive retail sales reports from partnering retailer locations and monitor sales reports into a proprietary tracking and reporting data system. Marketing Services Fluid will design and produce retail Point of Purchase (POP) materials for participating retail locations, including those in City of Port Angeles territory: Marketing materials will be delivered directly to the stores by the Fluid field representatives. Field representatives will support participating retail stores in City of Port Angeles territory, provide on -site merchandising, sales associate training and event staffing. porting Minimum reporting requirements will include: City of Port Angeles will receive detailed electronic reports of promotional product sales once a month. Sales will be distinguished by retail location and individual product SKUs. This data can be provided in a hard copy along with the monthly invoice upon request. Invoices for promotional product 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 receiving sales data reports from manufacturer /retailer partners in a timely manner. Sales data is due from manufacturer on the 15 of each month; however, City of Port Angeles will be invoiced by Fluid within 10 working days of receipt of sales data. Additional necessary reporting requirements will be communicated to Fluid as they are identified