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HomeMy WebLinkAbout000777 Original ContractPARTNERS City of Port Angeles Record # 000777 Professional Services Agreement This Professional Services Agreement ("PSA") dated October 15, 2013 is made by and between West Monroe Partners, LLC, having an office at 222 W. Adams Street, 11`" Floor, Chicago, IL 60606 ("WMP") and City of Port Angeles, having a principal office at 321 East Fifth Street (PO Box 1150) Port Angeles, WA 98362. WHEREAS, Client desires to obtain certain services from WMP from time to time; and WHEREAS, WMP desires to provide such services to Client on the terms set forth below. FOR AND IN CONSIDERATION OF the premises and mutual agreements contained herein, WMP and Client agree as follows: Section 1. Definitions. "Agreement" means this PSA together with a Statement of Work. "Confidential Information" means information in tangible and/or electronic form that relates to a party's past, present, and/or future research, development, business activities, products, services and technical knowledge, that is disclosed by and designated as confidential by one party ("Discloser") to the other ("Recipient"). "Deliverables" means those tangible results of the performance of the Services that are created for Client by WMP and delivered pursuant to the Agreement, all as expressly set forth in the applicable Statement of Work. "IP Rights" means with respect to a party: (i) such party's intellectual property, methodologies, templates, concepts, data, algorithms, formulas, know-how, structures, techniques, inventions, developments, processes, discoveries, improvements, programs, systems, tools, source code, object code, databases, applications, engine protocols, routines, models, displays and manuals as in existence prior to the Agreement or developed outside the Agreement, and any derivative works of any such items developed pursuant to the Agreement; (ii) any works created solely by such party under the Agreement; and (iii) any patents, patent rights, copyrights, trade secrets, trademarks, trade names, service marks and other intellectual property associated with the works listed in (i) or (ii). "Services" means those services set forth in a Statement of Work to be performed by WMP. "Statement of Work" means that document which: (i) incorporates the terms and conditions set forth in this PSA; (ii) is executed by each of the parties hereto; and (iii) sets forth the transaction -specific information related to an engagement between the parties. Section 2. Services. Subject to the terms of the Agreement, WMP will provide Client the Services set forth in a Statement of Work. WMP may utilize subcontractors to perform a portion of the Services. If WMP, at the request of or with notice to Client, performs services that are not covered by a Statement of Work or that exceeds the scope of Services defined in the applicable Statement of Work, such services shall be deemed Services provided pursuant to this PSA for which Client shall compensate WMP pursuant to the Section entitled "Fees and Payment Terms". Section 3. Fees and Payment Terms. Unless otherwise explicitly set forth in the applicable Statement of Work, all Services are provided on a time and materials basis at WMP standard hourly rates. Client shall: (i) pay all undisputed portions of the fees as set forth in the applicable Statement of Work; (ii) reimburse all reasonable expenses incurred by WMP in the performance of the Services, including travel and lodging expenses, communication charges and other reasonable supplies; and (iii) be responsible for all taxes, including any interest and penalties from any related deficiency, in connection with the applicable Statement of Work (except taxes based on or measured by WMP's net income). Unless otherwise explicitly set forth in the applicable Statement of Work, Client shall pay the amounts payable in U.S. Dollars to WMP within thirty (30) days of the date of invoices submitted by WMP. WMP reserves the right to charge interest on any past due amounts at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law, and Client shall indemnify WMP for all costs, including expenses and attorney's fees, incurred by WMP in the collection of overdue payments. An invoice is "disputed" if Client notifies WMP of a good faith dispute within five (5) days of receipt of invoice. Reproduction and distribution without © 2006 - 2013 West Monroe Partners, LLC prior consent prohibited. 1 of 5 Proprietary and confidential PARTNERS Professional Services Agreement Section 4. Mutual Confidentiality. During the course of WMP performing Services for Client, each party may be given access to the other party's Confidential Information. Recipient agrees to: (i) protect Discloser's Confidential Information in a reasonable and appropriate manner to the same extent it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event less than a reasonable manner; and (ii) use and reproduce Discloser's Confidential Information only to perform its obligations and exercise its rights pursuant to the Agreement. Recipient may share Discloser's Confidential Information with its employees and third parties that assist Recipient in its performance of its obligations and the exercise of its rights pursuant to the Agreement and who are subject to non- disclosure obligations no less restrictive than those set forth herein. The obligations set forth in this Section shall not apply to information which is: (a) publicly known; (b) already known to the Recipient; (c) disclosed to Recipient by a third party who is not, to Recipient's knowledge, under a confidentiality restriction with respect to such Confidential Information; or (d) independently developed by the Recipient. Disclosure of Confidential Information pursuant to applicable law, a subpoena or other validly issued administrative or judicial process shall not be a breach of Recipient's obligations, provided that Recipient shall provide prior notice to Discloser of such disclosure if permitted by law. Notwithstanding anything to the contrary in this Agreement, Client agrees and hereby grants to WMP the right to use Client's name and logo in WMP's client credentials and for marketing and publicity purposes associated with WMP's client credentials, as well as in case studies or press releases related to WMP's performances of Services to Client. Section 5. Intellectual Property and License. Discloser, or its licensors, owns Discloser's Confidential Information. WMP owns and will continue to own all right, title and interest in the IP Rights of WMP ("WMP IP"), excluding any Client Confidential Information contained therein. Upon payment and excluding any WMP IP or third party intellectual property contained in the Deliverables, WMP shall assign to Client all right, title and interest in the Deliverables. Upon payment, WMP grants to Client a non-exclusive license to use the WMP IP contained in the Deliverables for Client's internal business purposes. Client grants to WMP a non-exclusive, perpetual, transferable, worldwide, irrevocable, royalty -free, fully paid-up right and license to the copyright of the Deliverables to use, copy, modify, or sublicense, in whole or in part, for WMP's independent business purposes, excluding any Client Confidential Information contained therein. Section 6. Client Responsibilities. Client shall fulfill the following client responsibilities and those set forth in the applicable Statement of Work. Client shall: (i) ensure that all assumptions set forth in the Agreement are accurate; (ii) provide WMP with reliable, accurate and complete information as required; (iii) make timely decisions and obtain required management approvals; (iv) furnish WMP personnel with a suitable office environment and adequate resources and supplies, as needed; (v) obtain all consents, approvals and licenses necessary from third parties required for WMP to perform its obligations under the Agreement; and (vi) retain responsibility for its compliance with all applicable federal, state/provincial and local laws and regulations. In addition, WMP shall be entitled to rely on all Client decisions and approvals made in relation to the Agreement and/or prior to its execution by the parties. Nothing in the Agreement shall require WMP to evaluate, advise on, modify, confirm, or reject such decisions and approvals, except as otherwise explicitly set forth in a Statement of Work. As WMP is performing the Services solely for the benefit of Client, Client will indemnify WMP, its affiliates and their principals, agents and personnel against all costs, fees, expenses, damages and liabilities (including attorneys' fees and other defense costs) associated with any third party claim relating to or arising as a result of WMP's provision of the Services, Client's use of the Deliverables, or the Agreement, excluding claims addressed in the Section herein entitled "Infringement Indemnification". As the timely performance of Client obligations and the accuracy of any assumptions set forth in an SOW are material to WMP's ability to provide the Services, in the event Client does not perform Client obligations in a timely manner, or the assumptions are not accurate, WMP has the right to suspend Services, and WMP shall not be responsible for any loss, damage or expense resulting from such suspension. Section 7. Acceptance. The specific acceptance criteria, acceptance test plan and specifications, if applicable, are set forth in the Statement of Work. Client shall accept Deliverables which: (i) materially conform to the specifications set forth in the Statement of Work; or (ii) where applicable, successfully complete the acceptance test plan described in the Statement of Work; (collectively, "Acceptance Standards"). Client will promptly give WMP notice of any failure of the Deliverables to meet the Acceptance Standards, specifically detailing the reason why the Deliverables do not meet the Acceptance Standards ("Non-conformance"), and WMP shall have a reasonable period of time, based on the severity and complexity of the Non-conformance, to correct the Non-conformance. If Client uses the Deliverable for its internal business purposes, fails to promptly notify WMP of any Non-conformance within fourteen (14) days after delivery, or Reproduction and distribution without © 2006 - 2013 West Monroe Partners, LLC prior consent prohibited. 2 of 5 Proprietary and confidential o®� ®� ® PARTNERS Professional Services Agreement unreasonably delays the beginning of acceptance testing, then the Deliverable shall be considered accepted by the Client no later than the fourteenth (14th) day after delivery. Section 8. Change Order Process. Either party may at any time request a change to the scope of the Deliverables and/or Services, and the parties shall reasonably cooperate with the other in the evaluation of any requested change. Section 9. Limited Warranty. 9.1 Services Warranty. WMP warrants that the Services shall be performed with reasonable care in a diligent and workmanlike manner, consistent with industry standards. WMP's sole obligation and liability and Client's sole and exclusive remedy for breach of this warranty shall be for WMP to reperform any Services brought to its attention within thirty (30) days after the Services are performed. 9.2 Third -Party Products. WMP does not warrant and is not responsible for any third party products or services, if any. Client's sole and exclusive rights and remedies with respect to any third party products or services are against the third party vendor and not against WMP. 9.3 Disclaimer. THIS SECTION ENTITLED "LIMITED WARRANTY" CONTAINS WMP'S ONLY WARRANTY ARISING OUT OF PROVISION OF THE SERVICES AND DELIVERABLES, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON -INFRINGEMENT, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, INTERFERENCE WITH ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. Section 10. Risk Allocation. 10.1 Cap on Liability. WMP's total liability arising out of the Agreement for all claims in any manner arising in connection with the Agreement (whether in contract, tort, negligence, strict liability in tort or by statute or otherwise, whether arising from contractual or extra -contractual liability) shall be the payment of direct damages and such damages in no event shall: (i) exceed in the aggregate the fees WMP receives hereunder for the portion of the work giving rise to liability under the applicable Statement of Work; or (ii) include any indirect, special, consequential, incidental, punitive or exemplary damages or loss (including business interruption, lost profits, lost savings or lost business), even if it has been advised of their possible existence. 10.2 Infringement Indemnification. WMP will defend Client against any third party claim alleging that the Deliverable infringes such party's copyrights or trade secrets, at WMP's expense, and will pay any costs or damages that may be finally awarded against Client as a result of such claim, provided Client notifies WMP promptly of such third party claim and provides WMP with reasonable assistance and the sole authority to defend and settle such claim. WMP will have no obligations pursuant to this Section entitled "Infringement Indemnification" to the extent such third party claim is caused by: (i) misuse or modification of the Deliverable by or on behalf of Client, or use of the Deliverable in breach of the terms of the Agreement; (ii) Client's failure to use corrections or enhancements made available by WMP; (iii) Client's use of the Deliverable in combination with any product or information not owned or developed by WMP; (iv) Client's distribution, marketing or use for the benefit of third parties of the Deliverable; or (v) information, direction, specification or materials provided by Client or any third party. WMP shall not settle any claim or suit that requires admission of fault by Client without the prior written consent of Client. If any Deliverable is, or in WMP's opinion is likely to be, held to be infringing, WMP shall at its expense and option either: (a) procure for Client the right to continue to use the Deliverable; or (b) replace or modify the Deliverable with a non -infringing equivalent; or (c) direct the return of the Deliverable and upon such return WMP shall refund a prorated portion of the fees paid under the applicable Statement of Work for such Deliverable based on a five year straight line depreciation from the date of initial delivery. The remedies set forth in this Section entitled "Infringement Indemnification" constitute Client's sole and exclusive remedies and WMP's entire liability with respect to infringement. Reproduction and distribution without 0 2006 - 2013 West Monroe Partners, LLC prior consent prohibited. 3 of 5 Proprietary and confidential PARTNERS Section 11. Personnel. Professional Services Agreement 11.1 Assignment of Personnel. While WMP shall attempt to comply with Client's request for specific individuals, WMP shall be responsible for assigning and re -assigning its personnel, as appropriate, to perform the Services. 11.2 Non -Solicitation. During the term of this PSA, and for a period of six (6) months following the expiration or termination hereof, neither party will, directly or indirectly, solicit, negotiate, engage, employ, or offer employment to, the personnel or contractor of the other party involved with providing Services hereunder. In the event of a breach of this Section entitled "Non -Solicitation", the breaching party shall pay compensation to the non -breaching party in the form of liquidated damages equal to the greater of one year's compensation either: (a) offered to the personnel or contractor by the breaching party; or (b) actually paid to the personnel or contractor by the non -breaching party during the first year the personnel or contractor is engaged or employed. Section 12. Termination 12.1 Termination for Convenience. This PSA, or any Statement of Work, unless otherwise explicitly set forth in such Statement of Work, may be terminated at any time for convenience by either party upon thirty (30) days notice to the other. Termination of this PSA shall cause the termination of all Statements of Work hereto. Termination of any Statement of Work shall not affect any other Statements of Work then in effect. 12.2 Termination for Cause. Either party may, upon giving thirty (30) days notice identifying specifically the basis for such notice, terminate an Agreement for the material breach of such Agreement unless the breaching party cures such breach within the thirty (30) day period. 12.3 Consequences of Termination. In the event of termination, Client shall pay WMP for all Services rendered and expenses incurred as of the date of termination, and shall reimburse WMP for all unrecovered costs incurred by WMP in anticipation of providing the Services during the term of the Agreement. 12.4 Internal Dispute Resolution. Except for matters related to confidentiality or intellectual property rights, the parties shall first attempt to resolve any dispute or alleged breach internally by escalating it through management. Section 13. General 13.1 Assignment. Neither this PSA or any Statement of Work may be assigned or otherwise transferred without the prior approval of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, in the event of an acquisition of all or substantially all of a party's assets, such party may assign this PSA and all Statements of Work to the acquiring company. 13.2 Notices. Any notices given pursuant to the Agreement shall be in writing, delivered via registered mail, overnight mail, courier, or personal delivery, to the address set forth in a Statement of Work (or, if not set forth, at the address set forth in the first paragraph of this PSA), and shall be considered given when received. Either party may change the name or address to which notices or other communications are to be sent by giving notice of such change to the other party. A copy of notices to WMP shall also be sent to the attention of "Legal Counsel" at the address set forth in the first paragraph of this PSA. 13.3 Independent Contractor. The Agreement does not make either party an agent or legal representative of the other party, and does not create a partnership or joint venture. Both parties are independent contractors and principals for their own accounts. 13.4 Insurance. WMP will maintain the following insurance: • Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident, covering all non -owned and hired vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. Reproduction and distribution without © 2006 - 2013 West Monroe Partners, LLC prior consent prohibited. 4 of 5 Proprietary and confidential PARTNERS Professional Services Agreement • Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, and personal injury and advertising injury. Client shall be named as an insured under WMP's Commercial General Liability insurance policy with respect to the work performed for Client. • Workers' Compensation insurance at statutory limits. 13.5 Survival. The terms of the Agreement that by their nature should survive termination or expiration of the Agreement so survive. 13.6 No Benefits for Third Parties. Nothing contained in the Agreement, whether express or implied, is intended, or shall be deemed, to create or confer any right, interest or remedy for the benefit of any person other than the parties hereto and their successors in interest and their actual permitted assignees. 13.7 Residuals. In no event shall WMP be precluded from developing for itself, or for others, anything, whether in tangible or non -tangible form, which is competitive with, or similar to, the Deliverables. In addition, WMP shall be free to use the general knowledge, skills and experience of its personnel, and any ideas, concepts, know-how, and techniques that are acquired or used in the course of providing the Services. 13.8 Miscellaneous. Each Agreement constitutes the full and complete statement of the agreement of the parties with respect to the subject matter thereof and supersedes any previous agreements, understandings or communications, whether written or oral, express or implied, relating to such subject matter. If there is a conflict between the terms and conditions set forth in this PSA and the terms and conditions of a Statement of Work, the terms and conditions set forth in this PSA shall govern. The word "including" shall be construed to mean "including, without limitation". The word "or" shall mean "and/or" unless the context requires otherwise. The words "day," "month," and "year" mean, respectively, calendar day, calendar month and calendar year. The laws of the State of Washington and the associated federal laws thereto, shall govern the Agreement, without giving effect to the conflict of law rules thereof, if applicable. The parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to the Agreement and the performance of the parties contemplated herein, to the extent that such convention might otherwise be applicable. No action, regardless of form, arising out of, relating to or in any way connected with the Agreement, Services or Deliverables may be brought by either party more than one (1) year after the cause of action has accrued. Neither party shall be liable for any delays or failures in performance (other than payment obligations hereunder) due to circumstances beyond its reasonable control. No term of the Agreement shall be deemed waived, and no breach of the Agreement excused, unless the waiver or consent is in writing signed by the party granting such waiver or consent. No amendment to the Agreement shall be effective unless in writing and signed by the parties. If any term or provision of the Agreement is determined to be illegal or unenforceable, such term or provision shall be deemed stricken, and all other terms and provisions shall remain in full force and effect. This Agreement may be executed in one or more counterparts and/or by facsimile or electronic submission, each of which will be deemed an original and all of which signed counterparts, taken together, will constitute one instrument. IN WITNESS WHEREOF, the parties have executed this PSA as of the Effective Date through their duly authorized representatives. ACCEPTED BY: West Monroe Partners, LLC Authorized Signature Printed Name and Title ACCEPTED BY: City f Port Angeles Authorized Signature dJ041e4 m ef'�1 C?.i Y YV1[gY1CsCje�-". Printed Name and Title Reproduction and distribution without © 2006 - 2013 West Monroe Partners, LLC prior consent prohibited. 5 of 5 Proprietary and confidential