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HomeMy WebLinkAboutApprove Professional Services Agreement with Kendra Callantine & Company for Energy Smackdown Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Natalie Meyer, Sustainability Coordinator Chuck Winn, Assistant City Manager SUBJECT: Professional Services Agreement with Kendra Callantine & Company for Website, Marketing and Outreach on the Bozeman Energy Smackdown. MEETING DATE: January 6, 2014 AGENDA ITEM TYPE: Consent RECOMMENDATION: Authorize the City Manager to sign the Professional Service Agreement for website, marketing, and outreach on the Bozeman Energy Smackdown. BACKGROUND: In an attempt to better communicate with the public about the residential energy conservation competition, the Bozeman Energy Smackdown, the City requested quotes from several public relations firms for website, marketing, and public outreach. Two quotes were received and Kendra Callantine & Company was selected. In April 2013, the City of Bozeman launched the Bozeman Energy Smackdown, a residential energy conservation program designed to encourage energy savings through competition, prizes, and public recognition. The City entered into a Professional Services Agreement with the Northern Rocky Mountain Resource Conservation and Development (RC&D) to develop the Energy Smackdown website and manage the program. Since launching the program, the City has partnered with the Montana Weatherization Center to host weekly consumer workshops focused on energy conservation, efficiency, and renewable energy for homeowners. We have participated in public events, including the Home Expo, Bozeman Green Drinks, the Farmer’s Market, the Better Bozeman Project: Waterfest, and other events to help promote the program. In September 2013, the Northern Rocky Mountain RC&D dissolved and terminated the agreement with the City of Bozeman. Currently, the City has limited capacity to manage the program internally and make the program flourish. To help make the website more user-friendly, improve program visibility, and user engagement, the City has revised the Scope of Services and will coordinate with Kendra Callantine & Company to revitalize the program and pave the way for a successful competition. NorthWestern Energy Community Works provided a monetary contribution to the Bozeman Energy Smackdown, therefore it is important that the City continues the program and provides a high-quality user experience. 61 UNRESOLVED ISSUES: There are no known unresolved issues to be addressed by the Commission. ALTERNATIVES: As suggested by the Commission. FISCAL EFFECTS: Per the attached agreement, the City would pay the Consultant $15,000 for website, marketing, and outreach related to the Bozeman Energy Smackdown. This amount was authorized by the City Commission in the FY14 budget. Attachments: Professional Service Agreement Report compiled on: December 30, 2013 62 Professional Services Agreement for Website, Marketing and Outreach on Bozeman Energy Smackdown Page 1 of 5 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ______Nov______, 2014, by and between the CITY OF BOZEMAN, MONTANA, a municipal corporation organized and existing under the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana 59771, hereinafter referred to as “City,” and Kendra Callantine & Company., 570 Prospector Trail, Bozeman, MT 59718, hereinafter referred to as “Consultant.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to hire Consultant as an independent contractor to perform for City services described in the Scope of Services attached hereto as Exhibit “A” and by this reference made a part hereof. 2. Effective Date: This Agreement is effective upon the date of its execution and will terminate on the 30th day of June, 2014. 3. Scope of Work: Consultant will perform the work and provide the services in accordance with the requirements of the Scope of Services attached hereto. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Consultant an amount based on the Consultant’s proposal but not to exceed Fifteen-Thousand Dollars ($15,000.00) for services performed pursuant to the Scope of Services. In addition, Consultant may be billed at the hourly rate, not to exceed Seventy-Five Dollars ($75.00) for any additional services requested beyond the scope of work. Any alteration or deviation from the described work that involves additional costs above the Agreement amount will be performed by Consultant after written request by the City, and will become an additional charge over and above the contract amount. The parties must agree in writing upon any additional charges. 5. Consultant’s Representations: To induce City to enter into this Agreement, Consultant makes the following representations: a. Consultant has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, growth policies, adopted plans of the City, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Consultant represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this 63 Professional Services Agreement for Website, Marketing and Outreach on Bozeman Energy Smackdown Page 2 of 5 Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status: The parties agree that Consultant is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Consultant is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Consultant is not authorized to represent the City or otherwise bind the City in any dealings between Consultant and any third parties. Consultant shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Consultant shall maintain workers’ compensation coverage for all members and employees of Consultant’s business, except for those members who are exempted by law. Consultant shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Consultant agrees to defend, indemnify, and hold the City harmless against claims, demands, suits, damages, losses, and expenses connected therewith that may be asserted or claimed against, recovered from or suffered by the City by reason of any injury or loss, including but not limited to, personal injury, including bodily injury or death, property damage, occasioned by, growing out of, or in any way arising or resulting from any intentional or negligent act on the part of Consultant or Consultant’s agents or employees. For the professional services rendered, to the fullest extent permitted by law, Consultant agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or willful misconduct of the Consultant or Consultant’s agents or employees. Consultant also waives any and all claims and recourse against the City or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. Should City be required to bring an action against the Consultant to assert its right to defense or indemnification under this Agreement or under the Consultant’s applicable insurance policies required below the City shall be entitled to recover reasonable costs and attorney fees 64 Professional Services Agreement for Website, Marketing and Outreach on Bozeman Energy Smackdown Page 3 of 5 incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Consultant was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. The above obligations shall survive termination of this agreement. In addition to and independent from the above, Consultant shall secure insurance coverage that will protect, defend, and indemnify the City and which is acceptable to the City and furnish to the City an accompanying certificate of insurance issued by a company authorized to do business in the State of Montana in amounts not less than as follows: • Workers’ Compensation - statutory • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate • Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to the Consultant commencing work. 8. Professional Service: Consultant agrees that all services and work performed hereunder will be accomplished in a professional manner. 9. Compliance with Laws: Consultant agrees to comply with all federal, state and local laws, ordinances, rules and regulations, including the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA. Consultant agrees to purchase a City business license. 10. Nondiscrimination: The Consultant will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Consultant will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Consultant shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations 65 Professional Services Agreement for Website, Marketing and Outreach on Bozeman Energy Smackdown Page 4 of 5 promulgated thereunder. The Consultant shall require these nondiscrimination terms of its sub- consultants providing services under this agreement. 11. Default and Termination: If either party fails to comply with any condition of this Agreement at the time or in the manner provided for, the other party, at its option, may terminate this Agreement and be released from all obligations if the default is not cured within ten (10) days after written notice is provided to the defaulting party. Said notice shall set forth the items to be cured. Additionally, the non-defaulting party may bring suit for damages, specific performance, and any other remedy provided by law. These remedies are cumulative and not exclusive. Use of one remedy does not preclude use of the others. Notices shall be provided in writing and hand- delivered or mailed to the parties at the addresses set forth in the first paragraph of this Agreement. 12. Modification and Assignability: This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party, which are not contained in this written Agreement, may be considered valid or binding. This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Consultant may not subcontract or assign Consultant’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 13. Ownership and Publication of Materials: All reports, information, data, and other materials prepared by the Consultant pursuant to this Agreement, except those separately identified in the Scope of Services or in other written agreements between the parties, are owned by the City. The City has authority to release, publish or otherwise use, in whole or part, reports, information, data and other materials prepared by Consultant pursuant to this Agreement, except those separately identified in the Scope of Services or in other written agreements between the parties. Any re-use without written verification or adaptation by the Consultant for the specific purpose intended will be at the City’s sole risk and without liability or legal exposure to the Consultant. No material produced in whole or in part under this Agreement may be copyrighted or patented in the United States or in any other country without the prior written approval of the City. 14. Liaison: City’s designated liaison with Consultant is Natalie Meyer and Consultant’s designated liaison with City is Kendra Callantine. 15. Applicability: This Agreement and any extensions hereof shall be governed and construed in accordance with the laws of the State of Montana. 16. Reports/Accountability/Public Information: Consultant agrees to develop and/or provide documentation as requested by the City demonstrating Consultant’s compliance with the requirements of this Agreement. Consultant shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Consultant pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The 66 Professional Services Agreement for Website, Marketing and Outreach on Bozeman Energy Smackdown Page 5 of 5 Consultant shall not issue any statements, releases or information for public dissemination without prior approval of the City. 17. Non-Waiver: A waiver by either party any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 18. Attorney’s Fees and Costs: That in the event it becomes necessary for either Party of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA Kendra Callantine & Company. By________________________________ By__________________________________ Chris Kukulski, City Manager Print Name: Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 67