HomeMy WebLinkAboutConsulting Agreement CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement ") is made and effective as
of this _ day of October 2011 (the "Effective Date "), by and between
Blackstone Media Network, LLC, a Kentucky limited liability company (the
"Consultant ") and City of Jeffersonville (" Client ")(hereinafter, collectively, the
"Parties ").
WHEREAS, Client desires for Consultant to perform certain services
(hereinafter "services "); and
WHEREAS, Consultant has the qualifications, experience, and abilities to
perform such Services;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the Parties
hereby agree as follows:
1. Term of Engagement. The term of this Agreement shall be one (1) year
(the "Initial Term ") from the Effective Date. This Agreement may renew for
successive periods of one (1) year, contingent upon funding, in advance, by the
Common Council of the City of Jeffersonville (each a "Renewal Term ")(the
Initial Term and all subsequent Renewal Terms, as applicable, collectively, the
"Term ") unless one party has served upon the other written notice to terminate
no fewer than sixty (60) days in advance of the final date of the Initial Term or a
successive Renewal Term, which shall take effect upon the final date of the Initial
Term or successive Renewal Term, as applicable.
2. Consulting Services. Consultant is being engaged hereunder to provide
the Services on such terms as may from time to time be agreed to between the
Parties by their mutual execution of a project order ( "Project Order") in
substantially the form set forth in Exhibit A, attached hereto. Consultant shall
provide web hosting services ( "Hosting Services ") to Client on such terms as
may from time to time be agreed to between the Parties in a Project Order.
3. Expenses. Consultant shall not he authorized to incur any expenses on
behalf of Client and will be responsible for all expenses incurred while
performing the Services, except as specified in a Project Order or otherwise
agreed in advance by Client. For the avoidance of doubt, Consultant shall have
the right to hire employees, consultants, and /or subcontractors to assist in
performing the Services; provided that, unless otherwise specifically agreed by
the Parties in a Project Order, any compensation for such employees, consultants,
and /or subcontractors shall be paid by Consultant out of Consultant's fees
hereunder.
4. Termination. Either Party may terminate this Agreement for any
material breach by the other Party of the obligations hereunder upon fifteen (15)
days written notice; provided, however that the breaching Party shall have the
right to cure such breach within that time, in which event such termination shall
be deemed ineffective. Notwithstanding any other provision of this Agreement,
in the event of such termination, Consultant shall be paid for any Services that
have been performed prior to such termination and for any expenses incurred in
accordance with Section 3, and any rights of Consultant under Section 7 hereof
shall survive such termination.
5. Independent Contractor Status. The Consultant will act only as an
independent contractor to Client. The Consultant will be responsible, and will
hold Client harmless from, any and all employment, self -employment, income,
unemployment, and workers' compensation taxes and fees, assessed at the
federal, state, city, and /or local level on compensation paid to the Consultant
under the terms of this Agreement. The Consultant acknowledges that he is not
an employee of Client and is not eligible for any benefits which may be normally
paid to Client's employees. Consultant further acknowledges and agrees that
Consultant has no authority to enter into contracts that bind Client or create
obligations on the part of Client without the prior written authorization of Client.
6. Taxes. Consultant acknowledges and agrees that Consultant shall be
responsible for filing all tax returns, tax declarations, and tax schedules, and for
the payment of all taxes required, when due, with respect to any and all
compensation earned by Consultant under this Agreement. Client will neither
pay nor withhold any employment taxes with respect to the compensation it pays
the Consultant. To the extent sales taxes may be applicable to Consultant's
compensation hereunder or any deliverable pursuant hereto, such sales taxes
shall be deemed included except as otherwise provided in the applicable Project
Order.
7. Intellectual Property.
(a) Work for Hire.
(i) Consultant and Client intend this to be a contract for services
and each considers the products and results of the Services (the "Work")
to be work for hire. Consultant acknowledges and agrees that the Work
(and all rights therein, including without limitation, copyright) belongs to
and shall be the sole and exclusive property of Client, except as otherwise
specified in an applicable Project Order. Notwithstanding the foregoing,
the Parties hereby expressly agree and acknowledge that Consultant is the
creator, originator, and sole and exclusive owner of numerous processes,
inventions, ideas, computer software programs, and other creations used
in and related to Consultant's provision of Services to Client ( "Pre-
existing IP "). The Parties further agree such Pre -existing 1P shall not be
considered to be included in, or part of, the Work and that, except as
expressly provided herein, Client is granted no rights or licenses
whatsoever in or to the Pre-existing IP or any of Consultant's other
products, services, or other intellectual, proprietary, or personal rights.
Subject to the foregoing, Consultant hereby grants to Client, and Client
hereby accepts from Consultant, a non - exclusive, non - transferable, non -
sublicensable license to the Pre- existing IP [during the Term] for the
purposes of this Agreement and as necessary to the Work.
(ii) If for any reason the Work would not be considered a work
made for hire under applicable law, Consultant hereby sells, assigns, and
transfers to Client, its sucsors, and assigns, the entire right, title, and
interest in and to the copyright in the Work and any registrations and
copyright applications relating thereto and any renewals and extensions
thereof, and in and to all works based upon, derived from, or
incorporating the Work, and in and to all income, royalties, damages,
claims and payments now or hereafter due or payable with respect thereto,
and in and to all causes of action, either in law or in equity for past,
present, or future infringement based on the copyrights, and in and to all
rights corresponding to the foregoing throughout the world.
(iii) Consultant agrees to execute all documents or other
instruments, and to perform such other proper acts, as Client may
reasonably deem necessary to secure for Client or its designee the rights
herein assigned; orovided that Consultant shall in all events be entitled to
reimbursement of any reasonable travel charges and payment for his time
at his then current hourly rate in connection therewith.
(b) Warranties and Representations. The Parties covenant and
warrant that they have the right and title to any documents, images, ideas,
or other elements which have been or will be provided by them to the
other Party arising from or in relation to the performance of the Services.
The Parties further agree that each shall indemnify, defend, and hold
harmless the other, and its parent, affiliated, and subsidiary entities,
licensees, and the directors, officers, agents, and employees of each of the
foregoing, including reasonable attorneys fees, from and against any and
all liabilities and claims arising from a breach by one of the obligations in
this subsection b.
(c) Except as expressly permitted under this Agreement, Client will
not, and will not allow any third party to: (a) copy the Software (as
hereinafter defined) or any portion thereof (except for one (t) copy for
backup and disaster recovery purposes); (b) modify, translate, adapt, alter,
or create derivative works from the Software; (c) merge the Software with
any other software or documentation; (d) reverse engineer, decompile,
disassemble, or otherwise attempt to derive the source code of the
Software; (e) distribute, sublicense, rent, Lease, or loan the Software to any
third party; or (f) use the Software for the business needs of another
person or entity, including without limitation, providing outsourcing,
service bureau, commercial hosting, application service provider, or on-
line services to third parties. Client may not remove, alter, or obscure any
proprietary notice that appears in or on the Software or on any copies
made in accordance with this Agreement.
(d) Notwithstanding any other provision of this Section 7, Consultant
shall retain ownership of all programs, files, content, software, design
elements, source code, web page, and any other information and /or
documentation related thereto created by Consultant hereunder
(collectively, the "Software ") until all amounts owed Consultant by Client
hereunder, including but not limited to any applicable fees, approved
expenses, and /or other monies owed pursuant to Section 8, are paid in
full. Failure to promptly pay in accordance with the terms of Section 8
shall result in the suspension of Hosting Services, including the removal of
any and all files being hosted by Consultant on Client's behalf, until such
arrearages are paid in full.
(e) No clause in the above paragraphs shall be applied to content
in such as way as to conflict with Indiana Code 5-14 -3, commonly
known as the Indiana Access to Public Records Act.)
8. Invoices. The Parties agree that Consultant shall invoice Client monthly
for all Services performed hereunder according to the terms of the specific
Project Order for such Services. Consultant shall also invoice Client monthly all
other fees, approved expenses, and /or other monies owed to Consultant by Client
hereunder. Unless Client objects to in writing within twenty-five (25) days of its
receipt of an invoice, it such invoice shall be deemed approved by Client. All
monies due hereunder shall be payable in arrears within twenty-five (25) days
following receipt by Client of the invoice and interest shall accrue on any unpaid
amounts from such date at the rate of 1.5% per month.
9. pliscellaneous.
(a) Neither Consultant nor Client shall be held liable or responsible to
each other, nor be deemed to have defaulted under or be in breach of this
Agreement, for failure or delay in fulfilling or performing any term of this
.Agreement when such failure or delay is caused by, or results from, causes
beyond the reasonable control of the affected Party, including but not
limited to fire, floods, failure, or termination of communications systems
or networks, strikes, lockouts, or other labor disturbances, acts of God, or
acts, omissions, or delays in acting by any governmental authority or the
other Party ( "Force Majeure Event"); provided, however, that the Party
so affected shall use reasonable commercial efforts to avoid, mitigate, or
remove such causes of nonperformance, and shall continue performance
hereunder with reasonable dispatch whenever such causes are removed.
Notwithstanding and other revision of this Agreement, either Party may
P Ag � rtY Y
terminate this Agreement upon ten (10) days' notice in the event that a
Force Majeure Event occurs and continues for a period of thirty (go) days.
(b) Time is of the essence in performing all obligations under this
Agreement.
(c) The Parties agree that, in any litigation, arbitration, mediation, or
other proceeding by which one Party either seeks to enforce its rights
under this Agreement (whether in contract, tort, or both) or seeks a
declaration of any rights or obligations under this Agreement, the
prevailing Party shall be awarded its reasonable attorney fees, and costs
and expenses incurred. EXCEPT WITH RESPECT TO A BREACH OF
SECTION 7, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, OR
ANY INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION ANY
DAMAGES RESULTING FROM INTERRUPTION OF BUSINESS OR
LOSS OF PROFITS, REVENUES, DATA, OR USE, OR ANY EXEMPLARY
OR PUNITIVE DAMAGES ARISING OUT OF, OR IN CONNECTION
WITH, ANY OBLIGATION OF A PARTY HEREUNDER, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND REGARDLESS OF THE FORM OF THE ACTION (E.G.,
CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE).
EXCEPT WITH RESPECT TO A BREACH OF SECTION 7, UNDER NO
CIRCUMSTANCES SHALL A PARTY'S LIABILITY HEREUNDER
EXCEED AMOUNTS PAID PURSUANT TO THIS AGREEMENT IN THE
TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM,
LIABILITY, OR CAUSE OF ACTION FOR WHICH INDEMNITY IS
SOUGHT PURSUANT TO THIS SUBSECTION C.
Consultant warrants that for one hundred and eighty (180) days after
delivery in accordance with an applicable Project Order, the Software will
perform in substantial conformance with the specifications and /or
documentation set forth in such Project Order. If during this period the
Software does not perform as warranted, then Consultant will use
commercially reasonable efforts to correct the nonconformance at no cost
to Client. CONSULTANT DOES NOT WARRANT THAT: (A) THE
OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR
ERROR -FREE OR THAT FUNCTIONS CONTAINED IN THE SOFTWARE
WILL OPERATE IN COMBINATIONS OF SOFTWARE OR HARDWARE
THAT MAY BE SELECTED FOR USE BY CLIENT; (B) THE SOFTWARE
WILL MEET CLIENTS REQUIREMENTS OR EXPECTATIONS; OR (C)
ANY RESULTS, OUTPUT, OR DATA PROVIDED THROUGH OR
GENERATED BY THE SOFTWARE WILL BE ACCURATE, UP -TO -DATE,
COMPLETE, OR RELIABLE. EXCEPT AS EXPRESSLY STATED IN THIS
SUBSECTION C. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
CONSULTANT SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR
OTHERWISE, RELATING TO THIS AGREEMENT AND THE
SOFTWARE AND ANY SERVICES PROVIDED TO CLIENT, INCLUDING
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
AND NON- INFRINGEMENT OF THIRD PARTY RIGHTS.
(d) If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the Parties agree to renegotiate such
provision in good faith. In the event that the Parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then
(i) such provision shall be excluded from this Agreement; (ii) the balance
of the Agreement shall be interpreted as if such provision were so
excluded; and (iii) the balance of the Agreement shall be enforceable in
accordance with its terms.
(e) This Agreement, any Exhibits duly executed and /or attached
hereto, and such other documents as are expressly incorporated hereinto
by reference, contain the entire agreement of the Parties with respect to
the subject matter hereof, and supersede all prior negotiations,
agreements, and understandings between the Parties with respect thereto.
This Agreement may only be amended by a written document duly
executed by the Parties.
(f) No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision, whether or
not similar, nor shall any waiver constitute a continuing waiver. Any
waiver must be in writing and signed by the Party entitled to performance.
(g) Any notice required or permitted under this Agreement shall be in
writing and shall be deemed given upon the earlier of (a) when it is
personally delivered; (b) three (3) days after having been mailed by first
class mail; or (c) two (2) days after having been sent by recognized
overnight delivery service, in all cases sent to the address the Party to
whom notice is to be given may have previously furnished to the other in
writing.
(h) This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Indiana. The Courts of the
State of Indiana, County of Clark, shall have jurisdiction over any dispute
arising under this Agreement. The Parties hereby consent to personal
jurisdiction in the courts of the State of Indiana, County of Clark, for
purposes of any such dispute and waive any objection as to venue.
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have
executed this Agreement.
"CONSULTANT" "CLIENT°'
BLACKSIONE MEDIA CITY OF JEFFERSONVILLE
NETWORK, ��, �q�'L/C� / �//
ByP c 'YL B : ' /s st
Name: Taylor Trusty Name:1 ctAS 1P CA!" 6AM
Title: President Title: MA OD R.
Exhibit A
PROJECT ORDER
Except as otherwise specifically provided herein, capitalized words used
herein shall have the meanings assigned to them in the Consulting Agreement,
the terms and conditions of which are hereby incorporated by reference and
govern this Project Order.
A. The Parties hereby agree that Consultant shall perform the
following Services:
Consultant will be building a new City of Jeffersonville website with the below
functionality. Site map, for estimate purposes, was loosely based on the
current website and provided RFQ.
Content Management System / Website Design
Consultant is proposing building the City of Jeffersonville website within the
open - source Umbraco platform. Umbraco is an open -source ASP.NET
Content Management System, has a very strong code -base, is well- supported,
and feature -rich.
Client will have the ability to add /edit /delete the content on the website and
changes will automatically be reflected in the dynamically - driven menu.
The design of the website will be clean and sophisticated, easy to navigate,
and comply with the ADA. Content and photos will be provided by the City of
Jeffersonville.
Google Analytics will be implemented onto each page of the website for
tracking website visitors. 2 hours of training on use of the CMS is included.
Department- Driven Information
Each city department will only their own login to manage the content they're
responsible for - very much a "silo" approach. Any content changes /additions
will be automatically added into an approval queue before being posted live.
Alerts System
An Alerts System will be built allowing administrators to post new alerts to a
top -bar of the website, sent to subscribers via SMS, email (via MailChimp),
RSS feed, Facebook and Twitter accounts. "Closing" an open alert will remove
the bar from the home page. Different types of Alerts will be supported.
Newsletters / Subscriptions
Consultant proposes using MailChimp (www.mailchimp.com) for the email
newsletter functionality. The new website will integrate seamlessly with
MailChimp account. MailChimp supports subscribing, one -click unsubscribe,
reports, A/B split testing, an editor to put together these emails, and much
more. MailChimp's usage fees are beyond the scope of this proposal.
As part of the website design process, an HTML newsletter template will be
created Client can use for sending out these email blasts.
Website visitors can subscribe to the email newsletter and /or enter their cell
phone number to receive SMS alerts.
B. The Parties hereby agree that the Services shall be completed
according to the following schedule:
10/21 - Deposit received; contract signed
10/28 - Project kickoff and content / photography strategy completed
11/9 - Design presented to Client
11/18 - Design finalized; content approved; building of website begins
12/5 - Website pages integrated into Content Management System
12/19 - Final testing / bug fixes
01/06 - Website launches!
C. The Parties hereby agree that Client shall pay Consultant for the
Services according to the following schedule:
Website design: $24,25o - $28,175
Mobile website (optional): $1,550 - $2,725
Total investment cost: $24,250 - $30,900.
The City Council has approved funding not to exceed the $3o,900
maximum investment.
1) October 21, 2011- $10,485.00 (40% of middle price website design)
2) November 18, 2011- $9, (35% of website design)
3) January 6, 2012 - $4,590.62 - 511,240.62 (difference between website
design only and going with website design with mobile site)
City of Jeffersonville shall provide hosting services for the website.
The Parties further agree that this Project Order may only be modified by a
written Change Order, in substantially the form attached hereto as Annex 1,
attached hereto, and duly executed by the Parties.
"CONSULTANT' "CLIENT'
BLACKSTONE MEDIA CITY OF JEFFERSONVILLE
NETWORK, LLC �� "
By: - ! 6�� B : `
( a� S
Name: Taylor Trusty Name: "I oiRS CR z a6, u
Title: President Title: MA t1ok