HomeMy WebLinkAbout2013-298 Agrmt - Fluid Market Strategies S
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Fluid Market Strategies
2013-2014 Master Services Agreement
This Services Agreement ("Agreement') is by and between the City of Ashland and Fluid Market
Strategies, LLC (Contractor) effective as of Am&rz 2013. City of Ashland 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
This agreement sets forth the terms and conditions which shall govern services that from time to
time, during the Term hereof,.may be requested by City of Ashland and agreed to by Contractor
(collectively the "Services"). However, execution of this Agreement does not obligate either Party to
request or perform any specific services. City of Ashland makes no representation to Contractor of the
amount of Services, if any, which may be requested from Contractor under this Agreement.
It is anticipated that City of Ashland requests to Contractor for Services will take the following form: (i)
Contractor will be asked to submit a written proposal with estimated fee for requested Services,
which proposal City of Ashland may or may not accept, or (ii) "City of Ashland Representative" will
contact Contractor from time to time for limited Services for which no written proposal is requested
due to the Services' time sensitive nature and short duration. Contractor shall not be authorized to
commence any Services on behalf of City of Ashland until Contractor and City of Ashland have agreed
on a scope of work and budget for the specific Services as identified in a jointly agreed upon project
order ("Project Order") provided by either party.
2. Term of Agreement
The effective date of this Agreement (Term) is ~ , 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.
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 Ashland, 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
August, 2013 1
Oregon 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 Ashland as an additional insured to the full
extent of its right to indemnification under this Agreement, and (b) provide that City of Ashland 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 Ashland before work begins.
• 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 Ashland 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 Ashland,
its directors, offices, and employees, as additional insured, (ii) provide that it is primary insurance with
respect to the interests of City of Ashland and that any insurance maintained by City of Ashland 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 Oregon 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 Jackson County Oregon. Both parties agree to submit to the personal jurisdiction of any
court of competent subject matter jurisdiction in Jackson County Oregon. 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.
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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 mediator to mediate the dispute. The cost of
the mediator will be shared equally by the Parties.
9. Suspension of Work by City of Ashland
City of Ashland 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 Ashland. Contractor may request that the work
be suspended by notifying City of Ashland, 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 Ashland, 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 Ashland fails to make timely payment in accordance with the terms of this
Agreement. City of Ashland 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
Ashland, 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 Ashland 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 breac hof 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 Ashland for all performance under this Agreement and,
provided further, that City of Ashland 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
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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.
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 Ashland, nor are Contractors subcontractors employees or agents of City of Ashland. 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
Ashland, about whether pertinent records should be returned. If requested, the Contractor will
deliver to City of Ashland, 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 Ashland, that are in possession or under control of the Contractor, prepared or
acquired in the course of the contract with City of Ashland. 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 Ashland, or to parties in a contract relationship with City of Ashland,
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
Ashland, 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 Ashland, 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 Ashland, and
arising from (i) 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 topt 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 Ashland, 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.
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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
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.
ty of Ashland . - ' ` Fluid Market Strategies, LLC
Signature Signature
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Date Date
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Date
August, 2013 5
U-1 Project Order-01 EXHIBITA
(d TOMSA
Project order Title Contractor's Authorized Representative
Simple Steps, Smart Savings'" - Retail Promotion Brian Simmons 503.688.1545
bsimmons@fluidms.com
This Project Order is entered into pursuant to the terms and conditions of the Master Services Agreement
between the City of Ashland ("Ashland") and Fluid Market Strategies ("Fluid"), effective _,f 1Y 2013.
Fluid's Objective
To implement a successful retail promotion for the Simple Steps, Smart Savings promotion.
Scope of Services
The Simple Steps, Smart Savings Promotion will increase sales of ENERGY STAR' CFLs, ENERGY STAR" LEDs,
ENERGY STAR® indoor hard-wired CFL 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),
• $3.00 per LED bulb (decorative, omnidirectional, directional)
• $8.00 per LED downlight retrofit fixture
• $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 and LEDs, $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
hose in Ashland territory. Marketing materials will be delivered directly to the stores by the Fluid field
representatives. Field representatives will support participating retail stores in Ashland territory, provide on-site
merchandising, sales associate training and event staffing.
Reporting
Minimum reporting requirements will include:
• Ashland 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 Ashland 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 15th of
each month; however, Ashland 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
tore List & Allocations
See Attachment A
EXH A
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:
Ashland commits to fund the following product(s):
(Select all products to include)
9 ENERGY STAR' CFLs
l* ENERGY STAR' LED bulbs
9 ENERGY STAR' LED downlight retrofit fixtures
9 Promotional energy-saving showerheads
@ ENERGY STAR® rated indoor hard-wired CFL lighting fixtures
And for the product(s) selected above commits to:
(Select one funding option)
E Fund all promotional products sold for the duration of the promotion.
❑ Funding of $ for promotional products selected above.
Time of Performance for the Services
Commencement Date Completion Date
2013 January 31, 2014
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. Ashland 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 Ashland
Cave
se Pnnr Nome Approved by: Fluid Market Strategies
Signature p gnature
~.7y V Y V1C- • D)r!"~`''vY I
Title Dote Title Dote
4PV D 0 FORM
r Date
EXH A