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12-0823 GFOA Government Finance Officers Assoc. 1: -0/1W5 MASTER SERVICES AGREEMENT This Agreement for Lean Process Improvement (this 'Agreement") is entered into as of this 23rd day of August, 2012, between the City of Elgin, Illinois a municipal corporation, having its offices at 150 Dexter Court (the "Government") andl the Government Finance Officers Association of the United States and Canada, an Illinois not-for-profit corporation, having its offices at 203 North LaSalle Street, Suite 2700, Chicago, Illinois 60601 ("Consultant" or "GFOA"). RECITALS WHEREAS, the Government desires to hire Consult4it to perform certain services and Consultant is willing to provide such services in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the covenants contained herein and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged by the parties, the parties agree as follows: AGREEMENT I. DEFINITIONS A. "Project Manager" shall mean Shayne Kavanagh, the GFOA Solutions Manager of Research. B. "Contract Administrator" shall mean Sean Rf Stegall the City Manager. II. TERM This Agreement shall become effective as of August 23, 2012, and shall remain in effect until all Services (as defined below) are performed by Consultant unless sooner terminated as provided in this Agreement. III. SERVICES A. General Scope: Consultant shall perform the work and services as described in Exhibit A, which is hereby made a part of thiS Agreement (all such services and work performed hereunder is collectively referred to herein as the "Services"). B. Standard of Work: The performance of the Services pursuant to the terms of this Agreement shall conform to professional standards in the field of public finance. Consultant shall use commercially reasonable efforts to formulate opinions and create information upon which the Government may rely. The substance of such opinions and information, however, is not guaranteed by Consultant to be free from omission or errors except insofar as such errors or omissions occur as a result of gross negligence or willful misconduct by Consultant. Further, both parties understand that this is pilot projeci of a new business management Government Finance Officers Association 1 of 7 technique byConsultant and, therefore, will not be as highly developed as a q service that has been repeatedly performed by the Consultant. C. Compliance with Applicable Law: Consultant shall perform the Services under this Agreement in compliance with all applicable laws, ordinances and regulations. D. Location: Consultant shall provide the Services to the Government at one or more locations mutually agreed upon by the Contract Administrator and Project Manager. IV. RELATIONSHIP OF PARTIES A. Independent Contractor: Consultant is an inde•endent contractor and shall not be deemed a partner or agent of or joint vent rer with the Government. The employees and agents of Consultant who will le involved in the performance of the Services shall not be deemed the employ,es or agents of the Government. Neither party shall have any right, power or •uthority to create any contract or obligation on behalf of, or binding upon, the of er party, without the prior written consent of such other party. B. No Interest: Consultant hereby acknowledg-s that it (i) has no personal or financial interest in the project requiring the performance of the Services other than the fee it is to receive under this Agreem•nt; (ii) shall not acquire any such interest, direct or indirect, which would c inflict in any manner with the performance of the Services hereunder; and (ii ) does not and will not employ or engage any person with a personal or financial Cnterest in the project requiring the Services under this Agreement. V. PUBLICATIONS A. Consultant's Publications. As an educational, onprofit, professional membership association, Consultant reserves the right to p blish non-confidential documents describing the results of, or created during, she Services performed under this Agreement. Consultant will not publish . y item with the name of the Government without obtaining the prior writte consent of the Government. B. Government participation in Consultant publi•ations. Government personnel will make a good faith effort to participate in C•nsultant publications in order to publicize the results of the work that is the subject of this Agreement. These publications include but are not limited to pri t media, on-line audio/visual, and in-person presentations. Consultant will work ith Government's staff to identify publication opportunities that are reasonable g yen Government staff's competing obligations. VI. PROPRIETARY ITEMS Government Finance Officers A sociation 2 of 7 All work product produced as a result of the Service- provided hereunder shall be the property of the Government; however, Consultant's mp thodologies that it has developed before and during this engagement are the property of Consultant (collectively, and together with any Consultant proprietary assessmen tools, the "GFOA Intellectual Property"). In particular, in the course of performance hereunder, Consultant may use (and may authorize the Government's personnel to use) certain GFOA Intellectual Property to assist in engagement completion. The Go ernment shall not have or obtain any right or title to or interest in such GFOA ntellectual Property (or in any modifications or enhancements thereto). Consult• t makes no express or implied warranties of any kind regarding the GFOA Intellectual Property. VII. COMPENSATION OF CONSULTANT The Consultant shall be paid according to the terms of xhibit A. Payment shall be made by the Government to Consultant on the basis of Servi. es and the work product rendered as shown in Exhibit A, following the Government's re eipt of an invoice, which invoice shall be due within thirty (30) days of the date thereof( he "Payment Date"). Invoices shall be mailed to: Sean R. Stegall City Manager 150 Dexter Court Elgin, IL 60120 VIII. INSURANCE Consultant agrees to procure and maintain in effect c uring the term of this Agreement insurance policies in the amount and with the type of c i verage shown below: 1. Workers Compensation insurance in the form and amount required by applicable law(s). 2. Commercial General Liability insurance o an "Occurrence Basis" with limits of liability not less than $500,000 per occu ence and/or combined single-limit bodily injury and property damage. 3. Motor Vehicle Liability, including No-Fa It coverage, with limits of liability not less than $500,000 per occurrence and/cr aggregate combined single limit, personal injury, bodily injury and propert damage. Coverage shall include all non-owned vehicles, and all hired vehic es. 4. Professional Liability, with limits of liability of $3,000,000 per claim and policy aggregate. IX. INDEMNIFICATION; LIMITATION ON LIABILITY A. Mutual Indemnification: Subject to any limitation set forth below in Clause B, each party (the "Indemnifying Party") shall indemnify, defend and hold harmless the other party (the "Indemnified Party") and its respective officers, Government Finance Officers Association 3 of 7 directors, employees and agents against an and all actions, controversies, demands, suits, proceedings, claims, causes o action, liabilities, losses, costs, interest, penalties, demands, expenses and d.,mages of any kind whatsoever (including reasonable attorneys' fees and cost- incurred in connection with the arbitration or resolution of any dispute as set fo h herein) (collectively, "Losses") related to or arising, directly or indirectly, from any claims of third parties against an Indemnified Party arising out of the acts I r omissions of the Indemnifying Party or any of its employees and/or agents. B. Limitation of Liability: Consultant's liability for any matter arising under this Agreement or from any transaction contem slated herein, including without limitation the provision of the Services, shall of exceed the actual amount paid by an insurer as a result of any claim made ith respect to such matter under Consultant's insurance policies as set forth in ection VIII (the "Liability Cap"). The Government acknowledges that the Liablity Cap is a material term upon which Consultant has relied in entering into t is Agreement and that Consultant would not have entered into this Agreement in e absence of such provision. X. ACCEPTANCE AND RELEASE The Government shall be deemed to have accepted .11 Services and the work product resulting therefrom upon the earlier to occur of: (i) he Government's payment of the invoice received from Consultant in respect of the S-rvices; or (ii) the Payment Date; provided, that prior to such date the Government o id not provide written notice to Consultant that it believes Consultant has breach:d this Agreement. Upon such acceptance, the Government shall be deemed to h. e released Consultant from any liability resulting from such phase of the Services. XI. DISCLAIMER The Government hereby acknowledges that (i) Cons ltant is not a software provider or systems integrator, (ii) Consultant's role is to provide information, analysis and advisory services. Accordingly, the Government agrees that Consultant shall bear no responsibility and shall incur no liability with respect o the performance or provision of software, hardware, or technology implementation se ices. XII. NONDISCRIMINATION The Consultant agrees to comply with the nondiscrimi nation provisions of all applicable laws and to take affirmative action to assure that applicants are employed and that employees are treated during employment in a mann,r that provides equal employment opportunity and tends to eliminate any inequality based upon race, national origin or sex. XIII. TERMINATION OF AGREEMENT AND RIGH i S UPON TERMINATION A. Termination without Cause: Either party ma, terminate this Agreement at any time, with or without cause, upon thirty (30) d:ys prior written notice to the other party. B. Termination for Cause: Either party may im ediately terminate this Agreement in the event that (i) the other party seeks protection under the bankruptcy laws Government Finance Officers A'sociation 4 of 7 (other than as a creditor) or (ii) any assignment is made for the benefit of creditors or a trustee is appointed for all or any portion of such other party's assets. C. Effect of Termination: If the Services are terminated under this Section XIII, (i) Consultant shall provide to the Government all work product completed through the date of termination, (ii) each party shall return to the other party any and all Confidential Information of the other party land all other information, data, software, documentation or equipment in its po session or control which the other party has supplied to such party, and (iii) the G vernment shall pay Consultant all fees charged through the date of termination o a time and materials basis using rates shown in Exhibit A. D. Survival: The provisions of Sections V, VI, VII, IX, X, XI, and XIII, and any definitions provided herein for purposes of aiding in the interpretation of this Agreement, shall survive any termination of thi Agreement. XIV. OBLIGATIONS OF THE GOVERNMENT A. The Government agrees to give Consultant access to staff and the Government owned properties as required to perform the Services under the Agreement. B. The Government shall immediately notify Consultant in writing of any defects in the Services upon the Government's actual notice of the same. XV. ASSIGNMENT Neither party may assign or transfer any of its rights o obligations under this Agreement without obtaining the prior written consent of the other party. XVI. DISPUTES In the event of any dispute between the parties arising from this Agreement or the Services provided hereunder, each party shall, prior toy seeking judicial resolution of such dispute, escalate the dispute to a senior representati'e of such party, and such senior representatives shall use good faith efforts to resolve the dispute between them. If such senior representatives are unable to resolve the dispute such dispute shall then be decided by arbitration pursuant to procedures jointly agreed upon by the Government and Consultant. Consultant and the Government shall make good faith efforts to resolve any and all disputes as quickly as possible. XVII. NOTICE All notices, submissions, consents, and other comMunications required or permitted under this Agreement shall be in writing and sent via overnight carrier, first class mail, postage prepaid, or transmitted via facsimile or electr6nically, with confirmation of such transmission, to the Administering Department, care 6f the Contract Administrator or to the Project Manager, as the case may be, at the address stated in this Agreement or such other address or facsimile number as either party may designate by prior written notice to the other. XVIII. ENTIRE AGREEMENT Government Finance Officers Asisociation 5 of 7 I This Agreement constitutes the entire agreement bet een the parties pertaining to the subject matter hereof; supersedes any and all prior greements, proposals, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written, relating to the subject matter hereof; and shall be binding upon the parties' respective successors and permitted assigns. XIX. AMENDMENTS Any modifications to this Agreement shall be made only in writing, signed by the duly authorized representatives of both parties, and a copy shall be attached to the original Agreement. XX. SEVERABILITY OF PROVISIONS If any part of this Agreement is found by a court f competent jurisdiction or other competent authority to be invalid, unlawful, or unenforceable, then such part shall be severed from the remainder of this Agreement, whicth shall continue to be valid and enforceable to the fullest extent permitted by law. XXI. CHOICE OF LAW This Agreement shall be construed, governed, and enforced in accordance with the laws of the State of Illinois. XXII. INTERPRETATION The headings included in this Agreement are for convenience or reference only, and shall not be considered in the construction hereof. The lingular number shall include the plural and vice versa. All uses of the word "including" herein shall, unless otherwise indicated, be interpreted to mean "including, but not limited to." XXIII. WAIVER No failure on the part of either party to exercise, ands no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. XXIV. COUNTERPARTS This Agreement may be executed in counterparts, each of which taken together shall constitute one single agreement between the parties. Government Finance Officers Association 6 of 7 By the signatures of their duly authorized representatives below, Consultant and the Government, intending to be legally bound, agree to all of tie provisions of this Agreement, including any and all Exhibits attached hereto. GOVERNMENT FINANCE OFFICERS THE CITY OF ELGIN ASSOCIATION BY: BY:.„8,1_ )1, // A PRINT NAME: PRINT NAME: ,s-mA/ A. s'7"E‘ALL- PRINT TITLE: PRINT /14/1/4obt DATE: DATE: Government Finance Officers A sociation 7 of 7