Loading...
HomeMy WebLinkAboutSSC Waterloo Fiber Engagement-CD signed - 10.19.2023SmartSource Consulting, LLC Independent Contractor Services Agreement WATERLOO TELECOMMUNICATIONS UTILITY, INDEPENDENT CONTRACTOR SERVICES AGREEMENT THIS INDEPENDENT CONTRACTOR SERVICE AGREEMENT (“Agreement”) is between Waterloo Telecommunications Utility established under Iowa Code Chapter 388 (“Utility” and “Client”) and SmartSource Consulting, LLC, an Iowa limited liability company (the “Contractor”). 1. ENGAGEMENT OF SERVICES. Utility may issue Project Assignment(s) in the form attached as Exhibit A. Subject to the terms of this Agreement, Contractor will, to the best of its ability, render the services set forth in Project Assignment(s) accepted by Contractor (the “Project(s)”) by the completion dates set forth therein. The manner and means by which Contractor chooses to complete the Projects are in Contractor’s sole discretion and control. Contractor agrees to exercise the highest degree of professionalism, and to utilize its expertise and creative talents in completing such Projects. In completing the Projects, Contractor agrees to provide its own equipment, tools, and other materials at its own expense, unless otherwise set forth in Exhibit A. Utility will make its financial information, facilities and equipment available to Contractor when necessary. Contractor shall perform the services necessary to complete the Projects in a timely and professional manner consistent with industry standards, and at a location, place and time which the Contractor deems appropriate. Contractor may not subcontract or otherwise delegate its obligations under this Agreement without Utility’s prior written consent. Before any Contractor employee or consultant performs services in connection with this Agreement, the employee or consultant and Contractor must have entered into a written agreement expressly for the benefit of Utility concerning Confidentiality, Trade Secrets, and Assignment of Intellectual Property (attached hereto as Exhibit B), incorporated by reference. 2. COMPENSATION. Utility will pay Contractor a fee for services rendered under this Agreement as set forth in the Project Assignment(s). Contractor will not be reimbursed for any expenses incurred in connection with the performance of services under this Agreement except as expressly set forth in Exhibit A provided Contractor submits verification of such expenses as Utility may require. Upon termination of this Agreement for any reason, Contractor will be paid fees and expenses on a proportional basis as stated in the Project Assignment(s) for work which is then in progress, to and including the effective date of such termination. Unless other terms are set forth in the Project Assignment(s) for work which is in progress, Utility will pay the Contractor for services and (if applicable) will reimburse the Contractor for previously approved expenses within thirty (30) days of the date of Contractor’s invoice. 3. INDEPENDENT CONTRACTOR RELATIONSHIP AND TAX INDEMNIFICATION. Contractor’s relationship with Utility will be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Contractor is not the agent of the Utility and is not authorized to make any representation, contract, or commitment on behalf of Utility without prior express written consent. Contractor will not be entitled to any of the benefits which the Utility may make available to its employees, such as group insurance, profit sharing or retirement benefits. Contractor will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to Contractor’s performance of services and receipt of fees under this Agreement. The Utility will regularly report amounts paid to Contractor by filing Form 1099- MISC and/or other appropriate form with the Internal Revenue Service as required by law. Because Contractor is an independent contractor, the Utility will not withhold or make payments for social security; make unemployment insurance or disability insurance contributions; or obtain worker’s compensation insurance on Contractor’s behalf. Contractor agrees to accept exclusive liability for complying with all applicable state and federal laws governing self-employed individuals, including obligations such as payment of taxes, social security, workers’ compensation unemployment insurance, disability and other contributions based on fees paid to Contractor, its agents or employees under this Agreement. Contractor hereby agrees to indemnify and defend Utility against any and all such taxes or contributions, including penalties and interest. Contractor is free to enter any contract to provide services to other Cities, Utilities and business entities, except any contract which would induce Contractor to violate this Agreement. 2 SmartSource Consulting LLC Independent Contractor Services Agreement 4. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor hereby represents and warrants that (a) the Work Product (as defined in Exhibit B) will be an original work of Contractor and any third parties will have executed assignment of rights reasonably acceptable to the Utility; (b) neither the Work Product nor any element thereof will infringe the Proprietary Rights of any third party; (c) neither the Work Product nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances or encroachments; (d) Contractor will not grant, directly or indirectly, any rights or interest whatsoever in the Work Product to third parties; (e) Contractor has full right and power to enter into and perform this Agreement without the consent of any third party; (f) Contractor will take all necessary precautions to prevent injury to any persons (including employees of Utility) or damage to property (including Utility property) during the term of this Agreement; (g) should the City or Utility permit Contractor to use any of its equipment, tools, or facilities during the term of this Agreement, such permission shall be gratuitous and Contractor shall be responsible for any injury to any person (including death) or damage to any property arising out of use of such equipment, tools or facilities, whether or not such claim is based upon its condition or on the alleged negligence of the Utility in permitting its use; (h) Contractor is familiar with and will comply (and ensure compliance) with all applicable laws, including, without limitation, employment discrimination and harassment, and federal and state laws governing payment of wages; and (i) Contractor warrants that if any governmental agency determines Contractor to be a common law employee, Contractor will make no private claim for any benefits or compensation provided to employees of the City or Utility. 5. INDEMNIFICATION. Contractor will indemnify and hold harmless the Utility, its officers, directors, employees, sublicensees, customers and agents from any and all claims, losses, liabilities, damages, expenses and costs (including actual attorneys’ fees and court costs) which result from a breach or alleged breach of any representation or warranty of Contractor (a “Claim”) set forth in Section 4 of this Agreement, provided that Utility gives Contractor written notice of any such Claim and Contractor has the right to participate in the defense of any such Claim at its expense. From the date of written notice from the Utility to Contractor of any such Claim, the Utility shall have the right to withhold from any payments due Contractor under this Agreement the amount of any defense costs, plus additional reasonable amounts as security for Contractor’s obligations under this Section 5. Contractor, at its sole cost and expense, shall maintain appropriate insurance with (a) Commercial General Liability Broad Form Coverage, including Contractual Liability, Contractor’s Protective Liability and Personal Injury/Property Damage Coverage in a combined single limit of not less than $2,000,000, and (b) Business Automobile Liability Policy with a limit per accident of not less than $1,000,000 combined single limit for bodily injury and property damage. A Certificate of Insurance indicating such coverages shall be delivered to Utility upon request. The Certificate shall indicate that the policy will not be changed or terminated without at least 10 days’ prior notice to the Utility, upon request shall name Utility as an additional named insured and shall also indicate that the insurer has waived its subrogation rights against the Utility. If applicable, Contractor shall also, at its sole cost and expense, maintain worker’ compensation and employer’s liability insurance containing minimum statutory limits and the Employer’s Liability portion thereof having a minimum limit of $1,000,000 per accident, disease and in the aggregate. 6. TERM; TERMINATION. 6.1 Termination by the City or Utility. The term of this Agreement shall commence upon execution and remain in effect until terminated by the Utility. The Utility may terminate this Agreement at its convenience without cause, and without any breach by Contractor, upon 30 days’ prior written notice to Contractor. The Utility may also terminate this Agreement immediately in its sole discretion upon Contractor’s breach of this Agreement, Exhibit B and/or Section 6.3. 6.2 Termination by Contractor. Contractor may terminate this Agreement at any time that there is no uncompleted Project Assignment in effect upon 30 days’ prior written notice to the Utility. 3 SmartSource Consulting LLC Independent Contractor Services Agreement 6.3 Noninterference with Business. During and for a period of 1 year immediately following termination of this Agreement by either party, Contractor agrees not to solicit or induce any employee or independent contractor to terminate, change, or breach an employment, contractual or other relationship with the Utility. 6.4 Return of Utility Property. Upon termination of the Agreement or earlier as requested by the Utility, Contractor will deliver to the Utility any and all drawings, notes, memoranda, specifications, devices, formulas, and documents, together with all copies, compilations and summaries thereof, and any other material containing or disclosing any Work Product, Third Party Information (as defined in Exhibit B) or Proprietary Information (as defined in Exhibit B) of the Utility. Contractor further agrees that any property situated on Utility’s premises and owned by the Utility, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Utility personnel at any time with or without notice. 7. GENERAL PROVISIONS. 7.1 Governing Law; Public Entity. This Agreement will be governed and construed in accordance with the laws of the State of Iowa. Contractor hereby expressly consents to the exclusive personal jurisdiction of the state and federal courts located in Des Moines, Iowa, for any dispute arising from or related to this Agreement. The substantially prevailing party to any dispute under this Agreement shall be entitled to actual, reasonable attorneys’ fees and costs. Contractor acknowledges that the Utility is an Iowa Municipal corporation, subject to the public records (Chapter 22) and open meetings laws (Chapter 21) in the conduct of all of its business. 7.2 Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear. 7.3 Assignment. This Agreement may not be assigned by Contractor without the Utility’s consent, and any such attempted assignment shall be void and of no effect. This Agreement may be assigned by Utility in its discretion. 7.4 Notices. All notices, requests and other communications under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. If mailed, any such notice will be considered to have been given 5 business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given, as evidenced by written and dated receipt of the receiving party. The mailing address for notice to either party will be the address shown on the signature page of this Agreement. Either party may change its mailing address by notice as provided by this section. 7.5 Injunctive Relief. A breach of any of the promises or agreements contained in this Agreement may result in irreparable and continuing damage to Utility for which there may be no adequate remedy at law, and Utility is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate. 7.6 Survival. The following provisions shall survive termination of this Agreement: Exhibit B, Section 4, Section 5 and Section 6.3. 4 SmartSource Consulting LLC Independent Contractor Services Agreement 7.7 Export. Contractor agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Utility or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations. 7.8 Waiver. No waiver by the Utility of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by the Utility of any right under this Agreement shall be construed as a waiver of any other right. Utility shall not be required to give notice to enforce strict adherence to all terms of this Agreement. 7.9 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The terms of this Agreement will govern all Project Assignments and services undertaken by Contractor for the Utility. In the event of any conflict between this Agreement and a Project Assignment, the Project Assignment shall control, but only with respect to the services set forth herein. 7.10 Counterparts. This Agreement may be executed in counterparts, both of which when so executed and delivered shall be deemed an original, but such counterparts together shall constitute but one and the same instrument. IN WITNESS WHEREOF, each party has caused this Independent Contractor Services Agreement to be executed by its duly authorized representative. Client Waterloo Telecommunications Utility By: _________________________________ (Printed Name) Title: _________________________________ Dated: Contractor SmartSource Consulting, LLC By: Curtis Dean Title: President 9712 Turnpoint Drive West Des Moines, IA 50266 curtis@smartsourceconsulting.com +1(515) 650-0251 [voice/sms] Dated: Eric Lage General Manager 10/19/2023 5 SmartSource Consulting LLC Independent Contractor Agreement EXHIBIT A PROJECT ASSIGNMENTS AND SCOPE OF WORK SERVICES. Contractor shall provide business planning, project management, and operational strategy support pertaining to the telecommunications utility (“UTILITY”). At a minimum, these services include: ● Non-recurring cable TV launch activities Provide options for cable TV channel lineup consistent with Utility budget and philosophy. Ø Provide options for both robust and “skinny” channel lineups consistent with requirements of agreements. Ø Develop a programming cost spreadsheet showing current and anticipated future rates for planning purposes. Negotiate direct agreements for programmers without an NCTC master agreement, including retransmission consent agreements for broadcast stations in the Cedar Rapids/Waterloo DMA. Complete launch paperwork for NCTC and direct agreements. Other tasks associated with the launch of a cable TV system in accordance with local, state, and federal regulations. ● Ongoing Cable TV Programming Management Monthly subscriber reporting to NCTC and direct agreement parties. As renewal agreements are created, review and report to Waterloo Fiber on terms and economic impacts. Maintain a programming cost spreadsheet. Other tasks associated with operation of a cable TV system in accordance with local, state, and federal regulations. ● Other activities as requested by the Utility. PAYMENT OF FEES. Fees will be: $135 per hour. Non-recurring cable TV launch activities are estimated not to exceed 90 hours. Ongoing cable TV programming management activities are estimated to not exceed 60 hours annually. Invoices will be sent digitally (pdf) via email on the first business day of the month for the previous billing period. Payment is to be remitted within 30 calendar days via ACH (preferred) or paper check mailed to the address above. EXPENSES. Company will reimburse Contractor for the following expenses: 6 SmartSource Consulting, LLC Independent Contractor Agreement • Materials and services purchased on behalf of the Utility at the written request of the Utility. • Vehicle trips at the current IRS mileage rate, plus any reasonable lodging expenses that may be incurred at the written request of the Utility, and a minimum of 2 hours per trip made in person. NOTE: This Project Assignment is governed by the terms of an Independent Contractor Services Agreement in effect between the Utility and Contractor, including the proprietary rights agreement attached thereto. In the event that any item in this Project Assignment is inconsistent with that Agreement, the terms of this Project Assignment shall govern, but only with respect to the services set forth in this Project Assignment. Waterloo Telecommunications Utility By: _________________________________ (Printed Name) Contractor SmartSource Consulting, LLC By: Curtis Dean Title: President 9712 Turnpoint Drive West Des Moines, IA 50266 Dated: Dated: Eric Lage 10/19/2023 7 SmartSource Consulting, LLC Independent Contractor Agreement EXHIBIT B INDEPENDENT CONTRACTOR CONFIDENTIALITY, TRADE SECRET AND ASSIGNMENT OF INTELLECTUAL PROPERTY AGREEMENT 1. PROPRIETARY INFORMATION. Contractor agrees during the term of this Agreement and thereafter that it will take all steps reasonably necessary to hold Waterloo Telecommunications Utility (“Utility”) Proprietary Information in trust and confidence, will not use Proprietary Information in any manner or for any purpose not expressly set forth in this Agreement, and will not use or disclose any such Proprietary Information to any third party without first obtaining Utility’s express written consent on a case- by-case basis. For purposes of this Agreement, “Proprietary Information” includes, but is not limited to, (a) trade secrets, intellectual property, mask works, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter collectively referred to as “Intellectual Property”); and (b) information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers. Notwithstanding the other provisions of this Agreement, nothing received by Contractor will be considered to be Utility Proprietary Information if (1) it has been published or is otherwise readily available to the public other than by a breach of this Agreement; (2) it has been rightfully received by Contractor from a third party without confidential limitations; (3) it has been independently developed for Contractor by personnel or agents having no access to the Utility Proprietary Information; or (4) it was known to Contractor prior to its first receipt from Utility. 2. THIRD PARTY INFORMATION. Contractor understands that the Utility (“Client”) have received and will in the future receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty on to maintain the confidentiality of Utility information and use it only for certain limited purposes. Contractor agrees to hold Third Party Information in confidence and not to disclose to anyone (other than personnel who need to know such information in connection with their work for developing the Utility) or to use, except in connection with Contractor’s work planning for the Client, Third Party Information unless expressly authorized in writing by an officer of the Client with the authority to release Utility information. 3. NO CONFLICT OF INTEREST. Contractor agrees during the term of this Agreement not to accept work or enter into a contract or accept an obligation, inconsistent or incompatible with Contractor’s obligations under this Agreement or the scope of services rendered. Contractor warrants that to the best of its knowledge, there is no other existing contract or duty on Contractor’s part inconsistent with this Agreement, unless a copy of such contract or a description of such duty is attached to this Agreement as Attachment 1. Contractor further agrees not to disclose information, or bring onto Client’s premises, or induce Client to use any confidential information that belongs to anyone other than Client or Contractor. 4. DISCLOSURE OF WORK PRODUCT. As used in this Agreement, the term “Work Product” means any Intellectual Property, whether or not patentable, and all related know-how, designs, mask works, trademarks, formulae, processes, manufacturing techniques, trade secrets, ideas, artwork, software or other protectable works. Contractor agrees to disclose promptly in writing to Client, or any person designated by Client, all Work Product which is conceived, made, reduced to practice, or learned by Contractor in the course of any work performed for Utility (“Utility Work Product”). Contractor represents that any Work Product relating to Utility development or any Project which Contractor has made, conceived or reduced to practice at the time of signing this Agreement (“Prior Work Product”) has been disclosed in writing to Client and attached to this Agreement as Attachment 2. If disclosure of any such Prior Work Product would cause Contractor to violate any prior confidentiality agreement, Contractor understands that it is not to list such Prior Work Product in Attachment 2 but it will disclose a cursory name for each such Intellectual Property, a listing of the party(ies) to whom it belongs, and the fact that full disclosure as to such Prior Work Product has not been made for that reason. A space is provided in Attachment 2 for such purpose. 8 SmartSource Consulting, LLC Independent Contractor Agreement 5. OWNERSHIP OF WORK PRODUCT. Contractor shall specifically describe and identify in Attachment 2 all technology which (a) Contractor intends to use in performing under this Agreement; (b) is either owned solely by Contractor or licensed to Contractor with a right to sublicense; and (c) is in existence in the form of a writing or working prototype prior to the Effective Date (“Background Technology”). Contractor agrees that any and all Intellectual Property conceived, written, created or reduced to practice in the performance of work under this Agreement or with Utility resources shall be the sole and exclusive property of Utility. 6. ASSIGNMENT OF UTILITY WORK PRODUCT. Except for Contractor’s rights in the Background Technology, Contractor irrevocably assigns to Client all right, title and interest worldwide in and to the Utility Work Product and all applicable intellectual property rights related to the Utility Work Product, including, without limitation, copyrights, trademarks, trade secrets, patents, moral rights, contract and licensing rights (the “Proprietary Rights”). Except as set forth below, Contractor retains no rights to use the Utility Work Product and agrees not to challenge the validity of Client’s ownership in the Utility Work Product. Contractor hereby grants to Client a non-exclusive, royalty-free, irrevocable and world-wide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, publicly perform, and publicly display in any form or medium, whether now known or later developed, distribute, make, use, sell and offer to sell Background Technology and any Prior Work Product incorporated or used in the Utility Work Product for the purpose of developing and marketing Utility products. 7. WAIVER OR ASSIGNMENT OF OTHER RIGHTS. If Contractor has any rights to the Utility Work Product that cannot be assigned to Client, Contractor unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client with respect to such rights, and agrees, at Client’s request and expense, to consent to and join in any action to enforce such rights. If Contractor has any right to the Utility Work Product that cannot be assigned to Client or waived by Contractor, Contractor unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to make, use, sell, offer to sell, reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such rights. 8. ASSISTANCE. Contractor agrees to cooperate with Client or its designee(s), both during and after the term of this Agreement, in the procurement and maintenance of Utility’s rights in Utility Work Product and to execute, when requested, any other documents deemed necessary by Client to carry out the purpose of this Agreement. Contractor agrees to execute upon Client’s request a signed transfer of copyright to Client in the form attached to this Agreement as Attachment 3 for all Utility Work Product subject to copyright protection, including, without limitation, computer programs, notes, sketches, drawings and reports. 9. ENFORCEMENT OF PROPRIETARY RIGHTS. Contractor will assist Client in every proper way to obtain, and from time to time enforce, United States and foreign Proprietary Rights relating to Utility Work Product in any and all countries. To that end, Contractor will execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as Client may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, Contractor will execute, verify and deliver assignments of such Proprietary Rights to Client or its designee. Contractor’s obligation to assist Utility with respect to Proprietary Rights relating to such Utility Work Product in any and all countries shall continue beyond the termination of this Agreement, but Utility shall compensate Contractor at a reasonable rate after such termination for the time actually spent by Contractor at Utility’s request on such assistance. 10. EXECUTION OF DOCUMENTS. In the event Client is unable for any reason, after reasonable effort, to secure Contractor’s signature on any document needed in connection with the actions specified in the preceding Sections 8, 9 and 10, Contractor hereby irrevocably designates and appoints Client and its duly authorized officers and agents as its agent and attorney in fact, which appointment is 9 SmartSource Consulting, LLC Independent Contractor Agreement coupled with an interest, to act for and in its behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by Contractor. Contractor hereby waives and quitclaims to Client any and all claims, of any nature whatsoever, which Contractor now or may hereafter have for infringement of any Proprietary Rights assigned hereunder to Client. 11. ENTIRE AGREEMENT. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between Client and Contractor. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The terms of this Agreement will govern all Project Assignments and services undertaken by Contractor for Client. In the event of any conflict between this Agreement and a Project Assignment, the Project Assignment shall control, but only with respect to the services set forth herein. IN WITNESS WHEREOF, each party has caused this Independent Contractor Services Agreement to be executed by its duly authorized representative. Client Waterloo Telecommunications Utility By: _______________________________ (Printed Name) Title: General Manager Dated: Contractor SmartSource Consulting LLC By: Curtis Dean Title: President 9712 Turnpoint Drive West Des Moines, IA 50266 Dated: For copyright registration purposes only, Contractor must provide the following information: Date of Birth: August 7, 1964 Nationality or Domicile: USA Eric Lage 10/19/2023 10 SmartSource Consulting, LLC Independent Contractor Agreement