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Master Consulting Services Agreement Second Amendment_David Lyons and Iowa InstituteMasterpiece on the Mississippi Dubuque bierd All- America City 1 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Second Amendment to Master Consulting Services Agreement with The Iowa Institute and David Lyons DATE: January 26, 2012 David Lyons has been under contract to be the Smarter Sustainable Dubuque Project Manager since September, 2009. David's work product, work ethic and accomplishments have all been extraordinary. David not only gives his best, but he knows how to inspire others to give their best. He is also a master at managing the complex relationships that exist with the many partners in Smarter Sustainable Dubuque. Much has been accomplished but Smarter Sustainable Dubuque has barely scratched the surface on what could ultimately be achieved. David has also agreed to assist the city's attempt to access a new program of the Iowa Finance Authority and the Iowa Department of Natural Resources to help with water quality management in the City of Dubuque. The City has the potential to receive hundreds of thousands of dollars, and maybe millions of dollars, in additional funding for water quality issues. However, this new State Revolving Loan Fund (SRF) Sponsored Project program is extremely complex. In fact, the program was authorized by the State Legislature two years ago and there has not yet been a successful application. I respectfully recommend Mayor and City Council approval of an extension of the Smarter Sustainable Dubuque Project Management contract through June 30, 2013, with a 2.5% increase to $10,250 per month and an amendment to assist with the SRF sponsored program application at a one -time cost of $9,000. Funding is available from the one -time ICAAP insurance refund the City received this year for the $9,000 amendment and funds are in the City budget for the project management. Michael C. Van Milligan MCVM:sv Attachments cc: David Lyons, Project Manager for Smarter Sustainable Dubuque Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Asistant City Manager Jennifer Larson, Budget Director Gus Psihoyos, City Engineer Cori Burbach, Sustainability Coordinator 2 SECOND AMENDMENT TO THE MASTER CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND THE IOWA INSTITUTE AND DAVID LYONS This Second Amendment to the Master Consulting Services Agreement between the City Et Dubuque, Iowa ( "Client ") and David Lyons ( "Consultant ") is dated for reference purposes the 10 day of Feb. .2012. Whereas, Consultant and Client entered into the Master Consulting Services Agreement (the "Agreement "); and Whereas, the Agreement, as previously amended, terminates at midnight on June 30, 2012; and Whereas, Client now desires to extend the Agreement to June 30, 2013; and Whereas, Client wishes to incorporate an additional Statement of Work; NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS: 1. Section 3 of the Agreement is amended to provide that the Agreement terminates at midnight on the 30th day of June, 2013. 2. The attached additional Statement of Work is incorporated into this Agreement, providing for additional services in the one -time payment amount of $9,000.00 to support pursuit of a SRF (State Revolving Fund) Sponsored Project in Dubuque. 3. The original Statement of Work with a 10/1/09 start date is amended under "Fixed Price Information" to state, "$10,250 per month." 4. All other terms and conditions described in the Agreement remain in full force and effect. 012612 Client Consultant City of Dubuque City Hall 50 West 13th Street Dubuque, IA 52001 -4865 Phone: (563) 589 -41 By Michael C. Van Milligen City Manager Date: 012612 2/07LL David J. Lyons The Iowa Institute 5804 Pleasant Drive Des Moines, IA 50312 Pho 279 -7559 By David J. Lyons President Date: STATEMENT OF WORK Client: City of Dubuque, Iowa Date Client signed Master Consulting Services Agreement: 9/17/09 This Statement of Work is made pursuant to a Master Consulting Services Agreement ( "Agreement ") between the consulting services provider identified in the Agreement as "Consultant ", TII Corp and David Lyons, and the City of Dubuque, Iowa and its related entities included in the definition of "Client" in the Agreement (collectively, "Client "). The Agreement was signed by Client on the date indicated above. This Statement of Work incorporates all terms and provisions of the Agreement. Start Date -- Consultant is to begin providing the consulting services: (choose only one) X immediately after this Statement of Work is signed by both parties _ on the following date: other (such as occurrence of an event): This Statement of Work will: (choose only one) _ have an Initial Term of _ year have an Initial Term ending on the following date: X terminate on completion of all tasks and final acceptance or non - acceptance of all Deliverables described in this Statement of Work, or upon notice of termination by Client. Consulting services will be performed at: (indicate ALL that apply) X Client's premises in Dubuque Client's premises in X Consultant's premises in Des Moines and West Des Moines X Other locations to be determined by client X Check here if Client will pay travel, meal, lodging, communications, photocopies and other reasonable expenses. Prior approval required. Indicate invoicing terms: On completion of all tasks and final acceptance of all Deliverables described in this Statement of Work X Check here if Consultant is to provide progress reports every month. If this Statement of Work is connected with a specific Client project, state name of project: Clean Water State Revolving Fund - Sponsored Project development, application and implementation. Project coordinators Each party designates one of its employees to serve as the other party's primary point of contact for new or unresolved questions /issues relating to this Statement of Work. Either party may change its designated project coordinator, but shall promptly inform the other party of the change. Client designates: Michael C. Van Milligen Consultant designates: David Lyons Names and roles of key Consultant personnel David Lyons Brief overview of the engagement Consultant will facilitate the research, development, application and implementation of a sponsored project within the Client's SRF programming. The sponsored project program allows a community which has borrowed SRF wastewater funds to use the interest otherwise owing to the state to be used for qualifying water quality improvement efforts within the watershed in which the wastewater facility is located. While enacted in 2009, no City has yet been able to develop a successful application for a sponsored project. Tasks and Deliverables Deliverables will include, but are not limited to: 1) Research and confirm the ability for Client's SRF projects, both existing and proposed, to be able to qualify for supporting a sponsored project as defined by the Iowa Department of Natural Resources. 2) In coordination with Client's Bond Counsel, design a work plan for Client's pursuit of a sponsored project. 3) Facilitate the collaboration and consensus of local experts on the water quality project to be recommended as the subject of the sponsored project application. 4) Coordinate the development or amendment of an appropriate 28E entity, as the statute requires for application. 5) Coordinate the development and submission of the application, including collaboration with the Iowa Department of Natural Resources and the Iowa Finance Authority. 6) Facilitate the final application and, if approved, the initial implementation of the sponsored project. Fees Fees for this Statement of Work will be: _ fixed price only (see further information below) time- and - expenses only (see further information below) X combination fixed price and time - and - expenses (see further information below about each category) — state here which tasks and Deliverables will be in each category: The fixed maximum price for deliverables1 through 6 above shall be $9,000. However, at the Client's sole discretion it may terminate this statement of work at any time with liability only for contractor's time - and - expense, calculated at $150 per documented hour, to the point at which contractor is provided with notice of termination. This requirement is designed to allow the City to discontinue pursuit of the sponsored project at any time it is determined likely to be unsuccessful. Fixed price information: Total fixed price for: (choose only one) X this Statement of Work: $ 9,000 _ fixed price portion of this Statement of Work: $ Consultant to invoice Client as follows: (choose only one) X entire fixed price upon satisfactory completion of all fixed -price tasks and acceptance of all fixed -price Deliverables _ other (specify): Each party represents that the individual signing on its behalf has read this Statement of Work, understands it, and has full authority to bind such party. CLIENT City of Dubuque City Hall 50 West 13th St Dubuque, IA 52001 -4805 Phone (563) 589 -4110 By: Michael C. Van Milligen (Pr' Name) (Signature) Its: City Manager 7) ( te) CONSULTANT David Lyons TII Corp 5804 Pleasant Drive Des Moines, Iowa 50312 Phone: 151 480 -8362 By: Its: (Pnn me) I (Signa (Title) 21/0/�� (Date) Masterpiece on the Mississippi Dubuque ***** All- AmedcaCity ' I 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: First Amendment to Master Consulting Services Agreement between the City of Dubuque and The Iowa Institute and David Lyons DATE: February 3, 2011 Attached is the First Amendment to Master Consulting Services Agreement between the City of Dubuque and the Iowa Institute and David Lyons, which extends the current contract that expires on June 30, 2011, by one year. I respectfully recommend Mayor and City Council approval of this Amendment. 2 /i- Mithael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager FIRST AMENDMENT TO MASTER CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND THE IOWA INSTITUTE AND DAVID LYONS This First Amendment to Master Consulting Services Agreement between the City Of Dubuque, Iowa (Client) and The Iowa Institute and David Lyons (Consultant) is dated for reference purposes the day of , 2011. Whereas, Consultant and Client entered into the Master Consulting Services Agreement (the Agreement), a copy of which is attached hereto; and Whereas, the Agreement terminates at midnight on June 30, 2011; and Whereas, Client now desires to extend the Agreement to June 30, 2012. NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS: 1. Section 3 of the Agreement is amended to provide that the Agreement terminates at midnight on the 30th day of June, 2012. 2. All other terms and conditions described in the Agreement remain in full force and effect. CLIENT City of Dubuque City Hall 50 West 13th Street Dubuque, IA 52001 -4865 Phone: (563) 589 -4110 By Michael C. Van Milligen City Manager Date: d/O/ CONSULTANT David J. Lyons The Iowa Institute 5604 Pheasant Drive Des Moines, IA 50312 Phone: (515) 279 -7559 By David J. Lyons President Date: F:\ USERS \tsteckle \Lindahl\ Agreements \FirstAmend m entToMasterConsutingServAg ree- Lyons_020311. doc Masterpiece on the Mississippi BARRY LINDAHL CITY ATTORNEY MEMORANDUM ,603-‘0- To: Michael C. Van Milligen City Manager DATE: January 21, 2011 RE: Dave Lyons Master Consulting Services Agreement This is in response to your question about the process for extending the David Lyons Master Consulting Services Agreement. A copy of the Agreement is attached. The current term of the Agreement terminates June 30, 2011. Under Section 4 of the Agreement, the City has the option for an extension which is exercised by sending written notice to David Lyons that it is the City's intention to extend the agreement for an additional period not to exceed 12 months without David's written consent. The terms and deliverables described in the standing Statement of Work would apply during the term of the extension. All other requirements and protections of the Agreement would also remain in place, including the right to terminate the Agreement without cause. Please let me know if you need any additional information. BAL:tls Attachment cc: David Lyons, Project Manager F :\ USERS \tstecklelLindahl\Memos\MVM LyonsMasterConsultingServAgreement _012111.doc OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944 TELEPHONE (563) 583 -4113 / FAx (563)583-1040/ EMAIL balesq @cityofdubuque.org MASTER CONSULTING SERVICES AGREEMENT Client: City of Dubuque The parties to this Master Consulting Services Agreement ( "Agreement ") are the consulting services provider, The Iowa Institute and David Lyons, the Consultant ( "Consultant ") and the City of Dubuque ( "Client"). For identification purposes, the date of this Agreement Is the date it Is signed by Client. The purpose of this Agreement is to set forth the terms and conditions under which Consultant will perform consulting services for Client. 1. Client. "Client" means the City of Dubuque, Iowa . 2. Statement of work. For each engagement under this Agreement, the services to be performed by Consultant at Client's request will be described in a statement of work ( "Statement of Work ") as shown in Exhibit A. Each Statement of Work and each amendment thereto must be signed by both parties and must state that it is made pursuant to this Agreement. Each Statement of Work shall constitute a separate agreement which incorporates the terms and provisions of this Master Consulting Services Agreement. The provisions of this Agreement shall control over any conflicting provisions in a Statement of Work, except to the extent that a provision of this Master Consulting Services Agreement specifically states that a Statement of Work may provide different terms. A Statement of Work may contain additional terms, provided that the terms do not conflict with the provisions of this Agreement Deliverables. The term "Deliverables" as used in this Agreement shall mean any and all written materials, services and other items which are to be furnished to Client by Consultant as provided in a Statement of Work. 3. Term and termination. Each Statement of Work shall take effect when signed by both parties. The actual provision of consulting services shall begin on the "Start Date" specified in the Statement of Work, which may or may not be the same as the effective date. Each Statement of Work will continue in effect until terminated by Client in accordance with the paragraph of this Agreement titled "Termination for convenience ", but in the absence of such a termination for convenience: (a) if a Statement of Work specifies a term of months or a specific termination date, that Statement of Work shall automatically terminate upon expiration of the Initial Term (defined as the period beginning on the Start Date and ending on the specified termination date or at the end of the specified number of months) unless the Statement of Work is renewed in accordance with the paragraph below titled "Renewal"; or (b) if the consulting services consist of completing specified tasks or Deliverables and no term of months or termination date is specified in the Statement of Work, the Statement of Work shall automatically terminate upon completion of all tasks and final acceptance or non - acceptance of all Deliverables specified in that Statement of Work. Notwithstanding the foregoing, unless otherwise agreed in writing by the arties, thi Agre ment shall commence on theof. day of 4a 2009, and shall terminate at midnight on the 30 day of June, 2011. 4. Renewal. A Statement of Work with an Initial Term may be renewed by Client for an additional term ('Renewal Term"), and subsequently for additional Renewal Terms, upon written notice to Consultant on or before the expiration date of the then - current term. Each Renewal Term shall begin upon expiration of the prior term and shall have the duration specified in Client's notice, which shall not exceed 12 months without Consultant's written consent. 5. Fees. Each Statement of Work shall specify all fees and other charges that Client will pay Consultant for the consulting services to be rendered pursuant to that Statement of Work, and shall specify whether fees will be on a time - and- materials basis, a fixed price basis, or a combination of both. 6. Fixed price basis. If any services under a Statement of Work will be performed on a fixed price basis, the Statement of Work shall state a fixed price which shall include all labor and materials required to complete the entire Statement of Work (or the entire fixed price portion of the Statement of Work, as applicable). Invoices for work performed on a fixed price basis shall be issued as provided in the Statement of Work. 7. Change orders. A Statement of Work shall describe the work to be performed and may contain a list of assumptions on which delivery dates or fixed or maximum prices are based. If the scopes of the project or assumptions change during the course of the engagement, the changes shall be described in a change order to be signed by both parties. The change order shall also set forth any changes to delivery dates and/or fixed or maximum prices that the parties agree are fair in light of the changed scope or assumptions. 8. Travel, meals, lodging, communications, photocopies and other reasonable expenses. If a Statement of Work specifies that Client is to pay Consultants expenses for travel, meals, lodging, communications, photocopies and other reasonable expenses. Client shall reimburse 1 Consultant for actual, necessary and reasonable expenses 9. Invoices. Client shall not be billed or be liable for any charges other than those described and authorized in the Statement of Work, in this Agreement or in a subsequent writing signed by Client. Each invoice must clearly indicate the services, materials and expenses for which Client Is being charged, and must include an invoice number, the time period covered by the invoice, the amount of any applicable tax, and sufficient detail to allow Client to determine the accuracy of the invoice. Client shall be billed only for services actually performed and for expenses actually incurred. Invoices for any allowable expenses must include itemization of each expense and documentation of amounts actually paid for expenses. If the Statement of Work lists specific additional items or categories of information that must be included on Consultants Invoices, that information shall be provided. Except to the extent Client has the right to withhold payment pursuant to an express provision of this Agreement or a Statement of Work, timely invoices shall be paid within 30 days after the later of (a) the invoice date; or (b) the date Client receives a correct paper invoice or a correct electronic invoice file in a format that meets Client's electronic invoicing requirements. 10. Address for invoices. All invoices shall be sent to City of Dubuque, Iowa, 50 West 13th Street, Dubuque IA 52001 -4864, attn: City Manager. Consultant agrees not to send duplicate invoices to any other persons or departments in Client's enterprise. 11. Disputed invoices. Consultant shall use commercially reasonable efforts to ensure the accuracy of invoices. Client will provide written notification of any disputed invoice within 30 days after receipt, and shall have an additional 30 days in which to resolve the dispute with Consultant and pay the agreed -upon amount. The parties agree to use commercially reasonable efforts to resolve the disputed items within the 30 -day additional time period. 12. Client's responsibilities. In connection with each Statement of Work, Client shall: (a) designate one employee of Client as coordinator who shall be Consultant's primary point of contact for all new or unresolved questions and issues relating to the engagement (b) provide such Client information and data as is reasonably necessary to enable Consultant to perform its obligations; and (c) perform such other duties and tasks as may be specifically identified as Client obligations on a Statement of Work, or as may be otherwise agreed upon in writing by Client and Consultant. Client shall have no obligations which It must perform as a condition of the full and timely performance by Consultant of its obligations under a Statement of Work, except for those obligations specifically identified as Client obligations in a writing signed by Client. 13. Client -owned items. If Client provides for Consultant's use in connection with a Statement of Work any hardware, software or other items which are owned, leased or licensed by Client, no title to any such Items shall pass to Consultant, and Consultant shall return all such items to Client upon conclusion of the engagement. Consultant agrees to use such items in a manner consistent with their intended use and to exercise at least the same degree of care In their use as it does with its own similar items, but in no event less than reasonable care. 14. Progress reports. If a Statement of Work specifies that Consultant is to furnish periodic progress reports, the provisions of this paragraph shall apply. The frequency of the required reports shall be monthly unless the Statement of Work specifies a different frequency, in which case the references to ''monthly" in this paragraph shall be changed accordingly. Once every month during the course of the engagement, Consultant shall provide Client with a report briefly describing the progress of the project. The report shall also specify in detail: (a) any known problem or circumstance encountered by Consultant during the preceding month period which may tend to cause any delay in Consultant's performance or which may tend to cause any project cost overrun for time -and- materials charges; (b) Consultant's best estimate of the length of any such delay and /or of the amount of any such cost overrun; and (c) a description of the cause of each such problem or circumstance and the specific steps proposed to be taken to remedy such problem. Any problem or circumstance which Consultant fails to timely include in such a report to Client shall not later serve as a basis for Consultant to claim additional payment from Client or to claim an excuse for failing to complete any task by the completion date specified in the Statement of Work. 15. Acceptance of Deliverables. No Deliverable will be deemed accepted by Client until Client states that It is accepted. Client shall have no obligation to pay any invoice received from Consultant to the extent any Deliverable furnished or required to be furnished to Client through the date of Client's receipt of the invoice has not been accepted by Client as provided below. If the Statement of Work specifies a certain number of business days in which Client is to review Deliverables, Client shall notify Consultant in writing of the acceptability or non- acceptability of 2 the Deliverable(s) within the specified number of business days after Client's receipt of the Deliverable(s). Otherwise, Client shall provide such notice within a reasonable time. Any non- acceptance notice shall state the particulars in which the Deliverable is deficient. If acceptance criteria are specified in the Statement of Work, the notice shall specify which criteria are not satisfied. Consultant shall be allowed a reasonable time to correct deficiencies, 16, Warranty for services. Consultant warrants that it shall perform the services required under each Statement of Work in a professional manner, by qualified personnel, in accordance with all applicable industry standards, and In accordance with the terms of the Statement of Work. if this warranty is breached, Consultant at Client's option shall either: (a) promptly and at Consultant's own expense re- perform the applicable services as warranted, or (b) refund to Client the entire amount paid for the applicable services and for any other services that become substantially without value to Client as a result of the breach. 17. Independent contractor. It is agreed and understood that Consultant's relationship to Client Is that of an independent contractor. Neither party shall be deemed to be, or hold itself out as, a partner, agent, employee or joint venturer of the other party. All persons performing Consultant's obligations under this Agreement shall be considered to be solely the employees, contractors or agents of Consultant or its contractors, and Consultant and its contractors shall be responsible for ensuring there is payment of any and all salaries, wages, payroll taxes, insurance and other items payable to or on behalf of such personnel, and for maintaining worker's compensation insurance on such personnel. Consultant shall indemnify and hold Client harmless against any claims, costs or expenses that may arise out of any breach of this paragraph by Consultant or Its contractors. 18. Compliance with law. In performing Consultant's obligations under a Statement of Work, Consultant and its personnel shall comply with all applicable city, state and federal laws, ordinances, rules and regulations. 19. General Indemnification. Each party agrees to indemnify, defend and hold the other harmless against any third party claim Involving personal injury or damage to tangible property arising from alleged negligent or willful acts or omissions of the indemnifying party or its employees, agents or subcontractors in connection with this Agreement. 20. Ownership of work product. Except as expressly stated in the paragraph of this Agreement entitled "Consultant's retained rights," Consultant agrees that all rights, title and interest in and to any works and materials created by Consultant or created jointly by Consultant and Client pursuant to this Agreement, including but not limited to copyrights, will at all times belong exclusively to Client. 21. Consultant's retained rights. Client's ownership rights shall not extend to or Include the ideas, concepts, know -how or techniques used by Consultant in furnishing services or providing Deliverables to Client. Consultant shall retain sole title to and ownership of all works and materials created by Consultant other than pursuant to this Agreement, but for all such works and materials incorporated into any Deliverable under this Agreement, Consultant grants to Client an irrevocable, royalty -free, non - exclusive, non- transferable perpetual license to use, duplicate, alter and modify such works and materials in the normal course of Client's activities. 22. Confidentiality. Each party acknowledges that, in connection with the performance of this Agreement or otherwise in the course of its dealings with the other party, it may receive or learn confidential, business, trade secret, proprietary or other like information concerning the other party or third parties to whom the other party has an obligation of confidentiality ("Confidential Information "). Each party agrees to the extent permitted by law that It will not disclose to any third party, either orally or in writing, any Confidential Information of the other party without the prior written consent of the other party, and that it will not appropriate any Confidential Information to its own use or to the use of any third party. Confidential Information that is provided by one party to the other shall be used by the recipient only for the purpose for which it was provided, and access to it shall be restricted to individuals who require the Information (or access to the information) to further that purpose. Without limiting any of the foregoing, each party agrees to take at least such precautions to protect the other party's Confidential Information as it takes to protect its own Confidential Information, and in any event shall take all precautions that are reasonably necessary to protect the security of the other party's Confidential Information. Each party further agrees that upon request of the other party it will return to that party all tangible items containing any of that party's Confidential Information, including all copies, abstractions and compilations thereof, without retaining any copies of the items required to be returned. The obligations of this paragraph extend to the 3 employees, agents, affiliates and contractors of each party, and each party shall inform such persons of their obligations hereunder. 23. Prohibition on publicity. Consultant may include the name "City of Dubuque° on a listing of Consultant's clients, provided that such listing does not state or imply that Client endorses Consultant or its services. Otherwise, neither party may advertise or promote itself using the name, service mark or description of the other party without the written consent of the other party in the case of each such use. 24. Termination for convenience. Client may terminate a Statement of Work at any time for any reason with or without cause by giving Consultant 5 days' notice in writing of Client's intention to so terminate. Following the effective date of such termination and upon delivery to Client of all items required by this Agreement and the Statement of Work to be delivered by Consultant to Client upon termination, Client shall pay Consultant for services performed and reimbursable expenses incurred through the termination date. in the case of fixed price work, the amount paid for services performed shall bean equitable portion of the fixed price based on the amount of the fixed price work completed prior to termination. 25. Cancellation for material breach. Either party may terminate any Statement of Work upon 15 days' written notice to the other party if such other party has committed a material breach of its obligations under the Statement of Work (including the incorporated provisions of this Agreement), and such breach is not cured within the 15 -day notice period. 26. Effect of termination. Termination or cancellation of a Statement of Work shall not terminate this master Agreement, and the parties shall remain free to enter into future Statements of Work pursuant to this Agreement. In addition, termination, cancellation or completion of a Statement of Work shall not relieve either party of any previously accrued obligations or of any obligations, which by their nature are intended to survive termination, cancellation or completion. Obligations which survive shall include but not be limited to obligations in connection with payment, warranties, Confidential Information and indemnification. 27. Dispute resolution. In the event of any dispute arising out of or relating to this Agreement, the parties agree to attempt in good faith to resolve the dispute first by direct negotiation and then, if that is not successful, by mediation with a neutral third - party mediator acceptable to both parties. Mediation expenses will be shared equally by the parties. 28. Partial invalidity. If any provision of this Agreement or any Statement of Work is held to be unenforceable, the remaining provisions shall continue in full force and effect. The parties shall in good faith negotiate a mutually acceptable and enforceable substitute for the unenforceable provision, which substitute shall be as consistent as possible with the original intent of the parties. 29. Remedies not exclusive. Unless this Agreement expressly states that a remedy is exclusive, no remedy made available under this Agreement is Intended to be exclusive. 30. Non - waiver. No term or provision of this Agreement shall be deemed waived and no breach shall be deemed excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a breach by the other shall constitute a consent to, waiver of, or excuse for any different or subsequent breach. 31. Assignment. Neither party's rights or obligations under this Agreement (except the right to receive money) shall be assigned or delegated without the prior written consent of the other party, except that either party may without such consent assign all of its rights and delegate all of its obligations under this Agreement to an entity: (a) which such party owns or controls; (b) which is owned or controlled by such party; or (c) which is under common ownership or control with such party. Any consent required by this paragraph shall not be unreasonably withheld, conditioned or delayed. in the case of any assignment permitted hereunder without the other party's consent, the assignor shall promptly notify the non - assigning party in writing of the assignment and shall include in its notice a statement of the facts that permit assignment without consent. Nothing in this paragraph shall restrict a party's right to transfer property to which it has obtained ownership rights under this Agreement. 32. Successors and assigns. This Agreement and each Statement of Work hereunder shall inure to the benefit of and be binding upon the respective successors and assigns, if any, of the parties. Nothing in this paragraph shall be construed to permit any attempted assignment which would be unauthorized pursuant to any other provision of this Agreement. 33. Construction. The paragraph headings in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. The wording used in this Agreement Is the wording chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against either party. 4 34. Entire agreement; amendment. This Agreement, including the attached exhibit referenced herein and the Statement(s) of Work entered into pursuant to this Agreement, constitute the entire agreement between the parties with respect to the consulting services to be provided by Consultant to Client. This Agreement may be altered only by a written amendment identified as such and signed by authorized personnel of both parties. All such amendments to this Agreement shall be binding on both parties despite any lack of consideration. 35. Governing law. This Agreement shall be governed by the laws of the state of Iowa, without reference to conflict of law principles. 36. Notices. All notices which are required by this Agreement to be in writing: (a) shall be delivered by hand, by overnight courier, by facsimile, or by certified or registered mail, postage prepaid, return receipt requested; (b) shall be deemed given upon receipt by the transmitting party of machine confirmation of successful transmission of a facsimile to the correct facsimile number, or on the date of actual delivery when the written notice Is not sent by facsimile; and (c) shall be directed to the contact persons listed below at the respective addresses or facsimile numbers listed below, or to such other contact person, address or facsimile number as was last designated in a written notice by that party for notices to itself. 5 THE PARTIES HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND BOUND BY IT. EACH PARTY REPRESENTS THAT THE INDIVIDUAL AUTHORITY TO BIND SUCH PARTY. Y SIGNING BELOW AGREE 0 BE NINO ON ITS BEHALF HAS PULL CLIENT CONBtf- ,'_ANT City of Dubuque DavId as City Hall III 80 West 43 'h $t. 5804 P "'sant Drive Dubuque, IA 52001 -4805 Des M • �j es, Iowa 50392 Phone: (563) 588.4190 : ' Phone: -TM 't_—._ By: 1 By: Michael C. V n Milligan De I Lyons City Manager • Its: • (D ta) . Exhibit A (7iue) (Date) 6 THE PARTIES HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND BY SIGNING BELOW AGREE TO BE BOUND BY IT. EACH PARTY REPRESENTS THAT THE INDIVIDUAL SIGNING ON ITS BEHALF HAS FULL AUTHORITY TO BIND SUCH PARTY. CLIENT CONSULTANT City of Dubuque David Lyons City Hall 50 West 13 In St. 5804 Pleasant Drive Dubuque, IA 52001 -4805 Des Moines, Iowa 50312 Phone: (563) 589 -4110 , l Phone: (515) 279 -7559 r By: Lyons David L Michael C. Vin Milligen Y Its: City Manager Its: (Title) 91; rE ,fl (Dlte) (Date) Exhibit A 6 STATEMENT OF WORK Client: City of Dubuque Date Client signed Master Consulting Services Agreement: This Statement of Work is made pursuant to a Master Consulting Services Agreement ("Agreement") between the consulting services provider identified above as "Consultant" THE Iowa Institute and David Lyons , City of Dubuque and its related entities included in the definition of "Client" in the Agreement (collectively, "Client "). The Agreement was signed by Client on the date Indicated above. This Statement of Work incorporates all terms and provisions of the Agreement. Start Date -- Consultant is to begin providing the consulting services: (choose only one) _ immediately after this Statement of Work Is signed by both parties X on the following date: 10/1/09 _ other (such as occurrence of an event): This Statement of Work will: (choose only one) X have an Initial Term of 3 months _ have an Initial Term ending on the following date: terminate on completion of all tasks and final acceptance or non - acceptance of all Deliverables described in this Statement of Work Consulting services will be performed at: (indicate ALL that apply) X Client's premises In Dubuque _Client's premises in X Consultant's premises in Des Moines X Other locations to be determined by client X Check here if Client will pay travel, meal, lodging, communications, photocopies and other reasonable expenses. (See Agreement for details.) Indicate Invoicing terms: monthly X Check here if Consultant is to provide progress reports every month. If this Statement of Work is connected with a specific Client project, state name of project: SMART SUSTAINABLE DUBUQUE Project coordinators Each party designates one of its employees to serve as the other party's primary point of contact for new or unresolved questions/issues relating to this Statement of Work. Either party may change its designated project coordinator, but shall promptly inform the other party of the change. Client designates: Michael Van Milligan Consultant designate: David Lyons Names and roles of key Consultant personnel David Lyons Brief overview of the enctactement Consultant is to facilitate and coordinate the relationships, partnerships, funding, regulatory and other issues required to put the client in the position to successfully launch and Implement SMART SUSTAINABLE DUBUQUE — AN IBM AND CITY OF DUBUQUE PARTNERSHIP. Tasks and Deliverables Over the period of this statement of work, deliverables include at a minimum (1) agreements with IBM, Alliant Energy and such other businesses as sufficient for client to proceed with and successfully implement the project; (2) completion 7 of short term fund- raising and grant development efforts and planning sufficient to provide client with evidence that there will be at least minimally required funding for the project; and (3) a recommended outline for, and Implementation of, a public roll -out of the project, including coordination with all primary and secondary partners and outreach and community engagement within the community, should client choose to proceed with the project. Fees Fees for this Statement of Work will be: (choose only one) X fixed price only (see further information below) time- and - materials only (see further information below) _ combination fixed price and time - and - materials (see further information below about each category) -- state here which tasks and Deliverables will be in each category: Fixed price information: Total fixed price for: (choose only one) X this Statement of Work: $ 10,000 per month _ fixed price portion of this Statement of Work: $ Consultant to invoice Client as follows: (choose only one) _ entire fixed price upon satisfactory completion of all fixed -price tasks and acceptance of all fixed -price Deliverables X other (specify): Monthly Each party represents that the individual signing on its behalf has read this Statement of Work, understands it, and has full authority to bind such party. CLIENT CONSULTANT City of Dubuque David Lyons City Hall TII 50 West 13th St 5804 Pleasant Drive Dubuque, IA 52001 -4805 Des Moines, Iowa 50312 Phone: (563) 589 -4110 Phone: (515) 279 -7559 By: Michael C. VanMilligen Its: ..) (Print Name) (Signature) City Manager (Title) 27I-,ir=,.7 ' ,(Date) By: Its: (Print Name) (Signature) (Title) (Date) 8 of short term fund- relsing and grant development efforts and planning suftiiciet will be at least minimatlyrequired funding for the project; and (3) a recornrne public roll -out of the project, including coordination with all primary and second engagement within the community, should client choose to proceed with the pr Fees for this Statement of Work will be: (choose only one) X fixed price only (see further information below) time-and-materials only (see further information below) combination fixed price and time - and - materials (see further information be which tasks and Deliverables will be in each category: Fixed price information: Total fixed price for: (ohooae only one) X this Statement of Work: $ 10.000 j er month _ fixed price portion of this Statement of Work: $ Consultant to Invoice Client es follows: (choose only One) entire fixed price upon satisfactory completion of all faced -prig tasks and ac X other (specify): Monthly Each party represents that the Individual signing on its behalf has read t and has full authority to bind such party. GHENT City of Dubuque City Nell SO West 13 h St Dubuque, IA 62001.4805 Phone: (583) 509.4110 By: ' Its; .Michael +C. VanMil1igen (Print Name) (Signature) City Manager { (Tale) r. ,pate) CONS David Til 5804 P Des M Phone provide client with evidence that there outline for, and implementation- of, a Partners and outreach and community ct about each category) -- state a r an of oil fixed -price Detivaral?les Statement of Work, understands It, ANT ans sant Drive oe, Iowa 50312 515) 279 -7559 tq.r/, t� :I-- . Yzi `ice (lint Name) Its: (51_g_) S. •�/(Title) - E • ; ---11/"/41 a [ AN OVERVIEW ] SMARTER SUSTAINABLE DUBUQUE What is Smarter Sustainable Dubuque? Smarter Sustainable Dubuque is the research arm of the Sustainable Dubuque initiative, which began in 2006 when Dubuque, Iowa Mayor Roy D. Buol and the City Council made it a top priority for the City. SUSTAINABLE DUBUQUE viable • livable • equitable Sustainable Dubuque seeks to make Dubuque a community that meets the environmental, economic, and social equity needs of its residents today without reducing the ability of future generations to meet their needs. This approach is unique in Dubuque in that it is a citizen - driven process guided by a vision and principles developed by citizens. Smarter Sustainable Dubuque is a public/ private partnership between the City of Dubuque and IBM Research, the division of IBM responsible for its "Smarter Planet" campaign. The project was initiated in September 2009 when the City of Dubuque and IBM announced their intentions to make Dubuque one of the first "smarter" sustainable cities in the U.S. The programming has grown into a collaboration that includes over two dozen industries and eight state and federal agencies. In a nutshell, it is the development of new "smarter" technologies coupled with community outreach and implementation strategies to create a replicable, international model of sustainability for communities of zoo,000 and under, where over 4o percent of the U.S. population resides. The model will integrate community engagement and education, more energy - efficient ways of operating municipal services and buildings, decreased carbon emissions, new job creation, increased financial savings, resource conservation and a higher quality of life for the entire community. It will also document the improvement to competitive opportunities that comes through "smarter" resource utilization. Smarter Sustainable Dubuque will provide Dubuque residents what they need (information and tools specific to their circumstances) to do what they want (save money, conserve resources and improve the local economy and environment). The initiative is engaging Dubuque residents and businesses who, through advanced technology, will be able to voluntarily better manage their use of resources like water, electricity, oil, and natural gas. And the program is expanding into using that information to improve the health and wellness of the community through collaboration with programming such as the Green and Healthy Homes Initiative. HOW IS DUBUQUE GETTING SMARTER? With the support of public and private partners, Dubuque is exploring and using new "smarter" technologies and strategies to deliver or better utilize vital services such as water, energy, and transportation to its citizens while reducing the community's impact on the environment. These new technologies digitize and connect city systems, sense, analyze and integrate data, and allow Dubuque to respond intelligently to the needs of citizens. It also provides consumers and businesses the information specific to their households or businesses that they need to make informed decisions about how they can reduce consumption and improve their economic bottom lines. Collecting and analyzing this information will give consumers and city policymakers new insights on how to conserve Dubuque's resources, become more sustainable and improve their opportunities in an increasingly competitive world economy. PARTNERSHIPS SUSTAINABILITY INNOVATION CONSORTIUM Facilitated by Greater Dubuque Development Corporation, this regional cluster initiative is designed to research, analyze and implement regional efforts to grow the "sustainability and innovation industry" in the region. From traditional manufacturing to internet technologies, these companies are documenting hundreds of jobs created or retained through expansion of the sustainability industry in Dubuque. DUBUQUE 2.0 Leading the community engagement and dialogue around Sustainable Dubuque is Dubuque 2.0, an initiative of the Dubuque Area Chamber of Commerce and the Community Foundation of Greater Dubuque. It is a venue where sustainable ideas are presented, best practices are shared, and results from the community's efforts are measured. PETAL PROJECT Sponsored by the East Central Intergovernmental Association, this green business certification program recognizes organizations dedicated to reducing their energy, water, and natural resource use to benefit the environment and their bottom line. DUBUQUE WORKS A seven - organization partnership to analyze and revitalize existing workforce strategies, identify and address workforce gaps, and seamlessly provide workforce solutions for local companies. DubuqueWorks also L, addresses workforce issues through Project HOPE, the Bridges Initiative, and other programs to develop the whole person to meet employers' workforce needs. (((s M AR T E R SUSTAINABLE DUBUQUE banmilleasselkaarri Waal health & wellneys SMARTER WATER Dubuque's Smarter Water project is a unique partnership of local, state and federal funding. It is a multi - million dollar community project to upgrade the water system, implement innovative technologies, and empower citizens and businesses with the information and tools needed to significantly reduce water consumption. IBM technology is interfacing with the City's system to process water consumption data and provide near real -time visibility into the overall city water consumption. (40))) The results of the first pilot study showed an eight -fold increase in the detection and repair of water leaks and a 6.6% overall reduction in water utilization by households participating in the pilot. Quick -Start Anonymous -P, le 176"° 149th l 2r 0are9PY � - -- LL,Ba, ml Py, Screen shot of Smarter Water portal How do these Smarter Pilots develop into a Smarter System? While Dubuque may not be the only community taking a proactive and technologically innovative approach to resource consumption and sustainability, it is the only community that is integrating all the individual resources or "silos" of energy into an Integrated Sustainability System. Giving citizens the power to use real -time water information to help reduce their electricity consumption or natural gas consumption is new. Giving citizens the ability to use their travel and transit data to improve their health and wellness outcomes is new. This ability to view all personal energy interactions within the community is unique. SMARTER ELECTRICITY Working in partnership with IBM, Alliant Energy, and the Iowa Office fice of Energy Independence, the community is deploying a multi - million dollar Smarter Electricity pilot. Involving nearly t,000 volunteer households, Alliant Energy has installed new Advanced Metering Infrastructure (AMI) meters and is providing anonymous customer electricity usage data to the City and IBM for analysis. IBM is using the data to develop a consumer interface system to enable study participants to better understand their electricity use in real -time so they can consider changes to save energy, reduce costs, and reduce carbon emissions. By reviewing historical data and real -time current usage and analyzing the opportunity for energy savings through the Smarter Electricity pilot, IBM determined that roughly 26 percent of average household usage in Dubuque is presently "phantom power" (electricity which is being consumed by appliances when not in use). The savings opportunity is significant. ((( ))) SMARTER NATURAL GAS Also in the energy sector, the community has partnered with IBM and Black Hills Energy on Smarter Natural Gas. This pilot project of 250 volunteer homes involves the implementation of AMR (Advanced Meter Reporting) technology for natural gas, providing residents with near real -time information of utilization and the ability to assess the return on investment they would see from adoption of energy - efficiency technologies and appliances in their home. Natural gas is the primary source of energy for heating in the Dubuque community. The opportunity for energy savings and green house gas emissions reduction is significant. SMARTER TRAVEL How people move within the community and opportunities to reduce vehicle miles traveled is also a high research priority. Dubuque, along with several national and local companies, has embarked on the Smarter Travel pilot and is collaborating with IBM on its City -In- Motion project. The innovative research is designed to first allow citizens to be able to track how, when and where they travel within the community. This will be accomplished by the deployment of unique radio - frequency identification (RFID) and smart phone tracking systems. Second, that data will then be provided back to volunteers along with analytics in real -time on options available to save money, conserve resources and improve the environment in their travel choices. Lastly, the aggregate data can be used by the City and its transit partners to implement policies that incorporate lower impact options sought by citizens. One component of the Smarter Travel pilot is the deployment of newly created IBM smart phone technology that can be easily downloaded at no cost and used to provide data into the supporting Cloud computing environment for analysis. SMARTER HEALTH & WELLNESS In addition to saving money conserving resources and improving the environment, citizens are also interested in improving their quality of life and health outcomes for themselves and their families. Incorporating data on how an individual's health and wellness is affected by their interaction with resources is also a critical vision. For example, how does reduction in vehicle miles traveled through biking or walking improve personal health outcomes? How does incorporating local foods decrease carbon footprints and improve key health indicators? How does the adoption of Green and Healthy Homes programming not only improve energy efficiency, but also reduce chronic childhood health conditions? The link between income, environment, and health is undeniable. Masterpiece on the Mississippi For more information visit www.sustainabledubuque.org, or contact: Smarter Sustainable Dubuque Project Manager Sustainable Community Coordinator David Lyons, 563- 564 -7232 Cori Burbach, 563 - 589 -4110 dlyons @cityofdubuque.org cburbach @cityofdubuque.org SUSTAINABLE DUBUQUE viable • livable • equitable Vision Statement Dubuque is a viable, livable, and equitable community. We embrace economic prosperity, social /cultural vibrancy and environmental integrity to create a sustainable legacy for generations to come. www.sustainabledubuque.org ENVIRONMENTAL /ECOLOGICAL INTEGRITY ECONOMIC Equitable SOCIAL /CULTURAL PROSPERITY VIBRANCY Dubuque's 11 Sustainable Principles These principles guide government, business, non - profit, and individual actions in Dubuque. Community planning documents including the Comprehensive Plan, Long -Range Transportation Plan, Comprehensive Economic Development Strategy, and many others are guided by this sustainability framework. Economic Prosperity Regional Economy: Dubuque is a community that values a diversified regional economy with opportunities for new and green markets, jobs, products and services. Smart Energy Use: Dubuque is a community that values energy conservation and expanded use of renewable energy as a means to save money and protect the environment. Smart Resource Use: Dubuque is a community that values the benefits of reducing, reusing and recycling resources. m Community Design: Dubuque is a community that values the built environment of the past, present and future which contributes to its identity, heritage and sense of place. Environmental Integrity Healthy Air: Dubuque is a community that values fresh air, reduced greenhouse gas emissions and minimized health risks. Clean Water: Dubuque is a community that values water as a source of life and seeks to preserve and manage it in all forms. 4t< Native Plants & Animals: Dubuque is a community that values biodiversity through the preservation, restoration and connection of nature and people. Social /Cultural Vibrancy Green Buildings: Dubuque is a community that values a productive and healthy built environment. r--1 Healthy Local Food: Dubuque is a community that values the benefits of wholesome food from local producers, 1 distributors, farms, gardens and hunters. Community Knowledge: Dubuque is a community that values education, empowerment and engagement to achieve economic prosperity, environmental integrity and social /cultural vibrancy. Reasonable Mobility: Dubuque is a community that values safe, reasonable and equitable choices to access live, work and play opportunities. The Beginning After serving 10 years on the City Council, Roy D. Buol S U S T A I N A B L E ran for the office of Mayor in 2005. His platform was based upon "engaging citizens as partners," and what DUBU he heard from thousands of citizens was a consistent theme surrounding water quality, recycling, green viable • livable • equitable space, public transit, cultural vitality, accessibility and downtown revitalization. During the 2006 City Council goal- setting process, Mayor Buol proposed and received full support from his council colleagues to focus on sustainability as a City top priority, stating "cities that get out in front on sustainability will have competitive economic advantages in the future:' What soon became known as Sustainable Dubuque is a City Council adopted, community- created, and citizen -led initiative whose story officially begins in 2006. A City Council priority each year since, we are continually working to expand awareness, create partnerships, and encourage initiatives involving all sectors of our community. Dubuque became an early leader on the sustainability front. Citizen Engagement from the Start Igniting our early efforts was the selection by the American Institute of Architects as one of six cities in the nation to receive a grant for professional analysis and recommendations on creating a sustainable path to the future. The City Council moved immediately to create a city -wide citizen task force, supported by City Staff, to develop a comprehensive definition of what sustainability meant to our community. Aptly named the "Sustainable Dubuque Task Force;'the representation included individuals who brought diverse backgrounds and interests to the process, including local government, schools, utility companies, religious organizations, neighborhood associations, youth organizations, non - profits, environmental organizations and business stakeholders. The group met over the next two years, collecting community -wide input to develop a vision. The process also included presentations to community organizations and businesses to discuss targeted visions and ideas. Additionally, nearly 900 community surveys were completed. The results of these efforts, along with other data collected by the task force, were used to develop the Sustainable Dubuque vision and model which focuses on a balanced approach to life quality and includes "economic prosperity, environmental integrity, and social /cultural vibrancy." The collective desire of our citizens to create value and a legacy of life quality through sustainable practices and programs was defined. An Organized & Collaborative Approach By and For Citizens "Dubuque is a viable, livable, and equitable community. We embrace economic prosperity, environmental integrity, and social/ cultural vibrancy to create a sustainable legacy for generations to come." In order to implement that vision, the task force defined 11 key principles to guide the community's path to a more sustainable future.These include: Regional Economy, Smart Energy Use, Resource Management, Community Design, Green Buildings, Healthy Local Foods, Community Knowledge, Reasonable Mobility, Healthy Air, Clean Water, and Native Plants & Animals. Community Engagement is Occurring Across a Broad Spectrum When the citizen task force brought its final recommendation for Sustainable Dubuque to the City Council in 2008, it came with the support of the private, non - profit, and public sectors, as well as residents because of the grassroots process that had been implemented at the outset. The Sustainable Dubuque framework has become the lens through which city operations are developed and analyzed. Likewise, there are numerous community initiatives active such as Project Hope, Green Vision Schools, and the Petal Project to name a few, along with businesses that are finding ways to save money and improve their environment and their community by implementing the principles that define Sustainable Dubuque. Sustainable Dubuque is the City's Brand Dubuque has established itself as a regional and national leader in its ability to collaboratively partner to achieve community goals. What Dubuque is achieving collectively today through its Sustainable Dubuque model, is the direct result of the knowledge and understanding that sustainability is a balanced approach to long -term life quality. It is a rare approach to life quality where no one in the community is excluded...everyone who wants to do so, can participate and contribute. That is what is unique in Dubuque's abilityto continue to innovate and transform. Most recently, the City of Dubuque and its partners are working to create a replicable model of sustainability for cities under 200,000, where over 40 percent of the US population lives. Sustainable Dubuque is who and what we are; it is our brand; it is our recognizable logo; and it is our future.