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HomeMy WebLinkAbout23-280 HomeServe Marketing Agreementf Prepared by: Ron Knoche, Public Works Director, 410 E. Washington St., Iowa City, IA 52240; (319) 356-5138 0! , C� Resolution No. 23-280 Resolution authorizing the Mayor to sign an Agreement by and between the City of Iowa City and Utility Service Partners Private Label, Inc., d/b/a Service Line Warranties of America, to use the City logo for the solicitation of water, sewer, and internal plumbing emergency service plans. Whereas, water and sewer service lines are privately owned underground pipes that connect homes or buildings to the City's public mains; and Whereas, water and sewer service lines also include stop boxes, clean -outs, pipes, tapping saddles, sleeves, connectors, and valves between the public mains and the point of service or building served; and Whereas, property owners may not understand the service lines are privately owned; and Whereas, the cost of repair for service lines is a burden on property owners; and Whereas, staff has proposed a Code update to prohibit the repair, of lead water service lines and require full' replacement of such lines with lead-free materials; and Whereas, the City desires to provide residents with educational information and a means to reduce unexpected costs associated with service line repair; and Whereas, Utility Service Partners Private Label, Inc., d/b/a Service Line Warranties of America ("Company") is endorsed by the National League of Cities and Iowa League of Cities; and Whereas, the City would like to contract with the Company to market and administer optional water, sewer, and internal plumbing emergency service plans and allow the Company to use the City's logo in its solicitations; and Whereas, the solicitation of the Company products will include educational information and recommendations to check other insurance providers; and Whereas, the City will receive funds from the Company for the use of the logo and for property owner participation; and Whereas, the City intends to use these funds to assist homeowners reduce, their exposure to lead; and Whereas, the efforts of the Company will be at no cost to the City. Now, therefore, be it ordained by the City Council of the City of Iowa City, Iowa that: 1. The Agreement attached hereto is in the public interest, and is approved as to form and content. 2. The Mayor is authorized and directed to sign the attached Agreement. 3. The City Manager is authorized to execute amendments to this contract as they may become necessary. Resolution No. 23-280 Page 2 Passed and approved this 3rd day of October , 2023. l r 1) Approved by 1/ Attest: ' ' City Clerk City Attor y's Office (Liz Craig - 09/28/2023) It was moved by Bergus and seconded by Alter the Resolution be adopted, and upon roll call there were: Ayes: x X A x x pwengVmasters\ConsuRAgAoc Nays: Absent: Alter Bergus x Harmsen Taylor Teague Thomas Dunn MARKETING AGREEMENT This MARKETING AGREEMENT ("Agreement") is entered into by and between the City of Iowa City, Iowa ("City"), and Utility Service Partners Private Label, Inc. d/b/a Service Line Warranties of America ("Company"), a Delaware corporation with its principal office in Norwalk, Connecticut, herein collectively referred to singularly as "Party" and collectively as the "Parties". This Agreement shall be effective on the last signature date set forth below ("Effective Date"). RECITALS: WHEREAS, sewer and water line laterals between the mainlines and the connection on residential private property are owned by individual residential property owners residing in the City ("Property Owner"); and WHEREAS, City desires to inform Property Owners of the opportunity, but not the obligation, to purchase a service plan and other similar products set forth in Exhibit A or as otherwise agreed in writing from time -to -time by the Parties (each, a "Product" and collectively, the "Products"); and WHEREAS, Company, a subsidiary of HomeServe USA Corp., is the administrator of the National League of Cities Service Line Warranty Program and desires to make the Products available to Property Owners subject to the terms and conditions contained herein; and WHEREAS, the City utilizes various imagery and logos which constitute the brand image by which the City is known to the public ("Marks"); and WHEREAS, Company wishes to obtain a non-exclusive license for it to use City's logo in connection with Company's business, and the City is willing to grant a non-exclusive license in connection with the Company's business provided that Company agrees to comply with the terms and conditions of this Agreement; and WHEREAS, Company is an independent entity, not an agent or representative of the City, and it is vital to the culture, reputation, and manner of conducting City business that the Company comply with certain policies and standards pursuant to this Agreement; and NOW, THEREFORE, in consideration of the foregoing recitals, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and with the intent to be legally bound hereby, the Parties agree as follows: 1. Purpose. City hereby grants to Company the right to offer and market the Products to Property Owners subject to the terms and conditions herein. 2. City Obligations. Grant of License. City hereby grants to Company a non-exclusive license ("License") to use City's Marks, on marketing materials in accordance with Exhibit A to be sent to Property Owners from time to time, and to be used in advertising (including on the Company's website), all at Company's sole cost and expense and subject to City's prior review and approval, which will not be unreasonably conditioned, delayed, or withheld. Company's use of the Marks in accordance with this Agreement will not infringe any other party's rights. In the event that City extends a similar license to a competitor of Company during the Term and any Renewal Term of this Agreement, the City shall provide thirty (30) days' notice prior to such grant of license and Company may immediately terminate this Agreement. 3. Term. The term of this Agreement ("Initial Term") shall be for Three Years from the Effective Date. The Agreement will automatically renew for additional one (1) year terms (each a "Renewal Term", and collectively with the Initial Term, the "Term") unless one of the Parties gives the other written notice at least thirty (30) days prior to end of the Initial Term or of a Renewal Term that the Party does not intend to renew this Agreement. In the event that Company is in material breach of this Agreement, the City may terminate this Agreement thirty (30) days after giving written notice to Company of such breach, if said breach is not cured during said thirty (30) day period. Beginning with the first renewal term, City may also terminate this Agreement for any reason on ninety (90) days' written notice. Company will be permitted to complete any marketing initiative initiated prior to termination of this Agreement after which time, neither Party will have any further obligations to the other and this Agreement will terminate. Company shall pay License Fees for any partial term prior to any termination of the Agreement. 4. Consideration. A. As consideration for such license, Company will pay to City a License Fee as set forth in Exhibit A ("License Fee") during the Term of this Agreement. The first payment shall be due by January 30th of the year following the conclusion of the first year of the Term. Succeeding License Fee payments shall be made on an annual basis throughout the Term, due and payable on January 30th of the succeeding year. City agrees to provide a completed Form W-9 to Company in order to facilitate proper payment of the License Fee. City will have the right, at its sole expense, to obtain an audit, upon reasonable notice and during normal business hours, of Company's books and records pertaining to any fees due under this Agreement while this Agreement is in effect and for one (1) year after any termination of this Agreement. B. In addition to the License Fees set forth in this Section, Company shall pay City a brand fee (`Brand Fee") as set forth on Exhibit A. Company will pay City Brand Fees within thirty (30) days after the date such Brand Fee becomes payable. 5. Confidentiality. Documents related to this Agreement, including the Agreement, may be regarded as public records and may be subject to disclosure. Protection from disclosure may apply to those documents marked "Trade Secret," Confidential," or "Proprietary" by the Company. The City will not advise as to the nature of the content of the documents entitled to protection to disclosure, or as to the definition of trade secret, confidential, or proprietary information. The Company will be solely responsible for all such determinations made by it, and for clearly and prominently marking each and every page or sheet with the appropriate designation. Company shall not indiscriminately identify most or all documents as protected from disclosure without justification. The City will endeavor to advise Company of any request for the disclosure of material so marked with "Trade Secret," "Confidential," or "Proprietary," and give the Company the opportunity to seek a court order to protect such materials from disclosure. The City's sole responsibility is to notify the Company of the request for disclosure, and the City shall not be liable for any damages resulting out of such disclosure, whether such disclosure is deemed required by law, by an order of court or administrative agency, or occurs through inadvertence, mistake, negligence on the part of the City or their officers, employees, consultants, or subconsultants. 6. Ruling and/or Code Change. If, due to a change in applicable law or regulations or the interpretation thereof by a court of law having jurisdiction subsequent to the date of this Agreement, performance of any provision of this Agreement becomes impracticable or impossible, the Parties shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such provision. Company understands that the City Council will be considering an ordinance change to require lead service line replacement and prohibit the repair of lead service lines. This paragraph shall not apply to any such change in local ordinances, as the replacement of lead service lines is included in the scope of coverage under the terms set forth in Exhibit A. 7. Indemnification and Insurance. The Company shall indemnify, defend and hold harmless the City and its officers, employees, and agents from any and all liability, loss, cost, damage, and expense (including reasonable attorney's fees and court costs) resulting from, arising out of, or incurred by reason of any claims, actions, or suits based upon or alleging bodily injury, including death, or property damage rising out of or resulting from the Company's operations under this Agreement, whether such operations be by the Company or anyone directly or indirectly employed by the Company; provided that City notify Company of any claim for which indemnity is sought within a time that does not prejudice the ability of Company to defend against such claim. Company is not, and shall not be deemed to be, an agent or employee of City. Company shall maintain in full force and effect all commercially reasonable necessary liability insurance coverage for itself. Upon the written request of the City, Company shall furnish the City with a certificate or certificates of insurance evidencing such coverage. Company shall notify City in advance of any termination, cancellation, non -renewal or material modification of any such insurance coverage. 8. Permits and Licenses: Company further agrees to obtain all permits and licenses required by City, state, and federal governments and pay all related fees, in connection with its performance hereunder, including but not limited to obtaining excavation permits for any work done on City right-of-way. Consistent with City's permitting process, Company or its contractor shall send an e-mail notification to the Iowa City Water Division, water@iowa-city.org, with the address of any water service repair, including contact name and phone number for the repair, service line material, work completed or to be completed (repair or replacement). Company shall also comply with all laws, ordinances, rules and regulations of the City, State of Iowa and the Federal Government, in connection with its performance hereunder. 9. Notice. Any notice required to be given hereunder shall be deemed to have been given when notice is (i) received by the Party to whom it is directed by personal service, (ii) sent by electronic mail (provided confinnation of receipt is provided by the receiving Party), or (iii) deposited as registered or certified mail, return receipt requested, with the United States Postal Service, addressed as follows: To: City: ATTN: Water Superintendent City of Iowa City 410 E. Washington Street Iowa City, IA 52240 Email: water@iowa-city.org Phone: (319) 356-5160 To: Company: ATTN: Chief Growth Officer Utility Service Partners Private Label, Inc. 601 Merritt 7, 6th Floor Norwalk, CT 06851 Phone: (866) 974-4801 10. Modifications or Amendments/Eritire Agreement. Except for the list of available Products under the Agreement, which may be amended from time to time by the Parties in writing and without signature, any and all of the representations and obligations of the Parties are contained herein, and no modification, waiver or amendment of this Agreement or of any of its conditions or provisions shall be binding upon a Party unless in writing signed by that Party. Company shall provide each customer that signs up for a Product a copy of the Service Contract detailing the terms and conditions for such Product. Prior to the first campaign mailing, Company shall ensure that all new Service Contracts covering Products being made available to customers hereunder shall include a provision that requires that any repairs under such Service Contract shall be made in accordance with all laws, ordinances, rules, and regulations of the City, State of Iowa and the Federal Government. City's sole remedy for Company's failure to meet its obligation under the preceding sentence shall be to terminate this Agreement upon written notice to Company, delivered no later than ninety (90) days from the expiration of such twelve (12) month period. For any Service Contracts existing as of the date of incorporation of the language described above into new Service Contracts, such language shall apply to the existing Service Contracts upon any renewal thereof. 11. Assignment. Neither Party may assign its rights or delegate its duties under this Agreement without the prior written consent of the other Party unless such assignment or delegation is to an affiliate or to an acquirer of all or substantially all of the business of the transferor. The transferring Party will use commercially reasonable efforts to provide the other Party with 60 days prior written notice of any proposed permitted assignment or delegation, including the name, principal office and place of incorporation of any affiliate, acquirer, assignee or transferee. In the event of a permitted assignment or delegation without consent, the non -assigning Party may terminate this Agreement upon thirty (30) days written notice to the assigning Party and its assignee, which notice must be delivered within sixty (60) days of the effectiveness of the assignment or delegation. Any assignment made in violation of this paragraph shall be void and of no affect. The City does not grant to the Company the right to license, sublicense or authorize others to use its Marks. 12. Counterparts/Electronic Delivery; No Third Party Beneficiary. This Agreement may be executed in counterparts, all such counterparts will constitute the same contract and the signature of any Party to any counterpart will be deemed a signature to, and may be appended to, any other counterpart. Executed copies hereof may be delivered by email and upon receipt will be deemed originals and binding upon the Parties hereto, regardless of whether originals are delivered thereafter. Nothing expressed or implied in this Agreement is intended, or should be construed, to confer upon or give any person or entity not a party to this agreement any third- party beneficiary rights, interests, or remedies under or by reason of any term, provision, condition, undertaking, warranty, representation, or agreement contained in this Agreement. 13. Choice of Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Iowa. Any legal proceeding instituted with respect to this Agreement shall be brought in a court of competent jurisdiction in Johnson County, Iowa. The parties hereto hereby submit to personal jurisdiction therein and irrevocably waive any objection as to venue therein, including any argument that such proceeding has been brought in an inconvenient forum. 14. Incorporation of Recitals and Exhibits. The above Recitals and Exhibit A attached hereto are incorporated by this reference and expressly made part of this Agreement. [Signature Page Follows] IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first written below. CITY OF IOWA CITY Approved By Name: Bruce Teague Title: Mayor O10/03/2023 Ci Attorn s Ce Date: UTILITY SERVICE PARTNERS PRIVATE LABEL, INC. Name: Michael Backus Title: Chief Growth Officer Date: 9/20/2023 Exhibit A NLC Service Line Warranty Program City of Iowa City Term Sheet I. Initial Tenn. Three Years. II. License Fee. During the Tenn, Company will pay City ten percent (10%) of the payments of plan fees actually received from Property Owners during the Term under any plans sold hereunder, net of any discount, rebates, refunds, chargebacks, credits, and sales or similar taxes incurred or paid by Company in connection with such plans. In return, the City will allow the Company: A. Use of City logo and name on advertising and marketing materials, subject to the conditions set forth herein. III. Brand Fee. Company shall pay City $ 30,000.00 spread across the first three years of the Term, as follows: A. Year I - $ 10,000.00 B. Year 2 - $ 10,000.00 C. Year 3 - $ 10,000.00 Payment of the Brand Fee for the first year is subject to the approval and mailing of the first campaign for that year. In subsequent years, payment of the Brand Fee is subject to City's timely approval of all other marketing materials for the prior year and the approval and mailing of the first campaign of the current contract year. IV. Products. A. External water service line plan (initially, $6.75 per month) B. External sewer/septic line plan (initially, $7.75 per month) C. Interior plumbing and drainage plan (initially, $9.99 per month) Pricing does not include taxes. Company may adjust the foregoing Product fees after the first two years of the Initial Term; provided, that any such monthly fee adjustment shall not exceed $0.50 in any 12 -month period. If such adjustment shall exceed $0.50, both Parties must agree in writing. V. Scope of Coverage. A. External water service line plan: i. Work will be done in accordance with all laws, ordinances, rules, and regulations of the City, State of Iowa and the Federal Government. ii. Covers Property Owner responsibility: from the main to the water meter or main shut-off valve inside the home. iii. Covers thawing of frozen external water lines. iv. Covers well service lines if applicable. v. Covers replacement of the entire lead or galvanized iron water service line when lead or galvanized iron is encountered during a covered repair of the water service line. vi. Covers non-functioning stop boxes or shut-off valves that are part of the Property Owners' lines. vii. Restoration to any area disturbed by the Covered Repair is limited to filling, raking, and reseeding of grass, reinstallation of existing soft landscaping and shrubbery, and patching of paved surfaces. Covers pavement restoration associated with service repair or replacement work in accordance with Iowa City laws, ordinances, rules and regulations. B. External sewer/septic line plan: i. Work will be done in accordance with all laws, ordinances, rules, and regulations of the City, State of Iowa and the Federal Government. ii. Covers Property Owner responsibility: From the external wall of the home to the sewer main. iii. Covers septic lines if applicable. iv. Covers replacement of the'entire Orangeburg pipe or bituminous fiber sewer line when Orangeburg pipe or bituminous fiber pipe is encountered during a covered repair of the sewer line. v. Restoration to any area disturbed by the Covered Repair is limited to filling, raking, and reseeding of grass, reinstallation of existing soft landscaping and shrubbery, and patching of paved surfaces. Covers pavement restoration associated with service repair or replacement work in accordance with Iowa City laws, ordinances, rules and regulations. C. Interior plumbing and drainage plan: i. Covers water supply pipes and drainage pipes within the interior of the home. VI. Marketing Campaigns. Company shall have the right to conduct up to three campaigns during the first year (each campaign consists of two mailings) and one campaign per year in years two and three and any Renewal Term. Mailings shall include language instructing recipients to check with their homeowners' insurance for potential coverage and clearly stating that (i) Company is an independent company separate from the City; and (ii). Company shall provide a telephone number for customers to use in order to opt - out of receiving mailings. Company shall offer the interior plumbing and drainage plan Product via in -bound phone or web only.