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HomeMy Public PortalAboutr 23-215Y4,001utiou of #4e Poxoug4 of (fax#ere#, N. 0C No. #23-215 Date of Adoption September 7. 2023 AUTHORIZING THE MAYOR TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH MUNICIPAL SUPPORT SERVICES, LLC BE IT RESOLVED, by the Mayor and Council of the Borough of Carteret that the Mayor and/or the appropriate Borough Officials are hereby authorized to execute a Professional Services Agreement between the Borough of Carteret and Municipal Support Services, LLC with regard to revaluation of all real properties within the Borough. Adopted this Tb day of September, 2023 and certified as a true copy of the original on September 8, 2023. CARMELA POGORZELSKI, RMC Municipal Clerk RECORD OF COUNCIL VOTE COUNCILMAN YES NO NV A.D. COUNCILMAN YES NO NV A.D. BELLINO X JOHAL DIAZ x KRUM DIMASCIO x NAPLES X X- Indicate Vote A➢ - Absent NV - Not Voting XOR- Indicates Vote to Overrule Veto. Adopted at a meeting of the Municipal Council ' Se to e�202 MUNT .TPAT CTRRK i PROFESSIONAL SERVICES AGREEMENT This Professional Services Agreement (the "Agreement"), entered into this day of December, 2023, is by and between Municipal Support Services LLC, a New Jersey Limited Liability Company with a principal place of business at 9 Cannonade Drive, Marlboro, New Jersey 07746 (the "Company") and the Borough of Carteret, a Municipal Corporation of the State of New Jersey located at 100 Cooke Avenue, Carteret, NJ 07008 (the "Borough" and together with the Company, the "Parties" or each individually a "Party"). WHEREAS, the Borough is conducting a revaluation of all real properties located within the boundaries of the Borough for tax assessment purposes and pursuant to an order from the Middlesex County Board of Taxation; and WHEREAS, the Company provides a suite of professional consulting services and proprietary technology products to support municipal governments in the field of real property valuation and tax assessment administration (the "Professional Services"); and WHEREAS, the Borough wishes to engage the Company to provide certain Professional Services, including the completion of a Pre -Revaluation Distribution Analysis (the "PRDA") to determine the potential impact of the Borough's revaluation pertaining to the tax assessments of real properties located within the boundaries of the Borough; NOW THEREFORE, in consideration of the commitments set forth below and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows: This Agreement shall be applicable to any current or future Professional Services provided by the Company to the Borough pursuant to any Statement of Work specifically referencing this Agreement and executed by the Parties (each a "SOW"), and all such SOWS are incorporated into this Agreement by reference. The Company will provide such Professional Services on terms agreed upon by the Parties pursuant to any SOW. 1. PROFESSIONAL SERVICES / FEES The Company shall provide the Professional Services and the Borough shall pay the fees set forth in the December 2023 SOW attached hereto as Appendix A upon the terms contained therein. The Borough shall provide the Company with any mapping, tax assessment or other real property data requested by the Company which is necessary to fulfill its obligations under Appendix A and on any future SOW. 2. CONFIDENTIAL INFORMATION (a) "Confidential Information" refers to any Borough data or documents not publicly available and excludes any information independently developed by the Company without use of or reference to Confidential Information. The Company will not use Confidential Information for any purpose other than to facilitate the fulfillment of its obligations to the Borough under any SOW, or disclose it to any third party, without the written consent of the Borough. The Company shall exercise reasonable care to prevent unauthorized disclosure of Confidential Information (b) Notwithstanding the foregoing, the Company may (i) provide any of its work products produced for the Borough to the Company's current or prospective customers for illustrative purposes, provided that such work products are then publicly available (other than via disclosure by the Company), and if such work products are not publicly available, the Company shall be required to redact any Confidential Information contained therein; and (ii) disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Company shall give the Borough prompt notice of any such legal or governmental demand and reasonably cooperate with the Borough in any effort to seek a protective order or otherwise to contest such required disclosure at Borough's expense. (c) This Agreement does not transfer ownership of Confidential Information or grant a license thereto and the Borough will retain all right, title and interest in and to all Confidential Information. 3. INTELLECTUAL PROPERTY (a) The Company shall retain all right, title and interest in and to the PRDA and all software programs, formulas, processes, databases (other than Confidential Information), designs, symbols and other inventions that the Company creates, conceives, refines or reduces to practice, either alone or jointly with others during its performance under any SOW (collectively "Company Products"), provided that the Borough shall have full and exclusive access to the PRDA upon the terms provided in this Agreement. (b) No Company Products shall be considered "work for hire" pursuant to the U.S. Copyright Act, 17 U.S.C. §§ 101 etseq. or any other applicable law which would confer any right, title or interest in or to the Company Products to the Borough or any third party. (c) To the extent, if any, that the Company does not own full right, title and interest in and to the Company Products pursuant to this Section 3, the Borough hereby assigns to the Company all of its ownership, right, title, and interest in and to all Company Products, including, without limitation: (i) all copyrights, patents, trade secrets, and other intellectual property rights; and (ii) all benefits, privileges, causes of action, and remedies relating to any of the foregoing. 4. REPRESENTATIONS & WARRANTIES Each Party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement, 5. WARRANTY DISCLAIMER THE COMPANY PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY DOES NOT REPRESENT OR WARRANT THAT ANY WORK PERFORMED WILL NOT INFRINGE UPON THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR THAT IT WILL OPERATE OR PERFORM WITHOUT INTERRUPTION OR ERROR. 6. INDEMNIFICATION The Borough shall indemnify, defend, and hold harmless the Company and his/her agents, heirs, successors, and assigns against any "Indemnified Claim," meaning any third -party claim, suit, assessment appeal or other proceeding arising out of or related to Borough's tax assessment or other operations, including without limitation claims related to the operation or failure of any work or products produced by the Company pursuant to any SOW. The Borough's obligations pursuant to this Section 6 include retention and payment of attorneys and payment of court costs, as well as settlement at the Borough's expense and payment of judgments. The Company shall be required to provide prompt notice of any Indemnified Claim and to reasonably cooperate in the defense of any Indemnified Claim. The Borough will control the defense of any indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided that the Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects him to any ongoing affirmative obligations. 7. LIMITATION OF LIABILITY THE COMPANY'S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE TO THE COMPANY PURSUANT TO THE SOW AT ISSUE DURING THE 3 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY OF THE FOLLOWING ARISING OUT OF OR RELATED TO THIS AGREEMENT: LOST TAX REVENUE OR LOSS OF BUSINESS, CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 7 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF THE COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF COMPANY'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 7, THE COMPANY'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. 8. TERM & TERMINATION The term of this Agreement will commence on the date executed by the Parties and continue for the period set forth in any outstanding SOW. Either Party may terminate this Agreement for the other's material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. 9. SURVIVABILITY The following provisions will survive termination or expiration of this Agreement: (a) any obligation of the Borough to pay fees incurred before termination; (b) Sections 2 (Confidential Information), 5 (Warranty Disclaimer), 6 (Indemnification), and 7 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose. 10. INDEPENDENT CONTRACTOR The Company is acting as an independent contractors and shall so represent itself in all regards. 11. NOTICES Notices pursuant to this Agreement shall be sent to the addresses below, or to such others as either Party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (i) actual receipt or (ii) delivery in person or by email or fax with confirmation of receipt, or by certified mail return receipt requested. For the Company: Municipal Support Services LLC ATTN: Alex J. Worth 9 Cannonade Drive Marlboro, NJ 07746 aworth municigal.silppOrt For the Borough: Borough of Carteret ATTN: Borough Clerk 100 Cooke Avenue Carteret, N1 07008 clerl<office@)_S�arteret,riet 12. FORCE MAJEURE No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control. 13. SEVERABILITY & WAIVER To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If any provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its Intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement. 14. APPLICABLE LAW This Agreement will be governed solely by the internal laws of the State of New Jersey, including without limitation applicable federal law, without reference to any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties' rights or duties. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of Middlesex County, New Jersey, This Section 14 governs all claims arising out of or related to this Agreement, including without limitation tort claims. 15. CONSTRUCTION In the event of any conflict among the sections of this Agreement or any attached SOWS, the following order of precedence will govern, with lower numbers governing over higher ones: (1) the main body of this Agreement; and (2) any SOW, with more recent SOWS taking precedence over later ones. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither Party has relied upon any such prior or contemporaneous communications. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument. This Agreement may not be amended except through a written agreement executed by each of the Parties. IN WITNESS THEREOF, the Parties have executed this Agreement as of the date first written above. BOROUGH OF CARTERET (the "Borough") Daniel J. Reim* , Mayor MUNICIPAL SUPPORT SERVICES LLC (the "Company) MW • WITNESS: WITNESS: By: Carmela Pogorze ki.. y: Irin ina, Executive Assistant Borough Clerk APPENDIX A DECEMBER 2023 STATEMENT OF WORK The undersigned have agreed upon the following terms and conditions and executed this December 2023 Statement of Work (the "SOW"� pursuant to the Professional Services Agreement between them dated December � 2023, which is incorporated herein by reference: Professional Services The Company will complete a Pre -Revaluation Distribution Analysis (the "PRDA") of all real property located within the boundaries of the Borough, which shall provide a specialized web - based service enabling the Borough to evaluate the potential impact of property revaluations or reassessments prior to implementation. The PRDA will be presented via a user-friendly dashboard utilizing Geographic Information System (GIS) technology to deliver in-depth analysis on a per property and aggregate basis, in addition to filtering functions providing users with multiple review options. The PRDA supports effective planning, transparency and accountability in decision -making, while enabling the Borough to identify areas of potential public relations impact, including but not limited to instances of property undervaluation/overvaluation which could result in assessment disputes and revisions. The PRDA is based on a proprietary set of algorithms which produce estimated property value ranges. This analysis should not be considered an appraisal or used as a substitute for one and is for consultation purposes only. Delivery Date The PRDA shall be delivered to the Borough's Tax Assessor on or before April 1st, 2024 (the "Delivery Date") and the Company will meet with any Borough personnel, as requested by the Borough, for purposes of presenting the PRDA's methodology and conclusions, to provide training on the PRDA's user interface and to address any questions raised by the Borough. Payment Schedule The Company shall issue an invoice to the Borough in the amount of $8,000 upon the execution of this SOW and a final invoice in the amount of $8,000 on the Delivery Date, each payable within thirty (30) days. The Company agrees to promptly complete and execute any Purchase Orders received from the Borough which are necessary to process and approve such payments. BOROUGH OF CARTERET (the "Borough") DanielJ. Reimjn, Mayor WITNESS: MUNICIPAL SUPPORT SERVICES LLC (the "Company) x J. kN#orth, CEO WITNESS: { / Jj By: Carmela ogogelsb' : Irin ina, Executive Assistant Borough Clerk