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HomeMy WebLinkAboutMoetivations, Inc. - QA Team on Demand Services Agreement QA TEAM ON DEMAND SERVICES AGREEMENT This QA Team on Demand Services Agreement(this"Agreement") is entered into as of January 5, 2020 (the"Effective Date"), by and between the City of Yakima, for the SunComm division, (the"SunComm Division Operations") and Moetivations, Inc., a Colorado corporation(the "Contractor"). The City of Yakima, for the SunComm Division and the Contractor may be referred to herein as a"Party"or the "Parties". RECITALS A. The SunComm Division Operations answers 9-1-1 emergency calls in Yakima, Washington. B. The SunComm Division Operations is establishing QA standards and implementing best practices. C. The CAD system is Spillman, the recording system is Higher Ground, the 9-1-I system is Viper Power 911,and all are housed at the PSAP operated by SunComm Division. D. The SunComm Division Operations desires to hire a QA team, who will report to the SunComm Division Operations Director, Brad Coughenour, to establish standards, use score cards, and provide recommendations,coaching and feedback as directed by the Proposal for Team on Demand attached hereto as Exhibit Av3 (the"Services"). E. The Parties desire that the SunComm Division Operations engage the Contractor to provide QA services. AGREEMENT ACCORDINGLY, in consideration for the recitals and the mutual promises herein, the Parties agree as follows: Services. In accordance with this Agreement, the SunComm Division Operations hereby engages the Contractor, and the Contractor accepts such engagement,to provide the services set forth on the Proposal for Team on Demand attached hereto as Exhibit Av3(the"Services"). The provisions of this Agreement shall control over conflicting provisions in Exhibit Av3. The Contractor shall continue performing the Services until January 4, 2021. The Contractor shall report to the SunComm Division Operations' director, and appropriate assigned delegates. The Contractor QA Team will be provided the nature and type of calls to be graded each month based on the SunComm's Management needs assessments. SunComm will provide the type and nature of the calls and dispatched one month prior to the next month's call evaluation. 1. 2. Payment. 2.1. The SunComm Division Operations shall pay the Contractor for the Services at the monthly rate of$1,304.58. 2.2. If requested by the SunComm Division Operations,the Contractor shall provide additional information related to an invoice, including without limitation information related to time, charges, or description of Services. The SunComm Division Operations shall not be required to pay an invoice until the Contractor supplies such information as is reasonably satisfactory to the SunComm Division Operations. 2.3. Notwithstanding the total time the Contractor spends performing the Services,the total fee payable to the Contractor for the Services shall not exceed $15,655 (the "Total Project Fee"). The Project Fee reflects the amount of work and material costs estimated by the Contractor to complete the Services in their entirety. Prepaid discount allowed;as a credit on annual invoice in the amount of$-782. If not prepaid, prepaid discount is removed,and monthly fee of$1,304.58 is applied.Onsite training may be added anytime during term of contract or during renewal, not to exceed $4,154. Page 1of10 QA TEAM ON DEMAND SERVICES AGREEMENT 2.4. The SunComm Division Operations shall pay a proper renewal invoice within 30 days after the SunComm Division Operations receives the invoice. Any terms and conditions set forth in the invoice shall not be binding on the SunComm Division Operations and shall not modify or add to the terms and conditions hereof. Each invoice shall be in a form acceptable to the SunComm Division Operations. The Contractor is not entitled to additional payment in the event that the Contractor exceeds the estimated hours of work to complete the Services, unless the Parties unanimously agree pursuant to Section 2.6. 2.5. If the Contractor anticipates that the Contractor will exceed the estimated number of hours to complete the Services, then the Contractor shall timely notify the SunComm Division Operations, in writing, detailing the remaining Services, the number of hours anticipated to complete the remaining Services, and the unanticipated use of hours that led to the need for additional hours. The Contractor shall not be entitled to additional payments if, at the sole determination of the SunComm Division Operations, the additional hours are due to the Contractor's mismanagement of the time necessary to complete the Services; however, if the reason additional hours are needed are not the fault of the Contractor, then the Parties may agree to additional compensation.The Parties must agree in writing to any additional payment terms before the SunComm Division Operations pays additional compensation to the Contractor to complete the Services. 3. Renewal Term. This Agreement will automatically renew the Contractor to perform the Services for a succession term of one (1) year (each, a "Renewal Term") following the expiration of the Term for the particular Service, unless either party decides that it does not wish to renew this Agreement or any particular Service hereunder before the expiration of the Initial Term or any Renewal Term, as applicable, by notifying the other party in writing at least 45 days before the completion of the initial Term or Renewal Term, as applicable. Renewal shall not exceed 2 total terms. 3.1. Renewal Agreement is effective January 5, 2021. 45 days prior to renewal, the Contractor may submit an invoice due Net 30 to the SunComm Division Operations for first month of Team on Demand monthly services. Subsequent invoice schedule to follow on the last day of each month for the completed service month. One month fee shall be deemed non-refundable. 4. Information. The SunComm Division Operations shall provide any information in its possession or control that is reasonably requested by the Contractor to enable the Contractor to perform its obligations hereunder. If the Contractor requests information from third-party local governments in the SunComm Division Operations' jurisdiction, the SunComm Division Operations shall make a good faith effort to obtain that information from the third parties. 5. General Performance Standards. 5.1. Except as otherwise set forth in this Agreement, the Contractor shall furnish all the labor, services, materials, and equipment necessary to perform and complete its obligations hereunder. 5.2. The Contractor represents and warrants to the SunComm Division Operations that the following are true and accurate: 5.2.1 The Contractor has or shall acquire the capacity and the professional experience and skill to perform the Services. 5.2.2 The Services will be performed in accordance with the standards of care,skill,and diligence provided by competent professionals who perform services of a similar nature to those specified in this Agreement. 5.2.3 The Services shall be performed in a good and workmanlike manner. Page 2 of 10 QA TEAM ON DEMAND SERVICES AGREEMENT 5.2.4 All information supplied by the Contractor or its agents or subcontractors is and will be truthful and accurate in all material respects,except where the same is based on information provided by the SunComm Division Operations or local governments in the SunComm Division Operations' jurisdiction. 5.2.5 The Contractor has complied and will comply with all applicable laws,regulations, rules, ordinances, or similar directives regarding the Services, including any data privacy laws. 5.3. If competent professionals find that the Contractor's performance of the Services does not meet the standards set forth in this Agreement,the Contractor shall, at the SunComm Division Operations' request, re-perform the Services not meeting this standard without additional compensation and such re- performance shall be in addition to any other rights or remedies the SunComm Division Operations may have. 5.4. The Contractor shall undertake and complete the Services timely to assure their expeditious completion in light of the purposes of this Agreement. If performance of the Services by the Contractor is delayed due to factors beyond the Contractor's reasonable control, or if conditions of the scope or type of Services are expected to change, Contractor shall give timely notice to the SunComm Division Operations of such a delay or change and may receive an equitable adjustment of time and/or compensation, as negotiated and agreed among the Parties. 6. Independent Contractor Status. The Contractor is and will remain a vendor in independent contractor in its relationship to the SunComm Division Operations. IF REQUIRED BY LAW,ALL PAYMENTS MADE TO THE CONTRACTOR HEREUNDER WILL BE REPORTED ON A CALENDAR YEAR BASIS USING IRS FORM 1099. THE SUNCOMM DIVISION OPERATIONS WILL NOT: (I) WITHHOLD FICA (SOCIAL SECURITY AND MEDICARE TAXES) FROM THE CONTRACTOR'S PAYMENTS OR MAKE FICA PAYMENTS ON THE CONTRACTOR'S OR THE CONTRACTOR'S AGENT'S BEHALF,(2) MAKE STATE OR FEDERAL UNEMPLOYMENT COMPENSATION CONTRIBUTIONS OR PAYMENTS ON THE CONTRACTOR'S OR THE CONTRACTOR'S AGENT'S BEHALF, OR(3) WITI-IHOLD STATE OR FEDERAL INCOME TAX FROM THE CONTRACTOR'S PAYMENTS. THE SUNCOMM DIVISION OPERATIONS WILL NOT OBTAIN WORKERS' COMPENSATION OR UNEMPLOYMENT INSURANCE OR ANY OTHER INSURANCE COVERAGE OF ANY KIND ON BEHALF OF THE CONTRACTOR OR THE CONTRACTOR'S AGENTS. 7. Indemnification, Liability and Insurance. 7.1. The Contractor shall defend, indemnify, and hold harmless the SunComm Division Operations and their elected officials, directors, officers, contractors, employees, agents, and consultants from and against any and all claims,demands, losses, liabilities, actions, lawsuits,damages, and expenses, including legal expenses, costs, and attorneys' fees, brought or asserted by any third party arising out of or related to any breach of this Agreement by the Contractor. 7.2. This indemnity coverage shall also cover the SunComm Division Operations'defense costs in the event that the SunComm Division Operations, in its sole discretion,elects to provide its own defense. The SunComm Division Operations retains the right to disapprove counsel, if any, selected by the Contractor to fulfill the foregoing defense indemnity obligation, which right of disapproval shall not be unreasonably exercised. Insurance coverage requirements specified herein shall in no way lessen or limit the liability of the Contractor under the terms of this indemnification obligation. The Contractor shall obtain, at its own expense, any additional insurance that it deems necessary for the SunComm Division Operations' protection in the performance of this Agreement. This defense and indemnification obligation shall survive the expiration or termination of this Agreement. 7.3. EXCEPT WITI-I RESPECT TO THE CONTRACTOR'S INDEMNIFICATION OBLIGATIONS HEREUNDER, NO PARTY SHALL BE LIABLE FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE Page 3 of 10 QA TEAM ON DEMAND SERVICES AGREEMENT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL BE DEEMED A WAIVER OF THE SUNCOMM DIVISION OPERATIONS' PRIVILEGES OR IMMUNITIES. 7.4. Before this Agreement is fully executed by the parties, Contractor shall provide the City with a certificate of insurance as proof of commercial liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) per occurrence combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) general aggregate. The certificate shall clearly state who the provider is,the coverage amount,the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the City of Yakima, its elected and appointed officials, employees and agents as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving notice to the City in accordance with the policy provisions which will be no less than thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A VII or higher in Best's Guide and admitted in the State of Washington. 8. Termination. 8.1. Termination for Breach. Either Party may terminate this Agreement if any other Party commits a material breach of this Agreement, including a breach of a representation or warranty, by giving the breaching Party written notice of termination for breach. The notice of termination for breach must specify the nature of the breach in reasonable detail. This Agreement will terminate if the material breach described in the notice is not cured within 30 days after the notice is given. A termination for breach will be without prejudice to the rights any Party may have against the other Party,whether arising in connection with the breach or otherwise. 8.2. Termination for Convenience. The SunComm Division Operations may terminate this Agreement for convenience by giving the Contractor of such termination 45 days before the effective date of termination. Final invoice will include 45 days turn down services for convenience. Remaining contract fees for prepaid contracts will be refunded less the previously stated 45 days, for any termination for convenience. 8.3. Effect of Termination. Unless agreed otherwise, the Contractor shall provide no further Services in connection with this Agreement after the effective date of termination,and the Contractor shall proceed to cancel all existing orders and contracts that are chargeable to the SunComm Division Operations under this Agreement. The SunComm Division Operations shall have no liability for any Services performed after the effective date of termination. The Contractor shall be entitled to receive compensation in accordance with this Agreement for any satisfactory Services completed prior to the effective date of termination, or such other stop-work date as may be specified in the notice. The SunComm Division Operations shall own all results and proceeds of all the Services performed prior to the effective date of termination, and the Contractor shall deliver the same upon request to the SunComm Division Operations within reasonable amount of time and during turn down time period. The Contractor shall be relieved of liability to the SunComm Division Operations for damages sustained by virtue of any breach of this Agreement by the Contractor. 9. Confidentiality. 9.1. Definition. "Confidential Information"means all information that the SunComm Division Operations discloses to the Contractor that falls within one or more of the following categories: (1) any information identified as confidential by the SunComm Division Operations; (2)any information that falls within the definition of a "trade secret"; (3)any information, including a formula, pattern, compilation, program, device, method technique, or process that (a) derives independent economic value, actual or potential,from not being generally known to,and not being readily ascertainably by proper means by,other persons who can obtain economic value from its disclosure or use and (b) is the subject of efforts that are Page 4 of 10 QA TEAM ON DEMAND SERVICES AGREEMENT reasonable under the circumstances to maintain its secrecy;(4) any information which the Contractor knows or reasonably should know that the SunComm Division Operations is required to keep confidential under a binding obligation with a third party or under law; and (5) all information provided to the Contractor which the Contractor knows or reasonably should know could be detrimental to the interests of the SunComm Division Operations if disclosed or used without authorization, whether or not such information is identified as confidential. All information provided to the Contractor that contains or could be used to derive line counts from a particular carrier shall be considered Confidential Information; except such information that falls into one or more of the categories set forth in Section 9.2 shall not be considered Confidential Information. The Deliverables shall be considered Confidential Information. 9.2. Exceptions. Information that falls into any one or more of the following categories shall not constitute Confidential Information: (1) information that is or becomes part of the public domain through no fault of the Contractor; (2) information that the Contractor can show was known by the Contractor prior to its receipt from the SunComm Division Operations; (3) information that the Contractor can show was independently developed by or for the Contractor without relying on any Confidential Information; (4) information that the Contractor can show was rightfully received from a third party who is not under any obligation to maintain the confidentiality of such information, under circumstances not involving a violation of the rights of the SunComm Division Operations; and (5) information that the SunComm Division Operations is required to disclose under open records request. 9.3. Protection of Confidential Information. Except as otherwise provided or permitted in this Agreement, the Contractor will not do any of the following, directly or indirectly, without the written consent of the SunComm Division Operations:(I)disclose,transfer,or otherwise communicate to any third party any Confidential Information; or (2) use Confidential Information for any purpose. The Contractor will not permit any of its respective agents or employees to take any action prohibited by this Section 9.3. 9.4. Use of Confidential Information. A Contractor may use the SunComm Division Operations' Confidential Information consistent with the purpose and intent of this Agreement and to evaluate the feasibility of additional transactions or a business relationship between the Parties. 9.5. Disclosure by Court Order or Law. The Contractor will not be in breach of the obligations hereunder to the extent that, based upon the advice of counsel, it provides Confidential Information under a court order or discloses Confidential Information as required by law. Before the Contractor discloses Confidential Information under this Section 9.5, it must (except to the extent it is illegal to do any of the following): (I) immediately notify the SunComm Division Operations of the court order or legal requirement; (2)give the SunComm Division Operations a reasonable opportunity to contest or limit the required disclosure; and (3) provide reasonable assistance at the SunComm Division Operations' expense. 9.6. Availability of Injunctive Relief. The unauthorized use or disclosure of Confidential Information would be highly prejudicial to the interests of the SunComm Division Operations and would materially damage the SunComm Division Operations. Therefore, the SunComm Division Operations will be presumed entitled to injunctive relief to protect its Confidential Information against unauthorized disclosure or use in violation of this Agreement.The SunComm Division Operations may obtain injunctive relief without posting a bond (or, if a court determinates that a bond is required, then upon the posting of a nominal bond). 1 10. Notices.Notices to be provided under this Agreement shall be given in writing and either delivered by hand, email, or U.S. Mail to the persons or addresses set forth on Exhibit B. A Party may change its notice person or address by giving written notice to the other Parties. Page 5 of 10 QA TEAM ON DEMAND SERVICES AGREEMENT 11. General Terms. 11.1. Further Assurances. Each Party shall execute all further documents and take all further acts reasonably necessary or appropriate to carrying out the intent of this Agreement. 11.2. Amendments. Amendments to this Agreement may only be made in writing and must be agreed to by all the Parties to be effective. 11.3. Assignability and Subcontracting. The Contractor shall not assign, transfer, or subcontract this Agreement or any obligations hereunder, without first obtaining the written consent of the SunComm Division Operations. Any permitted assignment, transfer, or subcontract shall not relieve the Contractor of its duties and obligations hereunder. 11.4. Audit. The SunComm Division Operations, or any of its duly authorized representatives, shall have reasonable access to any books, documents, papers, or records of the Contractor which are pertinent to the Contractor's performance under this Agreement for the purpose of making an audit, examination,or excerpts.The Contractor shall provide any documentation necessary to prepare all reporting required by the SunComm Division Operations, and shall keep all books, documents, papers and records which are pertinent to the Contractor's performance for a minimum period of two years, or such longer time as may be set forth in any addendums to this Agreement. 11.5. Disputes. This Agreement shall be governed by the internal laws of the State of Washington, without reference to conflict of laws principals. Venue for any civil action relating to this Agreement shall be in state and federal courts located in Yakima County. 11.6. Waiver.The SunComm Division Operations' approval or acceptance of,or payment for, Services shall not be construed as a waiver of any rights or benefits to be provided under this Agreement. No covenant or term of this Agreement shall be deemed to be waived by any Party except in writing signed by a person authorized by that Party, and any waiver of a right shall not be construed to be a waiver of any other right or to be a continuing waiver. 11.7. Non-Appropriation. The financial obligations of the SunComm Division Operations as set forth herein beyond the current fiscal year is contingent upon that Party's legislative body's annual appropriation of funds. Nothing herein shall create a multiple year fiscal obligation. 11.8. Force Majeure. No Party shall be liable for any delay in or failure of performance of any obligation hereunder,nor shall any delay or failure constitute default or give rise to any liability for damages if, and only to the extent that, such delay or failure is caused by an act of God, act of the public enemy, unusually severe weather, fire, flood, epidemic, quarantine, strike, labor dispute or freight embargo, or similar event outside the reasonable control of the non-performing Party, but only to the extent such event was not the result of, or was not aggravated by,the acts or omissions of the non-performing Party. 11.9. Severability. If any term or condition of this Agreement is held to be invalid or unenforceable,then the term or condition may be modified or amended by the court to render it enforceable to the maximum extent permitted; if modification or amendment is not practicable, then the term or condition shall be severed from this Agreement with no effect upon the remaining terms and conditions of this Agreement. 11.10. Third-Party Beneficiaries. The enforcement of this Agreement and all rights of action relating thereto shall be strictly reserved to the Parties. Nothing contained in this Agreement shall give or allow any claims or rights of action whatsoever by any other third person or entity. 11.11. Conflict of Interest. The Contractor shall not offer or provide (and represents that it has not offered or provided)anything of benefit to any the SunComm Division Operations official or employee, Page 6 of 10 QA TEAM ON DEMAND SERVICES AGREEMENT or to any official or employee of any local government located in the SunComm Division Operations' jurisdiction,that would place the official or employee in a position of violating the public trust. 11.12. Survival of Terms and Conditions.Notwithstanding anything herein to the contrary,the Parties understand and agree that the provisions of this Agreement that require continued performance, compliance,or effect beyond the termination date of the Agreement shall survive such termination and shall be enforceable in the event of a failure to perform or comply. 11.13. Liens and Encumbrances. The Contractor shall not have any right or interest in any of the SunComm Division Operations' assets, nor any claim or lien with respect thereto, arising out of this Agreement or the performance of the Services. 11.14. Open Records.The Parties acknowledge that certain material provided or produced under this Agreement may be subject to Open Records Request. 11.15. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission (to which a signed PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. [signature page follows] Page 7 of 10 QA TEAM ON DEMAND SERVICES AGREEMENT The Parties are executing this Agreement to signify their acceptance of all the terms and conditions stated above,to be effective as of the Effective Date, regardless of the date of actual signature. City of Yakima, for SunComm Division. Moetivations, Inc By: aWM By: Name: P-�'f'x 6 '1' ""• �C Name: Maureen Dieckmann Title: �� L 1J! l G Vr!Title: CEO it Date: ) Date: January 5, 2020 CITY CONTRACT NO: 5 RESOLUTION NO: N Page 8 of 10 QA TEAM ON DEMAND SERVICES AGREEMENT EXHIBIT Av3 RENEWAL PDF ATTACHED FOR TEAM ON DEMAND Page 9 of 10 QA TEAM ON DEMAND SERVICES AGREEMENT ExHIBIT B CONTACT INFORMATION If to the City of Yakima, WA City of Yakima, WA for SunComm Division Operations: SunComm Division Operations Attn: Brad Coughenour With a copy to: City Clerk, City of Yakima 129 N. 2nd St. Yakima, WA 98901 (509) 575-6000 If to the Contractor: Moetivations, Inc. Attn: Maureen Dieckmann 10288 W. Chatfield Ave. Suite 306 Littleton, CO 80127 303-993-7850 Page 10 of 10