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HomeMy WebLinkAboutGraffiti Tracker, Inc. - Professional Service AgreementPROFESSIONAL SERVICES AGREEMENT (City of Yakima and Graffiti Tracker Inc.) THIS PROFESSIONAL SERVICES AGREEMENT is made on January 1, 2021. by and between the City of Yakima, ("Agency"), and Graffiti Tracker Inc. ("Contractor"). RECITALS Agency has determined that it requires professional services from a Contractor to provide graffiti analysis and tracking services for the Agency. Agency desires to retain the Contractor as an independent contractor to provide such services on an as - needed basis. The Contractor represents that it is fully qualified to perform such services by virtue of its experience and the training, education, and expertise of its principals and employees. NOW, THEREFORE, in consideration of the performance by the parties of the promises, covenants, and conditions herein contained. the parties hereto agree as follows: 1 Contractor's services 1.1. Scope and Level of Services. The nature, scope. and level of the specific services to be performed by Contractor are provided in Exhibit A, attached to this Agreement and incorporated herein as though described in full. Agency is retaining Contractor for the specified services pursuant to this Agreement on an exclusive basis and will not retain other professionals to perform similar service. 1.2. Time of Performance. The services shall begin immediately upon full execution of this Agreement by both parties. The services shall be performed in a timely manner and regularly in accordance with the methodology of the Project Manager. 1.3. Standard of Care. As a material inducement to Agency to enter into this Agreement, the Contractor hereby represents and warrants that it has the professional expertise and experience necessary to undertake the services to be provided herein. 1.4. Compliance with Law. All services rendered hereunder by Contractor shall be provided according to all ordinances, resolutions, statutes, rules, and regulations of the Agency and any federal, state, or local governmental Agency having jurisdiction in effect at the time the service is rendcrec. 2. Representatives. 2.1. Project Manager. The Project Manager for the services required under this Agreement is hereby designated as Timothy M. Kephart, who shall be the representative of the Contractor authorized to act on its behalf vvith respect to the services specified herein. It is expressly understood that the experience, knowledge, capability, and reputation of the foregoing Project Manager were a substantial inducement for the Agency to enter into this Agreement. Therefore, the foregoing Project Manager shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to supervise the services hereunder personally. The Contractor may not change the foregoing Project Manager without the express written prior approval of the Agency. - 1 - 2.2. Contract Administrator. The Contract Administrator and Agency's representative shall be Detective Cali Saldana or in her absence_ an individual designated in writing by the Contract Administrator in her sole discretion. It shall be Contractor's responsibility to assure that the Contract Administrator is kept informed of the progress of the services' performance, and Contractor shall refer any decisions that must be made by Agency to the Contract Administrator. Unless otherwise specified herein, any approval of the Agency required hereunder shall mean the approval of the Contract Administrator. 3. Term of Agreement. The services shall begin immediately upon full execution of this Agreement by both parties and shall remain in effect for a term of l2months. The Agreement may be renewed annually for up to four (4) additional 12 month terms, in accordance with the provisions in Section 5, below. 4. Compensation. 4.1. In consideration for the services to be performed by Contractor, Agency agrees to pay Contractor at the following rates: 4.1.1. Agency is Tier 1 as set forth in the Fee Tier in Exhibit B. 4.1.2. Agency agrees to pay $15,000.00 annuall) 4.2. The Contractor shall be paid within thirty (30) calendar days from receipt of the initial invoice. 4.3. A late payment fee of 10% of the amount past due will be added to past due invoices over thirty (30) days delinquent. 4.4. Agency agrees to compensate the Contractor for its services according to the fee and payment schedule set forth in Exhibit B. attached hereto_ and incorporated herein as though set forth in full. 4.5. If the total monthly incidents exceed the amount initially identified for Tier I users in this Agreement. the Contractor reserves the right to charge the Agency on a per -incident basis for each incident that exceeds the Tier 1 maximum incident number or move the Agency into the next Tier. as provided in Exhibit B. 5. Renewal. 5.1. Agency agrees to notify the Contractor, in writing, no less than sixty (60) days before the end of each contract term. of Agency's intent to renew the Agreement for an additional term so that there will be no lapse in services rendered. 5.2. Agency agrees to notify the Contractor, in writing, no less than ninety (90) days before the end of the then current contract term, of Agency's intent to terminate the Agreement. If proper notice is not given, Agency agrees to compensate Contractor for all services rendered beyond the then current term of the Agreement on a pro-rata basis from the date sufficient notice is given until actual termination of the Agreement. 6. Termination. 6.1. In the event this Agreement is terminated by Agency prior to the end of the term set forth in Section 3. a termination fee of 50% of the remaining contract price will be paid to the Contractor upon termination. Agency will notify the Contractor of termination in writing in accordance with subsection 5.2_ above. 6.2. In the event this Agreement is terminated by Agency, Contractor shall be paid for services satisfactorily rendered to the last working day this Agreement is in effect and Contractor shall have no other claim against Agency by reason of such termination, with the exception of the termination fee set forth in subsection 6.1. 6.3. In the event that the contract has been paid in full prior to Agency's terminabon, the amount paid will subject to the terms of subsection 6.1 and the balance shall be refunded to the Agency, 6.4. The Contractor shall have the right to terminate this Agreement if the Agency fails to compensate Contractor for services rendered. The Contractor may terminate the Agreement up providing sixty (60) calendar days written notice to Agency of the intent to terminate. Contractor shall be paid for services satisfactorily rendered to the last working day this Agreement is in effect prior to the date of termination. 7. Notices. Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand during receiving party's regular business hours or is sent by facsimile transmitted before or during receiving party's regular business hours: or (b) on the second business day following deposit in the United States mail, postage prepaid. to the addresses heretofore below, or such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section. Agency: City of Yakima c/o Yakima Police Department 129 North Second Street Yakima, WA 98901 Contractor: Graffiti Tracker Inc. 3780 Kilroy Airport Way, Suite 200 Long Beach, CA 90806 S. Ownership of Work Product. All reports, documents, or other written material developed by the Contractor in the performance of this Agreement shall be and remain the property of the Agency without restriction or limitation upon its use or dissemination by Agency. 8.1. All reports, documents, data, analysis, or other material developed by the Contractor for the Agency shall be accessible to the Agency via login to the Graffiti Tracker system. Such accessibility shall remain in effect beyond the contract term in perpetuitv. 8.2. If the Agency requests the raw data files (uploaded photos) in any digital form other than the accessibility set forth in subsection 8.1. the Agency must submit such a request in writing to the Contractor. Upon such a request, the Agency will pay a fee often (10) percent of the annual contract price multiplied by the number of years of requested data. 9. Intellectual Property. The Contractor will retain exclusive interest in and ownership of its Intellectual Property rights in and to the Software used as a part of this Agreement and expressly reserves all rights thereto not expressly granted under this Agreement. 10. Patents. Agency acknowledges that the Contractor holds the provisional patent rights to die - 3 - intellectual property that makes up the Software and will in no way attempt to duplicate the Software in whole or in part. Standard of Performance. The Contractor shall perform all work to the highest professional standards and in a manner reasonably satisfactory to the Agency. The Contractor hereby covenants that it shall follow the highest professional standards in performing all services required and provided hereunder. 11. Status as Independent Contractor. The Contractor is, and shall at all times remain, as to the Agency, a wholly independent contractor. The Contractor shall have no power to incur any debt, obligation, or liability on behalf of the Agency or otherwise act on behalf of the Agency as an agent. Neither Agency nor any of its agents shall have control over the conduct of Contractor or any of Contractor- s employees, except as set forth in this Agreement. Contractor shall not, at any time, or in any manner. represent that it or any of its agents or employees are, in any way, employees of Agency. Contractor agrees to pay all required taxes on amounts paid to Contractor under this Agreement, and to defend, indemnify and hold Agency harmless from any and all taxes, assessments, penalties, and interest asserted against Agency by reason of the independent contractor relationship created by this Agreement. The Contractor shall fully comply with the workers' compensation law regarding the Contractor and Contractor's employees. The Contractor further agrees to defend, indemnify. and hold Agency harmless from any failure of Contractor to comply with applicable workers' compensation laws. Agency shall have the right to offset against the amount of any fees due to Contractor under this Agreement any amount due to Agency from Contractor as a result of Contractor's failure to promptly pay to Agency any reimbursement, defense, or indemnification arising under this section. 12. Assignment. Contractor shall not voluntarily or by operation of law assign, transfer, sublet, or encumber all or any part of Contractor's interest in this Agreement without Agency's prior written consent. Any attempted assignment, transfer, subletting, or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of Agency's consent, no subletting or assignment shall release Contractor of Contractor's obligation to perform all other obligations to be performed by Contractor hereunder for the term of this Agreement. 13. Confidentiality. Agency agrees not to use any intellectual property or information related to the Graffiti Tracker system for the development or competition of another Graffiti Tracker system. Upon request and payment to Contractor the appropriate compensation, all Agency raw data shall be returned to Agency upon the termination of this Agreement. The Contractor's covenant under this section shall survive the termination of this Agreement. 14. Conflict of Interest. Contractor covenants that it presently has no interest and shall not acquire an' interest, direct or indirect, which may be affected by the services to be performed by Contractor under this Agreement, or which would conflict in any manner with the performance of its services hereunder 15. Indemnification and Hold Harmless. Contractor agrees to defend, indemnify, hold free and harmless the Agency, its elected and appointed officials, officers, agents, and employees, at Contractor's sole expense, from and against any and all claims, demands, actions, suits or other legal proceedings brought against the Agency, their respective elected and appointed officials, officers, agents and employees arising out of the performance of the Contractor, its employees, and/or authorized subcontractors, of the work undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the Contractor, its employees, and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of the Contractor, its employees, arid/or authorized subcontractors, and/or whenever any claim, action. complaint or suit asserts liability against the Agency, their respective elected and appointed officials, officers, agents and employees based upon the work performed by the Contractor, its employees, and/or authorized subcontractors under this Agreement, whether or not the Contractor, its employees, ancUor authorized subcontractors are specifically named or otherwise asserted to be liable. Notwithstanding the foregoing, the Contractor shall not be liable for the defense or indemnification of - 4 - the Agency for claims, actions, complaints, or suits arising out of the sole active negligence or willful misconduct of the Agency. This provision shall supersede and replace all other indemnity provisions contained either in the Agency's specifications or Contractor's Proposal, which shall be of no force and effect. 16. Cooperation. In the event any claim or action is brought against Agency relating to Contractor's performance or services rendered under this Agreement, the Contractor shall render anv reasonable assistance and cooperation that the Agency might require. 17. Nondiscrimination and Equal Employment Opportunity. Iri the performance of this Agreement. the Contractor shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, marital status, national origin, ancestry, age. physical or mental handicap, medical condition or sexual orientation. The Contractor will take affirmative action to ensure that employees are treated without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. 18. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Washington without giving effect to that body °flaws pertaining to conflict °flaws. In the event of anv legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Yakima County, Washington. The Contractor agrees to submit to the personal jurisdiction of such court in the event of such action. 19. Compliance with Laws/Licenses. The Contractor shall comply with all applicable laws, ordinances. codes. and regulations of the federal, state, and local governments. The Contractor shall obtain and maintain all necessary professional licenses for providing the services described in this Agreement. 20. Non -Waiver of Terms, Rights, and Remedies. A waiver by either party of anv one or more of the conditions of performance under this Agreement shall not be a waiver of anv other condition of performance under this Agreement. In no event shall the making by Agency of any payment to Contractor constitute or be construed as a waiver by Agency of any breach of covenant, or any default which may then exist on the part of Contractor, and the making of any such payment by Agency shall in no way impair or prejudice any right or remedy available to Agency with regard to such breach or default. 21. Arbitration. Any dispute, claim, or arbitration conducted by a single arbitrator shall settle the controversy between the parties relating to or arising out of the interpretation or performance of this Agreement. The arbitration shall take place in the County of Yakima in the State of Washington. The arbitrator shall decide the issues presented applying this Agreement and the laws of Washington, other than such laws, rules, regulations, and case law that would result in the application of the laws of a jurisdiction other than Washington. The award of the arbitrator shall be in writing. shall be final and binding upon the parties and shall not be appealed from or contested in any court. The arbitrator shall have the authority to award any remedy or relief that a court of the State of Washington could order or grant, including, without limitation, specific performance of any obligation created under this Agreement, the issuance of an injunction, or the imposition of sanctions for abuse or frustration of the arbitration process. The parties shall equally bear any and all costs that are unique to the arbitral forum. No party shall, in connection with any proceedings held pursuant to this paragraph, be required to furnish any bond, unless required by law. Should either party fail to appear or be represented at the arbitration proceedings after due notice in accordance with the rules, then the arbitrator may nevertheless render a decision in the absence of said party and such decision shall have the same force and effect as if the absent party had been present, whether or not it shall be adverse to the interests of said party. Any award rendered hereunder may be entered for enforcement, if necessary, in any court of competent jurisdiction. 22. Insurance. A. At all times during performance of the Services, Contractor shall secure and maintain in effect insurance to protect the Agency and its elected and appointed officials, officers employees and agents from and against all claims, damages, losses, and expenses arising out of or resulting from tnt performance of this Contract. Contractor shall provide and maintain in force insurance in limits no less than that stated below. as applicable. The Agency reserves the right to require higher limits should it deem it necessary in the best interest of the public. B. Commercial General Liability Insurance. Before this Contract is fully executed by the parties. Contractor shall provide the Agency with a certificate of insurance as proof of commercial liability insurance and commercial umbrella liability insurance with a total minimum liability limit of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) general aggregate (per project). The policy shall include employers liability (Washington Stop Gap), 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 Contract. The policy shall name the Agency (City of Yakima), its elected officials, officers, agents, employees. and volunteers as additional insureds. 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. C. Professional Liability Coverage. Before this Contract is fully executed by the parties. Contractor shall provide the Agency with a certificate of insurance as proof of professional liability coverage with a total minimum liability limit of Two Million Dollars ($2,000,000.00) per claim combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) 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. The insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guide. If the policy is written on a claims made basis the coverage will continue in force for an additional two years after the completion of this contract. Attorney's Fees. If either party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit. including reasonable attorney's fees. The venue for any litigation shall be Yakima County, Washington. In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted this Agreement or who drafted that portion of the Agreement. 24. Exhibits; Precedence. All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provision of any Exhibit or document incorporated herein reference, the provisions of this Agreement shall prevail. 25. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms. provisions, covenants. and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants, and restrictions without including any of such that may be hereafter declared invalid, illegal, void. orunenforceable. - 6 - . Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached i'xhibitsthe terms set forth in this Agreement shall prevail. If, and to the extent, this Agreement Incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference. this Agreement shall govern over the document referenced. 27. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 28. No Third -Party Beneficiary Rights. This Agreement is entered into for the sole benefit of Agenc. and Contractor, and no other parties are intended to be direct or incidental beneficiaries of this Agreement, and no third party shall have any right in, under, or to this Agreement. 29, Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain, or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 30, Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement. this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shalt be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 31, Amendments. Only a wnnng executea ay the parties nercto or tneir respecuve successors an(.4 assigns may amend this Agreement. 32. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference. represents the entire and integrated agreement between Agency and Contractor. This Agreement supersedes all prior oral or written negotiations, representations, or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in writing signed by the parties which expressly refers to this Agreement 33. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above "Agency" ATFEST: f Yakima City Clerk - 7 - Bv: Robert Harrison. City CITY CONTRACT NO; RESOLUTION NO: oo3 'Contract Timothy M. Kephart IBIT A SCOPE OF SERVICES This Agreement constitutes a lease for access to the Graffiti Tracker (GT) System. Permission trom tne Contract Administrator will be required for anyone to have access to this system. Upon permission Deini. granted for access to the system, a username and password will be given to those individuals, and tnev will be granted an "Operator" level access to the GT System. This lease will be in effect for the duration of the Agreement. Both parties agree to the foliowint 1. Agency. Graffiti data will be uploaded to the GT System daily by the Agency's personnel 2. Contractor. Contractor shall perform the following services for the Agency: a. Tracking Services i. Provide access to the GT System for all designated personnel of the Agency, twenty-four hours a day, seven days a week. until the contractends. ii. Establish graffiti tracking protocols for the Agency. iii. The Contractor will be responsible for analyzing all of that data and making the results of that analysis available to the GT System. b. Trainint: i. Train personnel on how to upload graffiti data to the GT web -based application (the GT System). Provide training to all designated personnel (Agency s ' /law enforcement/District Attornev's Office) on how to utilize the GT System iii. Train designated personnel on how to use the G ti Tracker mobile application The Contractor will not be required to perform analysis/consultation work on the following holidays: Ja.nuary 1 (New Year's Day) the third Monday in January (Dr. Martin Luther King Jr. Day) The third Monday in February (Presidcnt's Day) March 31 (Cesar Chavez Day) The last Monday in May (Memorial Day) July 4 (Independence Dav) The first Monday in September (Labor Day) November 11 (Veteran's Day) The fourth Thursday in November (Thanksgiving Day) December 25 (Christmas Day) - Tier 1 Tier 2 E IT F FEES Contractor's F Tier Up to 600 incidents analyzed per month $15,000.00 Annually $7,500.00 Biannually Up to 800 incidents alyzed per month $20,000.00 ually $10,000.00 Bi nually Any uplo. I s in excess of the Tier set fo in Subsection 4.1.1 of the Agreement will be billed at $2.00 ,er incident.