2009/09/01 Graffiti Tracker, Inc. System training services PROFESSIONAL SERVICES AGREEMENT
(City of Menifee and Graffiti Tracker Inc.)
THIS PROFESSIONAL SERVICES AGREEMENT is made as of September 1, 2009
by and between the City of Menifee, ("Agency"), and Graffiti Tracker Inc. ("Contractor").
RECITALS
1. Agency has determined that it requires professional services from a Contractor to provide
graffiti analysis and tracking services for the Agency.
2. Agency desires to retain Contractor as an independent contractor to provide such services
on an as needed basis.
3. 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 performance by the parties of the promises,
covenants, and conditions herein contained,the parties hereto agree as follows:
1. Contractor's Services.
a. Scope and Level of Services. The nature, scope, and level of the specific services
to be performed by Contractor are as set forth in Exhibit A, attached to this
Agreement and incorporated herein as though set forth in full. Agency is
retaining Contractor pursuant to this Agreement on a non-exclusive basis and
reserves the right to retain other professionals to perform similar service if
Agency determines such services are needed.
b. Time of Performance. The services shall be performed in a timely manner and on
a regular basis in accordance with the written instruction of the Contract
Administrator. Time is of the essence in the performance of this Agreement.
2. Standard of Care. As a material inducement to Agency to enter into this Agreement,
Contractor hereby represents and warrants that it has the professional expertise and
experience necessary to undertake the services to be provided herein.
3. Compliance with Law. All services rendered hereunder by Contractor shall be provided
in accordance with all ordinances, resolutions, statutes, rules, and regulations of Agency
and any federal, state or local governmental agency having jurisdiction in effect at the
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time service is rendered.
4. Term of Agreement. This Agreement is effective on the date set forth in the initial
paragraph of this Agreement and shall remain in effect for a period of 12 months, unless
earlier terminated pursuant to Section 15.
5. Compensation. Agency agrees to compensate 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. In no event shall the total compensation and costs
payable to Contractor under this Agreement exceed the sum of$3,000 unless specifically
approved by the City Council. Agency agrees that services may not begin until first
payment is received.
6. Ownership of Work Product. All reports, documents or other written material
developed by Consultant in the performance of this Agreement shall be and remain the
property of Agency without restriction or limitation upon its use or dissemination by
Agency.
7. Representatives.
a. 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 Contractor authorized to act in its behalf with 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 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 personally
supervise the services hereunder. Contractor may not change the foregoing
Project Manager without the express written approval of Agency.
b. Contract Administrator. The Contract Administrator and Agency's representative
shall be the Assistant City Manager, or in his/her absence, an individual
designated in writing by the Contract Administrator. It shall be Contractor's
responsibility to assure that the Contract Administrator is kept informed of the
progress of the performance of the services, and Contractor shall refer any
decisions that must be made by Agency to the Contract Administrator. Unless
otherwise specified herein, any approval of Agency required hereunder shall
mean the approval of the Contract Administrator.
8. Standard of Performance. Contractor shall perform all work to the highest professional
standards and in a manner reasonably satisfactory to Agency. Contractor hereby
covenants that it shall follow the highest professional standards in performing all services
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required hereunder.
9. Status as Independent Contractor. Contractor is, and shall at all times remain as to
Agency, a wholly independent contractor. Contractor shall have no power to incur any
debt, obligation, or liability on behalf of Agency or otherwise act on behalf of 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 manner, employees of Agency. Contractor agrees to pay all
required taxes on amounts paid to Contractor under this Agreement, and to 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. Contractor shall fully comply with the workers' compensation law
regarding Contractor and Contractor's employees. Contractor further agrees to
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 or indemnification arising under this section.
10. Confidentiality. Agency agrees not to use any intellectual property or information
related to the Graffiti Tracker system for purposes of development or competition of
another Graffiti Tracker system. Upon request, all Agency data shall be returned to
Agency upon the termination of this Agreement. Contractor's covenant under this section
shall survive the termination of this Agreement.
11. Conflict of Interest. Contractor covenants that it presently has no interest and shall not
acquire any 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.
12.Indemnification. Contractor agrees to indemnify, hold harmless and defend Agency and
their respective officers, employees, volunteers, and agents serving as independent
contractors in the role of Agency or Agency officials, (collectively, "Indemnity"), from
any claim, demand, damage, liability, loss, cost or expense, for any damage whatsoever,
including but not limited to death or injury to any person and injury to any property,
resulting from willful misconduct, negligent acts, errors or omissions of Contractor or
any of its officers, employees, or agents.
a. Agency does not, and shall not, waive any rights that it may possess against
Contractor because of the acceptance by Agency, or the deposit with Agency, of
any insurance policy or certificate required pursuant to this Agreement.
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b. This hold harmless, indemnification and defense provision shall apply regardless
of whether or not any insurance policies are determined to be applicable to the
claim, demand, damage, liability, loss, cost or expense. Contractor agrees that
Contractor's covenant under this section shall survive the termination of this
Agreement.
13. Cooperation. In the event any claim or action is brought against Agency relating to
Contractor's performance or services rendered under this Agreement, Contractor shall
render any reasonable assistance and cooperation that Agency might require.
14. Termination.
a. Agency shall have the right to terminate the services of Contractor at any time for
any reason on thirty (30) calendar days written notice to Contractor. 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, including any claim for compensation.
b. Contractor shall have the right to terminate this Agreement at any time for any
reason on thirty (30) calendar days written notice to Agency, and Contractor shall
be paid for services satisfactorily rendered to the last working day this Agreement
is in effect.
15.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 by facsimile 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 to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
Agency:
City of Menifee
29714 Haun Drive
Menifee, CA 92586
Contractor:
Graffiti Tracker Inc.
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12165 West Center Road, Suite 80
Omaha,NE 68144
16. Nondiscrimination and Equal Employment Opportunity. In the performance of this
Agreement, 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. 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.
17. Assignability; Subcontracting. Contractor shall not assign, transfer, or subcontract any
interest in this Agreement or the performance of any of Contractor's obligations
hereunder, without the prior written consent of Agency, and any attempt by Contractor to
so assign,transfer, or subcontract any rights, duties, or obligations arising hereunder shall
be void and of no effect.
18. Compliance with Licenses. Contractor shall obtain and maintain all necessary
professional licenses for providing the services outlined in this Agreement.
19.Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or
more of the conditions of performance under this Agreement shall not be a waiver of any
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.
20. Attorney's Fees. In the event that either parry 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 Los Angeles
County. 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 parry who causes the
uncertainty to exist or against the party who drafted this Agreement or who drafted that
portion of the Agreement.
21. 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 by reference,the provisions of this Agreement shall prevail.
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22. 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 a writing signed by the parties which expressly refers
to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
"Agency"
ATTEST: City of M ifee
By: By: Q
City Clerk L
M ager
By:
City Attorney
"Contractor"
By
Timothy M. Kephart
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EXHIBIT A
SCOPE OF SERVICES
Contractor shall perform the following services for the City of Menifee:
Responsibilities
1. Train designated personnel on how to use GPS cameras.
2. Establish graffiti tracking protocols.
3. Train personnel on how to upload graffiti data to the Graffiti Analysis Intelligence
Tracking System (GAITS).
4. Provide access to GAITS to all designated personnel twenty-four hours a day, seven days
a week until contract ends.
5. On a daily basis, graffiti data will be uploaded to the GAITS system from the City of
1Menifee staff. Graffiti Tracker Inc. will be responsible for analyzing all of that data and
making the results of that analysis available to the GAITS system.
6. Provide training to all designated personnel (Agency staff/law enforcement/District
Attorney's Office) on how to utilize the GAITS system.
This contract constitutes a lease for access to the Graffiti Analysis Intelligence Tracking System
(GAITS). Permission from the Contract Administrator will be required for anyone to have
access to this system. Upon permission being granted for access to the system, a username and
password will be given to those individuals and they will be granted an "Operator" level access
to the GAITS system. This lease will be in effect for the duration of the contract.
EXHIBIT B
SCHEDULE OF FEES
Contractor will not be required to work on the following ten holidays:
1. January 1 (New Year's Day)
2. The third Monday in January (Dr. Martin Luther King Jr. Day)
3. The third Monday in February (President's Day)
4. March 31 st(Cesar Chavez Day)
5. The last Monday in May (Memorial Day)
6. July 4 (Independence Day)
7. The first Monday in September(Labor Day)
8. November 11 (Veteran's Day)
9. The fourth Thursday in November(Thanksgiving Day)
10. December 25 (Christmas Day)
The total contract amount for the twelve-month time period commencing September 1, 2009 and
ending August 31, 2010 will be an amount not to exceed $3,000 based on the volume of
photographs taken by the graffiti abatement crews and equipment costs.
Effective upon the signing of this contract, an invoice for the amount of$3,000 will be submitted
by the Contractor to the Contract Administrator. A second invoice will be submitted for
equipment. Payment should be processed and received no later then 30 calendar days from the
date invoice was submitted.
Equipment fees will also be included with the first invoice. The City of Menifee has requested a
total of two (2) digital, GPS camera packages. Each digital, GPS camera package will be priced
at $1,300.00 a piece, plus tax. Each package includes:
One (1) digital, GPS camera
One (1) Bluetooth device
One (1) SD memory card
Two (2) camera batteries
One (1) battery charger
It is recommended that each graffiti abatement crew be equipped with one (1) camera. Services
will commence once equipment has been purchased and first invoice paid.
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