2010/09/24 Graffiti Tracker, Inc. FY11 system training services PROFESSIONAL SERVICES AGREEMENT
(Graffiti Tracker Inc.)
THIS AGREEMENT for Professional Services ("Agreement") is made this day of
September 2010 ("Effective Date") by and between the City of Menifee ("City") and Graffiti
Tracker Inc. ("Contractor") (together sometimes referred to the "Parties").
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement,
Consultant shall provide to City graffiti analysis and tracking services for the City as described in
the Scope of Work attached as Exhibit A, and the Fee Schedule attached as Exhibit B and
incorporated herein by reference. Such work shall be provided at the time and place and in the
manner specified in Exhibits A and B. In the event of a conflict in or inconsistency between the
terms of this Agreement and Exhibits A and B, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date
and shall end on June 30, 2011. The term of the Agreement may be otherwise
terminated or extended as provided for in Section 8. The time provided to
Consultant to complete the services required by this Agreement shall not affect
the City's right to terminate the Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required
pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which Consultant is
engaged in the geographical area in which Consultant practices its profession
and to the sole satisfaction of the Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel
to perform services pursuant to Agreement. In the event that City, in its sole
discretion, at any time during the term of this Agreement, desires the
reassignment of any such persons, Consultant shall, immediately upon receiving
notice from City of such desire of City, reassign such person or persons. The
Project Manager for Contractor's services is Timothy M. Kephart. The Project
Manager will be responsible for directing all activities of Contractor.
1.4 Time. Consultant shall devote such time to the performance of services pursuant
to this Agreement as may be reasonably necessary to satisfy Consultant's
obligations hereunder.
1.5 Authorization to Perform Services. The Consultant is not authorized to
perform any services or incur any costs whatsoever under the terms of this
Agreement until receipt of authorization from the Contract Administrator.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed
$5,000 notwithstanding any contrary indications that may be contained in Consultant's proposal,
for services to be performed and reimbursable costs incurred under this Agreement. In the
event of a conflict between this Agreement and Exhibits A and B, regarding the amount of
compensation, this Agreement shall prevail. City shall pay Consultant for services rendered
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pursuant to this Agreement at the time and in the manner set forth herein. The payments
specified below shall be the only payments from City to Consultant for services rendered
pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified
herein. Except as specifically authorized in advance by City, Consultant shall not bill City for
duplicate services performed by more than one person.
2.1 Total Payment. City shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering services pursuant to this
Agreement. City shall make no payment for any extra, further, or additional
service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the
entire Agreement, unless the Agreement is modified in writing prior to the
submission of such an invoice.
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2.2 Reimbursable Expenses. Reimbursable expenses are included within the
maximum amount of the contract.
2.3 Payment of Taxes. Consultant is solely responsible for the payment of
employment taxes incurred under this Agreement and any federal or state taxes.
2.4 Payment upon Termination. In the event that the City or Consultant terminates
this Agreement pursuant to Section 8, the City shall compensate the Consultant
for all outstanding costs and reimbursable expenses incurred for work
satisfactorily completed as of the date of written notice of termination. Consultant
shall maintain adequate logs and timesheets in order to verify costs incurred to
that date.
Section 3. FACILITIES AND EQUIPMENT. Except as otherwise provided, Consultant shall,
at its sole cost and expense, provide all facilities and equipment necessary to perform the
services required by this Agreement. City shall make available to Consultant only physical
facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary
for Consultant's use while consulting with City employees and reviewing records and the
information in possession of the City. The location, quantity, and time of furnishing those
facilities shall be in the sole discretion of City. In no event shall City be required to furnish any
facility that may involve incurring any direct expense, including but not limited to computer, long-
distance telephone or other communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this
Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of
insurance checked below and provide Certificates of Insurance, indicating that Consultant has
obtained or currently maintains insurance that meets the requirements of this section and which
is satisfactory, in all respects, to the City. Consultant shall maintain the insurance policies
required by this section throughout the term of this Agreement. The cost of such insurance shall
be included in the Consultant's compensation. Consultant shall not allow any subcontractor to
commence work on any subcontract until Consultant has obtained all insurance required herein
for the subcontractor(s) and provided evidence thereof to City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
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4.1 Workers' Compensation. Consultant shall, at its sole cost and expense,
maintain Statutory Workers' Compensation Insurance and Employer's Liability
Insurance for any and all persons employed directly or indirectly by Consultant.
The Statutory Workers' Compensation Insurance and Employer's Liability
Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-
insurance program to meet those requirements, but only if the program of self-
insurance complies fully with the provisions of the California Labor Code.
Determination of whether a self-insurance program meets the standards of the
Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance
is provided, shall waive all rights of subrogation against the City and its officers,
officials, employees, and authorized volunteers for loss arising from work
performed under this Agreement.
4.2 Deleted
4.3 Deleted
4.4 All Policies Requirements.
4.4.1 _Acceptability of insurers. All insurance required by this section is to be
placed with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of coverage. Prior to beginning any work under this
Agreement, Consultant shall furnish City with Certificates of Insurance,
and upon request, complete certified copies of all policies, including
complete certified copies of all endorsements. All copies of policies and
certified endorsements shall show the signature of a person authorized by
that insurer to bind coverage on its behalf.
4.4.3 Notice of Reduction in or Cancellation of Coverage. A certified
endorsement shall be attached to all insurance obtained pursuant to this
Agreement stating that coverage shall not be suspended, voided,
canceled by either party, or reduced in coverage or in limits, except after
thirty (30) days' prior written notice by certified, mail, return receipt
requested, has been given to the City. In the event that any coverage
required by this section is reduced, limited, cancelled, or materially
affected in any other manner, Consultant shall provide written notice to
City at Consultant's earliest possible opportunity and in no case later than
ten (10) working days after Consultant is notified of the change in
coverage.
4.4.4 Additional insured; primary insurance. City and its officers,
employees, agents, and authorized volunteers shall be covered as
additional insureds with respect to each of the following: liability arising
out of activities performed by or on behalf of Consultant, including the
insured's general supervision of Consultant; products and completed
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operations of Consultant, as applicable; premises owned, occupied, or
used by Consultant; and automobiles owned, leased, or used by the
Consultant in the course of providing services pursuant to this
Agreement. The coverage shall contain no special limitations on the
scope of protection afforded to City or its officers, employees, agents, or
authorized volunteers.
A certified endorsement must be attached to all policies stating that
coverage is primary insurance with respect to the City and its officers,
officials, employees and volunteers, and that no insurance or self-
insurance maintained by the City shall be called upon to contribute to a
loss under the coverage.
4.4.5 Deductibles and Self-insured Retentions. Consultant shall disclose to
and obtain the approval of City for the self-insured retentions and
deductibles before beginning any of the services or work called for by any
term of this Agreement.
During the period covered by this Agreement, only upon the prior express
written authorization of Contract Administrator, Consultant may increase
such deductibles or self-insured retentions with respect to City, its
officers, employees, agents, and volunteers. The Contract Administrator
may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond
guaranteeing payment of losses and related investigations, claim
administration, and defense expenses that is satisfactory in all respects to
each of them.
4.4.6 Variation. Contract Administrator may approve in writing a variation in
the foregoing insurance requirements, upon a determination that the
coverage, scope, limits, and forms of such insurance are either not
commercially available, or that the City's interests are otherwise fully
protected.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent
and within the time herein required, City may, at its sole option, exercise any of
the following remedies, which are alternatives to other remedies City may have
and are not the exclusive remedy for Consultant's breach:
• Obtain such insurance and deduct and retain the amount of the premiums
for such insurance from any sums due under the Agreement;
• Order Consultant to stop work under this Agreement or withhold any
payment that becomes due to Consultant hereunder, or both stop work and
withhold any payment, until Consultant demonstrates compliance with the
requirements hereof; and/or
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• Terminate this Agreement.
Section 5. INDEMNIFICATION
5.1 Contractor agrees to indemnify, hold harmless and defend City and its respective
officers, employees, volunteers, and agents serving as independent contractors
in the role of City or City officials 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.
5.2 City does not, and shall not, waive any rights that it may possess against
Contractor because of the acceptance by City of any insurance policy or
certificate required pursuant to this Agreement.
5.3 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's covenant
under this section shall survive the termination of this Agreement.
5.4 In the event any claim or action is brought against City related to Contractor's
performance or services rendered under this Agreement, Contractor shall render
any reasonable assistance and cooperation that City might require.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement,
Consultant shall be an independent contractor and shall not be an employee of
City. Contractor shall have no power to incur any debt, obligation or liability on
behalf of Agency or otherwise act on behalf of City as an agent. City shall have
the right to control Consultant only insofar as the results of Consultant's services
rendered pursuant to this Agreement and assignment of personnel pursuant to
Subparagraph 1.3; however, otherwise City shall not have the right to control the
means by which Consultant accomplishes services rendered pursuant to this
Agreement. Notwithstanding any other City, state, or federal policy, rule,
regulation, law, or ordinance to the contrary, Consultant and any of its
employees, agents, and subcontractors providing services under this Agreement
shall not qualify for or become entitled to any compensation, benefit, or any
incident of employment by City, including but not limited to eligibility to enroll in
the California Public Employees Retirement System (PERS) as an employee of
City and entitlement to any contribution to be paid by City for employer
contributions and/or employee contributions for PERS benefits.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this agreement.
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7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall
comply with all applicable local, state and federal laws and regulations applicable
to the performance of the work hereunder.
7.3 Licenses and Permits. Consultant represents and warrants to City that
Consultant and its employees, agents, and any subcontractors have all licenses,
permits, qualifications, and approvals of whatsoever nature which are legally
required to practice their respective professions. Consultant represents and
warrants to City that Consultant and its employees, agents, any subcontractors
shall, at their sole cost and expense, keep in effect at all times during the term or j
this Agreement any licenses, permits, and approvals that are legally required to
practice their respective professions. In addition to the foregoing, Consultant and
any subcontractors shall obtain and maintain during the term of this Agreement
valid Business Licenses from City.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement upon 30 days' written
notice to Consultant.
Consultant may cancel this Agreement upon 30 days' written notice to City and
shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for
services performed to the effective date of termination; City, however, may
condition payment of such compensation upon Consultant delivering to City any
or all documents, photographs, computer software, video and audio tapes, and
other materials provided to Consultant or prepared by or for Consultant or the
City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of
this Agreement beyond that provided for in Subsection 1.1. Any such extension
shall require a written amendment to this Agreement, as provided for herein.
Consultant understands and agrees that, if City grants such an extension, City
shall have no obligation to provide Consultant with compensation beyond the 1
maximum amount provided for in this Agreement. Similarly, unless authorized by J
the Contract Administrator, City shall have no obligation to reimburse Consultant
for any otherwise reimbursable expenses incurred during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed
by all the parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and agree
that this Agreement contemplates personal performance by Consultant and is
based upon a determination of Consultant's unique personal competence,
experience, and specialized personal knowledge. Moreover, a substantial
inducement to City for entering into this Agreement was and is the professional
reputation and competence of Consultant. Consultant may not assign this
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Agreement or any interest therein without the prior written approval of the
Contract Administrator. Consultant shall not subcontract any portion of the
performance contemplated and provided for herein, other than to the
subcontractors noted in the proposal, without prior written approval of the
Contract Administrator. In the event that key personnel leave Consultant's
employ, Consultant shall notify City immediately.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between City and Consultant shall
survive the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of
the terms of this Agreement, City's remedies shall include, but not be limited to, i
any or all of the following:
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8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the pictures, plans, specifications, drawings, reports, design
documents, and any other work product prepared by Consultant pursuant
to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A
not finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work
described in Exhibit A that is unfinished at the time of breach and the
amount that City would have paid Consultant pursuant to Section 2 if
Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data,
maps, models, charts, studies, surveys, photographs, memoranda, plans,
studies, specifications, records, files, or any other documents or materials, in
electronic or any other form that Consultant prepares or obtains pursuant to this
Agreement and that relate to the matters covered hereunder shall be the property
of the City. Consultant hereby agrees to deliver those documents to the City
upon termination of the Agreement. It is understood and agreed that the
documents and other materials, including but not limited to those described
above, prepared pursuant to this Agreement are prepared specifically for the City
and are not necessarily suitable for any future or other use. City and Consultant
agree that, until final approval by City, all data, plans, specifications, reports and
other documents are confidential and will not be released to third parties without
prior written consent of both parties unless required by law.
9.2 Consultant's Books and Records. Consultant shall maintain any and all
ledgers, books of account, invoices, vouchers, canceled checks, and other
records or documents evidencing or relating to charges for services or
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expenditures and disbursements charged to the City under this Agreement for a
minimum of three (3) years, or for any longer period required by law, from the
date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2
of this Agreement requires Consultant to maintain shall be made available for
inspection, audit, and/or copying at any time during regular business hours, upon
oral or written request of, the City. Under California Government Code Section
8546.7, if the amount of public funds expended under this Agreement exceeds
Ten Thousand Dollars ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any
audit of the City, for a period of three (3) years after final payment under the
Agreement. f
Section 10. MISCELLANEOUS PROVISIONS. l
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10.1 Attorneys' Fees. If either party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees,
costs and expenses in addition to any other relief to which that party may be
entitled. The court may set such fees in the same action or in a separate action
brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under
this Agreement, the parties agree that trial of such action shall be vested
exclusively in Riverside County.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision
of this Agreement is invalid, void, or unenforceable, the provisions of this
Agreement not so adjudged shall remain in full force and effect. The invalidity in
whole or in part of any provision of this Agreement shall not void or affect the
validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision
of this Agreement does not constitute a waiver of any other breach of that term or
any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of and shall apply to and bind the successors and assigns of the parties.
10.6 Consultant Representative. All matters under this Agreement shall be handled
for Consultant by Timothy M. Kephart .
10.7 City Contract Administration. This Agreement shall be administered by the
Community Development Director ("Contract Administrator"). All
correspondence shall be directed to or through the Contract Administrator or his
or her designee.
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10.8 Notices. Any written notice to Consultant shall be sent to:
Graffiti Tracker, Inc.
12165 West Center Road, Ste. 80
Omaha, NE 68144
Any written notice to City shall be sent to the Contract Administrator with a copy
to:
City Manager
City of Menifee
29714 Haun Road
Menifee, CA. 92586
10.9 Conflict of Interest. Contractor covenant 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.
10.10 Integration. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibit A, attached hereto and incorporated herein and
Exhibit B represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations, representations, or
agreements, either written or oral.
10.11 Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be an original and all of which together shall constitute one
agreement.
The Parties have executed this Agreement as of the Effective-Date.
CITY OF MENIFEE CO UL A `
1,
Steph4n Harding, Citpr,Manager Timothy M. Kephart, (Title) Q =J
Attest:
Kathy Bennett, City Clerk
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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, 2010 and
ending June 30, 2011 will be an amount not to exceed $5,000.00 based an average of 400
incidents of graffiti per month.
Effective upon the signing of this contract, an invoice for the amount of $5,000.00 will be
submitted by the Contractor to the Contract Administrator. Payment should be processed and
received no later then 30 calendar days from the date invoice was submitted.
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.
s