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FD TRAKiT Land Management Software ConsultantAGREEMENT FOR PROFESSIONAL SERVICES This Agreement is made and entered into this n day of ....L.l.......,.'-2018, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and Deborah Yacobellis, an individual (hereinafter "CONSULTANT"). RECITALS WH EREAS. the CITY has detemlined that professional support services are required for TRAKiT Land Management Software ("TRAKiT") provided by Superion, LLC on an occasional basis to assist with the Prevention Division use ofTRAKiT permit software; and WHEREAS, CONSULT ANT has special training and experience in the use, management, and training on TRAKiT; and WHEREAS, the CITY has extensively utilized and continues to depend on the services of CONSULTANT in both the Community Development and Public Works Departments in the area of support services for TRAKiT; and. WH EREAS, the CONSULTANT has agreed to render such additional services; AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: I. PROJECT COORDINATION. A. CITY'S 'Project Manager. The Deputy Fire Chief is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONSULTANT'S Project Director. CONSULTANT shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONSULTANT. Deborah Yacobellis is hereby designated as the PROJECT DIRECTOR for CONSULTANT. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR. for any reason. the CONSULTANT shall notify the CITY within ten (10) business days of the substitution. 1. DUTIES OF CONSULTANT. CONSULTANT shall perform the duties and/or provide the services as follows: • Provide TRAKiT training to Fire Prevention staff to perform and maintain fire prevention functions related to Fire Prevention Permits, Business Licenses, Fire Prevention Inspections and other related business; and • Modify and maintain existing TRAKiT boilerplate as necessary associated with letters, memos, plan check notices and other related materials; and • Troubleshoot and correct TRAKiT platfornl as needed to maintain the operations outlined in this document; and • Assist with technical questions, problems. and provide support to the Prevention staff as needed. 3. DUTIES OF CITY. CITY shall compensate CONSULTANT as provided in Paragraph 4. 4. COMPENSATION. For the full performance of the services described herein by CONSULTANT, CITY shall pay CONSULTANT for services rendered, including the support and training of TRAKIT software, at the rate of $185.00 per hour on an as needed basis but not to exceed six (6) hours per Illonth. The total cost of services under this contract shall not exceed $13,320.00 during the ternl of the agreement. Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONSULTANT. 5. TERM OF AGREEMENT. The term of this Agreement shall commence upon the date of execution of this Agreement and end on December 31, 2018, unless the parties agree to extend this Agreement for another one year period, as approved in writing by City Manager. 6. TERMINATION. A. Discretionary. Either patty may ternlinate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party Illay terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the ternlination, to the reasonable satisfaction of the pmty giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of tennination, neither party shall incur additional obligations under any provision of this Agreement without the prior wlitten consent of the other. D. Return of Documents. Upon tennination, any and all CITY documents or materials provided to CONSULTANT and any and all of CONSULTANT's documents and materials prepared for or relating to the perfonllance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7. OWNERSHIP OF DOCUMENTS. A. Upon completion of all work under this Agreement, ownership and title to all reports, documents, plans, specifications, and estimates produced as part of this Agreement will automatically be vested in the CITY; and no further agreement will be necessary to transfer ownership to the CITY. CONSULT ANT shall furnish to CITY all necessary copies of data needed to complete the review and approval process. 8. INSPECTION AND AUDIT. Upon reasonable notice, CONSULTANT shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONSULTANT in connection with its performance of its duties under this Agreement. CONSULT ANT shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONSULTANT shall maint_ain, at no expense to CITY, the following insurance policies: I . A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non-owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3 . If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ] ($\,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONSULTANT's performance of services under this Agreement. Where CONSULTANT is a professional not required to have a professional license, CITY reserves the right to require CONSULTANT to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONSULTANT shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both CONSULT ANT and CITY against all liability for injuries to CONSULTANT's officers and employees. CONSULTANT's worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONSULTANT in subparagraph A of this section above shall also meet the following requirements: I. Except for professional liability insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers. as additionally named insureds under the policies. 2. The additional insured coverage under CONSULTANT'S insurance policies shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONSULTANT'S policies shall be at least as broad as ISO form CG20 0104 13. 3. Except for professional liability insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. The insurance policies shall be specifically endorsed to provide that the insurance carrier shall not cancel, tenninate or otherwise modify the terms and conditions of said insurance policies except upon ten (10) days written notice to the PROJECT MANAGER. 5. If the insurance is written on a Claims Made Form, then, following tennination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. " 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (I) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. C. Deductibles and SIR's. Any deductibles or self-insured retentions in CONSULTANT's insurance policies must be declared to and approved by the PROJECT MANAGER and City Attomey, and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additiol}al insured party. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONSULTANT shall procure a bond guaranteeing payment oflosses and related investigations, claims administration, attomey's fees and defense expenses. D. Proof of Insurance. CONSULT ANT shall provide to the PROJECT MANAGER or CITY'S City Attomey all of the following: (I) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set fOlth in this Agreement. CITY reserves the right to obtain a full celtified copy of any insurance policy and endorsements from CONSULTANT. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attomey. II. INDEMNIFICATION. A. Except as otherwise provided in Paragraph 8., CONSULTANT shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold hamlless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, jUdgment, loss, liability or expense of any kind, including but not limited to attomey's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CONSULTANT'S performance of its obligations or conduct of its operations under this Agreement. The CONSULTANT's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or willful misconduct of the City Indemnitees, the CONSULTANT's indemnitication obligation shall be reduced in proportion to the City Indemnitees' share of I iability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONSULTANT's work or work product by the CITY or any of its directors, officers or 5 employees shall not relieve or reduce the CONSULTANT's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONSULTANT'S perfonnance of or operations under this Agreement, CONSULTANT shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attomeys' fees, incurred in defense of such claims. B. Where the services to be provided by CONSULTANT under this Agreement are design professional services to be performed by a design professional as that term is defined under Civil Code Section 2782.8, CONSULT ANT shall, to the fullest extent pelmitted by law, indemnify, release, defend and hold harmless the City Indemnitees from and against any CLAIMS that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of its duties and obligations under this Agreement or its failure to comply with any of its obligations contained in this Agreement, except such CLAIM which is caused by the sole negligence or willful misconduct of CITY. C. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. 12. NONDISCRIMINATION. CONSULTANT shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONSULTANT shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. CONSULTANT shall perfOIlTI all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONSULTANT shall release, defend, indemnify and hold hallnless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONSULTANT do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 6 15. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows : TO CITY's Project Manager: TO CONSULTANT's Project Director: Robert Sinnott, Deputy Fire Chief City of San Rafael Fire Department 1600 Los Gamos Dr. suite 345 San Rafael, CA 94903 Deborah Yacobellis 228 Oakdale Ave Mill Valley, CA 94941 7 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONSULTANT, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONSULT ANT and CITY expressly intend and agree that the status of CONSULTANT, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT --AMENDMENTS. A. The ternlS and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. S. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONSULTANT and the CITY. e. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONSULTANT and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the tenm and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONSULTANT agrees that CITY may deduct from any payment due to CONSULTANT under this Agreement, any monies which CONSULTANT owes CITY under any ordinance. agreement contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any ternl, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinan.ce, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, perfonnance, or other consideration which may become due or owing under this Agreement shall not be deemed to be a waiver of any preceding breach or violation by the other party of any tenn, condition, covenant of this Agreement or any applicable law. ordinance or regulation. 8 20. COSTS AND ATTORNEY'S FEES. RECEIVED JAN 1 8 2018 San Rafael Fire Dept. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 21. CITY BUSINESS LICENSE I OTHER TAXES. CONSULTANT shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code CONSULTANT shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work performed under this Agreement, until CONSULTANT has provided CITY with a completed Intemal Revenue Service Form W -9 (Request for Taxpayer Identification Number and Certification). 22. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written . CITY OF SAN RAFAEL ATTEST: ESTHER: C. BEfR1q~, City Clerk Wr-.d~Q,/ l..p--vo\. CONSULTANT 9