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PW Deborah Yacobellis TRAKiT SupportAGREEMENT FOR PROFESSIONAL SERVICES WITH DEBORAH YACOBELLIS FOR PROFESSIONAL SUPPORT SERVICE ASSOCIATED WITH TRAKIT SOFTWARE This Agreement is made and entered into this 2. day of Mo..'Cc...h ,2018, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and DEBORAH YACOBELLIS, an individual. (hereinafter "CONSULTANT"). RECITALS WHEREAS, the CITY has determined that professional suppOli servIces are required for TRACKiT Land Management Software("TRAKiT") provided by Superion LLC on an occasional basis to assist with the encroachment peimit development and use of the TRACKiT software; and WHEREAS, the CONSULTANT 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 Community Development and Public Works Departments for suppOli services for TRACKiT; and WHEREAS, the CONSULTANT has agreed to render the needed services; AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY'S Project Manager. The Director of Public Works 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. 2. DUTIES OF CONSULTANT. CONSULTANT shall perform the duties and/or provide the services as follows: • Provide TRAKiT training to Public Works staff to perform and maintain Encroachment Permit functions related to Public Works inspections, input, development and other related business related , to encroachment permits; and • Modify and maintain existing TRAKiT boiler plate as necessary associated with letters, memos, plan check notices, and other related materials; and e Troubleshoot and correct TRACKiT platform as needed to maintain the operations outlined in this Agreement; and o Assist with technical question, problems, and provide support to the Public Works staff as needed. 3. DUTIES OF CITY. CITY shall compensate CONSULTANT as provided in Paragraph 4. 4. CO:MPENSATION. For the full perfo:mance of the services described herein by CONSULTANT, CITY shall pay CONSULTANT on a time and materials basis for services rendered including SUppOlt and training of TRAKiT software, at the rate of $185.00 per hour on an as needed basis, but not to exceed eight (8) hours per month. The total cost of services under this contract shall not exceed $17,760.00 during the term of the Agreement. Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices s1J.bmitted by CONSULTANT. 5. TERM OF AGREEMENT. The term of this Agreement shall commence upon the date of execution of this Agreement and end on March 1, 2019 when the work shall have been completed, unless the parties agree to extend this Agreement for another 90 days, as approved in writing by City Manager. 6. TERMINATION. A. Discretionary. Either party may tenninate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party may 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 termination, to the reasonable satisfaction of the pruty giving such notice, within such flfteen (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 written consent of the other. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONSULTANT and any and all of CONSULTANT's documents and materials prepared for or 2 relating to the petformance of its duties under tIns Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after tennination. 7. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONSULTANT in connection with the performance of its duties under this Agreement, shall be the sole property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement. 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 perfOlmance of its duties under this Agreement. CONSULTANT 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 pelfonnance 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 maintain, at no expense to CITY, the following insurance policies: 1. 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 ($1,000,000) per claim/two nlillion 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. 3 4. If it employs any person, CONSULTANTshall maintain worker's compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. 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 ofthe CONSULTANT in subparagraph A of this section above shall also meetthe following requirements: 1. Except for professional liability and Worker's Compensation 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 il.llY insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributolY" coverage in CONSULTANT'S policies shall be at least as broad as ISO fonn CG20 01 04 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 . By execution of this Agreement, CONSULTANT hereby grants to CITY a waiver of any right to subrogation which any insurer of CONSULTANT may acquire against CITY by virtue of the payment of any loss under such insurance. CONSULTANT agrees to obtain any ~ndorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of SUbrogation endorsement from the insurer. 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 . Furthennore, the requ,irements for coverage and 4 limits shall be: (1) 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 CIlY or other additional insured party. At CIlY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CI1Y's satisfaction, or CONSULTANT shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attomey's fees and defense expenses. D. Proof of Insurance. CONSULTANT shall provide to the PROJECT MANAGER or CI1Y'S City Attomey all of the following: (1) 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 forth in this Agreement. CITY reserves the right to obtain a full celufied 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 appro:ved as to form and sufficiency by PROJECT MANAGER and the City Attomey. 11. lNDEMNlFICATION. A. Except as otherwise provided in Paragraph B., CONSULTANT shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless 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 reasonable 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 indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONSULTANT's work or work product by the CI1Y or any of its directors, officers or 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 performance of or operations under this Agreement, CONSULTANT shall provide a 5 defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' 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 tenn is defmed under Civil Code Section 2782.8, CONSULTANT shall, to the fullest extent permitted 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. In no event shall the cost to defend charged to the design professional exceed the design professional's proportionate percentage of fault. 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 pelformance of its duties and obligations under tlns Agreement. CONSULTANT shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONSULTANT shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fmes and all other consequences from any noncompliance or violation of any applicable 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 tenns and conditions of tllis 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 pirector: 16. INDEPENDENT CONTRACTOR. Bill Guerin Director of Public Works City of San Rafael III Morphew Street San Rafael, CA 94901 Deborah Yacobellis 228 Oakdale Ave. Mill Valley, CA 94941 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, 8l1d not as employees of the CITY. CONSULTANT and CITY expressly intend and agree that the status of CONSULTANT, its officers, agents 8l1d employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT --AMENDMENTS . A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the p81ties with respect to the subject matter of this Agreement. B. TIns written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONSULTANT and the CITY. c . 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 terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 7 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 term, 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, ordinance, 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, performance, 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 term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. 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. 2l. CITY BUSINESS LICENSE/ 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 Internal 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 J 8 ATTEST: LINDSAY LARA., Interim City Clerk APPROVED AS TO FORM: 9 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER Contracting Department: Public Works Project Manager: KM ----Extension: 3389 Project Name: TRAKiT Support Contractor's Contact: Deborah YacobelIis Contract's Email: yacobellis@gmail.com RESPONSIBLE Step DEPARTMENT DESCRIPTION a. Email PINS Introductory Notice to Contractor b. Email Contract (in Word) & attachments to City Attorney clo I Project Manager Laraine.Gittens@cityofsanrafaeI.org a. Review, revise and comment on draft agreement and return to Project Manager b. Confirm insurance requirements, create Job on PINS, send PINS 2 City Attorney insurance notice to contractor. Forward three (3) originals of final agreement to contractor for their 3 Prqject Mana~er signature. When necessary, * contractor-signed agreement agendized for Council approval * PSA > $20,000 or Purchase> $35,000: or Public Works Contract> 4 Project Manager $125,000 PRINT CONTINUE ROUTING PROCESS WITI-II-IARD COPY Forward signed original agreement to City Attorney with printed copy of 5 Project Manager this routin~ form 6 Citx Attorney Review and approve hard coPY of si~ned a~reement Review and approve insurance in PINS, and bonds (for public works 7 City Attorney contracts) City 8 Mana~er/Mayor Agreement executed by Council authorized official Attest signatures, retains original agreement and fonvards copies to 9 City Clerk project manager 10 Project Manager Fonvard Final Copy to Contractor COMPLETED DATE on file 2112/2018 2120/2018 2/20/2018 2/27/2018 2/Z~hff z/z:'LL~ ]-l"IY 312-1\<0 REVIEWER Initial KM LG KM KM JJJ- m ~~