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HomeMy WebLinkAboutCD Short Term Rental Monitoring and Associated ServicesAGREEMENT WITH DECKARD TECHNOLOGIES, INC., TO PROVIDE SHORT TERM RENTAL MONITORING AND ASSOCIATED SERVICES This Agreement is made and entered into this 20 day of 2022, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and De8kand Technologies, Inc., (hereinafter "CONSULTANT"). RECITALS WHEREAS, the CITY desires a user friendly software platform to detect and protect against the impact of illegal, unpermitted and/or under -remitting short-term rentals; and WHEREAS, at the CITY'S request, CONSULTANT has submitted a proposal to the CITY, to provide short term rental monitoring services. Said proposals is attached to this Agreement marked "Exhibit A" and incorporated herein by reference; and WHEREAS, CONSULTANT has the experience serving various jurisdictions and providing the services the CITY currently desires. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROTECT COORDINATION. A. CITY'S Project Manager. Ana Santiago, Code Enforcement Supervisor, 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's PROJECT DIRECTOR shall have overall responsibility for the progress and execution of this Agreement for CONSULTANT. Alexa Haun, Sr. Client Success Manager, 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 services outlined in Exhibit A Statement of Work. 3. DUTIES OF CITY. CITY shall pay the compensation as provided in Paragraph 4 and shall provide CONSULTANT with materials and information necessary for CONSULTANT to perform the services required by this Agreement. 4. COMPENSATION. For the full performance of the services described herein by CONSULTANT, CITY shall pay CONSULTANT the fees outlined in section 4 of Exhibit A in an amount not to exceed $19,750. Payment will be made upon receipt by PROJECT MANAGER of itemized invoices submitted by CONSULTANT. 5. TERM OF AGREEMENT. The term of this Agreement shall commence on the Effective Date and end on September 1, 2024. Upon mutual agreement of the parties, and subject to the approval of the City Manager the term of this Agreement may be extended for an additional period of up to one (1) year. 6. TERMINATION. A. Discretionary. Either party may terminate 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 party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, 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 relating to the performance 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. 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 performance of its duties under this Agreement. CONSULTANT shall fully cooperate with CITY Revised 1/29/2020 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 parry, 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) 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 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 workers' 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 workers' 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: 1. Except for professional liability insurance or workers' compensation insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additional insureds (for both ongoing and completed operations) under the policies. 2. The additional insured coverage under CONSULTANT'S insurance policies shall be "primary and noncontributory" 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 Revised 1/29/2020 "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 or workers' compensation 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 endorsement 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 termination 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: (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. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of the CONSULTANT under this Agreement. 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 Attorney 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 additional 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 of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. CONSULTANT shall provide to the PROJECT MANAGER or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance Revised 1/29/2020 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 certified 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 Attorney. 11. INDEMNIFICATION. A. Except as otherwise provided in subparagraph B of this section, 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 attorney'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 CITY 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 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 term is defined under Civil Code Section 2782.8, then, to the extent permitted by law including without limitation, Civil Code sections 2782, 2782.6 and 2782.8, CONSULTANT shall indemnify and hold harmless the CITY and its officers, officials, and employees (collectively City Indemnitees) from and against damages, liabilities or costs (including incidental damages, Court costs, reasonable attorney's fees as may be determined by the Court, litigation expenses and fees of expert witnesses incurred in connection therewith and costs of investigation) to the extent they are caused by the negligence, recklessness, or willful misconduct of CONSULTANT, or any subconsultants, or subcontractor or anyone directly or indirectly employed by them, or anyone for whom they are legally liable (collectively Liabilities). Such obligation to hold harmless and indemnify any indemnity shall not apply to the extent that such Liabilities are caused in part by the negligence or willful misconduct of such City Indemnitee. 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 Revised 1/29/2020 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 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, 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. 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: 16. INDEPENDENT CONTRACTOR. Ana Santiago, Code Enforcement Supervisor City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901 Ana.Santia o ,ci ofsarn-afael.or2 Alexa Haun, Sr. Client Success Manager 1620 Fifth Ave, Suite 400 San Diego, CA 92101 Alexa.Haun deckard.cnm For the purposes, and for the duration, of this Agreement, CONSULTANT, its officers, Revised 1/29/2020 agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONSULTANT 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 terms 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. B. This 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. 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 Revised 1/29/2020 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 / OTHER TABS. CONSULTANT shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code, and 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. SURVIVAL OF TERMS. Any terms of this Agreement that by their nature extend beyond the term (or termination) of this Agreement shall remain in effect until fulfilled and shall apply to both Parties' respective successors and assigns. 23. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. 24_ COUNTERPARTS AND ELECTRONIC SIGNATURE This Agreement may be executed by electronic signature and in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. [Signatures are on the following page.] Revised 1/29/2020 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL ATTEST: A. A/,-��� LINDSAY LARA, City Clerk APPROVED AS TO FORM: rJ, ! ❑�f 'F],, ROB RT F. EPSTEIN, City Attorney Revised 1/29/2020 CONSULTANT ,;/ / 2F,/.',,; Name: Nickolas R_ Del Peco Title: CE [If CONSULTANT is a corporation, add signature of second corporate officer] Name: Gregmy G. Rose Title: Director EXHIBIT A STATEMENT OF WORK This Statement of Work ("SOW') will be effective as of the last date of signature below, and upon execution will be incorporated into the Master Services Agreement between Deckard Technologies, Inc. and the City of San Rafael, CA dated [EFFECTIVE DATE OF MASTER SERVICES AGREEMENT] (the "Master Agreement"). Capitalized terms used in this SOW will have the same meaning as set forth in the Agreement. 1. Short Term Rental Service. Client desires to engage Deckard to use the Platform to prepare real estate property value assessments for short-term rentals ("STRs") on all identifiable properties within the Designated Geography based upon publicly available data and such other data relevant to the Designated Geography to be provided to Deckard by Client (the "Reports"). The Reports shall at a minimum: 1.1. How many STRs are currently active in the Designated Geography; 1.2. The aggregate revenue from actively listed bookings; 1.3. The average number of nights booked per reservation; 1.4. The platforms used by STR hosts; 1.5. Average daily rates; 1.6. Booking trends during the Reporting Period; 1.7. Identify, by address, the following violations of STR ordinances within the Designated Geography; 1.7.1. Listings or advertisements that do not include an STR permit number; 1.7.2. Listings or advertisements that represent or offer occupancy in excess of the occupancy maximums in the Designated Geography; and 1.7.3. Properties advertised as STRs that are only permitted as long term rentals; 1.8. Identify the actively listed STRs by address; 1.9. The total number of properties actively listed in the Designated Geography each month during the Reporting Period; 1.10. List the property owners; and 1.11. List the permit history of each property offering STRs in the Designated Geography. 2. Designated Geography. City of San Rafael, CA 3. Reporting Period. Reports are available in the Rentalscape Platform 4. Fees; Payments. 4.1. Annual Software Subscription: $3,250 (based on a $25 monitoring per property that is listed in Rentalscape as an identified STR). We approximate 130 properties by the end of year one as being Monitored in Rentalscape. Should the number of properties exceed the approximations, this increase will be included in the Maximum Price and not subject to additional fees in the first year. 4.2. Annual Property Identification: $1,300 (based on an estimated 130 new properties identified in the first year). Should the number of properties exceed the approximations, this increase will be included in the Maximum Price and not subject to additional fees. 4.3. Outreach Campaign: $2,600 Three letter campaign to drive property owners to become compliant with Registration Process. 4.4. STR Registration/Licensing Portal: $5,000 annually. Develop and host an online portal that is easy for the Host or Owner to Register with the City for their STR and process renewals as well. 4.5. TOT Portal: $5,000 annually. Develop and host an online portal for TOT collection on a monthly or quarterly basis depending on the needs of the City. 4.6. Online Complaint Form: $2600 annually. Host an online complaint form for the City that feeds these complaints to Code Enforcement and the Rentalscape system. 4.7. Maximum Price: In no event will the total subscription fees in the first year exceed $19,750. 4.8. Timing: Client will pay the annual subscription fees within 15 days of receipt of invoices from Deckard. All terms and conditions of the Agreement will apply to this SOW. This SOW will be effective as of the date of the last signature below. SOW AGREED TO AND ACCEPTED BY: DECKARD TECHNOLOGIES, INC. CLIENT Print Name: Nickolas R. Del Peg}o Print Name: Date: 08/26/2022 Date: Title: CEO Title C-7 RAFq�` (;—fi 't= l 2 y C`� Y H' I T H P' CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheetto circulate all contracts for reviewand approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Community Development Project Manager: Ana Santiago Extension: 5357 Contractor Name: Deckard Technologies Contractor's Contact: Dana Lorimer/Alexa Haun Contact's Email: Dana.Lorimer@deckard.com, Alexa.Haun@deckard.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/lnitial 1 Project Manager a. Email PINS Introductory Notice to Contractor Click here to ❑ enter a dale. b. Email contract (in Word) and attachments to City 8/3/2022 Attorneyc/o Laraine.Gittens@cityofsanrafael.org M MG 2 City Attorney a. Review, revise, and comment on draft agreement 8/24/2022 and return to Project Manager 8/24/2022 ® b. Confirm insurance requirements, create Job on —GC— PINS, send PINS insurance notice to contractor � GC 3 Department Director Approval of final agreementform to send to 8/26/2022 ❑ MG contractor 4 Project Manager Forward three (3) originals of final agreementto 8/26/2022 © MG contractor for theirsignature MG5 Project Manager When necessary, contractor -signed agreement xi N/A agendized for City Council approval * *City Council approval required for Professional Services ❑ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click Hereto Date of City Council approval e me r a date PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City 8/26/22 Attorneywith printed copy of this routing form (hard copy MG and Email) 7 City Attorney Review and approve hard copy of signed Q� °'►'�`Z�?i7i agreement 8 City Attorney Review and approve insurance in PINS, and bonds v I 1 (for Public Works Contracts) 9 City Manager/ Mayor Agreement executed by City Council authorized official 10 City Clerk Attest signatures, retains original agreement and forwards D� O copies to Project Manager