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HomeMy WebLinkAboutPetData - Agreement for Animal LicensingAGREEMENT FOR ANIMAL LICENSING SERVICES BY AND BETWEEN THE CITY OF GILROY AND PETDATA, INC. THIS AGREEMENT is made and entered into by and between the City of Gilroy, a California municipal corporation (hereinafter called "CITY ") and PETDATA, INC., a Texas corporation (hereinafter called "CONTRACTOR ") as of 44-o 44-olo 2010, (hereinafter called "COMMENCEMENT DATE "). 1. DESCRIPTION OF WORK For the consideration set forth below, CONTRACTOR shall provide to CITY certain animal licensing services ( "Services ") described in Exhibit A attached hereto and incorporated herein by reference. The Services are to be performed in a good and workmanlike manner subject to the terms of this Agreement. 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONTRACTOR is an independent agreementor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONTRACTOR or any employee or agent of CONTRACTOR. Both parties acknowledge that CONTRACTOR is not an employee for state or federal tax purposes. CONTRACTOR shall not be entitled to any of the rights or benefits afforded to CITY'S employees, including, without limitation, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONTRACTOR shall retain the right to perform services for others during the term of this Agreement. 3. OVERSIGHT AND COORDINATION All Services under this Agreement shall be coordinated under, and performed to the reasonable satisfaction of the City Administrator of CITY or his or her designated representative. However, CONTRACTOR shall determine the method, details and means of performing the above - described Services and CITY shall have no right to, and shall not, control the matter or determine the method of accomplishing CONTRACTOR's services. CONTRACTOR shall perform the services required by this Agreement at any place or location and at such times as CONTRACTOR shall determine is necessary to properly and timely perform CONTRACTOR's services. 4. CONTRACTOR ACKNOWLEDGMENT CONTRACTOR acknowledges that, prior to signing this Agreement, CONTRACTOR has become acquainted with matters relating to the performance of this Agreement and the terms and conditions of this Agreement. 5. FEES 1. Base Fees CONTRACTOR shall receive base fees as follows: (1) $3.85 per license for a one -year license or a replacement tag. (2) $2.00 for each additional year after year one if there are multi -year licenses. -I- (3) $2.50 Collection Service Fee for each late fee and /or citation fee collected during the term of this Agreement, if applicable. For purposes of this Agreement, CONTRACTOR shall receive the fees set forth in Sections 5(A)(1), (2) & (3) for all animal licenses issued during the Term of this Agreement, including those licenses issued by the City, or any other persons authorized to issue animal licenses on behalf of the City. Except as otherwise may be set forth herein, in no event, shall CONTRACTOR's fees exceed those set forth in this Section 5. 2. Start -Up Fee In addition, CITY shall pay to CONTRACTOR, a $1,000, one -time only, "Start-Up Fee ". The Start-Up Fee is due upon execution of the agreement by CITY. There are no Start-Up Fees for term extensions and/or renewals. 3. Postal Surcharge. In the event that the United States Postal Service increases its postage rates during the term of this agreement in a manner that affects CONTRACTOR'S cost to provide service to CITY, both parties agree that CONTRACTOR'S fees may be adjusted to compensate CONTRACTOR for actual increased postage costs. The justification for such increase will be submitted to CITY for its prior approval no later than forty-five (45) days prior to the date that CONTRACTOR expects such increase to go into effect. CITY shall review and approve or disapprove such increase within fifteen days of receipt thereof. If CITY and CONTRACTOR cannot agree on the justification for such an increase, this Agreement may be terminated by either party on thirty (30) days' written notice to the other. No increase in fees shall go into effect until CITY has given its prior written approval for such increase. 4. Additional Service Fees The following fee(s) will only apply if services are requested by CITY. (1) Cost of Separate Account: In the event that CITY requests that CONTRACTOR establishes and/ or maintains a separate bank account on behalf of CITY, CITY will be responsible for the actual cost of the Bank Account. Any bank fees will be paid directly by CONTRACTOR and CONTRACTOR will be reimbursed for those fees on a monthly basis. CITY can request copies of the bank statements at any time and CONTRACTOR will provide bank statements within five business days after requests are received by CONTRACTOR. A separate Bank Account will be established in a bank, and on such terms, as are approved by CITY and CONTRACTOR in advance. (2) Bank Deposit Mailing Fees: In the event that CONTRACTOR is required to deposit money into a Bank Account other than at a local branch in Irving, TX, the actual cost to mail the deposits to said CITY Bank Account will be added to the invoice submitted to CITY. (3) Postal Box/Mail Forwarding Fee: In the event that CITY requests CONTRACTOR to establish a local post office box for mail collection and forwarding, CITY will be billed for the actual costs of mail box rental, mail forwarding and postage fees. (4) Supply Fee: In the event that CITY requests changes to supplies which it has previously approved, CITY will be responsible for the actual costs associated with changing, replacing or discontinuing the use of the previously approved supplies. (5) Lock Box Fees: In the event that CITY utilizes a lockbox, the actual fees and costs associated with the lockbox, including the cost to forward mail to CONTRACTOR from a lockbox, shall be borne solely by CITY. 2 5. Charges to Licensees For purposes of this Agreement "Licensee" shall be defined as a person who obtains an animal license from the CITY through CONTRACTOR. For purposes of this Agreement, the CITY agrees that CONTRACTOR may charge the following fees to Licensees. (1) A One Dollar Ninety-five Cent ($1.95) Online Transaction Fees. This fee may be charged for each on -line transaction engaged in by a Licensee. (2) If CONTRACTOR establishes a depository account on behalf of CITY, CONTRACTOR shall be entitled to charge a cost - recovery fee of no more than twenty-five dollars ($25.00) to any individual who submits a check or payment which is not valid or otherwise returned for any reason. 6. Other Expenses Except as otherwise set forth in this Agreement. CONTRACTOR shall be responsible for its own reasonable costs and expenses incident to the performance of services for CITY. 6. ADDITIONS/DELETIONS OF SERVICE CITY reserves the right to add and /or delete services to this Agreement subject to CONTRACTOR's approval. Should additional services be requested by CITY, prices for such additions will be negotiated between the CONTRACTOR and CITY. Should CITY request a deletion of a service requirement from this Agreement, no fee adjustments for such deletions will be made unless mutually agreed to by the parties in writing. 7. REPORTS AND CITY ACCESS TO DATA Within fifteen (15) business days after the end of each calendar month during the term hereof, CONTRACTOR shall submit an animal licensing summary report to CITY. The format of the report is to be mutually agreed upon and may be transmitted electronically or by any other means. CONTRACTOR will provide secure password - protected access to animal licensing data via a web -based application. Access will be granted only to authorized CITY personnel, and the application will be available 24 hours a day, 7 days a week, except for periodic maintenance by CONTRACTOR or internet outages outside CONTRACTOR's control. 8. PAYMENT CONTRACTOR shall deposit all animal license fees into a segregated bank account at its bank set up solely for the purpose of administering this agreement. Within fifteen (15) business days after the end of each calendar month, CONTRACTOR shall remit fees for licenses sold to CITY via check or Automated Clearing House transaction -less all fees due the CONTRACTOR. Under this Agreement if, in any given month, there are not enough funds to cover the CITY's fees due to CONTRACTOR, CONTRACTOR will deduct those fees from CITY's balance in the following month or months until fees are paid in full. In the event any animal license fees are paid directly to CITY by a citizen, CITY shall either forward these fees to the CONTRACTOR within thirty (30) days or deposit these fees into a CITY account and report the collected fees to CONTRACTOR within thirty (30) days. If any payment is due from CITY to CONTRACTOR, such payment shall be remitted to CONTRACTOR according to the terms set forth herein. No payment will be made unless CONTRACTOR has first provided City with a written invoice describing the work performed to date and any approved direct expenses incurred to date. 9. TERM The initial term of this Agreement shall commence on the Commencement Date and shall expire on the third Anniversary of said Commencement Date, unless this Agreement is sooner terminated in accordance with the other provisions of this Agreement. Two twelve -month renewal options, at the then - prevailing market rates, may be exercised based on the mutual written agreement of both CONTRACTOR and CITY. Contractor shall inform City in writing no fewer than ninety (90) days prior to expiration of the term if CONTRACTOR wishes to exercise a renewal option and the terms upon which such renewal option is proposed to be exercised (including CONTRACTOR's statement of the prevailing market rates upon which it proposes to extend the Agreement). For purposes of this Agreement, the City Administrator is authorized to exercise any option on behalf of the CITY. IO.TRANSITION PHASE CONTRACTOR shall begin processing licenses seventy-five (75) days after the COMMENCEMENT DATE ( "Transition Phase ") provided that the following requirements are met by CITY: (1) CITY shall provide historical license data files consisting of licenses older than ninety (90) days ( "Data ") within fifteen (15) days from the date that the agreement is executed ( "Initial Phase "). Said Data shall be made available to the CONTRACTOR in a readily importable format. (2) In addition, CONTRACTOR requires certain supplies, data, feedback, process information and approvals for such items as form designs ( "Deliverables ") in order for CONTRACTOR to begin servicing this agreement in a timely manner. Deliverables will be requested throughout the seventy-five (75) day transition phase. CONTRACTOR requests that CITY provide Deliverables within fifteen (15) days from date of request. Any delays in providing Data or Deliverables will result in delays in implementing this agreement. Said delays shall be one day for each day of delay in transmitting the Deliverables to CONTRACTOR beyond the Transition Phase and one day for each day of delay in transmitting the Data to CONTRACTOR beyond the Initial Phase. Representations made in Exhibit A, "Scope of Services" with regard to processing time for data entry and tag mailings are contingent upon CONTRACTOR having the Deliverables in hand. During the Transition Phase or at any time thereafter, with the mutual agreement of the parties, CITY, at CITY's option, may provide CONTRACTOR with remaining animal licensing supplies. If CITY chooses to provide such supplies, CONTRACTOR shall assume responsibility for the actual cost of shipping said supplies. 11.PERMITS CONTRACTOR shall obtain the necessary permits(s), if any, required by CITY or its governing ordinances for the performance of the Services. CITY agrees to provide CONTRACTOR with a list of any and all such permits and to work with CONTRACTOR in good faith to aid it in obtaining any such permits in a timely fashion. 12.DATA OWNERSHIP & DATA TRANSFER The vaccination and license data collected on behalf of CITY by CONTRACTOR pursuant to this Agreement and maintained by CONTRACTOR shall be deemed for all purposes to be the property of the CITY, and may not be sold, assigned, or otherwise transferred by CONTRACTOR or any successor in interest to the assets of CONTRACTOR, including a trustee or receiver. CONTRACTOR agrees that it will not use any data collected on behalf of CITY for any purposes other than for the performance of the Services and other purposes under this Agreement without the written consent of CITY except as provided in the Agreement or applicable laws. Furthermore, CONTRACTOR specifically agrees that it will not intentionally sell, transfer, or release personal data it has collected in fulfilling the terms of this Agreement to any third party. Additionally, CONTRACTOR agrees that any intentional sale, transfer or release of animal licensing data represents an event of default and CITY has the right to terminate this agreement immediately. In addition, CONTRACTOR, shall be liable for any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys' fees (collectively "Damages ") incurred by CITY as a result of any intentional transfer of such data which is not authorized in advance by CITY in writing, as to which obligations the indemnification provisions of Section 14A below are specifically agreed to apply.— 11 In the event that this Agreement is terminated for any reason by either party or upon its expiration. CONTRACTOR agrees to return and transfer all animal licensing data to CITY within ten (10) business days after the CITY and CONTRACTOR have agreed to a format that is reasonably acceptable to both parties. 11COMPLIANCE WITH CODES & LAWS The CONTRACTOR shall use reasonable business efforts to keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. The CITY agrees to provide CONTRACTOR with copies of any amendments to its animal control municipal ordinances and regulations that would affect the way in which CONTRACTOR conducts its work Without limiting the foregoing, CONTRACTOR agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every agreementor or subcontractor under a contract or subcontract to the CITY OF GILROY to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. 14.INDEMNIFICATION/ INSURANCE REQUIREMENTS A.Duty to Defend To the fullest extent permitted by law, CONTRACTOR agrees to defend through counsel approved by CITY (which approval will not be unreasonably withheld), indemnify and hold CITY, its officers, agents and employees harmless against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys' fees arising from a breach of this Agreement or any willful misconduct, negligent acts, errors or omissions of CONTRACTOR or CONTRACTOR'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property; excluding, however, such liability, claims, losses, damages or expenses to the extent caused by the breach of this Agreement, willful misconduct, gross negligence, or active negligence of CITY, its officers, agents (excluding CONTRACTOR) or employees. B.Insurance In addition to any other obligations under this Agreement, CONTRACTOR shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof. As a condition precedent to CITY'S obligations under this Agreement, CONTRACTOR shall furnish evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. C. No Third Party Beneficiaries The provisions of this Section are solely for the benefit of the parties hereto and are not intended to create or grant any rights, contractual or otherwise, to any other person or entity. 15.STATE AND FEDERAL TAXES As CONTRACTOR is not CITY'S employee, CONTRACTOR shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONTRACTOR acknowledges and agrees that: CITY will not withhold FICA (Social Security) from CONTRACTOR'S payments; 5 • CITY will not make state or federal unemployment insurance contributions on CONTRACTOR'S behalf; • CITY will not withhold state or federal income tax from payment to CONTRACTOR; • CITY will not make disability insurance contributions on behalf of CONTRACTOR; CITY will not obtain workers' compensation insurance on behalf of CONTRACTOR. 16.TERMINATION CITY may, at its option and without prejudice to any other remedy it may be entitled by law or in equity, or elsewhere under this Agreement, terminate this Agreement due to a material default by CONTRACTOR in the performance of the Services under this Agreement, but if and only if CONTRACTOR fails to cure the default within thirty (30) days after being given written notice of such default by CITY. For purposes of this section, written notice will be deemed delivered to CONTRACTOR if sent by e -mail, facsimile, or first class mail. In the event of termination, CONTRACTOR will be paid for those licenses that are in process at the time this Agreement expires or as of the effective date of the termination, but CONTRACTOR will not be paid for any licenses that are not already in process after the term of the Agreement. In addition, CITY may terminate this Agreement immediately should CITY be required to do so because of a change in laws, either local, state or national, which laws prohibit or limit license fee collection as contemplated in this Agreement. 17.UNFORESEEN CIRCUMSTANCES CONTRACTOR shall not be responsible for any delay or omission caused by natural disaster, war, civil disturbance, labor dispute or other cause beyond CONTRACTOR's reasonable control, provided CONTRACTOR gives written notice to CITY of the cause of the delay or omission within ten (10) days after the occurrence of the event causing such delay or omission. I&RIGHT OF CITY TO INSPECT RECORDS CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times , during the term of this Agreement and for a period of three years following the term of this Agreement to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT in connection with this Agreement. CONTRACTOR may elect to maintain books, records and documents in an electronic format, in a database, on paper, or a combination of the aforementioned. After the termination of the agreement, paper records and supporting documents will either be shipped to CITY or destroyed, at CITY'S option, at CITY'S expense. Records that relate to any litigation, appeals, or settlements of claims arising from performance under this Agreement shall be made available until a final disposition has been made of such litigation, appeals, or claims. 19.NOTICES Any notice, payment, statement, or demand required or permitted to be given hereunder by either party to the other shall be effected by personal delivery in writing or by mail, postage prepaid. Mailed notices shall be addressed to the parties at the addresses appearing below, but each party may change its address by written notice in accordance with this section. Mailed notices shall be deemed communicated as of three days after mailing. Notices for CITY shall be addressed to: City of Gilroy 7351 Rosanna St. Gilroy, CA 95020 Attn: Chief of Police.. Notices for CONTRACTOR shall be addressed to: 31 Chris Richey, President PetData, Inc. PO Box 141929 Irving, TX 75014 -1929 20.MISCELLANEOUS A.Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. B.Entire Agreement This Agreement embodies the complete agreement of the parties hereto, superseding all oral or written previous and contemporary agreements between the parties relating to matters herein; and except as otherwise provided herein, cannot be modified without the written agreement of the parties. C.Severability In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Agreement shall be considered as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. D.Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. E.Attorneys' Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. F.Conflict of Interest CONTRACTOR certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONTRACTOR and that no person associated with CONTRACTOR has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G.Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONTRACTOR for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. 7 H.Successors and Assigns CONTRACTOR shall not assign this Agreement to any person or entity without the express written agreement of CITY which CITY may withhold in its absolute discretion. This Agreement shall be binding upon and insure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and, except as otherwise provided herein, their assigns. I.Captions The captions to the various clauses of this Agreement are for information purposes only and shall not alter the substance of the terms and conditions of this Agreement. J.Authorization Each of the parties represents and warrants to the other that this Agreement has been duly authorized by all necessary corporate or governmental action on the part of the representing party and that this Agreement is fully binding on such party. K.Counterparts This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. L.Waiver The parties agree that waiver by the other of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. EXECI "CITY and by CONTRACTOR as of the date set forth below. CITY �/ PETDATA, aq By: By: A- Thomas J. Haglund Chris Richey City Administrator President Date: ?,CIO Date: ���1% !U ., , , Exhibit A — Scope of Services CONTRACTOR shall: 1. Manage the daily operations of animal licensing including the processing of licensing mail from pet owners, processing license sales and vaccination reports, entering licensing and vaccination data, providing customer service and depositing money. 2. Provide veterinarians with reasonable quantities of supplies necessary to report information on citizens vaccinating their animals against rabies to the - CITY.;;, The supplies to be provided will be mutually agreed upon by CONTRACTOR and CITY. Supplies are to be printed in one color with the design and layout to be determined by CONTRACTOR, subject to prior approval of CITY. 3. CITY is responsible for purchasing license tags to CONTRACTOR'S specifications and shipping them to CONTRACTOR. CONTRACTOR recommends that tags be shipped directly from tag vendor to CONTRACTOR to reduce shipping costs. 4. Track monthly vaccination reports from all veterinarians for animals within the jurisdiction of the City. Provide this information to CITY within sixty (60) days of receipt of the data.,, Furthermore, CONTRACTOR will communicate directly with veterinarians as requested by CITY. 5. Enter all new and renewal licenses into CONTRACTOR's proprietary database provided that all information has been submitted to CONTRACTOR in a complete and accurate format. 6. Process and mail license tags within ten (10) business days after receipt of the licensing payment and complete documentation as required by CITY or otherwise by local ordinance (if any). 7. Issue replacement tags to citizens whose license tags have been lost, stolen or damaged. 8. Process rabies vaccination certificates on behalf of CITY and mail notices to those pet owners who vaccinated their pet(s) against rabies, but did not purchase license(s). 9. Mail renewal and reminder notices to pet owners who have a prior license. Mailing timetables are to be mutually agreed upon. 10. Deposit all receipts collected for pet licenses into a separate bank account set up solely for the purpose of managing CITY's animal licensing funds. CONTRACTOR will send license revenue less CONTRACTOR's fees and bank fees to CITY within fifteen business days after the end of every month. 11. Provide a monthly report of animals licensed. Report shall be easily readable and set forth in a mutually agreed upon format. 12. Provide statistical reports as requested by CITY in a timely manner. Depending on the information requested, CONTRACTOR shall provide most reports within five (5) business days. 13. Provide access to licensing data online to appropriate CITY personnel via CONTRACTOR's proprietary website, PetAccess, at no additional charge. 14. Respond to and communicate with CITY's animal control officer inquiries or animal owners' requests in a timely fashion. 15. Communicate with citizens by phone, mail or email as needed. 16. Comply with all federal, state and local laws governing animal licensing 9