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HomeMy WebLinkAboutAgreement - PETDATA, Inc. - Contract No. 19PD1266 - Managing Dog License - Signed 2019-01-09AGREFMJ r!,NT FOR SERVICES For contracts over $5,000 — NON -DESIGN, NON -ENGINEERING TYPE CONTRACTOR) This AGREEMENT made this 9th day of Januarv. 2019, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONTRACTOR: Pet Data. Inc., having a principal place of business at8585 N Stemmons Fwv. Ste 1100N, Dallas. TX 75247. ARTICLE I. TERM OF AGREEMENT This Agreement will become effective on November 4. 2016 and will continue in effect through November 4. 2021 unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreement Shall terminate this Agreement regardless of any other provision stated herein, CA Initial ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONTRACTOR is an independent contractor 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 porforin services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PEI Rr, ORME D BY CONTRACTOR A. Specific Services CONTRACTOR agrees to: Perform the services as outlined in Exhibit "All ("Specific Provisions") and Exhibit 111111 ("Scope of Services"), within the time periods described in Exhibit 1101 (Milestone Schedule"). B. Method of Performing Services CONTRACTOR shall determine the method, details and means of performing the above - described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONTRACTOR'S services. 4832-5398-04674 WAKHARIM04706083 C. Employment of Assistants CONTRACTOR may, at the CONTRACTOR'S own expense, employ such assistants as CONTRACTOR deems necessary to perform the services required of CONTRACTOR by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONTRACTOR'S assistants in the performance of those services. CONTRACTOR ass -Limes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONTRACTOR shall perfonm 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. E. CONTRACTOR's System CITY acknowledges that CONTRACTOR has developed and coordinated proprietary means and methods of performing the Services and related know-how, skills, and property (collectively, the System"). The System includes among other items, an interactive website, databases, software, and related items. The System is special and unique to CONTRACTOR and has been developed by CONTRACTOR at great cost and expense to CONTRACTOR. CITY acknowledges that CITY is not acquiring any rights in or to the System, and that the System is and will remain the sole and exclusive property of CONTRACTOR. CITY further acknowledges and agrees that any information that CITY obtains related to the use, formulation or operation of the System that is not generally known is CONFIDENTIAL, may only be used by CITY for the limited purposes described in this Agreement, and may not be disclosed to any third parties except as may be required under applicable law or with CONTRACTOR's prior, express written consent in CONTRACTOR'S SOLE DISCRETION. Upon the termination of this Agreement, any information and materials, in whatever media or format, related to the System that CITY HAS IN ITS POSSESSION WILL BE RETURNED TO CONTRACTOR or destroyed at CONTRACTOR'S OPTION. City agrees that it will not attempt to discover, duplicate, or replicate the System in any manner. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONTRACTOR, CITY agrees to pay CONTRACTOR the amounts set forth in Exhibit "D" ("Payment Schedule"). In no event however shall the total compensation paid to CONTRACTOR exceed those set forth in "Exhibit D". 4832-5398-0457v3 MVAKHARIA104706083 B. Invoices CONTRACTOR shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit "D". No payment will be made unless CONTRACTOR has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit "A", Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONTRACTOR of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. Expenses CONTRACTOR shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONTRACTOR, all fees, fines, licenses, bonds or taxes required of or imposed against CONTRACTOR and all other of CONTRACTOR'S costs of doing business. CITY shall not be responsible for any expenses incurred by CONTRACTOR in performing services for CITY, except for those expenses constituting "direct expenses" referenced on Exhibit "A." ARTICLE 5. OBLIGATIONS OF CONTRACTOR A. Tools and Instrumentalities CONTRACTOR shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONTRACTOR is not required to purchase or rent any tools, equipment or services from CITY. B. Workers' Compensation CONTRACTOR agrees to provide workers' compensation insurance for CONTRACTOR'S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys' fees, arising out of any injury, disability, or death of any of CONTRACTOR'S employees. C. Indemnification of Liability, Duty to Defend As to all liability, to the fullest extent permitted by law, CONTRACTOR shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, 4832-5398-0457v3 _3 _ WAKHARIM04706083 including without limitation attorneys' fees, arising or resulting directly or indirectly from any act or omission 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. D. 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 on a per occurrence basis, including coverage for owned and non -owned automobiles, 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 written 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 via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONTRACTOR under this Agreement may be assigned or subcontracted by CONTRACTOR without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. 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; 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. 4832-5398-0457v3 _4_ MVAKHARIA104706083 ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONTRACTOR and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONTRACTOR'S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONTRACTOR. Such assignment shall not release CONTRACTOR from any of CONTRACTOR'S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of CONTRACTOR's Business/ Death of CONTRACTOR. CONTRACTOR shall notify CITY of the proposed sale of CONTRACTOR's business no later than thirty ,(30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONTRACTOR set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY' receipt of such notice of sale. If CONTRACTOR is an individual, this Agreement shall be deemed automatically terminated upon death of CONTRACTOR. B. Termination by City for Default of CONTRACTOR Should CONTRACTOR default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY' S option, may terminate this Agreement by giving written notification to CONTRACTOR. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONTRACTOR'S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 2. CONTRACTOR'S breach of any of its representations, warranties or covenants contained in this Agreement. CONTRACTOR shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C" which have been fully, competently and timely rendered by CONTRACTOR. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONTRACTOR'S default in the performance of this Agreement or material breach by CONTRACTOR of any of its provisions, then in addition to any other rights and remedies CITY 4832-5398-0457v3 _5 _ MVAKHARIA104706083 may have, CONTRACTOR shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONTRACTOR for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed -Upon Payments Should CITY fail to pay CONTRACTOR all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONTRACTOR, at the CONTRACTOR'S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONTRACTOR to CITY. D. Transition after Termination Upon termination, CONTRACTOR shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONTRACTOR shall cease such work as soon as it is safe to do so. CONTRACTOR shall incur no further expenses in connection with this Agreement. CONTRACTOR shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONTRACTOR's duties by any new CONTRACTOR hired by the CITY to complete such services. ARTICLE 8. GENERAL PROVISIONS A. 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. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONTRACTOR shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 ("the Act") in its current fonn and as it may be amended from time to time. CONTRACTOR shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONTRACTOR shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys' fees, that may arise out of any violations of the Act by the CONTRACTOR, its subcontractors, or the officers, employees, agents or representatives of either. 4832-5398-0457v3 _6_ MVAKHARIA104706083 C. 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. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONTRACTOR shall 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 the materials used 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. Without limiting the foregoing, CONTRACTOR agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services 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. 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. 4832-5398-0457v3 WAKHARIM04706083 H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. ' I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit "A", Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Time of the Essence All dates and times referred to in this Agreement are of the essence. L. Waiver CONTRACTOR agrees that waiver by CITY 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. Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: Pet Data, Inc. By: . Name: Chr s' Title: CF..) Social Security or Taxpayer Identification Number `TS-21Y Ji f J' CITY: CITY OF GILROY By: Name: Gabriel A. Gonzalez Title: City Administrator 4832-5398-0457v3 MVAKHARIA104706083 Approved as to Form ATT City Atto ey City 4832-5398-0457v3 MVAKHARIA104706083 EXHIBIT "A" SPECIFIC PROVISIONS I. PROJECT MANAGER CONTRACTOR shall provide the services indicated on the attached Exhibit "B", Scope of Services ("Services"). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONTRACTOR agrees to assign Marilee Seav, who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONTRACTOR shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED/COMPLETION OF SERVICE A. NOTICE TO PROCEED CONTRACTOR shall commence the Services upon delivery to CONTRACTOR of a written Notice to Proceed", which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Captain Pedro Espinoza shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONTRACTOR or if otherwise delivered as provided in the Section V.H. ("Notices") of this Exhibit "A". B. COMPLETION OF SERVICES When CITY determines that CONTRACTOR has completed all of the Services in accordance with the terms of this Agreement, CITY shall give CONTRACTOR written Notice of Final Acceptance, and CONTRACTOR shall not incur any further costs hereunder. CONTRACTOR may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONTRACTOR has not completed all of such Services as required by this Agreement, CITY shall so inform CONTRACTOR within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit "C". IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONTRACTOR as provided for in Article 4 of this Agreement. 4832-5398-0457v3 WAKHARIM04706083 Direct expenses are charges and fees not included in Exhibit "B". CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONTRACTOR shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONTRACTOR represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONTRACTOR'S representations and warranties regarding its skills, qualifications and licenses. CONTRACTOR shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well -organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONTRACTOR CONTRACTOR shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONTRACTOR shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY'S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONTRACTOR shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONTRACTOR'S negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONTRACTOR for the purpose of verifying any and all charges made by CONTRACTOR in connection with this Agreement. CONTRACTOR shall maintain for a minimum period of three (3) years (from the date of final payment to CONTRACTOR), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONTRACTOR, all of which shall be made available to CITY at the CITY's offices within five (5) business days after CITY's request. 4832-5398-0457v3 MVAKHARIA104706083 D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONTRACTOR and all other written and oral information developed or received by or for CONTRACTOR and all other written and oral information submitted to CONTRACTOR in connection with the performance of this Agreement shall be held confidential by CONTRACTOR and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONTRACTOR'S disclosure thereof) shall be deemed confidential. CONTRACTOR shall not use CITY' S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. E. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONTRACTOR have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. F. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other,material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONTRACTOR may retain and use copies thereof subject to Section V.D of this Exhibit "A". CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However, CONTRACTOR shall not be responsible for, and City shall indemnify CONTRACTOR from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. 4832-5398-0457v3 _3 _ MVAKHARIA104706083 H. NOTICES. Notices are to be sent as follows: CITY: Pedro Espinoza, Captain City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONTRACTOR: Pet Data, Inc. 8585 N Stemmons Fwy Suite 1100N Dallas, TX 75247 I. FEDERAL FUNDING REQUIREMENTS. If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply. If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. 1. DBE Program CONTRACTOR shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City -adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONTRACTOR warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONTRACTOR, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or,' at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 4832-5398-0457v3 WAKHARIM04706083 EXHIBIT "B" SCOPE OF SERVICES CONTRACTOR shall: 1. Manage the daily operations of dog 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 dogs 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 dog 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 dogs 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 mutually agreed upon fonnat. 4832-5398-0457v3 WAKHARIX04706083 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 inquires 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. 4832-5398-0457v3 MVAKHARIA104706083 EXHIBIT "C" MILESTONE SCHEDULE 1. TERMS The initial term of this Agreement shall commence on the Commencement Date and shall expire on the fifth Anniversary of said Commencement Date, unless this Agreement is sooner terminated in accordance with 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 (90) days prior to expiration of the term 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 CITY. 2. 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 on 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. 3. PERMITS CONTRACTOR shall obtain the necessary permit(s), if any, require 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 obtain any such permits in a timely fashion. 4832-5398-0457v3 WAKHARIM04706083 4. 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 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 and 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, cause of action, losses, liabilities and expenses, including without limitation reasonable attorney's 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 C are specifically agreed to apply. 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 format that is reasonably acceptable to both parties. 4832-5398-0457v3 MVAKHARIA104706083 EXHIBIT "D" PAYMENT SCHEDULE Fees 1. Base Fees CONTRACTOR shall receive base fees as follows: t) $4.10 per license for a one-year license or a replacement tag. Effective January 14, 2019, this fee will increase to $4.20 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. 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 Section 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 Section 5. 2. Start -Up Fee This fee is WAIVED for CITY. 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 that date that CONTRACTOR accepts 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, the 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 fees(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. Pet Data Agreement for Services Exhibit D: Page 1 of 3 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 so 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 snail 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 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. 5. Charges to Licensees For purposes of this Agreement "Licensee" shall be defined as a person who obtains a dog 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 forin each on-line transaction engaged in by a Licensee. Effective January 14, 2019, this fee will increase to Two Dollars ($2.00) for Online Transaction Fees. 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 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 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 CONTRACATOR'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 a dog 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 dog licensing data via web -based application. Access will be granted only to authorized CITY personnel, and the application will be available 24 hours a Pet Data Agreement for Services Exhibit D: Page 2 of 3 day, 7 days a week, except for periodic maintenance by CONTRACTOR or internet outages outside CONTRACTOR'S control. 8. PAYMENT CONTRACTOR shall deposit all dog 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 his 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 dog 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. Pet Data Agreement for Services Exhibit D: Page 3 of 3