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HomeMy WebLinkAboutContractAGREEMENT FOR GOOSECHASE (SOFTWARE AS A SERVICES AGREEMENT) THIS AGREEMENT (“Agreement”), dated for reference purposes only as March 9, 2022, is by and between the City of Renton (the “City”), a Washington municipal corporation, and GooseChase Adventures, Inc. (“Vendor”), a Canadian corporation. The City and the Vendor are referred to collectively in this Agreement as the “Parties.” Once fully executed by the Parties, this Agreement is effective as of the last date signed by both parties (the “Effective Date”). 1.Scope of Work: Vendor agrees to provide a twelve month subscription to the GooseChase application and support services as further described in Exhibit A, which is attached and incorporated herein and may hereinafter be referred to as the “Work.” Vendor shall provide the Work consistent with the requirements set forth in Exhibit A. 2.Changes in Scope of Work: The City, without invalidating this Agreement, may order changes to the Work consisting of additions, deletions, or modifications. Any such changes to the Work shall be ordered by the City in writing, and the Compensation shall be equitably adjusted consistent with the rates set forth in Exhibit A, or as otherwise mutually agreed by the Parties. 3.Time of Performance: Vendor shall commence performance of the Agreement within 14 days of the Agreement’s execution. 4. Compensation: A.Amount. One-Time Costs. The amount of the One Time Costs for this Agreement shall not exceed $5,000 USD plus any applicable state and local sales taxes. The Vendor agrees that any hourly or flat rate charged by it for its Work shall remain locked at the negotiated rate(s) unless otherwise agreed to in writing or provided in Exhibit A. Except as specifically provided herein, the Vendor shall be solely responsible for payment of any taxes imposed as a result of the performance and payment of this Agreement. B.Method of Payment. On an annual basis during any year in which Work is performed, the Vendor shall submit a voucher or invoice in a form specified by the City. Payment shall be made by the City for Work performed within thirty (30) calendar days after receipt and approval by the appropriate City representative of the voucher or invoice. If the Vendor’s performance does not meet the requirements of this Agreement, the CAG-22-235 PAGE 2 OF 13 Vendor will correct or modify its performance to comply with the Agreement. The City may withhold payment for work that does not meet the requirements of this Agreement. C.Effect of Payment. Payment for any part of the Work shall not constitute a waiver by the City of any remedies it may have against the Vendor for failure of the Vendor to perform the Work or for any breach of this Agreement by the Vendor. D.Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City shall not be obligated to make payments for Work or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining Work for which funds are allocated. No penalty or expense shall accrue to the City in the event this provision applies. 5.Termination: A.The City reserves the right to terminate this Agreement at any time, with or without cause by giving ten (10) calendar days’ notice to the Vendor in writing. In the event of such termination or suspension, all finished or unfinished documents, data, studies, worksheets, models and reports, or other material prepared by the Vendor pursuant to this Agreement shall be submitted to the City, if any are required as part of the Work. B.In the event this Agreement is terminated by the City, the Vendor shall be entitled to payment for all hours worked to the effective date of termination, less all payments previously made. If the Agreement is terminated by the City after partial performance of Work for which the agreed compensation is a fixed fee, the City shall pay the Vendor an equitable share of the fixed fee. This provision shall not prevent the City from seeking any legal remedies it may have for the violation or nonperformance of any of the provisions of this Agreement and such charges due to the City shall be deducted from the final payment due the Vendor. No payment shall be made by the City for any expenses incurred or work done following the effective date of termination unless authorized in advance in writing by the City. Should the Agreement be terminated within the first 180 days (6 months) from the Effective Date, the Vendor shall provide a pro-rated refund to the City, starting from the termination date. No refund will be payable by the Vendor to the City, save for termination for cause, if the City terminates the agreement after 180 days from Effective Date. C.Return of Information. Upon the written request of City, Consultant shall return any of the City’s Information in a usable format agreed to by the City at no additional cost to the City. PAGE 3 OF 13 6.Warranties and Right to Use Work Product: Vendor represents and warrants that Vendor will perform all Work identified in this Agreement in a professional and workmanlike manner and in accordance with all reasonable and professional standards and laws. Vendor further represents and warrants that all final work product created for and delivered to the City pursuant to this Agreement shall be the original work of the Vendor and free from any intellectual property encumbrance which would restrict the City from using the work product. Vendor grants to the City a non-exclusive, non-transferable, and non-sublicensable right and license to use, reproduce, distribute, adapt, modify, and display all final work product produced pursuant to this Agreement during the term of this Agreement. The City’s or other’s adaptation, modification or use of the final work products other than for the purposes of this Agreement shall be without liability to the Vendor. The provisions of this section shall survive the expiration or termination of this Agreement. 7.Record Maintenance: The Vendor shall maintain accounts and records, which properly reflect all direct and indirect costs expended and Work provided in the performance of this Agreement and retain such records for as long as may be required by applicable Washington State records retention laws, but in any event no less than six years after the termination of this Agreement. The Vendor agrees to provide access to and copies of any records related to this Agreement as required by the City to audit expenditures and charges and/or to comply with the Washington State Public Records Act (Chapter 42.56 RCW). The provisions of this section shall survive the expiration or termination of this Agreement. 8.Public Records Compliance: To the full extent the City determines necessary to comply with the Washington State Public Records Act, Vendor shall make a due diligent search of all records in its possession or control relating to this Agreement and the Work, including, but not limited to, e-mail, correspondence, notes, saved telephone messages, recordings, photos, or drawings and provide them to the City for production. In the event Vendor believes said records need to be protected from disclosure, it may, at Vendor’s own expense, seek judicial protection. Vendor shall indemnify, defend, and hold harmless the City for all costs, including attorneys’ fees, attendant to any claim or litigation related to a Public Records Act request for which Vendor has responsive records and for which Vendor has withheld records or information contained therein, or not provided them to the City in a timely manner. Vendor shall produce for distribution any and all records responsive to the Public Records Act request in a timely manner, unless those records are protected by court order. The provisions of this section shall survive the expiration or termination of this Agreement. 9.Independent Contractor Relationship: PAGE 4 OF 13 A. The Vendor is retained by the City only for the purposes and to the extent set forth in this Agreement. The nature of the relationship between the Vendor and the City during the period of the Work shall be that of an independent contractor, not employee. The Vendor, not the City, shall have the power to control and direct the details, manner or means of Work. Specifically, but not by means of limitation, the Vendor shall have no obligation to work any particular hours or particular schedule, unless otherwise indicated in the Scope of Work or where scheduling of attendance or performance is mutually arranged due to the nature of the Work. Vendor shall retain the right to designate the means of performing the Work covered by this agreement, and the Vendor shall be entitled to employ other workers at such compensation and such other conditions as it may deem proper, provided, however, that any contract so made by the Vendor is to be paid by it alone, and that employing such workers, it is acting individually and not as an agent for the City. B. The City shall not be responsible for withholding or otherwise deducting federal income tax or Social Security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to Vendor or any employee of the Vendor. C. If the Vendor is a sole proprietorship or if this Agreement is with an individual, the Vendor agrees to notify the City and complete any required form if the Vendor retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Vendor’s failure to do so. 10. Hold Harmless: The Vendor agrees to release, indemnify, defend, and hold harmless the City, elected officials, employees, officers, representatives, and volunteers from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties, expenses, attorney’s or attorneys’ fees, costs, and/or litigation expenses to or by any and all persons or entities, arising from, resulting from, or related to the negligent acts, errors or omissions of the Vendor in its performance of this Agreement or a breach of this Agreement by Vendor, except for that portion of the claims caused by the City’s sole negligence. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, (Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate…) then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Vendor and the City, its officers, officials, employees and volunteers, Vendor’s liability shall be only to the extent of Vendor’s negligence. PAGE 5 OF 13 It is further specifically and expressly understood that the indemnification provided in this Agreement constitute Vendor’s waiver of immunity under the Industrial Insurance Act, RCW Title 51, solely for the purposes of this indemnification. The Parties have mutually negotiated and agreed to this waiver. The provisions of this section shall survive the expiration or termination of this Agreement. The Vendor shall not be liable for any activities, actions, or omissions, that occur as a result of the sole negligence of the City and shall abide by all applicable laws and regulations in connection with the use of the Services (including privacy and copyright laws). The Vendor shall not be liable for any injuries, damages, or deaths that occur during the course of, or in furtherance of a game that are a result of the sole negligence of the City. 11. Gifts and Conflicts: The City’s Code of Ethics and Washington State law prohibit City employees from soliciting, accepting, or receiving any gift, gratuity or favor from any person, firm or corporation involved in a contract or transaction. To ensure compliance with the City’s Code of Ethics and state law, the Vendor shall not give a gift of any kind to City employees or officials. Vendor also confirms that Vendor does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in selecting the Vendor, negotiating or administering this Agreement, or evaluating the Vendor’s performance of the Work. 12. City of Renton Business License: Unless exempted by the Renton Municipal Code, Vendor shall obtain a City of Renton Business License prior to performing any Work and maintain the business license in good standing throughout the term of this agreement with the City. Information regarding acquiring a city business license can be found at: https://www.rentonwa.gov/Tax Information regarding State business licensing requirements can be found at: https://dor.wa.gov/doing-business/register-my-business 13. Insurance: Vendor shall secure and maintain: A. Commercial general liability insurance in the minimum amounts of $1,000,000 for each occurrence/$2,000,000 aggregate for the Term of this Agreement. B. In the event that Work delivered pursuant to this Agreement either directly or indirectly involve or require Professional Services, Professional Liability/ Errors and Omissions coverage shall be provided with minimum limits of $1,000,000 per occurrence. "Professional Services", for the purpose of this section, shall mean any PAGE 6 OF 13 Work provided by a licensed professional or Work that requires a professional standard of care. C. Workers’ Compensation Coverage, as required by the Industrial Insurance laws of the State of Washington, shall also be secured. D. Commercial Automobile Liability for owned, leased, hired or non-owned, leased, hired or non-owned, with minimum limits of $1,000,000 per occurrence combined single limit, if there will be any use of Vendor’s vehicles on the City’s Premises by or on behalf of the City, beyond normal commutes. E. Cyber Liability Insurance is required, with limits not less than $2,000,000 per occurrence or claim, with $2,000,000 aggregate minimum. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, coverage, including defense, for the following losses or services: claims involving infringement of intellectual property, infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security, coverage for unauthorized access and use, failure of security, breach of confidential information, or privacy perils. The policy shall provide coverage for breach response costs, to include but not limited to crisis management services, credit monitoring, public relations, legal service advice, notification of affected parties, independent information security forensics firm, and costs to re-secure, re-create and restore data or systems as well as regulatory fines and penalties with limits sufficient to respond to these obligations. F. Vendor shall name the City as an Additional Insured on its commercial general liability policy on a non-contributory primary basis. The City’s insurance policies shall not be a source for payment of any Vendor liability, nor shall the maintenance of any insurance required by this Agreement be construed to limit the liability of Vendor to the coverage provided by such insurance or otherwise limit the City’s recourse to any remedy available at law or in equity. Additional Insured requirements do not apply to Cyber Liability nor Professional Liability insurance, if applicable. G. Subject to the City’s review and acceptance, a certificate of insurance showing the proper endorsements, shall be delivered to the City before performing the Work. H. Vendor shall provide the City with written notice of any policy cancellation, within two (2) business days of their receipt of such notice. PAGE 7 OF 13 14. Safeguarding of Personal Information; Intellectual Property: A. Personal Information: Vendor shall not use or disclose Personal Information, as defined in chapter 19.255 RCW, in any manner that would constitute a violation of federal law or applicable provisions of Washington State law. Vendor agrees to comply with all federal and state laws and regulations, as currently enacted or revised, regarding data security and electronic data interchange of Personal Information. Vendor shall ensure its directors, officers, employees, subcontractors or agents use Personal Information solely for the purposes of accomplishing the services set forth in the Agreement. Vendor shall protect Personal Information collected, used, or acquired in connection with the Agreement, against unauthorized use, disclosure, modification or loss. Vendor and its sub-providers agree not to release, divulge, publish, transfer, sell or otherwise make Personal Information known to unauthorized persons without the express written consent of City or as otherwise authorized by law. Vendor agrees to implement physical, electronic, and managerial policies, procedures, and safeguards to prevent unauthorized access, use, or disclosure of Personal Information. Vendor shall make the Personal Information available to amend as directed by City and incorporate any amendments into all the copies maintained by the Vendor or its subcontractors. Vendor shall certify its return or destruction upon expiration or termination of the Agreement and the Vendor shall retain no copies. If Vendor and City mutually determine that return or destruction is not feasible, the Vendor shall not use the Personal Information in a manner other than those permitted or authorized by state and federal laws. Vendor shall notify City in writing immediately upon becoming aware of any unauthorized access, use or disclosure of Personal Information. Vendor shall take necessary steps to mitigate the harmful effects of such use or disclosure. Vendor is financially responsible for notification of any unauthorized access, use or disclosure. The details of the notification must be approved by City. Any breach of this clause may result in termination of the Agreement and the demand for return of all Personal Information. PAGE 8 OF 13 B. Intellectual Property: Each Party retains all right, title, and interest under applicable contractual, copyright and related laws to their respective Information, including the right to use such information for all purposes permissible by applicable laws, rules, and regulations. City will retain ownership of all their user-generated content, data, and information, confidential or otherwise, and any patent, copyright, trademark, or other intellectual property right provided, if applicable. Vendor retains the right to compile and use aggregated and de-identified usage data and statistics. 15. Delays: Vendor is not responsible for delays caused by factors beyond the Vendor’s reasonable control. When such delays beyond the Vendor’s reasonable control occur, the City agrees the Vendor is not responsible for damages, nor shall the Vendor be deemed to be in default of the Agreement. 16. Successors and Assigns: Neither the City nor the Vendor shall assign, transfer or encumber any rights, duties or interests accruing from this Agreement without the written consent of the other. 17. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at the address which appears below (as modified in writing from time to time by such party), and given personally, by registered or certified mail, return receipt requested, or by nationally recognized overnight courier service. Time period for notices shall be deemed to have commenced upon the date of receipt. Email and telephone may be used for purposes of administering the Agreement, but should not be used to give any formal notice required by the Agreement. CITY OF RENTON Jacki Watson Recreation Coordinator 1055 South Grady Way Renton, WA 98057 Phone: (425) 430-6717 Email: jwatson@rentonwa.gov VENDOR Alexandre Stylianoudis Head of Legal, Finance & Operations 6638 Jane St. Burlington, ON L7P 0J8 Canada Phone: +1 (323) 916-4130 Email: alex@goosechase.com 18. Discrimination Prohibited: Except to the extent permitted by a bona fide occupational qualification, the Vendor agrees as follows: A. Vendor, and Vendor’s agents, employees, representatives, and volunteers with regard to the Work performed or to be performed under this Agreement, shall not discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation or preference, age (except minimum age and retirement PAGE 9 OF 13 provisions), honorably discharged veteran or military status, or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification in relationship to hiring and employment, in employment or application for employment, the administration of the delivery of Work or any other benefits under this Agreement, or procurement of materials or supplies. B. The Vendor will take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital status. Such action shall include, but not be limited to the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training. C. If the Vendor fails to comply with any of this Agreement’s non-discrimination provisions, the City shall have the right, at its option, to cancel the Agreement in whole or in part. D. The Vendor is responsible to be aware of and in compliance with all federal, state and local laws and regulations that may affect the satisfactory completion of the project, which includes but is not limited to fair labor laws, worker's compensation, and Title VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton Council Resolution Number 4085. 19. Miscellaneous: The parties hereby acknowledge: A. The City is not responsible to train or provide training for Vendor. B. Vendor will not be reimbursed for job related expenses except to the extent specifically agreed within the attached exhibits. C. Vendor shall furnish all tools and/or materials necessary to perform the Work except to the extent specifically agreed within the attached exhibits. D. In the event special training, licensing, or certification is required for Vendor to provide Work he/she will acquire or maintain such at his/her own expense and, if Vendor employs, sub-contracts, or otherwise assigns the responsibility to perform the Work, said employee/sub-contractor/assignee will acquire and or maintain such training, licensing, or certification. PAGE 10 OF 13 E. This is a non-exclusive agreement and Vendor is free to provide his/her Work to other entities, so long as there is no interruption or interference with the provision of Work called for in this Agreement. F. Vendor is responsible for his/her own insurance, including, but not limited to health insurance. G. Vendor is responsible for his/her own Worker’s Compensation coverage as well as that for any persons employed by the Vendor. 20. Other Provisions: A. Approval Authority. Each individual executing this Agreement on behalf of the City and Vendor represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of the City or Vendor. B. General Administration and Management. The City’s project manager is Jacki Watson- Recreation Coordinator (jwatson@rentonwa.gov). In providing Work, Vendor shall coordinate with the City’s contract manager or his/her designee. C. Amendment and Modification. This Agreement may be amended only by an instrument in writing, duly executed by both Parties. D. Conflicts. In the event of any inconsistencies between Vendor proposals and this Agreement, the terms of this Agreement shall prevail. Any exhibits/attachments to this Agreement are incorporated by reference only to the extent of the purpose for which they are referenced within this Agreement. To the extent a Vendor prepared exhibit conflicts with the terms in the body of this Agreement or contains terms that are extraneous to the purpose for which it is referenced, the terms in the body of this Agreement shall prevail and the extraneous terms shall not be incorporated herein. E. Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington and the City of Renton. Vendor and all of the Vendor’s employees shall perform the Work in accordance with all applicable federal, state, county and city laws, codes and ordinances. F. Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared by the joint efforts of the Parties and shall not be construed against one party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution. PAGE 11 OF 13 G. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought in the King County Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. Vendor hereby expressly consents to the personal and exclusive jurisdiction and venue of such court even if Vendor is a foreign corporation not registered with the State of Washington. H. Severability. A court of competent jurisdiction’s determination that any provision or part of this Agreement is illegal or unenforceable shall not cancel or invalidate the remainder of this Agreement, which shall remain in full force and effect. I. Sole and Entire Agreement. This Agreement contains the entire agreement of the Parties and any representations or understandings, whether oral or written, not incorporated are excluded. J. Time is of the Essence. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the description of the Work is essential to the Vendor’s performance of this Agreement. K. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be construed to give any rights or benefits in the Agreement to anyone other than the Parties, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Parties and no one else. L. Binding Effect. The Parties each bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement, and to the partners, successors, assigns, and legal representatives of such other party with respect to all covenants of the Agreement. M. Waivers. All waivers shall be in writing and signed by the waiving party. Either party’s failure to enforce any provision of this Agreement shall not be a waiver and shall not prevent either the City or Vendor from enforcing that provision or any other provision of this Agreement in the future. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any prior or subsequent breach unless it is expressly waived in writing. N. Counterparts. The Parties may execute this Agreement in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement INWITNESSWHEREOF,thePartieshavevoluntarilyenteredintothisAgreementasofthedatelastsignedbythePartiesbelow.CITYOFRENTONVENDORBy:C0J14Q_,1By:______________KellyBeymerAletylianoudisParks&RecreationAdministratorHeadofFinance,Legal&Operations7.OSlo2Z_July8th,2022DateDateApprovedastoLegalFormBy:_____________________________AlexTuttleSeniorAssistantCityAttorneyIT-ContractTemplate6/17/202;0PAGE12OF13(approved via email from Alex Tuttle on 7/7/2022) PAGE 13 OF 13 Exhibit A: Services (“the Services”) Provision of Services. In consideration of the Fees, GooseChase Adventures shall make its proprietary application and platform (the “Services”) available to You and Your Users on the terms set out herein. Service Description. You will be provided access to the GooseChase Adventures Web Portal and free smartphone software applications for download from the applicable app store to use the Services. You will be entitled to use custom- built or pre-configured missions during the Program. Support. During the Program GooseChase Adventures will provide full virtual technical support and will respond to technical and related inquiries from your support contacts and try to correct or fix problems which arise promptly. Fees, Costs and Payments : (“the Fees”) Total Program Cost: $5,000 USD All fees are due and payable annually in advance unless otherwise specified. ●Payments should be made by check, credit card or electronic transfer, due net 30 from date of invoice. All balances paid after the expected payment date are subject to a charge of 1.5% per month.