HomeMy WebLinkAboutContract CAG-17-010
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AGREEMENT F4R LEASE OF TRAFF(C DATA DEV(CES
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THIS AGREEMENT, dated November 9,2016, is by and between the City of Renton (the "City"),a
Washington municipal corporation,and Kar-Gor{"ConsultanY'),tnc. The City and the Consultant
are referred ta coilectively in this Agreement as the "Parties." Once fully executed by the Parties,
this Agreement is effective asof the last date signed by both parties.
1. Scope of Work: Consuf#ant agrees to provide the lease af traffic data devices and cloud
based analytics software and maintenance services as specified in Exhibit A, which is
attached and incorporated herein and may hereinafter be referred to as the "Work."
2. Chanaes in ScoAe 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 Compensatian shall
be equitably adjusted consistent with the rates set forth in Exhibit B or as otherwise
mutually agreed by the Parties.
3. Time of PerfQ ance: Consultant shall commence performance of the Agreement
pursuant to an agreed schedule between the Parties and provide cloud based software
access through December 31,2022.
4. Compensation:
A. ��j_ Total compensation to Consultant for Work provided pursuant to this
Agreement shall not exceed $30,400, plus any applicabie state and local sales taxes.
Compensation shall be paid based upon Work actually performed according #o the
rate(s) or amounts specified in Exhibit B.The Consultant agrees that any hourly or flat
�afe charged by it for its Work shall remain locked at the negotiated rate(s} unless
otherwise agreed to in writing or provided in Exhibit B. Except as specifrcally provided
herein, the Consultant 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 a monthiy or no less than quarterly basis during any quarter
in which Work is performed, the Consultant shall submit a voucher or invoice in a form
specified by the City, including a description of what Wor1c has been performed,
the name of the personnel performing such Work, and any hourly labor charge rate
for such personnel. The Consultant shall also submit a final bill upon completion of
all Work. Payment shal4 be made by the City for Work performed within thirty
{30)
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calendar days after receipt and approvai by the appropriate City representative af the
vvucher or invaice. If the Cansultant's performance does not meet the requirements
of this Agreement, the Consultant will correct or modifjr 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 P�ment. Payment far any part of the Work shall not constitute a waiver by
the City of any remedies it may have against the Consultant far failure of the
Cansultant to perfarm the Work or for any breach of this Agreement by the
Consuitant.
D. Non-Appro�riation of Funds. ff su�cient funds are not appropriated ar allocated for
payment under this Agreernent for any future fiscal period, the City shall not be
obligated ta make payments for Woric or amounts incurred after the end of the
current Fisca{ periad, and this Agreernent will terminate u�an the completion of all
remaining Work for which funds are al[ocated. No penalty ar expense shall accrue to
the City in tf�e 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' nc►tice to the Consultant in w�iting. In the
event of such termination or suspension, ail finished or unfinished documents, data,
studies, worksheets, models and reparts, ar other material prepared by the
Consultant pursuant to this Agreeinen# shail be submitted to the City, if any are
requiced as part af the Work.
8. fn the event this Agreement is terminated by the City,the Consultan# sha!! be entitled
to payment for all hours worked to the effective date of terminatian, less al!payments
previausly made. If the Agreement is terminated by the City after partial perFormance
of Work for which khe agreed compensation is a fixed fee, the City shall pay the
Consultant an equitable share af the fixed fee. 7his provision shall not prevent the
City from seeking any lega! rem+edies it may have for the violation or nonperFormance
of any of the provisions of this Agreement and such charges due ta the City shall be
deduc#ed from the final payment due the Consultant. 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.
6. Warranties And RiQhtTo Use Work Praduct: Consultant represents and warrants that
Consultant will perform all Work identified in this Agreement in a professianal and
workmanlike manner and in accordance with al! reasonable and professional standards
and laws. Cflmpliance with professional standards includes, as applicable, performing the
Work in compliance with applicable City standards or guidelines (e.g. design criteria and
Standard Plans for Road, Bride and Municipal Construction}. Professionaf engineers shal!
certify engineering pfans, speeifica#ions, plats, and reports, as applicabie, pursuant ta
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RCW 18.43.070. Consultant further represents and warrants that all fnal work praduct
created for and delivered ta the City pursuant to this Agreement snall be tf�e original work
af the Cansultant and free from any intellectuaf property encumbrance which would
restrict the City from using the work prpduct. The City's or others adaptation,
modification ar use of tfi�e final work produc#s other than for the purposes of this
Agreernent shall be without liability to the Consultant. The provisions af #his section shall
survive the expirafion ar termination of this Agreement.
7. Record Maintenance: The Consultant shall maintain accaunts and records, which
property reflect all direct and indirect costs expended and Work provided in the
performance of this Agreement and retain such records far as long as may be required by
applicable Washington State records retention laws, but in any event no less than six
years after #he termination of this Agreement. The Consultant agrees to pravide access
to and copies of any recards related to this Agreement as required by #hs City to audit
expenditures and charges andlor to comply with the Washing#on S#ate Public Records Act
{Chapter 42.56 RCW}. The provisions of this sectian shall survive the expiration or
termination of this Ag�eement.
8. P�ublic Records Compliance: To the full extent the City determines necessary ta comp[y
with the Washington State Public Records Act,Consultant shall make a due diligent search
of all records in its passession or control relating to this Agreement and the Work,
including, but not limited to, e-mai1, correspandence, notes, saved telephone messages,
recordings, photos, or drawings and provide them to the City for production. In the event
Consultant believes said records need to be pratected from disclosure, it may, at
ConsuJtanYs own expense, seek judicial pratectian, Consultant shall indemnify, deiend,
and hald harmless the City for all casts,including attorneys' fees,attendant to any claim
or litigation relaked to a Public Records Act request for which Consultant has responsive
records and for which Cansultant has withheld records or inforrnation contained therein,
ar not provided them to the City in a timely manner. Consultant shall produce for
distribution any and all records respansive to the Public Records Act request in a timely
rnanner, unless those records are protected by courk order. The provisians of this section
shall survive the expiration or termination of this Agreement.
9. Independent Contractor Relationship:
A. The Consultant is retained by the City only for #he purposes and to the extent set forth
in this Agreement. The nature of the relationship between the Consultant and the
City during the period of the Work shall be that of an independent contractor, nat
empfoyee. The Consuitant, not the City, shall have the power to control and direct
the detaifs, manner or means of Wark. Specifically, but not by means of limitation,
the Consultant shal( have no obligatian to work any particufar hours or particular
schedule, unless otherwise indicaked in the Scope of Wor1c oc where scheduling of
attendance or performance is mutually arranged due fo the nature of the Work.
Consultant shall retain the right ta designate the means of performing the Work
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covered by this agreement, and the Cansuitant shall be entitled to employ other
wotkers at such compensation and such other conditions as it may deem proper,
provided, hawever, that any contract so made by the Consultant 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 shafl not be res{�ansible for withholding or otherwise deducting federal
income tax or Social 5ecurity or contributing to the State Indusfrial Insurance
Program, or otherwise assuming the duties of an employer with respect to Consultant
or any employee of the Consuftanf.
C. !f the Cansuitant is a sole proprietorship ar if this Agreement is with an individua[,the
Cansultant agrees to notify the City and carnplete any required form if #he Consultant
retired under a State of Washington retirement system and agrees to indemnify any
losses the City may sustain through the ConsultanYs failure to do so.
90. Hold HaRnfess: The Consultant agrees to release,indemnify,defend, and hold harmless
the City,elected officials, emplayees, offrcers, representatives, and volunteers fram 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 ar entities, arising frarn, resulting from, or related to the negligent
acts, errors ar omissions of the Consuftant in its performance of this Agreement or a
breach of this Agreement by Consultant, except far that portion of the claims caused by
the Gity'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 tiability for negligence relative ta
construction,alteration, impravement,etc.,of structure or improvernent attached to rea!
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 af the
Consuttant and the City, its afficers, officials, employees and volunteers, ConsultanYs
liability shall be anly to the extent of ConsultanYs negligence.
It is further specifrcally and expressly understaod that the indemnificatian provided in
this Agreement constitute Consultant's waiver of imrnunity under the Industriaf
Insurance Act, RCW Title 51, solely for the purposes of this incfemnification. 7he Parties
have mutually negotiated and agreed to this waiver. The prouisions of this section shall
survive the expiration or terrnination of this Agreement.
11. Gifts and Conflicts: The City's Code of Ethics and Washington State law prohibit City
employees from soliciting, accepting, or receiving any gift, gtatuity ar favar 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 CansuJtant shaf! not give a gift of any kind
to City employees or officiais. Consultant afso confrrms that Consultant daes not have a
business interest or a cfose family relationship with any City officer or employee who was,
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is, or will be invoived in selecting the Consultant, negotiating or administering this
Agreement, or evaluating the ConsultanYs performance of the Work.
12. City of Renton Business License: The Consultant shall obtain a City of Renton
Business License prior to per#orming any Work and maintain the busi�ess license in gaod
standing throughout the term of this agreement with tF�e City. Informatian regarding
acqu1nng a city business license can be found at:
h.ttQ://rentonwa...c�ov/business/default.asr�x?id=548&mid=328. Information regarding
State business licensing requirements can be found at:
http:!/dor.wa_gov/content/daingbusinesslreg istermybusi ness/
13. Insurance: Consultant shall secure and maintain:
A. Commercial general liability insurance in the minimum amounts of $1,00O,OOQ for
each occurrence/$2,OOO,Q00 aggregate for the Term of this Agreement.
B. Workers' cornpensation coverage, as required by the Incfustrial Insurance laws of the
State of Washington, shall also be secured.
C. Commercial Automobile Liability for owned, leased, hired or non-owned, leased,
hired or non-owned, with minimum limits of $1,OOO,U00 per occurrence combined
single limit, if there will be any use of Consultant's vehicles on the City's Premises by
or on behalf of the City,beyond normal commutes.
D. Consultant 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 Consultant liability, nor shall the maintenance of
any insurance required by this Agreement be construed to limit the liabiliry of
Consultant to the coverage provided by such insurance or otherwise limit the City's
recourse to any remedy available at law or in equity.
E. 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.
F. Cor�sultant shall provide the City with written notice of any policy cancellation, within
two (2) business days af their receipt of such notice.
14. Delays: Consultant is not res�onsible for delays caused by factors beyond the
Consultant's reasonable control. When such delays beyond the ConsultanYs reasonable
control occur, the City agrees the Cansultant is not responsibie for damages,nor shall the
Consultant be deemed to be in default of the Agreement.
15. Successors and Assigns: Neither the City nor the Consultant shall assign,transfer or
encumber any rights, duties or interests accruing from this Agreement without the
written consent of the other.
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16. Notices: Any notice required under this Agresment wil! be in writing,addressed to the
appropriate party at the address which appears below (as rnodified in writing from #ime
to time by such party), and gi�en personally, by registered or certified mail, return receipt
requested, by facsimile or by nationally recagnized overnight caurier service. Time period
for notices shall be deemed to have commenced upon the date af receipt, EXCEPi"
facsirnile delivery will be desmed to have commenced an the first business day following
transmiss�on. Ernail and telephone may be used for purposes of adrninistering the
Agreemen#, but shouid nat be used to give any farmal natice required by#he Agreement.
City of Renton: Consultant:
Chris Barnes Ghristy Fagan
1 fl55 South Grady Way 3540 Brooks Ave NE,Building 2
Renton, WA 98057 Salem,OR 97301
Phane: (425} 430-7220 Phone: (503} 315-9899
CBarnes@rentonwa.go� christyf�a?kargor.cam
17. Discrimination Prohibited: Except fo the extent permitted by a bona fide occupational
qualiflcation,the Gansultant agrees as follaws:
A. Consultant, and Consultant's agents, employees, representatives, and volunteers
with regard to ti�e Work perfarmed or to be perforrned under this Agreement, shall
not discriminate an the basis of race, color, sex, religion, nationality, creed, marital
status, sexual orientation or preference, age (except minimum age and retirernent
provisions), honorabfy discharged veteran or military status, or the presence of any
sensory, mentaf or physical handicap, unless based upon a bona fide occupa#ional
qualification in relationship to hiring and ernployment,in employment or application
for employment, the administration af the deli�ery of Work or any other benefits
under this Agreement, or procurement of materials or supplies.
B. 7he Consultant will take affirmative action to insure that appiicants are employed and
that employees are treated during employment without regard to their race, creed,
color, nafional origin, sex, age, sexual orientation, physical, sensory or mental
handicaps, or marital status. Such action shall include, but nat be limited to the
fallowing emplayment,upgrading, demotion or transfer, recruitment or recruitment
advertising, layoff or terrnination, rates of pay or other forms of compensation and
selection for training.
C If the Consultant fails to eornpfy with any of this Agreemen#'s non-discrimination
provisions, the City shall have the right, at its option, to cancel the Agreement in
whole or in part.
D. 7he Cansuitant is responsible to be aware of and in compliance with alf federal, state
and local laws and regufations that may affect #he satisfactory completion of the
project, which includes but is not limited to fair iabor laws,worker's compensatian,
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and Title VI of the Federal Civil Rights Act of 1964, and wiil comply with City af Renton
Council Resolution Number 4085.
18. Misceilaneous: The parties hereby acknowledge:
A. The City is not responsible to train or provide training for Consultant.
B. Cansultan# wiU not be reimbursed for job related expenses except to the extent
specifically agreed within the attached exnibits.
C. Cansultant shall fumish a11 taols and � or materials necessary to perfarm the Work
except to the extent specificafly agreecf within the attached exhibits.
D. 1n the event special training, licensing, or certification is required for Consuftant to
provide Wortc he � she will acquire or maintain such at his / her own expense and, if
Cansultant empioys, sub-contracts, or otherw�se assigns the responsibitity to perform
the Work, said employee 1 sub-contractor j assignee wifl acquire and ar maintain such
training, licensing, or certification.
E. This is a non-exclusive agreement and Consultant is rtree to pravide his 1 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. Consultant is responsible for his I her own insurance, incfuding, but not limited to
health insurance.
G. Consultant is respansible far his � her own Worker's Compensation coverage as well
asthat for any persons empEoyed by the Consultant.
19. Other Provisions:
A. Aoproval Authority. Each individual executing this Agreement on behalf of the City
and Consultant represents and warrants that such individuals are duly authorized to
execute and delive� this Agreement on behalf of fhe City or Consultant.
B. General Administration and Manaqement. The City's project manager is Chris
Barnes. In providing Work, Consul#ant shalt caardinafe with the City's contract
manager or his/her designee.
C. Amendment and Madification. This Agreement may be amended only by an
instrument in writing,duly executed by both Parties.
D. Conflicts. In the event af any inconsistencies between Consultant proposals and this
Agreement, the terms of this Agreement shall prevail. Any exhibitsJa#tachments to
this Agreement are incorparated by reference only to the extent of the purpose for
which they are referenced within this Agreement. Ta the extent a Consultant
prepared exhibit conflicts wi#h the terms in the body of this Agreement or cantains
terms that are extraneous to the purpose for which it is referenced, the terms in the
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body of this Agreement shai! prevail and the e�ttraneous terms shall not be
incorporated herein.
E. Governinq i.aw. This Agreement shall be made in and shail be governed by and
interpreted in accordance with the laws of the State of Washingtan and the City of
Renton. Consultant and all of the Consultanl's employees shall perforrn the Work in
accordance with all applicable federal, state, caunty and city laws, codes and
ordinances.
F. Joint Drafting Effort. This Agreement shall be considered for alf purpases as prepared
by the joint effo►ts of t�e Parties and shall no# be construed against one party or the
other as a result of the preparatian, substitutian, submission ar other event of
negotiation,clrafting ar execution.
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 sha(f be brought in the
King County Superior Court for the State of Washington et the Maleng RegionalJustice
Center in Kent, King County, Washington, ar its replacement or successor.
H. Severabilitv. A caurt of competent jurisdiction's determinatian that any pro�ision or
part of this Agreement is illegal or unenfarceable shall not cancel or invalidate the
rernainder of this Agreement, which shall remain in full tarce and effect.
I. Sole and Entire Ac�reem�nt. This Agreement contains the entire agreement of the
Pa�ties and any representations or understandings, whether oral or written, nat
incorporated are excluded.
J. Time is of the Essence. Time is of the essence of this Agreement and each and a!I of
its provisions in which performance is a factor. Adherence to completion dates set
forth in the description of the Wark is essential to the Consulfiant's perFormance of
this Agreement.
K. Third-Party 8eneficiaries. Nothing in this Agreement is intended ta, nor shall be
construed to give any rights ar benefits in the Agreement ta anyone other than the
Parties, and all duties and responsibilities undertaken pursuant to this Agreement wili
be for the sofe and exclusive benefit of the Parties and no one else.
l.. Assiqns and Successors. The Parties each bind themseives, their partners, successors,
ass+gns, and legal representatives to the ofher parky to this Agreement, and to the
partners, successors, assigns, and legal representatives af 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 Consultant from enforcing tha# provision or any other
provision of tnis Agreement in the future. Waiver of breach of any pravision of this
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Agreement shall not be deemed to be a waiver of any priar or subsequent breach
uniess it is expressly waived in writing.
N. Gountgrparts. The Parties may execute this Agreernent in any number of
counterparts,each of which shafi cansEitute an original, and ali of which wiil tagether
constitute this one Agreement.
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IN WITNESS WHERE�F, the Parties have voluntarily entered into this Agreement as of Ehe date
last signed by the Parties belaw.
CITY OF RENTON CONSULTANT
By: /�� ��~ BY: 2
Gregg Zim r n Christy Fagan
Public Works Administrator Kar-Gor, Inc.
�,LL2- - �1�3// �
Dake Date
Attest
�l�
Jason A.Seth
City Clerk
Appraved as to Legal Form
Lawrence J.Warren
Renton City Attarney
ABreement Form Updated 08J30/2016
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Exhib+t"A"-Scope af Service
Equipment provided includes 5 Acyclica RoadTrend Data callec.tian Wi-Fi devices.
The Lease agreement will allow the user access to Acyclica's cloud based"Go" software analytics
platfonn Th`tswilf givethe end user access#o up to date data aswell es historical data obtained from
each of the S devices regardless of the locations where they are installed within the city.
Kar-Gorwill support the city as needed This suppart can include canr�ection or setup issues,hardware
troubleshooting or replacement of a sensor#hat falls under the warranty guidelines,or assistance with
analytics setup parameters.
Kar-Gar is not responsible for the quality of the cellular networic connection �r canfiguratian or any
traubleshooting in�ol�ing such items. Kar-Gorwill attempt ta answer queskions or assist with is5ues if
needed.
The Lease may be terminated earty up to year 3 for a fee of$1000 per unit. The city of Renton will own
the units after year 5 and da not need to retum them. If the city of Renton should decide to purchase
the units #hey may do so for$4040 after year 1,$30�0 after year 2,$2000 after year 3 or$100Q after
year 4,per unik.
During the length of the lease,hardware upgrades are not included but could be considered fpr a fee.
7ha#fee wauld be determinec! if an upgrade became available and the cost of such would be
determined based on ihe cast of the upgraded hardware. Safiware upgrades are available during the
length of the lease if they become available. These are typicaliy at no charge to Ehe city.
Kar-Gordoes not warranty beyond Acyclica's manufacturer warranty.
Exhibit B
Lease Pricing Structure
YEAR 1 QUANTITY UNIT PRICE EXTENDED PRICE
• Lease Acyclica Road Trend w/ WiFi Unit, 5 $1,000 $5,000
Modem & Cell Service
• Purchase Skywave Antenna 30 $ 140 $4,200
• Purchase RP-SMA to SMA Cable 30 $ 40 $1,200
Total 15` Year Cost $10,400
YEAR 2
• Lease Acyclica Road Trend w/ WiFi Unit, 5 $1,000 $5,000
Modem & Cell Service
Total 2"d Year Cost $5,000
YEAR 3
• Lease Acyclica Road Trend w/ WiFi Unit, 5 $1,000 $5,000
Modem & Cell Service
Total 3rd Year Cost $5,000
YEAR 4
• Lease Acyclica Road Trend w/ WiFi Unit, 5 $1,000 $5,000
Modem & Cell Service
Total 4th Year Cost $5,000
YEAR 5
• lease Acyclica Road Trend w/ WiFi Unit, 5 $1,000 $5,000
Modem & Cell Service
Total 5t'' Year Cost $5,000
Note:Sales tax and Washington State Contract DES fees are not applied to pricing structure.