HomeMy WebLinkAbout2016-298 Contract - Guardian Tracking
Contract for GOODS AND SERVICES less than $25,000
CITY OF CONTRACTOR: Guardian Tracking
-AS H LA N D CONTACT: Leon Wasilewski
20 East Main Street
Ashland, Oregon 97520 ADDRESS: PO Box 2:291, Anderson, IN 46018
Telephone: 541/488-6002
Fax: 541/488-5311 TELEPHONE: 765-621-6764
DATE AGREEMENT PREPARED: 10/27/2016 FAX:
COMPLETION DATE: Implementation complete by 2/1/2017,
BEGINNING DATE: 11/01/2016 annual subscription renewal.
COMPENSATION: Per quote: Annual subscription fee for Guardian Tracking Employee Performance
Management Software $4,730.00, plus a one-time implementation fee of $1,656.00, which includes database
creation and administrative user training.
GOODS AND SERVICES TO BE PROVIDED: Performance Management Software for Citywide use per
Guardian Tracking, LLC, Hosted Application Services Agreement attached.
ADDITIONAL TERMS: -
In the event of conflicts or discrepancies among the contract documents, the City of Ashland Contract for Goods and Services will be primary and take
precedence, and any exhibits or ancillary contracts or agreements having redundant or contrary provisions will be subordinate to and interpreted in a
manner that will not conflict with the said primary City of Ashland Contract.
NOW THEREFORE, pursuant to AMC 2.50.090 and after consideration of the mutual covenants contained herein the
CITY AND CONTRACTOR AGREE as follows:
1. All Costs by Contractor: Contractor shall, provide all goods as specified' above and shall at its own risk and
expense, perform any work described above and, unless otherwise specifed, furnish all labor, equipment and
materials required for the proper performance of such work.
2. Qualified Work: Contractor has represented, and by entering into this contract now represents, that any personnel
assigned to the work required under this contract are fully qualified to perform the work to which they will be assigned
in a skilled and worker-like manner and, if required to be registered, licensed or bonded by the State of Oregon, are
so registered, licensed and bonded. Contractor must also maintain a current City business license.
3. Completion Date: Contractor shall provide all goods in accordance with the standards and specifications, no later
than the date indicated above and start performing the work under this contract by the beginning date indicated
above and complete the work by the completion date indicated above. i
4. Compensation: City shall pay Contractor for the specified goods and for any work performed, including costs and i
expenses, the sum specified above. Payments shall be made within 30 days of the date of the invoice. Should the
contract be prematurely terminated, payments will be made for work completed and accepted to date of termination.
Compensation under this contract, including all costs and expenses of Contractor, is limited to $25,000.00, unless a
separate written contract is entered into by the City.
5. Ownership of Documents: All documents prepared by Contractor pursuant to this contract shall be the property of
City.
6. Statutory Requirements: ORS 2796.220, 2796.225, 2796.230, 2796.235, ORS Chapter 244 and ORS 670.600 are
made part of this contract.
7. Living Wage Requirements: If contractor is providing services under this contract and the amount of this contract
is $20,283.20 or more, Contractor is required to comply with chapter 3.12 of the Ashland Municipal Code by paying a
living wage, as defined in this chapter, to all employees performing work under this contract and to any subcontractor
who performs 50% or more of the work under this contract. Contractor is also required to post the notice attached
hereto as Exhibit B predominantly in areas where it will be seen by all employees.
8. Indemnification: Contractor agrees to defend, indemnify and save City, its officers, employees and agents harmless
from any and all losses, claims, actions, costs, expenses, judgments, subrogations, or other damages resulting from
injury to any person (including injury resulting in death), or damage (including loss or destruction) to property, of
whatsoever nature arising out of or incident to the performance of this contract by Contractor (including but not limited
to, Contractor's employees, agents, and others designated by Contractor to perform work or services attendant to this
contract). Contractor shall not be held responsible for any losses, expensE~S, claims, subrogations, actions, costs,
judgments, or other damages, directly, solely, and proximately caused by the negligence of City.
9. Termination:
a. Mutual Consent. This contract may be terminated at any time by mutual consent of both parties.
Contract for Goods and Services Less than $25,000, 06/3012016, Page 1 of 5
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b. City's Convenience. This contract may be terminated at any time by City upon 30 days' notice in writing
and delivered by certified mail or in person,
c. For Cause. City may terminate or modify this contract, in whole or in part, effective upon delivery of
written notice to Contractor, or at such later date as may be established by City under any of the following
conditions:
i. If City funding from federal, state, county or other sources is not obtained and continued at levels
sufficient to allow for the purchase of the indicated quantity of services;
ii. If federal or state regulations or guidelines are modified, changed, or interpreted in such a way
that the services are no longer allowable or appropriate for purchase under this contract or are
no longer eligible for the funding proposed for payments authorized by this contract; or
iii. If any license or certificate required by law or regulation to be held by Contractor to provide the
services required by this contract is for any reason denied, revoked, suspended, or not renewed,
d. For Default or Breach.
i. Either City or Contractor may terminate this contract in the event of a breach of the contract by
the other. Prior to such termination the party seeking termination shall give to the other party
written notice of the breach and intent to terminate. If the party committing the breach has not
entirely cured the breach within 15 days of the date of the notice, or within such other period as
the party giving the notice may authorize or require, then the contract may be terminated at any
time thereafter by a written notice of termination by the party giving notice.
ii. Time is of the essence for Contractor's performance of each and every obligation and duty under
this contract. City by written notice to Contractor of default or breach, may at any time terminate
the whole or any part of this contract if Contractor fails to provide services called for by this
contract within the time specified herein or in any extension thereof.
iii. The rights and remedies of City provided in this subsection (d) are not exclusive and are in
addition to any other rights and remedies provided by law or under this contract,
e. Obligation/Liability of Parties. Termination or modification of this contract pursuant to subsections a, b, or
c above shall be without prejudice to any obligations or liabilities of either party already accrued prior to such
termination or modification. However, upon receiving a notice of termination (regardless whether such notice is
given pursuant to subsections a, b, c or d of this section, Contractor shall immediately cease all activities under
this contract, unless expressly directed otherwise by City in the notice of termination. Further, upon termination,
Contractor shall deliver to City all contract documents, information, works-in-progress and other property that are
or would be deliverables had the contract been completed. City shall pay Contractor for work performed prior to
the termination date if such work was performed in accordance with the Contract.
10. Independent Contractor Status: Contractor is an independent Contractor and not an employee of the City.
Contractor shall have the complete responsibility for the performance of this contract.
11. Non-discrimination Certification: The undersigned certifies that the undersigned Contractor has not discriminated
against minority, women or emerging small businesses enterprises in obtaining any required subcontracts.
Contractor further certifies that it shall not discriminate in the award of such subcontracts, if any. The Contractor
understands and acknowledges that it may be disqualified from bidding on this contract, including but not limited to
City discovery of a misrepresentation or sham regarding a subcontract or that the Bidder has violated any
requirement of ORS 279A.110 or the administrative rules implementing the Statute.
12. Asbestos Abatement License: if required under ORS 468A.710, Contractor or Subcontractor shall possess an
asbestos abatement license.
13. Assignment and Subcontracts: Contractor shall not assign this contract: or subcontract any portion of the work
without the written consent of City. Any attempted assignment or subcontract without written consent of City shall be
void. Contractor shall be fully responsible for the acts or omissions of any assigns or subcontractors and of all
persons employed by them, and the approval by City of any assignment or subcontract shall not create any
contractual relation between the assignee or subcontractor and City.
14. Use of Recyclable Products: Contractor shall use recyclable products to the maximum extent economically feasible
in the performance of the contract work set forth in this document.
15. Default. The Contractor shall be in default of this agreement if Contractor commits any material breach or default of
any covenant, warranty, certification, or obligation it owes under the Contract; if it loses its QRF status pursuant to
the QRF Rules or loses any license, certificate or certification that is required to perform the work or to qualify as a
QRF if Contractor has qualified as a QRF for this agreement; institutes an action for relief in bankruptcy or has
instituted against it an action for insolvency; makes a general assignment for the benefit of creditors; or ceases doing
business on a regular basis of the type identified in its obligations under the Contract; or attempts to assign rights in,
or delegate duties under, the Contract.
16. Insurance. Contractor shall at its own expense provide the following insurance:
a. Worker's Compensation insurance in compliance with ORS 656.017, which requires subject employers to
provide Oregon workers' compensation coverage for all their subject workers
b. General Liability insurance with a combined single limit, or the equivalent, of not less than Enter one:
$200,000, $500,000, $1,000,000, $2,000,000 or Not Applicable for each occurrence for Bodily Injury and Property
Contract for Goods and Services Less than $25,000, 06/30/2016, Page 2 of 5
' Damage.
C. Automobile Liability insurance with a combined single limit, or the equivalent, of not less than Enter one:
$200,000, $500,000, $1,000,000, or Not Applicable for each accident for Bodily Injury and Property Damage,
including coverage for owned, hired or non-owned vehicles, as applicable.
d. Notice of cancellation or change. There shall be no cancellation, material change, reduction of limits or
intent not to renew the insurance coverage(s) without 30 days' written notice from the Contractor or its insurer(s) to
the City.
e. Additional Insured/Certificates of Insurance. Contractor shall name The City of Ashland, Oregon, and its
elected officials, officers and employees as Additional Insureds on any insurance policies, excluding Workers'
Compensation, required herein but only with respect to Contractor's services to be provided under this Contract.
As evidence of the insurance coverages required by this Contract, the Contractor shall furnish acceptable
insurance certificates prior to commencing work under this contract. The contractor's insurance is primary and
non-contributory. The certificate will specify all of the parties who are Additional Insureds. Insuring companies or
entities are subject to the City's acceptance. If requested, complete copies of insurance policies, trust
agreements, etc. shall be provided to the City. The Contractor shall be financially responsible for all pertinent
deductibles, self-insured retentions and/or self-insurance.
17. Governing Law; Jurisdiction; Venue: This contract shall be governed and construed in accordance with the laws
of the State of Oregon without resort to any jurisdiction's conflict of laws, rules or doctrines. Any claim, action, suit or
proceeding (collectively, "the claim") between the City (and/or any other or department of the State of Oregon) and
the Contractor that arises from or relates to this contract shall be brought and conducted solely and exclusively within
the Circuit Court of Jackson County for the State of Oregon. If, however, the claim must be brought in a federal
forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the
District of Oregon filed in Jackson County, Oregon. Contractor, by the signature herein of its authorized
representative, hereby consents to the in personam jurisdiction of said courts. In no event shall this section be
construed as a waiver by City of any form of defense or immunity, based on the Eleventh Amendment to the United
States Constitution, or otherwise, from any claim or from the jurisdiction.
18. THIS CONTRACT AND ATTACHED EXHIBITS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE
PARTIES. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS CONTRACT SHALL
BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH WAIVER, CONSENT,
MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR
THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR
REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS CONTRACT,
CONTRACTOR, BY SIGNATURE OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT
HE/SHE HAS READ THIS CONTRACT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND
CONDITIONS.
19. Nonappropriations Clause. Funds Available and Authorized: City has sufficient funds currently available and
authorized for expenditure to finance the costs of this contract within the City's fiscal year budget. Contractor
understands and agrees that City's payment of amounts under this contract attributable to work performed after the
last day of the current fiscal year is contingent on City appropriations, or other expenditure authority sufficient to allow
City in the exercise of its reasonable administrative discretion, to continue to make payments under this contract. In
the event City has insufficient appropriations, limitations or other expenditure authority, City may terminate this
contract without penalty or liability to City, effective upon the delivery of written notice to Contractor, with no further
liability to Contractor.
20. Prior Approval Required Provision. Approval by the City of Ashland Council or the Public Contracting Officer is
required before any work may begin under this contract.
21. Certification. Contractor shall sign the certification attached hereto as Exhibit A and herein incorporated by
reference.
Contract City-of Ashland
t
Y By
Signature Department Head
Leon Wasilewski
Print Name Print Name
Partner
Title Date
W-9 One copy of a W-9 is to be submitted with e~L
the signed contract. Purchase Order No.
AMIOVED AS TO FORM
Contract for Goods and Services Less than $25,000, 06/30/2016, Page 3 of 5 Ash Asst City Attomey
Q3 Zai6
Date
EXHIBIT A
CERTIFICATIONS/REPRESENTATIONS: Contractor, under penalty of perjury, certifies that (a) the
number shown on the attached W-9 form is its correct taxpayer ID (or is waiting for the number to be
issued to it and (b) Contractor is not subject to backup withholding because (i) it is exempt from
backup withholding or (ii) it has not been notified by the Internal Revenue Service (IRS) that it is
subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS
has notified it that it is no longer subject to backup withholding. Contractor further represents and
warrants to City that (a) it has the power and authority to enter into and perform the work, (b) the
Contract, when executed and delivered, shall be a valid and bindiing obligation of Contractor
enforceable in accordance with its terms, (c) the work under the Contract shall be performed in
accordance with the highest professional standards, and (d) Contractor is qualified, professionally
competent and duly licensed to perform the work. Contractor also certifies under penalty of perjury
that its business is not in violation of any Oregon tax laws, and it is a corporation authorized to act on
behalf of the entity designated above and authorized to do business in Oregon or is an independent
Contractor as defined in the contract documents, and has checked four or more of the following
criteria:
XX (1) 1 carry out the labor or services at a location separate from my residence or is in a
specific portion of my residence, set aside as the location of the business.
XX (2) Commercial advertising or business cards or a trade association membership are
purchased for the business.
XX (3) Telephone listing is used for the business separate from the personal residence listing.
XX (4) Labor or services are performed only pursuant to written contracts.
XX (5) Labor or services are performed for two or more different persons within a period of one
year.
XX (6) 1 assume financial responsibility for defective workmanship or for service not provided
as evidenced by the ownership of performance bonds, warranties, errors and omission
insurance or liability insurance relating to the labor or services to be provided.
October 27, 2016
Contractor (Date)
Contract for Goods and Services Less than $25,000, 06/30/2016, Page 4 of 5
CITY • ► 1 •
EXHIBIT B
City of Ash land
LIVING
4 i • 1 i'i
VM E
• It i 1 r I
1 . i i • "
per hour effective June 30, 2016
A (Increases annually every June 30 by the
Consumer Price Index)
• 1 - / , portion of business of their 401 K and IRS eligible
• employer, if the employer has cafeteria plans (including
ten or more employees, and childcare) benefits to the
has received financial amount of wages received by
assistance for the projector the employee.
➢ For all hours worked under a business from the City of
service contract between their Ashland in excess of ➢ Note: "Employee" does not
employer and the City of $20,283.20. include temporary or part-time
Ashland if the contract employees hired for less than
exceeds $20,283.20 or more. ➢ If their employer is the City of 1040 hours in any twelve-
Ashland including the Parks month period. For more
➢ For all hours worked in a and Recreation Department, details on applicability of this
month if the employee spends policy, please see Ashland
50% or more of the ➢ In calculating the living wage, Municipal Code Section
employee's time in that month employers may add the value 3.12.020.
working on a project or of health care, retirement,
• additional information:
Call the Ashland City Administrator's office at 541-488-6002 or write to the City Administrator, City Hall,
20 East Main Street, Ashland, OR 97520 or visit the city's website at www.ashland.or.us.
Notice to Employers: This notice must be posted predominantly in areas where it can be seen by all employees.
CITY of
ASHLAND
Contract for Goods and Services Less than $25,000, 06/30/2016, Page 5 of 5
GuardianTracking
GUARDIAN TRACKING, LLC
HOSTED APPLICATION SERVICES AGREEMENT
THIS HOSTED APPLICATION SERVICES AGREEMENT (the "Agreement") is by and between
GUARDIAN TRACKING, LLC, an Indiana limited liability company ("Guardian") and the undersigned
customer (the "Customer");
WITNESSETH:
WHEREAS, Guardian has developed and owns certain, proprietary software systems (each, an
"Application" or the "Application Services"); and
WHEREAS, Customer desires to subscribe to and access one or more Applications via the
Internet, and Guardian desires to provide access to the Application(s), together with related maintenance
and support services, all pursuant to the terms and subject to the conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises, of the mutual promises, agreements and
covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties, Guardian and Customer agree as follows:
SECTION 1
License
1.1 Grant of License. Subject to the terms of this Agreement, Guardian hereby grants to
Customer a non-exclusive, non-transferable right and license (the "License") to (a) access and use the
Application(s) identified on Schedule A (sometimes referred to as the "Quotation Sheet"), via the Internet,
and (b) use any related user documentation or materials provided or disclosed to Customer by Guardian
in the course of providing such access to the Application(s) (the "Documentation"). BY THIS LICENSE,
CUSTOMER IS GRANTED NO RIGHTS TO THE OBJECT OR SOURCE CODE OF THE
APPLICATIONS OR ANY TRANSLATIONS OR DERIVATIVE WORKS THEREOF. CUSTOMER
SHALL NOT CREATE DERIVATIVE WORKS OF, MODIFY, ASSIGN, SUBLICENSE, SELL, RENT,
REVERSE ENGINEER, DISASSEMBLE OR DECOMPILE THE APPLICATIONS.
1.2 Scope of License. The License shall permit the number of users set forth on Schedule
A as amended by the parties hereto from time to time, to access the Application(s) from the personal
computers or networks owned or leased by Customer, for Customer's; internal business purposes only
and otherwise in accordance with this Agreement. Customer shall be provided with an administrative
username and password; such administrative user shall have the ability to add, modify or delete user
accounts for access to the Application(s) by its employees and/or agents. Customer will ensure that such
passwords are used only by the user assigned to the password and not by any other person. The total
number of passwords issued will not exceed the number of users set forth on Schedule A. Customer
shall be responsible for protecting the security of usernames and passwords, and shall promptly notify
Guardian, upon suspicion that a username has been lost, stolen, compromised, or misused.
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SECTION 2
Equipment
Customer shall be solely responsible for obtaining and maintaining all hardware, software and
ancillary services which are necessary for it to access the Application(s) via the Internet, including,
without limitation, all computers, supported web browsers, and internet services, as further set forth on
Schedule B. Guardian may update the information on Schedule B at any time, and shall provide a copy
of such updated schedule to Customer.
SECTION 3
Services
3.1 Support, Maintenance, and Training Services. Guardian shall provide to Customer,
during the Term, support, maintenance and training services according to the parameters and
specifications described in Schedule C attached hereto (the "Support Services"). Guardian shall use
commercially reasonable efforts during the Term to correct any reproducible material error, malfunction or
defect in the Application(s) that prevents the Application(s) from substantially and materially performing in
accordance with the then-current Documentation, and shall commence such efforts within ten (10)
business days after its receipt of a written request by Customer for such maintenance, which request
shall include a detailed description of the error, malfunction or defect. GUARDIAN WILL HAVE NO
OBLIGATION WITH RESPECT TO ANY PURPORTED ERROR, MALFUNCTION OR DEFECT WHICH
ARISES FROM CAUSES EXTERNAL TO THE APPLICATION(S) OR THE APPLICATION(S) REMOTE
HOSTING ENVIRONMENT OR BY IMPROPER USE BY CUSTOMER OR ITS AGENTS.
3.2 Data Entry. The entry of Customer information and data required for Customer to utilize
the Application(s) ("Customer Data") will be performed by Customer at Customer's sole expense. In the
event that Customer Data is shared with the Application via any Customer or third-party database or
software application, Customer shall be solely responsible for the transfer and sharing of such Customer
Data, and Customer represents and warrants that it possesses all necessary rights to use and access
such database or software application.
SECTION 4
Fees
4.1 Fees. In consideration of the License and the Support: Services, Customer shall pay the
fees described in and/or computed in accordance with the rates set forth in Schedule A attached hereto
(the "Fees"). Guardian shall have the right to modify the Fees as set forth in Schedule A,
4.2 Fee Invoices. All fees shall be payable in accordance: with the invoicing procedures set
forth in Schedule A. Applicable taxes covering the License or Support Services, including sales, use,
personal property, value-added, withholding, excise or other taxes and duties, if any, but specifically
excluding any income or corporate franchise taxes, will be added to the invoice as prescribed by
applicable law. In the event Customer is a tax exempt organization, Customer shall provide all
documentation requested by Guardian to evidence its tax exempt status.
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SECTION 5
Term and Termination
5.1 Term. The term of this Agreement shall commence on the date hereof and, unless
terminated earlier as provided herein, shall continue for a period of twelve (12) months (the "Initial Term").
Prior to expiration of the Initial Term (and each following renewal term), Customer will be invoiced for a 12
month renewal term. If Customer pays such invoice, the term of this Agreement shall be extended 12
months. (The Initial Term as it may be renewed or terminated pursuant to the provisions of this
Agreement being sometimes referred to as the "Term").
5.2 Termination.
(a) Upon termination of this Agreement, Customer shall immediately and permanently
discontinue using, in any manner whatsoever, the Application(s);
(b) Upon termination of this Agreement, Guardian shall:
M Return all Customer Data in electronic format.
(ii) Within thirty (30) days of the effective date of such termination and upon request
by Customer, certify in writing to Customer that all actions required by this Section 5.2(b) have
been complied with by Guardian.
SECTION 6
Default and Remedies
6.1 Events of Default. Each of the following shall constitute an Event of Default under this
Agreement:
(a) Customer fails to pay any amount due hereunder within ten (10) days after receipt of
written notice from Guardian that said payment is past due; and
(b) Either party fails to perform or observe any obligation, covenant, term, condition or
provision of this Agreement, and such failure is not remedied or cured by the defaulting party within thirty
(30) days after receipt of written notice thereof by the other party hereto.
6.2 Remedies. If an Event of Default occurs, the non-defaulting party may, at its option,
pursue any remedy available to it at law or equity, suspend performance of its obligations under this
Agreement for so long as the Event of Default continues unremedied, ,and/or terminate this Agreement or
any portion hereof
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SECTION 7
Representations and Warranties
Each party represents and warrants that it has the power and authority to enter into this
Agreement. Guardian represents and warrants that (a) it will provide the Support Services in a manner
consistent with generally accepted industry standards, and (b) the Application(s) shall perform
substantially in accordance with the Documentation under normal use. Customer represents and
warrants that it has the full right and license to use the Customer Data in connection with the
Application(s) and that such use shall not infringe on any third party intellectual property rights. Customer
is responsible for all activity occurring under Customer's user accounts and shall abide by all applicable
local, state, national and foreign laws, treaties and regulations in connection with Customer's use of the
Application(s), including those related to data privacy, international communications and the transmission
of technical or personal data. By this Agreement, Guardian does not attain ownership in any Customer
Data. Customer, not Guardian, shall have sole responsibility for the accuracy, quality, integrity, legality,
reliability, appropriateness, and intellectual property ownership or right to use of all Client Data, and
Guardian shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure
to store any Client Data. Guardian shall use reasonable efforts to protect Client Data behind a secure
firewall system, and to conduct data backups, as more fully set forth on Schedule C.
SECTION -8
Disclaimer of Warranties; Limitation of Liability
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, THERE ARE NO OTHER
REPRESENTATIONS, WARRANTIES, CONDITIONS, OR OTHER TERMS CONCERNING THE
APPLICATION(S) OR THE SUPPORT SERVICES, AND GUARDIAN AND ITS LICENSORS
EXPRESSLY DISCLAIM ANY OTHER WARRANTIES WITH REGARD TO THE APPLICATION(S) OR
THE SUPPORT SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT
OF THIRD PARTY RIGHTS. IN NO EVENT SHALL GUARDIAN OR ITS LICENSORS BE LIABLE FOR
ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSS OF BUSINESS,
LOSS OF PROFITS, LOSS OF GOODWILL, OR TORTIOUS CONDUCT RELATING TO, CAUSED BY,
OR ARISING OUT OF ANY BREACH OF ITS OBLIGATIONS OR =cSTOMER'S USE OR INABILITY TO
USE THE APPLICATION(S), EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH LOSS OR DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF GUARDIAN AND
ITS LICENSORS ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNTS ACTUALLY
PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY
PRECEDING THE EVENT GIVING RISE TO ANY CLAIM BY CUSTOMER AGAINST GUARDIAN.
SECTION 9
Proprietary Rights and Confidentiality
9.1 Proprietary Rights. Ali trademarks, service marks, patents, copyrights, trade secrets
and other intellectual property rights in the Application(s) (collectively, "Materials") are and will remain the
exclusive property of Guardian or its licensors, whether or not specifically recognized or perfected under
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applicable local law. Customer will not create derivative works of, modify, assign, sublicense, sell, rent,
reverse engineer, disassemble or decompile the Materials. Any rights not expressly granted herein are
reserved to Guardian or its licensors. Customer will not take any action that jeopardizes Guardian' or its
licensors' proprietary rights in the Materials or acquire any right in the Materials. The obligations of
Customer under this Section 9.1 shall survive the expiration or earlier termination of this Agreement.
9.2 Confidential Information of Customer.
(a) Guardian may receive from Customer, or otherwise acquire, certain confidential,
proprietary, and/or valuable information of Customer, its affiliates, predecessors, successors or permitted
assigns and/or business collaborators, including without limitation the Customer Data (any such
information shall hereinafter be referred to as the "Confidential Information"). All Confidential
Information shall remain the sole and exclusive property of Customer, its affiliates, predecessors,
successors or permitted assigns and/or business collaborators as thE', case may be. Guardian hereby
covenants, represents and warrants that Guardian shall treat confidentially and maintain in strict
confidence all of the Confidential Information and shall not disclose, in whole or in part, directly or
indirectly, any Confidential information to any person or entity other than to its employees who have a
need to know such information for the benefit of Customer to further this Agreement and/or the Support
Services; rod vided, however, that Guardian nor any of its employees shall directly access the Confidential
Information without the prior written consent of the Customer.
(b) Upon termination or expiration of this Agreement, Guardian shall return to Customer any
and all of the Confidential Information (in accordance with Section 5.2(b)(i)).
(c) Guardian shall cause its employees to comply with the obligations in this Section 9 and
shall advise its employees of the obligations hereunder. The obligations set forth in this Section 9 shall
survive the expiration or earlier termination of this Agreement.
(d) Customer understands and acknowledges that the technical processing and transmission
of the Applications, including Customer Data, may involve (i) transmissions over various networks; and (ii)
changes to conform and adapt to technical requirements of connecting networks, devices or services.
(e) In the event that Guardian is requested, pursuant to subpoena or other legal process, to
disclose any of the Confidential Information, Guardian shall provide the Customer with immediate notice
so that Customer may seek a protective order or other appropriate remedy and/or waive compliance with
the provisions of this Agreement. In the event that such protective order or other remedy is not obtained
or that Guardian waives compliance with the provisions of this Agreement, Guardian (or such other
person) shall furnish only that portion of the Confidential Information which is legally required.
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SECTION 10
Miscellaneous
10.1 Notices. All notices, requests, claims, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been doily given on the date of service if
served personally or sent via electronic mail on the party to whom notice is to be given, or on the third
(3rd) day after mailing if mailed to the party to whom notice is to be given, by certified mail, return receipt
requested, first class postage prepaid, or other nationally-recognized express courier service and properly
addressed to the postal address or electronic mail address set forth in the signature blocks of this
agreement.
10.2 Benefit of Agreement. The terms and provisions of this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
10.3 Entire Agreement; Modification. This Agreement, including the Schedules attached
hereto, contains the entire agreement between the parties with respect to the subject matter hereof; all
representations, promises, proposals and prior or contemporaneous understandings between the parties
with respect to this subject matter hereof are merged into and expressed in this Agreement; and any and
all prior or contemporaneous agreements between the parties with respect to the subject matter hereof
are hereby canceled. Except as otherwise provided herein, this Agreement may not be changed or
modified, except by agreement in writing, signed by all of the parties hereto.
10.4 Headinnss. Section headings in this Agreement are for convenience of reference only
and shall not govern the interpretation of any provision hereof.
10.5 Counters. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original but all of which together shall be deemed but one and the same
instrument.
10.6 Incorporation by Reference. All Schedules and Recitals hereto are incorporated herein
by this reference.
10.7 Assignment. This Agreement may not be assigned, sublicensed or transferred in any
way by Customer without Guardian's prior written consent.
10.8 No Joint Venture. Nothing in this Agreement shall be construed to constitute a joint
venture, partnership, agency, representative or employment relationshiin between the parties.
10.9 Force Maieure. If the performance of this Agreement, or any obligation hereunder
(except the making of payments) is prevented. restricted, or interfered with by fire, flood, earthquake,
explosion or other casualty or accident or act of God; strikes or labor disputes, inability to procure or
obtain delivery of parts, supplies, power, telecommunication services, or other services from suppliers,
war or other violence; any law, order, regulation, ordinance, demand or requirement of any governmental
authority; or any other act or condition whatsoever beyond the reasonable control of the affected party,
the party so affected shall be excused from such performance to the extent of such prevention, restriction
or interference; provided, however, that the party so affected shall lake reasonable steps to avoid or
remove such cause of non-performance and shall resume performance hereunder as quickly as
reasonably possible when such causes are removed.
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GuardianTracking
10.10 Non-Waiver. Neither the waiver of any breach nor the failure to enforce any term or
condition of this Agreement shall operate as a waiver or release of any such term or condition, nor
constitute nor be deemed a waiver or release of any other rights, in law or at equity, or claims which either
party may have against the other party for any matter arising out of, or connected with, or based upon this
Agreement. No waiver shall be enforceable against any party hereto unless set forth in a written
instrument or agreement signed by such party.
10.11 Costs and Expenses-. In any action at law or in equity to enforce any of the provisions
or rights under this Agreement, the unsuccessful party to such litigation, as determined by the court in a
final judgment or decree, shall pay the successful party all costs, expenses and reasonable attorneys'
fees incurred by the successful party (including, without limitation, costs, expenses and fees on any
appeals), and if the successful party recovers judgment in any such action or proceeding, such costs,
expenses or attorneys' fees shall be included as part of the judgment.
10.12 Severability. In the event any term, provision or restriction of this Agreement shall be
held to be illegal, invalid or unenforceable by any court of competent jurisdiction, such holding shall in no
way affect the legality, validity or enforceability of the remaining provisions of this Agreement, all of which
shall continue unaffected and unimpaired thereby, The parties agree that any such unenforceable term,
provision or restriction shall be deemed modified to the extent necessary to permit its enforcement to the
maximum extent permitted by applicable law.
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` GuardianTracking
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the later of the
dates set forth below.
"GUARDIAN" "CUSTOMER"
GUARDIAN TRACKING, LLC
a(n)
By: By:
Leon Wasilewski
Printed Name Printed Name
Its: Partner Its:
October 27, 2016
Date Date
Postal Address: P.O. Box 2291 Postal Address:
Anderson, IN 46018
4
Electronic Mail: leon@guardiantracking.com Electronic Mail: ,rf
8of11
;VdICKH
U ardian"''
Company Address PO Box 2291
Anderson. IN 46018
Prepared By Leon Wasilewski
Email lcon@guardiantracking.com
Prepared For
Account Name City of Ashland (OR) Bill To 0 East Main Street
Ashland, OR 97520
Created Date 10125/2016 3 Quote Numbor ; 0160336
Expiration Date 1 1/3012016
F r
f~'~~e rtd{ct~ . lif=~"'Intor_~ '~"~r,gr~ulsl~l tilt I ~,le{~-~
Annual Subscription for Guardian Tracking - Employee Performance Management Software $4,730.00 5.75`./o $4,458.03
I
Implementation Fee (One-time fee includes: database creation, admin and user training) $1,656.00 20.00% $1,324.80
Number of Licenses 215 Total Price X5,782.82
Terms & Conditions
Terms & Conditions Subscription Acceptance: The signature of the undersigned below as the authorized representative of Customer shall
constitute Customer's binding acceptance of a subscription for the productsisemces offered by Guardian Tracking to Customer as set faith it
this quote and subject at all times to the terms, conditions and provision of Guardian Tracking's Hosted Application Services Agreement set
forth at Guardian Tracking website http;LLwww.QUardiantracki.r: corn servic-aag!-eenient which terms, conditions and provisions are
incorporated herein by reference, to which Customer hereby agrees to be bound, and which shall govern the rights and liabilities of the parties
hereto. The Effeclivo Date (as defined in the online terms and conditions of this Software as ra Service Agreement) shall be the date set forth
below.
Additional Information
Customer has the option to renew at the end of each twelve (12) month term. The. Hosted Applications Snfvces Agreement guarantees tr,e
quoted annual subscription fee for three years. After three years any increase shall be no greater Than 20°io and will again be guaranteed for three
years.
Authorized Signature
Signature Date
Print Name:
GuardianTracking
Schedule A
The Guardian Tracking Quote Sheet will be inserted as Schedule A
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• GuardianTracking
Schedule B
Supported Browsers for Accessing the Application
1. The current version, and the immediately prior released version, of any browser listed below.
Browsers:
➢ Google Chrome
➢ FireFox
➢ Internet Explorer
➢ Safari
➢ Opera
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GuardianTrac king
Schedule C
Support, Maintenance, and Training Services
The following is a description of services to be performed:
• Install on third party hosting environment servers, and provide remote access to, the Application.
• Access to the Application(s), and transmittal of all data, login and password information between
the client and the server will be encrypted using Secure Sockets Layer (SSL).
• All Customer Data will be stored in a separate, logical database within a shared physical server.
All Customer Data is handled by the Application(s) in isolation from the data of other customers.
The hardware, software and network will be monitored and maintained and will normally be
accessible, in accordance with industry standards, except for scheduled maintenance and
required repairs.
Customer will be notified in advance, usually no less than one week, by email and/or an
announcement within the Application, of any scheduled maintenance and/or expected downtime.
• If a system outage occurs, Guardian will promptly commence remedial activities and use
reasonable efforts to resolve any such outage within a reasonable amount of time.
• Customer data will be backed up on a daily and weekly basis.
• Provide up to 2 hours of administrator training and 2 hours of user training (without regard to the
number of users) every 12 months during the term of this Agreement. Training services are
available only upon request and must be scheduled at mutually agreed upon times by both
parties. Additional training may be provided upon request and for a fee to be agreed on in writing
by the parties.
• The customer is expected to make a reasonable effort to rE;duce the file size of attachments
before uploading them to Guardian (For example, converting tiff file to .jpeg). In the unlikely
event that the average size of attachments, across all incidents, exceeds 1 MB Guardian may
contact the agency to assist in implementing a strategy to reduce file sizes.
Any single attachment will be limited to 4MB in size.
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Purchase Order
Fiscal Year 2017 Page: 1 of: 1
B City of Ashland
L ATTN: Accounts Payable Purchase
L 20 E. Main 394
Ashland, OR 97520 Order #
T Phone: 541/552-2010
O Email: payable@ashland.or.us
V H C/O Human Resources Division
E GUARDIAN TRACKING LLC I 20 East Main Street
N PO BOX 2291
D ANDERSON, IN 46018 P Ashland, OR 97520
O Phone: 541/552-2110
T Fax: 5,41/488-5311
R O
=Vendor R.VW&~NumbQr` -ndWE = Ngm-e6 Qum-RIMil - _
Tina Gray
10/28/2016 1118 FOB ASHLAND OR City Accounts Payable
Perform (PE) Software Mgmt
1 Software for Performance Management 1 $4,458.0300 $4,458.03
Annual Subscription
2 1x Implementation Fee 1 $1,324.8000 $1,324.80
GL SUMMARY
014900 - 604100 $5,782.83
,4
By~~ Date:' B
Authorized signature = $5.782.83
FORM #3 CITY OF
ASHLAND
REQUISITION Date request:
Required date for delivery:
Vendor Name ' I 14J L"6
Address, City, State, Zip
F C,
} ~ iy
Contact Name & Telephone Number
LID, -7 (0 j
Fax Number
SOURCING METHOD
❑ Exempt from Competitive Bidding ❑ Emergency
❑ Reason for exemption: ❑ Invitation to Bid (Copies on file) ❑ Form #13, Written findings and Authorization
❑ AMC 2.50 Date approved by Council: ❑ Written quote or proposal attached
❑ Written quote or proposal attached Attach co of council communication If council a roval required, attach co of CC
❑ Small Procurement Cooperative Procurement
Less than $5,000 ❑ Request for-Proposal. (Copies on file) ❑ State of Oregon
❑ Direct Award Date approved by Council: Contract #
El Verbal/Written quote(s) or proposal(s) -(Attach copy of council communication) ❑ State of Washington
Intermediate Procurement ❑ Sole Source Contract #
GOODS & SERVICES ❑ Applicable Form (#5,6, 7 or 8) ❑ Other government agency contract
5,000 to $100,000 ❑ Written quote or proposal attached Agency
(3) Written quotes and solicitation attached ❑ Form #4, Personal Services $5K to $75K Contract #
`PERSONAL SERVICES El Special Procurement Intergovernmental Agreement
$5,000 to $75,000 ❑ Agency
❑ Form #9, Request for Approval Date original contract approved by Council:
❑ Less than $35,000, by direct appointment ❑ Written quote or proposal attached (pate)
❑ (3) Written proposals1written solicitation Date approved by Council: _ (Attach copy of council communication)
❑ Form #4, Personal Services $5K to $75K Valid until: Date
Description of SERVICES Total Cost
$ r
Item # Quantity Unit Description of MATERIALS Unit Price Total Cost
TOTAL COST
❑ Per attached quote/proposal` $
Project Number _ _ _ _ _ _ - _ _ _ Account Number A
Account Number _ - - _ ' - _ Account dumber - - - -
*Expenditure must be charged to the appropriate account numbers for the financials to accurately reflect the actual expenditures.
IT Director in collaboration with department to approve all hardware and software purchases:
l T Director Date Support -Yes /No
By signing this requisi7,, form, l cer~fy that the ity's public contracting requirements have been satisfied.
t
Employee: 1 J} ! r Department Head; _ e
(Equal to or greater than $5,000)
Department Manager/Supervisor: City Administrator:
(Equal to or greater than $25,000)
o
Funds appropriated for current fiscal year., YES / NO
finance Director (Equal to or greater than 55,000) Date' t
Comments: '
Form #3 - Requisition