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HomeMy WebLinkAbout12- Sanborn Map Company Digital Orthoimagery Professional Services Agreement f Y SERVICES AGREEMENT This Services Agreement (this "Agreement") is entered into as of the 13th day of March, 2012 ("Effective Date") by and between The Sanborn Map Company, Inc., a Delaware corporation ("Sanborn"), and the City of Bozeman, Montana (the "CLIENT"). There are no third parties to this Agreement nor any third party rights or benefits either expressed or implied. RECITALS Sanborn is in the business of creating specialized geographic information solutions products and services. CLIENT wishes to enter into this Agreement with Sanborn in order to secure products and services from Sanborn. CLIENT and Sanborn acknowledge the Agreement consists of the following, which are listed in their order of priority in the event of inconsistent or contradictory provisions: 1. This Agreement 2. Sanborn's Proposal and Fee Proposal dated January 18, 2012 (Exhibit A.I.) 3. CLIENT RFP for Digital Orthoimagery dated December 4, 2011 (Exhibit A.2.) NOW, THEREFORE, CLIENT and Sanborn mutually agree as follows: Article 1 Services. 1.1 Sanborn agrees to perform those services for the CLIENT that are specified on Exhibit A (the "Services") and shall deliver to the CLIENT those deliverables specified on Exhibit A (the "Deliverables"). Additional Services and Deliverables shall be defined by the CLIENT as Purchase Orders from time to time as its needs dictate. The Purchase Orders shall contain, at a minimum: (i) any "flow down" provisions from another buyer authorized to make purchases under this Agreement, (ii) specifications, (iii) list of deliverable items and shipment instructions, (iv) acceptance criteria, and (v) schedule of deliverables. Sanborn shall respond to such Purchase Order request with a price quotation or list of labor categories, equipment and rates. Purchase Orders must be signed by authorized representatives of each party with the The Sanborn Map Company,Inc.Services Agreement v4 authority to bind their respective organizations. Execution of a Purchase Order by both parties shall constitute a notice to proceed with the Services. Sanborn shall use its commercially reasonable efforts to render services under this Agreement in a professional and business-like manner and in accordance with the standards and practices recognized in the industry. Sanborn shall not be restricted in its use of subcontractors and suppliers (including any socioeconomically disadvantaged companies as defined in the U.S. Central Contractors Registry and/or the Small Business Administration; and any of Sanborn's qualified acquisition subcontractors) as Sanborn, in its sole discretion determines are necessary to meet its obligations under this Agreement or any Purchase Order issued hereunder. Sanborn shall identify any subcontractors that it intends to utilize that are not already identified in Sanborn's Proposal, this Agreement, or any Purchase Order issued hereunder. 1.2 Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing if such delay or default is caused by events of Force Majeure. Force Majeure shall mean any events or actions beyond the reasonable control of either CLIENT or Sanborn preventing or delaying the execution of or compliance with any of the terms and conditions contained in the Agreement, including but not limited to strikes, lockouts, labor shortages, actions or inactions of independent subcontractors and suppliers, power shortages,wars, acts of God, and governmental regulations, including the restrictions imposed by air traffic control personnel with authority over airspace required for flight operations, restricting normal operations, weather or atmospheric conditions that are not conducive for the collection of aerial imagery or terrain data in a manner that is necessary to meet or exceed the requirements of any Deliverable and inability of CLIENT to provide any specified Sources in a timely manner. Sources shall mean all information and/or materials as may be defined in this Agreement or any Purchase Order(s) issued hereunder required to be provided by CLIENT to Sanborn for the performance of the Services. 1.3 Sanborn shall be the sole and exclusive owner of all right, title and interest in and to the Deliverables until such time as Sanborn has received full and final payment of all outstanding invoices with respect to the performance of the Services and delivery of the Deliverables hereunder. At such time as payment in full has been rendered to Sanborn, the CLIENT shall have such rights, title, and interest in and to the Deliverables. 1.4 To the extent that the work materials and Deliverables are considered public domain information, Sanborn shall enjoy all rights to utilize the work materials and/or Deliverables in its business practices, without restriction. To the extent that the work materials and Deliverables are not considered public domain information, CLIENT hereby grants to Sanborn a limited, non-exclusive, nontransferable, royalty-free, perpetual, worldwide license to copy, use, create derivative works of, use derivative works of, and distribute copies of the derivative works unless specified otherwise in this Agreement or any Purchase Order(s) issued hereunder. 1.5 In so far as there is no consistent database design for CLIENT, the parties mutually agree that said design(s) shall be contained in the specifications in Exhibit A, and each Purchase Order issued hereunder. The Sanborn Map Company,Inc.Services Agreement v4 2 L6 In so far as there are no defined standards for quality validation of the Deliverables, the parties agree that such standards must be contained in the Acceptance Criteria of Exhibit A, and each Purchase Order issued hereunder. CLIENT shall be responsible for evaluating and determining the adherence of the Deliverables to the Acceptance Criteria or calculating error rates for the Deliverable units under any Purchase Order within thirty (30) days of receipt. To the extent that CLIENT assigns or contracts some or all of this responsibility to any third party ("Agent") such assignment or contracting of the responsibility shall not relieve the CLIENT of responsibility and liability for all acts and omissions which may constitute CLIENT's default or breach of this Agreement. 1.7 CLIENT's point of contact for Sanborn shall be: Jon Henderson GIS Manager The City Of Bozeman GIS Department 20 E. Olive P.O. Box 1230 Bozeman, Montana 59771-1230 (406) 582-2250 Lhenderson(2Dbozeman.net Sanborn's point of contact for CLIENT shall be: Shawn Benham Project Manager Sanborn 1935 Jamboree Drive, Suite 100 Colorado Springs, CO 80920-5358 (719) 502-1296 sbenham(a,sanbom.com Article 2 Compensation. The CLIENT shall pay Sanbom for the Deliverables and performance of the Services in accordance with the terms specified on Exhibit B. CLIENT is tax exempt and shall issue a tax exempt certificate to Sanborn upon execution of this Agreement. Article 3 Independent Contractor Status. 3.1 Sanborn is an independent contractor and no employees, associates or agents of Sanborn shall be deemed to be an employee, associate or agent of the CLIENT, or vice-versa. The CLIENT and Sanborn are not and shall not be considered as employer/employee, joint adventurers, partners, or one as agent of the other under this Agreement, and neither shall have power to bind or obligate the other. Article 4 Term and Termination.. The Sanborn Map Company,Inc.Services Agreement v4 3 4.1 This Agreement shall remain in effect from the date contained herein until terminated by either party by giving thirty (30) days' written notice to the other party. Upon the date so specified, Sanborn shall immediately terminate all activities on behalf of the CLIENT. Notwithstanding any such termination, CLIENT shall in no event be released from its obligation to pay Sanborn for all Services performed and those in process at the time of such termination, and Deliverabies delivered prior to such termination. 4.2 The provisions of sections 2-6 shall survive any termination of this Agreement. Article 5 Indemnification 5.1 By the CLIENT. The CLIENT agrees to indemnify, defend and hold harmless Sanborn and Sanborn's directors, officers, shareholders, employees, agents and affiliates from and against any and all third party actions, claims, liabilities, damages, losses and expenses, including reasonable attorneys' fees and costs (collectively, "Claims'') arising out of or related to the acts, errors or omissions of the CLIENT or any of the CLIENT's officers, directors, employees, Agents or affiliates in connection with the performance of its obligations under this Agreement. 5.2 By Sanborn. Sanborn agrees to indemnify, defend and hold harmless the CLIENT and the CLIENT's directors, officers, shareholders, employees, agents and affiliates from and against any and all third party actions, claims, liabilities, damages, losses and expenses, including reasonable attorneys' fees and costs (collectively, "Claims") arising out of or related to the acts, errors or omissions of Sanborn or any of Sanborn's officers, directors, employees, agents or affiliates in connection with the performance of its obligations under this Agreement. 5.3 Conditions of Indemnification of Third Party Claims. The obligations and liabilities of the parties hereunder with respect to Claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions: (a) In the event that any claim or demand for which one party would be liable to the other hereunder (the "Indemnified Party" and the "Indemnifying Partx" as applicable), is asserted against or sought to be collected by a third party, the Indemnified Party shall promptly notify the Indemnifying Party of such claim or demand, specifying the nature of such claim or demand and the amount or the estimated amount thereof(which estimate shall not be conclusive of the final amount of such claim or demand) (the "Claim Notice"). The Indemnifying Party shall have 30 days from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party (1) whether or not the Indemnifying Party disputes its liability to the Indemnified Party hereunder with respect to such claim or demand, and (2) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim or demand; provided, however, that the Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that Indemnifying Party desires to defend against such claim or demand, then except as hereinafter provided, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings, which The Sanborn Map Company,Inc.Services Agreement v4 4 proceedings shall be promptly settled or prosecuted to a final conclusion in such a manner as to avoid any risk of an Indemnified Party becoming subject to liability for any other matter. (b) Participation; Cooperation. The parties will cooperate in the defense of all third- party Claims that may give rise to indemnifiable Claims hereunder. In connection with the defense of any claim, each parry will make available to the party controlling such defense, any books, records or other documents within its control that are reasonably requested in the course of such defense. 5.4 Limitation on Damages. Notwithstanding any other provision of this Agreement, neither party will be liable to the other for any punitive, indirect, special, consequential or incidental damages whatsoever. EXCEPT FOR THE EXPRESS WARRANTIES MADE OR REFERENCED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE AS TO ANY ITEMS OR SERVICES PROVIDED UNDER THIS AGREEMENT. Article 6 Miscellaneous. 6.1 This Agreement is made in the State of Montana, and shall for all purposes be construed in accordance with the laws of said State, without reference to choice of law provisions. 6.2 This Agreement is performable in, and venue of any action related or pertaining to this Agreement shall lie in, the City of Bozeman, County of Gallatin, Montana. 6.3 This Agreement and its Exhibits contains the entire agreement between the CLIENT and Sanborn and supersedes any and all previous agreements, written or oral, between the parties relating to the subject matter hereof. No amendment or modification of the terms of this Agreement shall be binding upon the parties unless reduced to writing and signed by both parties. 6.4 This Agreement may be executed in counterparts, each of which shall be deemed an original. 6.5 In the event any provision of this Agreement is held illegal or invalid, the remaining provisions of this Agreement shall not be affected thereby. 6.6 The waiver of a breach of any provision of this Agreement by any parties or the failure of any parties otherwise to insist upon strict performance of any provision hereof shall not constitute a waiver of any subsequent breach or of any subsequent failure to perform. 6.7 Notice required under this Agreement shall be in writing and personally delivered or sent by certified mail to the CLIENT at its principal executive offices or to Sanborn at the last address filed by it in writing with the CLIENT. The Sanborn Map Company,Inc.Services Agreement v4 5 6.8 This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives and successors. This Agreement may be assigned by Sanborn or the CLIENT to any successor. 6.9 This Agreement may only be modified through written amendment signed by authorized representatives of the parties. 6.10 The Exhibits to this Agreement and any Purchase Orders issued hereunder may only be modified through the Change Request process which requires that any change to the specifications, deliverables, acceptance criteria, delivery schedule, fees or invoicing and payment terms be clearly quantified and reduced to writing and signed by authorized representatives of the parties. 6.11 All claims, disputes, and other matters in question between the Parties arising out of or relating to this Agreement or the breach thereof, shall be formally discussed and negotiated between the Parties for resolution. In the event that the Parties are unable to resolve the claims, disputes, or other matters in question within thirty (30) days of written notification from the aggrieved Party to the other Party, the aggrieved Party shall be free to pursue all remedies available at law or in equity. 6.12 The parties acknowledge that certain equipment, products, software and technical information provided pursuant to this Agreement may be subject to United States export laws and regulations and agrees that any use or transfer of such items must be authorized by the appropriate United States government agency. The parties shall not directly or indirectly use, distribute, transfer or transmit any item and/or information (even if incorporated into other equipment, products, software or technical information) except in compliance with United States export laws and regulations. The Sanbom Map Company,Inc.Services Agreement v4 6 IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date. THE S. INBORN MAP COMPANY, INC. By`' N e. Raquel CharroisJ Title: General Manager CITY OF BOZEMAN, MONTANA By. 4 ` Name: ` r d 5 ; Title: y M The Sanborn Map Company,Lac.Services Agreement v4 7 EXHIBIT A Services and Deliverables 1. Sanborn's Proposal and Fee Proposal dated January 18, 2012 (Exhibit A.1.) 2. CLIENT RFP for Digital Oithoimagery dated December 4, 2011 (Exhibit A.2.) The Sanborn Map Company,Inc.Services Agreement v4 A_I EXHIBIT B Compensation The CLIENT shall pay, and Sanborn agrees to accept as full consideration for its Services and Deliverables under Exhibit A of this Agreement, the firm-fixed price of Thirty-four Thousand Nine Hundred Eighty-two dollars and Sixty-seven cents ($34,982.67). Invoices shall be submitted on a monthly basis based upon the percentage completed. Payment terms are 34 days from receipt of invoice. There shall be no retainage of any invoiced amount. The CLIENT shall pay, and Sanborn agrees to accept as full consideration for any additional Services and Deliverables under this Agreement, invoices for work performed at the CLIENT's request through mutually negotiated Purchase Orders. For any Purchase Orders that are not firm fined fee, CLIENT shall be responsible for all costs and expenses incident to the performance of Services for the CLIENT, including but not limited to, all costs of equipment provided by Sanborn, all travel, food, lodging, all fees, fines, licenses, bonds or taxes required of or imposed against Sanborn and all other of Sanborn's costs of doing business. The Sanborn i'dap Company,Inc.Services Agreement v4 B I