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HomeMy WebLinkAbout2019-08-05-J01L Barkpass ContractAGENDA ITEM: J1L CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: August 5, 2019 AGENDA ITEM:Consideration of approval of a resolution approving Barkpass Software as a Service (SaaS) Agreement FORMAT:Consent Agenda SYNOPSIS INCLUDING PRO & CON: Barkpass, LLC is a new software company with a service specifically designed for dog park pass sales and management of pass holders. The Parks & Recreation Department staff has been working directly with Barkpass to design the software to meet the City’s needs and ensure they are providing the City with a product that works efficiently. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: $2,400 annually for 501-1000 passes sold. COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: Staff was approached by Waukee residents, Josh and Bri Larson, early in 2019 with the idea of developing dog park specific software for online sales, record keeping, and management of dog park pass holders. The idea behind Barkpass is to streamline the process of purchasing and issuing passes for dog park users along with Parks & Recreation Department staff. RECOMMENDATION: Staff recommends approval of the contract with Barkpass, LLC for 2020 sales of dog park passes. ATTACHMENTS: I. Barkpass, LLC contract and agreement with the City. PREPARED BY:Josh VandeKamp REVIEWED BY: City Attorney, Steve Brick PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: THE CITY OF WAUKEE, IOWA RESOLUTION 19- APPROVING BARKPASS SOFTWARE AS A SERVICE (SAAS) AGREEMENT IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA WHEREAS, the City of Waukee, Iowa is a duly organized municipality within Dallas County; AND, WHEREAS, the Waukee Parks & Recreation Department desires to streamline the process of purchase and issuance of dog park user passes; AND, WHEREAS, City staff recommends an agreement with Barkpass, LLC, for the online sales, record keeping, and management of dog park passes; AND, WHEREAS, the City Attorney has reviewed the proposed agreement and finds it satisfactory. NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council in session this 5th day of August, 2019, that it hereby approves the Barkpass Software as a Service (SaaS) Agreement. ____________________________ William F. Peard, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN Anna Bergman R. Charles Bottenberg Courtney Clarke Shelly Hughes Larry R. Lyon 1 Barkpass SaaS Agreement This Software as a Service (SaaS) agreement (the “Agreement”) is dated this XXth day of XX, 2019 (the “Effective Date”) by and between Barkpass, LLC, an Iowa limited liability company (“Barkpass”) and the City of Waukee, a municipal organization (the “City”). 1. Definitions a. “Agreement” means all terms and information contained in this document. b. “Authorized Users” means the list of persons selected by the City to interact with the Software under this Agreement. c. “Business Day” means a day other than Saturday, Sunday, or bank holidays. d. “Data” means all of the data submitted by citizens of the City to use the Software as a Service. e. “Effective Date” is defined in the introduction of this Agreement. f. “Intellectual Property” means any and all of the following in any jurisdiction through the world: i. Trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing, ii. Copyrights, including all applications and registrations related to the foregoing, iii. Trade secrets and confidential know-how, iv. Patents and patent applications, v. Websites and internet domain name registrations, and vi. Other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present and future infringement, and any other rights relating to any of the foregoing). g. “Law” means: i. Any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgement, and ii. Any official directive, protocol, code, guideline, notice, approval, order, policy or other requirement of any Governmental Authority having the force of law. h. “Software” means the software created by Barkpass to provide dog park management and registration capabilities. Additional features, including pet licensing capabilities, are not included in the scope of the Software as it pertains to this Agreement. 2. Software as a Service (SaaS) a. Barkpass shall grant the City a subscription to use the Software for an initial service term of one year. i. Initial service term (the “Term”) shall begin November 1, 2019 and end November 1, 2020. 2 b. Title, copyright, codebase, distribution rights and intellectual property of the Software remain exclusively with Barkpass. The City shall receive no ownership of the Software. c. The Software is cloud-based and can be accessed through an Internet connection. d. The subscription rights of the Software are granted to the City only. The City shall not transfer or assign any of the rights or obligations granted under this Agreement to any other person, organization or legal entity. e. The Software shall not be modified, reverse-engineered or de-compiled in any manner through current or future available technologies. f. Failure of the City to comply with any of the terms under this section will be considered a material breach of this Agreement and Barkpass may terminate the Agreement. 3. Fees a. At the beginning of the Term, the City must choose either (1) the annual pricing model or (2) the monthly pricing model. b. The annual pricing model is $2,400 per year. c. The monthly pricing model is $210 per month. d. Barkpass and the City agree that the annual pricing model and the monthly pricing model are based on issuing 1,000 permits or less during the Term. If on November 1, 2020, the number of permits issued during the Term has exceeded 1,000 permits, the City shall pay Barkpass an additional payment based on the number of actual permits issued as listed in Attachment A. 4. Payment a. If the City chooses the monthly pricing model, payment is due on the 1st of each month of the Term. Credit card or bank account information must be on file. Credit card processing fees may apply. b. If the City chooses the annual pricing model, payment will be due on the first day of the Term. Barkpass will provide an invoice to the City 45 days in advance of the first day of the Term. 5. Warranties a. Barkpass does not warrant that use of the Software will be uninterrupted or error- free. The City accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the industry. b. Barkpass makes no warranty, express or implied, regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of the City. 6. Covenants Regarding Data a. Barkpass agrees that it will not, without the City’s consent, use personal data, including but not limited to personally identifiable information, confidential 3 information, and payment information, collected on behalf of the City other than for performance of the Software or other uses permitted by this Agreement or under applicable law. Barkpass agrees to abide by State of Iowa Law requiring veterinary records to remain privileged and confidential and not released without an order of a Court of competent jurisdiction, a public health emergency, or consent of the user. b. Barkpass agrees that it will not sell, intentionally transfer or otherwise release to any third party personal data, including but not limited to personally identifiable information, confidential information, and payment information that Barkpass has collected in performing this Agreement, except as stated in this Agreement to the third-party payment processor identified in paragraph g of this subsection and except as may otherwise be required by this Agreement or applicable law, and that Barkpass will take commercially reasonable measures to prevent the unauthorized release of any such third party personal data. c. Barkpass agrees that any data, including but not limited to personal data, confidential data, payment data collected on behalf of the City shall be shared with as few people, including but not limited to Barkpass’s agents, employees, and officers, within Barkpass’s organization as necessary to perform this Agreement. d. Barkpass agrees that any data collected on behalf of the City in connection with this Agreement and shared within Barkpass’s organization, including but not limited to its agents, employees and officers, shall adhere to all of the provisions herein with respect to data handling and information security requirements. e. Any breach of confidentiality or data security by Barkpass’s agents, employees, or officers shall be the same as a breach by Barkpass. f. Barkpass agrees that any data collected, sent, or otherwise transmitted on behalf of the City shall be stored and/or transmitted using industry accepted best practices. Barkpass acknowledges that industry best practices for data security and information security may change from time to time and Barkpass shall update its practices accordingly. g. Barkpass agrees to use the third-party payment processor designated by the City and notify the City if said processor fails to adhere to Payment Card Industry Security Standards (“PCI-DSS”). Any and all payment collected, sent, or otherwise transmitted, including but not limited to credit card numbers, bank routing numbers, names, addresses, social security numbers, birthdates, security questions and answers, and all other personally identifiable information shall be collected, sent, and transmitted following the most current PCI-DSS requirements. h. Barkpass agrees to notify the City of any breach of information collected on behalf of the City in performing this Agreement within three (3) business days of Barkpass becoming aware of such a breach, in alignment with Visa’s recommendations (VIS Supplemental Requirements, Version 5.0 (Global). Effective August 2016) regarding breach notification. 4 7. Restrictions a. The City will not: i. Upload or distribute any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Software, ii. Modify, disassemble, decompile or reverse engineer the Software, iii. Probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Software, iv. Take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Software, v. Copy or reproduce the Software, vi. Maliciously reduce or impair the accessibility of the Software, vii. Use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material, or viii. Transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability. 8. Support a. Barkpass will provide technical support to the City for use of the Software, but will not provide support directly to users. b. The City will provide support to users as needed. 9. Termination a. Either party may terminate this Agreement for any reason on 30 business days written notice to the other party. b. Barkpass may terminate this Agreement with immediate effect if the City violates any part of section 2 or section 7 of this Agreement. c. Barkpass may terminate this Agreement with immediate effect by delivering notice of the termination to the City if the City chooses the monthly pricing model and fails to pay the monthly subscription fee on time three times over the Term. d. Barkpass may terminate this Agreement with immediate effect by delivering notice of the termination to the City if the City chooses the monthly pricing model and fails to pay a monthly payment within two months of the due date. e. The City may terminate this Agreement if it finds Barkpass has violated any material term. In such an event, the City must give ten (10) days written notice to Barkpass of the City's intent to terminate the Agreement. Barkpass shall have ten (10) days from notification to remedy the conditions constituting the event. f. Should the City terminate the agreement during the Term, the City will receive an export of all citizen and pet data within 30 days of submitting written notice. The City will always retain full ownership of citizen and pet data. g. In the event that the City terminates the Agreement and the City chose the annual pricing model, Barkpass will refund fees in the amount of $200 per unused month of the Term. If the City terminates the Agreement and the City 5 chose the monthly pricing model, Barkpass will not issue a refund. If Barkpass terminates the Agreement, the City shall pay Barkpass the amount still owed under this Agreement based on the number of permits issued at the time of termination. 10. Indemnity a. Subject to the limitations on Barkpass’s liability set forth elsewhere in this Agreement, Barkpass agrees to indemnify and hold harmless the City and its officers and employees from and against any and all claims, lawsuits, judgments, costs, and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, arising out of Barkpass’s negligence, gross negligence or willful misconduct, or breach in the performance of services under this Agreement. In the event of joint and concurring responsibility of Barkpass and the City, responsibility and indemnity, if any, shall be apportioned comparatively. The provisions of this paragraph are solely for the benefit of the parties hereto and are not intended to create or grant any rights, contractual or otherwise, in or to any other person or entity. 11. Insurance a. Barkpass shall procure, pay for, and maintain during the term of this Agreement: i. Commercial Liability Insurance with a minimum combined single limit coverage of $1,000,000 per occurrence, and a $1,000,000 General Aggregate Limit to cover cyber, privacy, and network security liability. ii. Barkpass shall furnish evidence of such coverage to the City and will provide 30 days’ written notice of policy lapse or cancellation, or of a material change in policy terms. iii. Barkpass does not own any vehicles. However, Barkpass does have coverage for non-owned vehicles under its commercial liability policy. Therefore, Barkpass does not carry and shall not be obligated to carry separate automobile liability coverage. 12. Force Majeure a. Barkpass will be free of liability to the City where Barkpass is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, tornado, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where Barkpass has taken any and all appropriate action to mitigate such an event. 13. Service Level Commitments, Disclaimers and Limitations a. Barkpass will notify the city 48 hours in advance of maintenance windows that could cause downtime to the Software. 6 b. Barkpass does not guarantee network availability between the City and the Barkpass hosting servers, as such availability can involve numerous third parties and is beyond the control of Barkpass. c. Barkpass will not be liable for nor provide any service credits hereunder for any downtime caused in whole or part by a third party data center provider nor for any downtime that the City experiences as a result of the City’s or the City’s customer’s own network connectivity issues. d. If the City experiences a system or service outage and is unable to access the Software, the City must contact Barkpass’s support email, providing any/all necessary information that may assist Barkpass in determining the cause of the outage. 14. Governing Law a. The parties to this Agreement submit to the jurisdiction of the courts of the State of Iowa for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the State of Iowa. 15. Amendment a. Barkpass may amend the terms and conditions of this Agreement at any time by reasonable notice. 16. Severability a. If any portion of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining portions of this Agreement shall continue in full force and effect. This agreement is approved by the parties. Barkpass, LLC By: Name: Brianne Larson Title: Co-founder Date: 7 By: Name: Joshua Larson Title: Co-founder Date: City of Waukee By: Name: Title: Date: 8 Attachment A: Additional Payment Due Based on Number of Permits Issued Number of permits issued 500 or less permits 501-1000 permits 1001 or more permits Additional payment $0 $0 $1,200