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HomeMy WebLinkAboutAstrea Forensics; 2020-11-16;City Attorney Approved Version 6/12/18 1 AGREEMENT FOR DNA ANALYSIS SERVICES ASTREA FORENSICS THIS AGREEMENT is made and entered into as of the ______________ day of ___________________, 2020, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and Astrea Forensics, a forensic technology company, ("Contractor”). RECITALS City requires the professional services of a forensic analyst that is experienced in DNA sequencing. Contractor has the necessary experience in providing these professional services, has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the “Services”) that are defined in Exhibit “A”, attached and incorporated by this reference in accordance with the terms and conditions set forth in this Agreement. See attached Exhibit "B" for Contractor's standard terms and conditions. If conflicting, the terms of this Agreement prevail. 2. TERM This Agreement will be effective for a period of one year from the date first above written. 3. COMPENSATION The total cost for all services is eight thousand seven hundred eighty-five dollars ($8,785), for which the City will pay half of the total amount ($4,392.50) and the San Diego District Attorney’s Office with pay the other half ($4,392.50). The total fee payable by the City for the Services to be performed under this Agreement will be four thousand three hundred ninety-two dollars and fifty cents ($4,392.50). The City shall not be responsible for the other half of the cost for the services if the San Diego District Attorney’s Office fails to pay their share ($4,392.50). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or the Services specified in Exhibit “A.” 4. STATUS OF CONTRACTOR Contractor will perform the Services as an independent contractor and in pursuit of Contractor’s independent calling, and not as an employee of City. Contractor will be under the control of City only as to the results to be accomplished. 5. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. DocuSign Envelope ID: 2268A7D7-ED85-4C4D-A435-5C8C495FA7F8 16th November City Attorney Approved Version 6/12/18 2 The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 6. INSURANCE Contractor will obtain and maintain policies of commercial general liability insurance, automobile liability insurance, a combined policy of workers' compensation, employers liability insurance, and professional liability insurance from an insurance company authorized to transact the business of insurance in the State of California which has a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report, in an amount of not less than one million dollars ($1,000,000) each, unless otherwise authorized and approved by the Risk Manager or the City Manager. Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. The insurance will be in force during the life of this Agreement and will not be canceled without thirty (30) days prior written notice to the City by certified mail. City will be named as an additional insured on General Liability which shall provide primary coverage to the City. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. Contractor will furnish certificates of insurance to the Contract Department, with endorsements to City prior to City’s execution of this Agreement. 7. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor Name Josh Bubnis Name Maria Nieves-Colon Title Detective Title Senior Scientist Department Police Address 2809 Mission St #222F City of Carlsbad Santa Cruz, CA 95060 Address 2560 Orion Way Phone No. (415) 881-5002 Carlsbad, CA 92010 Email Maria@astreaforensics.com Phone No. (760) 931-2110 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 8. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. Yes No X 9. COMPLIANCE WITH LAWS DocuSign Envelope ID: 2268A7D7-ED85-4C4D-A435-5C8C495FA7F8 City Attorney Approved Version 6/12/18 3 Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment and will obtain and maintain a City of Carlsbad Business License for the term of this Agreement. 10. TERMINATION City or Contractor may terminate this Agreement at any time after a discussion, and written notice to the other party. City will pay Contractor's costs for services delivered up to the time of termination, if the services have been delivered in accordance with the Agreement. 11. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees it may be subject to civil penalties for the filing of false claims as set forth in the California False Claims Act, Government Code sections 12650, et seq., and Carlsbad Municipal Code Sections 3.32.025, et seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the City of Carlsbad to terminate this Agreement. 12. JURISDICTIONS AND VENUE Contractor agrees and stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the State Superior Court, San Diego County, California. 13. ASSIGNMENT Contractor may assign neither this Agreement nor any part of it, nor any monies due or to become due under it, without the prior written consent of City. 14. AMENDMENTS This Agreement may be amended by mutual consent of City and Contractor. Any amendment will be in writing, signed by both parties, with a statement of estimated changes in charges or time schedule. 15. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. // // // // DocuSign Envelope ID: 2268A7D7-ED85-4C4D-A435-5C8C495FA7F8 City Attorney Approved Version 6/12/18 4 CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) City Manager or Mayor or Director (print name/title) ATTEST: By: (sign here) BARBARA ENGLESON City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A. Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney By: Assistant City Attorney DocuSign Envelope ID: 2268A7D7-ED85-4C4D-A435-5C8C495FA7F8 Kelly Harkins Kincaid City Attorney Approved Version 6/12/18 5 EXHIBIT “A” SCOPE OF SERVICES DocuSign Envelope ID: 2268A7D7-ED85-4C4D-A435-5C8C495FA7F8 City Attorney Approved Version 6/12/18 6 EXHIBIT B ASTREA FORENSICS TERMS & CONDITIONS Thank you for your interest in Astrea Forensics. Our goal is to make your experience a smooth one. If you have any questions, please contact Customer Support. The following are our Terms and Conditions (“Terms”). We may change our Terms from time to time. 1. Acceptance of Terms. These Astrea Forensics, LLC (“Astrea Forensics”) Terms, any Statement of Work (“SOW”), and any formal price quotation (“Quote”) (collectively, the “Agreement”) shall exclusively govern Astrea Forensics’ provision of services (“Services”), to the purchaser (“Customer” and “You”). Our offer to sell services is expressly conditioned upon Customer’s acceptance of the Agreement. BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, INSTALLING ASTREA FORENSICS ELECTRONIC RESOURCES, ACCESSING OR USING THE SERVICE, OR PLACING AN ORDER FOR SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE, PLEASE DO NOT COMPLETE AN ORDER FORM FOR SERVICES, INSTALL ASTREA FORENSICS ELECTRONIC RESOURCES, OR USE THE SERVICE. 2. Service Use and Restriction / Disclaimer. The Services are for assisting law enforcement and other official government agencies in the lawful analysis of samples according to policies and procedures mandated by the appropriate federal, state, and local agency. For example, see United States Department of Justice Interim Policy for Forensic Genetic Genealogical DNA Analysis and Searching, effective November 1, 2019. Notwithstanding the above, the Services are only provided with respect to samples related to an unsolved, violent felony that has critical public safety implications. Services and results may only be used by Customer for the generation of investigational leads, or the identification of human remains. Customer agrees that no arrest or prosecution will be made based solely on the Services. In addition, Services are not to be used for any medical, clinical, health, pharmaceutical, or scientific research of any kind, or to obtain this type of information for any purpose, even for the purposes provided herein. Customer acknowledges that Astrea Forensics is not certified or accredited as a crime lab in any jurisdiction. Customer agrees not to release Astrea Forensics’ name and/or provision of Services to any third party without Astrea Forensics’ prior written consent, except as may be required by law. 3. Use of Electronic Resources and Restriction / Disclaimer. Various Services may include access to Astrea Forensics software, website, or electronic resources (collectively, “Electronic Resources”). Customer acknowledges that Electronic Resources may be subject to additional terms and conditions. Customer may not use, copy, modify, create derivative works of, reverse engineer, decompile, disassemble, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare or otherwise transfer the Electronic Resources, nor permit any other party to do any of the foregoing. Customer may not remove from the Electronic Resources, or alter, any of the trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Electronic Resources. Customer may not (and may not attempt to) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any protection mechanisms in the Electronic Resources including without limitation any such mechanism used to restrict or control the functionality of the Electronic Resources. To the extent third-party code is included in Electronic Resources and any term or condition of a third-party license applicable to such third party code directly conflicts with the terms and conditions set forth herein, the applicable term(s) or condition(s) of that third-party license will be applicable only to that third-party code and only to the extent necessary to remove the conflict. DocuSign Envelope ID: 2268A7D7-ED85-4C4D-A435-5C8C495FA7F8 City Attorney Approved Version 6/12/18 7 4. Orders, Price, and Payment. (a) Orders are to be placed through Astrea Forensics’ customer support or sales representatives, and Services are subject to availability. Customer is responsible for all aspects of transfer of samples to Astrea Forensics. (b) The price(s) for Services will be those provided in a Quote, including access to Services via a web- based browser for a set period of time. Prices are subject to change from time to time. Our prices do not include any taxes (including VAT), duties, levies, shipping fees, or other government fees that may apply to Customer’s order. If they apply, it will be Customer’s responsibility to pay them. If we pay them, we will add them to Customer’s invoice. Customer is also responsible for standard delivery and handling charges, if any. We will also add these charges to Customer’s invoice. (c) Invoices shall be paid in U.S. dollars within 30 days from the invoice date. Each order is a separate transaction, and Customer may not setoff payments from one order against another. If Customer is late in making payment, without affecting our other rights, we may suspend delivery or cancel the order, reject Customer’s future orders, and charge Customer a late-payment charge, from the due date until paid, at the rate of 1% per month (12% per year) or, if less, the maximum amount allowed by law. 5. Delivery. Astrea Forensics will use commercially reasonable efforts to deliver the results as specified in the relevant Statement of Work and/or Quote. Details for electronic delivery or access to results will be provided in the relevant Statement of Work and/or Quote. All Services shall be deemed accepted by Customer upon delivery. 6. Cybersecurity and Technical Support. Astrea Forensics may store Customer data on Astrea Forensics servers which may include third party cloud-based virtual machines. Any web traffic related to Services is encrypted using industry-standard or stronger encryption algorithms. In the event that Services are unavailable to Customer for more than 10% of the time on a monthly basis due to technical reasons under Astrea Forensics’ control, Astrea Forensics will make commercially reasonable efforts to provide alternative access for Customer. Tech support will be via phone (during business hours) and email at the contact information provided above. 7. Customer Information. (a) Customer shall provide all relevant information and samples as described in a Quote. Customer represents and warrants that Customer owns or otherwise lawfully controls the information and samples to be submitted to Astrea Forensics, and that Customer has the right to provide the information and samples to Astrea Forensics for the purpose described herein. Customer represents and warrants that Customer will only use the Services and results for the purposes described herein. Customer further represents and warrants that it has complied with all local, state, and federal requirements in submitting samples and information to Astrea Forensics, including without limitation all requirements relating to privacy for the samples and information provided to Astrea Forensics. Customer shall retain all pre-existing rights and obligations to any information and samples submitted to Astrea Forensics, subject to these Terms. Customer agrees not to share the Services as provided by Astrea Forensics with any individual who does not have a demonstrated need to know. (b) Astrea Forensics shall use the information and samples submitted by Customer for the purpose of providing the Services as described herein. Customer acknowledges that the Services may require destruction of some or all of the samples. In addition, due to the experimental nature of the Services and the nature of the samples being submitted, Customer also acknowledges that samples may be destroyed in the course of providing Services without any useful results being obtained. In the absence in the Quote for a specific procedure for sample disposition following delivery of results, Astrea Forensics shall destroy any remaining samples and related information according to its internal procedures at its sole discretion. DocuSign Envelope ID: 2268A7D7-ED85-4C4D-A435-5C8C495FA7F8 City Attorney Approved Version 6/12/18 8 (c) Astrea Forensics may collect non-technical information submitted by Customer (e.g. email, billing address, first/last name, company, phone, etc.) for the purpose of establishing and servicing a user account. Employees and agents of Astrea Forensics will have access to user account information only as needed to provide the Service. User account information will not be shared outside of Astrea Forensics and its agents without Customer’s approval or pursuant to a legal or regulatory requirement. Astrea Forensics will not use Customer’s information for marketing purposes without providing Customer the option to opt-out of such uses. Astrea Forensics may collect usage data regarding Customer’s use of the Astrea Forensics’ Services, including usage data for electronic resources and software for the purpose of improving Astrea Forensics’ provision of such Services. (d) Customer shall own the exclusive rights and obligations to all results. Following delivery or electronic access to results by Customer, Astrea Forensics may maintain the results for a limited time before removal of the results from Astrea Forensics servers according to its internal procedures. Following delivery of results, Astrea Forensics assumes no responsibility for maintaining samples, results, or any information not provided according to the relevant Quote or Statement of Work. 8. Intellectual Property. (a) All intellectual property rights in the Services and in any Astrea Forensics technology, intellectual property and know-how used to make or useful for the performance or use of the Services will at all times remain vested in Astrea Forensics and its licensors. (b) Customer shall own the exclusive rights to all results to be delivered as specified in a Quote or SOW. (c) Customer agrees to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions received from Astrea Forensics as a result of discussions, negotiations and other communications between us in relation to our services. 9. Compliance with Law. Customer agrees that it will comply with all applicable United States laws and the laws of any other jurisdiction, including all laws related to the export or re-export of any results or accompanying documentation. Customer represents and warrants to us that Customer will not, directly or indirectly, (a) sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from us to any destination, entity, or person prohibited by the laws or regulations of the U.S., or (b) use the Service for any use prohibited by the laws or regulations of the U.S. and/or Customer’s state or local jurisdiction, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. 10. No Warranty. THE SERVICES INCLUDING RESULTS AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED “AS IS.” ASTREA FORENSICS MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES AND EACH PARTY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES THAT ARE NOT SET FORTH IN THIS AGREEMENT INCLUDING IMPLIED WARRANTIES, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Any use of results by Customer or third parties is the sole responsibility and liability of Customer. Customer acknowledges that Astrea Forensics is not certified or accredited as a crime lab in any jurisdiction, and that Astrea Forensics makes no warranties with respect to admissibility of evidence in a court proceeding. Astrea Forensics’ representatives are not authorized to enter into agreements outside these Terms or to make any warranties or representations of any kind with respect to the Services. 11. Indemnification. Customer shall indemnify, defend, and hold Astrea Forensics, its officers, employees, shareholders, affiliates, and agents harmless from and against any and all losses, damages and expenses (including reasonable attorneys’ fees and other costs of defending any action) that such parties may incur as a result of i) Customer’s use, reliance on, resale, or other transfer (authorized or unauthorized) of Services or results or Electronic Resources, or ii) by reason of Customer’s breach of or DocuSign Envelope ID: 2268A7D7-ED85-4C4D-A435-5C8C495FA7F8 City Attorney Approved Version 6/12/18 9 failure to perform any of its obligations hereunder, including without limitation Customer’s use of Astrea Forensics Services or reliance on results generated with Astrea Forensics Services in conjunction with Customer’s use of results, or iii) Customer’s provision of samples and information related to such samples to Astrea Forensics, whether or not such provision of samples and information is in violation of a federal, state, or local regulation or policy. Customer hereby waives any federal, state, or local statute or regulation including sovereign immunity that would preclude indemnification. Customer shall fully cooperate with Astrea Forensics in any investigation relating to any such claims and, at no charge to Astrea Forensics, make available to Astrea Forensics all related statements, reports and tests available to Customer. Customer agrees that a false representation and warranty (for example, regarding Customer’s ownership or control of samples or of privacy requirements relating to samples) is willful misconduct and a material breach of the Agreement. 12. Liability Limitation. EXCEPT TO THE EXTENT (i) CAUSED BY ASTREA FORENSICS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (ii) REQUIRED BY APPLICABLE LAW, ASTREA FORENSICS AND ITS REPRESENTATIVES SHALL HAVE NO LIABILITY FOR (A) ANY LOSS OF USE, PROFITS, REVENUE, GOODWILL, BUSINESS, OR OTHER FINANCIAL LOSS, (B) COSTS OF SUBSTITUTE GOODS OR SERVICES, OR (C) ANY LOST PROFITS, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND REGARDLESS OF FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF CUSTOMER OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, ASTREA FORENSICS’ LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO ASTREA FORENSICS FOR THE SERVICES. CUSTOMER UNDERSTANDS THAT THE RISKS OF LOSS HEREUNDER ARE REFLECTED IN THE PRICE OF THE SERVICES AND THAT THESE TERMS WOULD HAVE BEEN DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK. Customer is solely responsible for adequate protection and backup of the data and equipment used in connection with any Service, and we will not be liable for any damages that Customer may suffer connection with downloading, installing, using, modifying or distributing Service results. In no event shall Astrea Forensics be liable to Customer or any third parties for any special, punitive, incidental, indirect or consequential damages of any kind, or any damages whatsoever, including, without limitation, those resulting from loss of use, lost data or profits, or any liability, arising out of or in connection with the use of Services. Delivery dates and times are estimates only and we will not be liable (in contract, tort or otherwise) for any losses, expenses, claims or damages caused by a late delivery. 13. Termination. Astrea Forensics may terminate this Agreement without cause upon thirty (30) days written notice. Astrea Forensics may terminate this Agreement with immediate suspension of access upon a breach of this Agreement by Customer. Any action by Customer that may interfere with electronic access to Astrea Forensics’ website, storefront, or servers, will be considered as breach of terms and will cause access to be revoked. For avoidance of doubt, such actions include attempts to tamper with source code or attempts to provide access to hackers. 14. Unforeseen Events. Astrea Forensics shall not be liable for delay or failure in performance of any obligations if performance is rendered impracticable, inadvisable, illegal, or impossible by any condition beyond Astrea Forensics’ reasonable control. Such conditions include without limitation natural disasters, war, terrorism or threats of terrorism, civil disorder, labor strikes or disruptions, fire, disease or medical epidemics or outbreaks. In the event of delay, Astrea Forensics shall have additional necessary time to perform its obligations and shall have the right to apportion the Services then available for delivery among its various customers in such manner as Astrea Forensics considers appropriate. 15. Choice of Law and Arbitration. This Agreement shall be governed by and construed according to the laws of California, without regard to conflicts of law provisions. Astrea Forensics and Customer agree that any dispute or controversy arising out of or in connection with this Agreement shall be finally settled by binding arbitration under the extant rules of the American Arbitration Association. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award, punitive or exemplary damages against any party. In any legal action commenced to DocuSign Envelope ID: 2268A7D7-ED85-4C4D-A435-5C8C495FA7F8 City Attorney Approved Version 6/12/18 10 enforce or interpret this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and expenses. 16. Entire Agreement. This Agreement constitutes the entire agreement between Customer and Astrea Forensics for Services and is the final, complete, and exclusive statement of the terms of the Agreement, superseding all prior written and oral agreements, understandings and undertakings. This Agreement shall exclusively govern the ordering, purchase, and supply of the Services, and shall override any conflicting, amending, and/or additional terms contained in any purchase orders, invoices, or similar documents, which are hereby rejected and shall be null and void. Astrea Forensics’ failure to object to any terms shall not constitute a waiver by Astrea Forensics, nor constitute acceptance by Astrea Forensics of such terms and conditions. Astrea Forensics’ failure to object to any terms and conditions contained in any purchase order or other document from Customer will neither be construed as our acceptance of such terms and conditions, or a waiver of these Terms. The waiver of any term or condition or any breach thereof shall not affect any other term or condition of this Agreement. Modifications may be made only in writing and signed by an authorized corporate officer of Astrea Forensics. 17. Miscellaneous. We understand that certain local, state, and federal institutions are subject to specific jurisdictional laws, which may be in conflict with these terms and conditions. Customer shall inform Astrea Forensics of any conflicts of which it is aware. In the event a conflict, these terms and conditions are hereby modified only to the extent necessary to conform to those laws, with the proviso that the intent of the original terms is honored to the extent allowable under those laws. In the event that any provision of this Agreement or portion thereof is found to be illegal or unenforceable, the Agreement shall be construed without the unenforceable provision or portion thereof. Time is not of the essence for Astrea Forensics’ obligations herein. Astrea Forensics may assign our rights and/or obligations under the Contract to any person in whole or in part. Customer may not assign this Agreement, and any change of control of Customer shall be deemed to be an assignment. Sections 8 through 12 and all attached Addenda shall survive termination. Headings are for convenience only and will not be used in the interpretation of these Terms. Revised 2019-11-06 DocuSign Envelope ID: 2268A7D7-ED85-4C4D-A435-5C8C495FA7F8