Base_Agreement.pdf

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CITY OF ST. PETERSBURG

TECHNOLOGY PURCHASE AGREEMENT

BODY OF AGREEMENT

This technology purchase agreement (as may be amended from time-to-time, the “Agree-ment”) is made on (date) ______________________ between the CITY OF ST. PETERSBURG, a Florida municipal corporation, (the “City”) and (contractor name) ____________________________, a (state and entity type, along with DBA name, if any) ________________________, (the “Contractor”).

ARTICLE 1

BASIC PROVISIONS

1.1 General Definitions.

(a) “City Content” means any information, data, or other content that is (i) uploaded, submit-ted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of the City to or through the System or (ii) collected, downloaded, or otherwise received by the Contractor pursuant to the Agreement or at the request or instruction of the City. Any output, copy, reproduction, improvement, modification, adaptation, translation, or other derivative work of, based on, derived from, or otherwise using any City Content is also considered to be City Content.

(b) “Deliverable” means any Hardware, Software, Update, Documentation, Service, or other tangible or intangible item that the Contractor is obligated to provide under the Agreement.

(c) “Deliverable Specifications” means the document attached as appendix B.

(d) “Documentation” means any documentation related to the System that is provided by the Contractor under the Agreement, whether in printed or electronic form, and including doc-umentation or describing the specifications or expected operation of the System.

(e) “Fee” means an Implementation Fee or a Usage Fee, as each is defined in article 2.

(f) “Fee Schedule” means the document attached as appendix A.

(g) “Firmware” means any computer code embedded in Hardware for the purpose of operat-ing or controlling that Hardware or allowing that Hardware to interact with Non-System Equipment.

(h) “Hardware” means any server, desktop computer, mobile device, peripheral, data storage, cable, adapter, dongle, or other tangible equipment that is provided by the Contractor

TECH-100 / 00875631 / FORM v06.00 2 of 38 pursuant to the Agreement. Hardware does not include any equipment used for the provi-sion of Hosting Services.

(i) “Hosted Software” means any Software that is computing, storage, or other software that is provided as a service to the City through the internet, including but not limited to any cloud-based server, browser-based application, or other computer code running on a non- City computer and accessed through a web service or other internet protocol.

(j) “Hosting and Support SOW” means, collectively, the documents attached as appendix D.

(k) “Hosting Service” means any hosting, management, operation, data storage, or other ser-vice provided by the Contractor that allows the City to access and use Hosted Software.

(l) “Implementation Fee” has the meaning provided in section 2.2.

(m) “Implementation Service” means any service of the Contractor required under the Agree-ment to deliver the System to the City during the Implementation Term.

(n) “Implementation SOW” means the document attached as appendix C.

(o) “Intellectual Property” means (i) any copyright, patent, trademark, trade secret, or other form of intellectual property right, regardless of jurisdiction, and (ii) any application, reg-istration, or renewal for any such a right, regardless of jurisdiction.

(p) “License” means the grant of a license or other right for the City to use every Deliverable that embodies Intellectual Property, as more particularly defined in section 4.1.

(q) “Local Software” means any Software that is not Hosted Software.

(r) “Non-System Equipment” means any City-owned or -controlled hardware, software, firmware, system, computer network, or other equipment (regardless of manufacturer) that is not a part of the System but that is used to access the System or is otherwise connected to the System at any given time.

(s) “Security Issue” means a Security Vulnerability that the Contractor has actual or construc-tive knowledge of.

(t) “Security Vulnerability” means any vulnerability, exploit, malware, security breach, or unauthorized access (i) that could adversely affect or result in the unauthorized use of a Deliverable or any Non-System Equipment or (ii) that could expose any City Content to unauthorized access, modification, deletion, encryption, or disclosure.

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(u) “Sensitive City Content” means City Content that (i) is a City Confidential Record, as defined in subsection 8.2(c), or (ii) that permits the identity of a person to be directly or indirectly inferred (including any other information that is linked or linkable to that person) and if lost, compromised, or disclosed without authorization could result in substantial harm, embarrassment, inconvenience, or unfairness to that person.

(v) “Scope of Work” means, collectively, the Deliverable Specifications, the Implementation SOW, and the Hosting and Support SOW.

(w) “Service” means any Implementation Service, Support Service, or Hosting Service unless context clearly indicates otherwise.

(x) “Software” means any computer code provided by the Contractor under the Agreement, regardless of where that computer code is run, including any server, desktop computer, mobile device, or Hardware. Accordingly, this term includes computer code utilized in any Hosted Software and any Firmware. But this term does not include computer code utilized in Non-System Equipment (e.g., browser software on a City-owned desktop computer that is used to access Hosted Software).

(y) “Support Service” means any service for support of the System that is provided by the Contractor under the Agreement following completion of the Implementation Services and that is not Hosting Service.

(z) “System” means the combination of Deliverables that, functioning together, make up the technology system implemented and supported by the Contractor pursuant to the Agree-ment.

(aa) “Update” means any error correction, patch, update, revision, fix, upgrade, new release, or other change to any Software that is implemented at any time following the City’s initial acceptance of the Software receiving that Update.

(bb) “Usage Fee” had the meaning provided in 2.3.

1.2 Term of Agreement. This Agreement will become effective when this document has been signed by all parties, as of the date stated in the introductory clause. Once effective, the Agreement will continue in effect for an Implementation Term and one or more Usage Terms (collectively, the “Term”) as follows:

(a) The “Implementation Term” will commence on the Effective Date and end on the date on which the City completes acceptance of all Implementation Services.

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(b) The Implementation Term will be followed without interruption by an Initial Usage Term and one or more Renewal Usage Terms (each, a “Usage Term”) in accordance with the following:

(1) An “Initial Usage Term” begins automatically on the day following the Implemen-tation Term and runs for a period of _______ year(s).

(2) The parties shall document the date on which the City completed acceptance of the Implementation Services through execution of a memorandum in substantially the same form as the document attached to this Agreement as appendix C‐2, which is intended to supplement this Agreement for the purpose of conclusively establishing the dates of the Initial Usage Term.

(3) Following the Initial Usage Term, the Agreement may be renewed for an indefinite number of successive one-year Usage Terms (each a “Renewal Usage Term”), with each such renewal requiring mutual approval of the parties, which may be effectu-ated through the combination of a Contractor proposal for that Renewal Usage Term and a City Form accepting that proposal.

(c) At the start of each Usage Term, the Agreement will continue under the terms in effect at the conclusion of the preceding Implementation Term or Usage Term unless modified as follows:

(1) For a Renewal Usage Term, if the only change to the Agreement is a Usage Fee modified in accordance with subsection 2.3(b), the City may accept that change through a City Form approving that Renewal Usage Term.

(2) Otherwise, any other change to the Agreement going into effect upon the start of a Usage Term must be approved through an amendment to the Agreement.

1.3 Components of the Agreement. The Agreement is composed of the following documents, which may be attached directly or incorporated by reference:

(a) This document.

(b) Each appendix to this document.

(c) The following documents related to the City solicitation underlying the Agreement, each of which is hereby incorporated by reference, to the extent that it exists:

(1) The City’s solicitation (as may have been amended from time-to-time).

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(2) The Contractor’s best and final offer, if any.

(3) Questions & clarifications, if any.

(4) The Contractor’s response to the City’s solicitation.

1.4 Conflict. In the event of a conflict between any provisions of the Agreement, the following rules will be used to resolve that conflict, listed in order of descending priority. Unless otherwise specified, each rule applies without regard to whether a document is attached or incorporated by reference.

(a) A provision in a document that is listed higher in section 1.3 will control over a provision in a document that is listed lower.

(b) A provision in a document specific to the subject matter of the Agreement will control over a provision in a generic document that applies to multiple transactions (e.g., a standard form of the Contractor).

(c) A Third-Party IP Obligation applies only with respect to the applicable Third-Party IP (as those terms are defined in section 4.3) and is subordinate to all other provisions of the Agreement for all other purpose of the Agreement.

(d) If both documents are expressly dated, a provision in a more recent document will control over a provision in an older document.

(e) With respect to conflict between provisions in different appendices to this document, the order of attachment establishes the order of priority (e.g., appendix A controls over appen-dix B).

1.5 City Forms. The City may issue standard-form documents for the purpose of exercising its rights under the Agreement (each a “City Form”) in accordance with the following:

(a) The City may issue any number of City Forms, alone or in combination, to exercise any right available to it under the Agreement (e.g., exercising an option to purchase an addi-tional Deliverable or to renew the Agreement), and a City Form is subject to the terms of the Agreement regardless of whether that City Form expressly incorporates or refers to the Agreement.

(b) A City Form may take the form of a blanket purchase agreement, contract purchase agree-ment, purchase order, or any other standard-form document issued by or through a City administrative system or procedure, and it includes any document that is attached or

TECH-100 / 00875631 / FORM v06.00 6 of 38 incorporated by reference (e.g., a Contractor proposal for a Renewal Usage Term with a new Usage Fee).

(c) A City Form is not effective as an amendment to the Agreement. Accordingly, the follow-ing provisions in a City Form are void: (i) any provision that is inconsistent with the Agreement and (ii) any provision that would purport to incorporate new terms and condi-tions through a URL.

(d) Termination of the Agreement is effective to terminate any City Form in effect at that time.

1.6 Conditional Applicability for Certain Types of Deliverables. The Contractor acknowl-edges (i) that the Agreement is a form prepared by the City for use in a variety of transactions and

(ii) that provisions not applicable to this particular transaction may be severed from the Agreement as more particularly described in sections 5.1 (Hardware), 6.1 (Local Software), and 7.1 (Hosted Software).

ARTICLE 2

FEES

2.1 Fees, Generally. The City shall pay the Contractor through the combination of an Imple-mentation Fee and a Usage Fee, as each is defined below. The amount and schedule for payment of each Fee is stated in the Fee Schedule, and the City has no obligation to pay any Fee that exceeds the amount shown in the Fee Schedule or to pay any Fee more frequently than shown in the Fee Schedule. The amount of each Fee (and any other dollar amount set forth in the Agreement) is stated in U.S. Dollars unless otherwise indicated.

2.2 Implementation Fee. During the Implementation Term, the City shall pay the Contractor a comprehensive fee (the “Implementation Fee”) that covers all of the following: (i) any Imple-mentation Services; (ii) any Hardware; (iii) any aspect of the License that is perpetual; (iv) any aspect of the License that is limited to the Implementation Term; and (v) any Hosting Service provided during the Implementation Term. The Implementation Fee may not exceed the total amount shown in the Fee Schedule.

2.3 Usage Fee.

(a) During each Usage Term, the City shall pay the Contractor a recurring fee (the “Usage Fee”) that covers all of the following: (i) any aspect of the License that is limited to that Term; (ii) all Hosting Services during that Term; and (iii) all Support Services during that Term. During the Initial Usage Term, the Usage Fee may not exceed the annual amount shown in the Fee Schedule.

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(b) Any increase in Usage Fees is subject to the following:

(1) The Contractor acknowledges (i) that increasing Usage Fees may require approval by the St. Petersburg City Council, which is a time-consuming, legislative process;

(ii) that failure to provide the City with sufficient notice to accommodate that pro-cess could prevent the City for obtaining the funding necessary to renew the Agreement; and (iii) that non-renewal due to an unexpected increase in Usage Fees would result in termination of the Agreement that would be abrupt, unplanned, and likely to cause significant damage to the City. Accordingly, the Contractor waives its right to increase the Usage Fee for an upcoming Usage Term unless the Contrac-tor notifies the City of the proposed increase at least 90 days before the start of the applicable Renewal Usage Term.

(2) The Contractor shall not propose any increase to the Usage Fee that would exceed 3% or that would result in a Usage Fee that exceeds the Contractor’s then-current rate for comparable software and services.

2.4 Scope of Fees. Each Fee must include all out-of-pocket expenses required to comply with the terms of the Agreement, including transportation, mileage, lodging, meals. Except as specifi-cally provided by the Agreement, the Contractor shall, at no additional cost to the City, furnish all tools, equipment, apparatus, facilities, transportation, labor, and material necessary to furnish all Services, and the City shall not reimburse the Contractor for any out-of-pocket expenses unless specifically provided for in the Agreement. Except as provided in subsection 1.2(c)(1), no increase in any Fee will be effective unless made through an amendment to the Agreement.

2.5 Invoices. The City is obligated to pay the Contractor for performance under the Agreement only if the Contractor has submitted an invoice in accordance with the City’s procedures for sub-mission of such an invoice, and the City must be provided with at least 45 days to make payment under each invoice. Additionally, if the City determines that an invoice does not conform to any requirement of the Agreement or the City’s invoicing procedures or if the Contractor is in Breach at the time an invoice is due, the City may withhold payment on that invoice until a corrected invoice has been issued or the Breach has been cured. During any period in which the City with-holds payment pursuant to this section, the Contractor shall not terminate, suspend, impair, degrade, or otherwise limit the City’s access to any Deliverable.

2.6 Non-Appropriation. Notwithstanding anything in the Agreement to the contrary, the ob-ligation of the City as to any payment or funding required pursuant to the Agreement (including any acceleration of payment or penalty resulting from termination of the Agreement before the end of the Term) shall be limited to an obligation in any given year to budget, appropriate, and pay from legally available funds, after monies for essential city services have been budgeted and

TECH-100 / 00875631 / FORM v06.00 8 of 38 appropriated, sufficient monies for the funding that is required during that year. Notwithstanding the foregoing, the City is not prohibited from pledging any legally available non-ad-valorem rev-enues for any obligations heretofore or hereafter incurred, which pledge shall be prior and superior to any obligation of the City pursuant to the Agreement.

ARTICLE 3

SCOPE OF WORK

3.1 Implementation Term, Generally.

(a) During the Implementation Term, the Contractor shall perform all Implementation Services stated in the Implementation SOW and as otherwise necessary to ensure that the System delivered to the City meets or exceeds requirements of the Agreement.

(b) The Contractor warrants that the Implementation SOW provides for all Implementation Services necessary for implementation of the System, including all Implementation Ser-vices necessary for (i) project management and requirements gathering; (ii) installation, configuration, integration, data migration, and testing; and (iii) user training.

3.2 Usage Term, Generally.

(a) During the Usage Term, the Contractor shall perform all Hosting Services and Support Services stated in the Hosting and Support SOW and as otherwise necessary to ensure that the System continues to meet or exceed the requirements of the Agreement.

(b) The Contractor warrants that the Hosting and Support SOW provides for all Hosting Ser-vices and Support Services necessary for the City to use the System in accordance with the Agreement, including all services necessary to (i) maintain and provide access to up-to-date Documentation; (ii) provide “help desk” support for the System; (iii) provide any Up-date needed to keep the System in compliance with the requirements set forth in the Agreement and the Documentation; and (iv) provide any Update that has been made gen-erally available to other users of the System.

3.3 Acceptance of Deliverables. The following provisions apply to the City’s acceptance of any Deliverable other than an Update to Hosted Software (which is governed by section 7.4):

(a) When the Contractor delivers a Deliverable to the City, the Contractor shall include with the Deliverable a document identifying the Deliverable and providing the City with any information necessary for the City to inspect and use the Deliverable.

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(b) Following receipt of a Deliverable and the documentation required by the preceding sub-section, the City shall inspect that Deliverable to determine whether it complies with the Agreement and accept or reject the Deliverable in accordance with the following:

(1) If the Deliverable conforms to the Agreement, the City shall accept that Deliverable and provide the Contractor with notice of acceptance. No testing, trial use, or other form of inspection of a Deliverable by the City prior to acceptance constitutes ac-ceptance of that Deliverable or limits the City’s right to reject the Deliverable.

(2) If the Deliverable does not conform to the Agreement, that non-conformance con-stitutes Breach by the Contractor (as defined in article 10), and the City’s rejection of the Deliverable constitutes a notice of Breach under section 10.2.

3.4 Deadlines. The Contractor acknowledges that time is of the essence in performing any obligation of the Contractor subject to a deadline in the Agreement, including every milestone within a schedule included in the Scope of Work. Accordingly, the Contractor’s failure to meet any deadline in the Agreement constitutes a Breach that must be cured in accordance with arti-cle 10, generally, and the following, specifically:

(a) The Breach may be cured by extending the applicable deadline to provide the Contractor with additional time to satisfy the applicable obligation. Extension of a deadline up to 90 days may be effectuated through mutual agreement of the parties and without amend-ment of the Agreement. Otherwise, any extension of a deadline in the Agreement requires amendment of the Agreement.

(b) If the City incurs any additional costs due to a delay that is attributable, in whole or in part, to the Contractor, the City may require, as a condition of curing the Breach, an amendment to the Agreement to compensate the City for those additional costs through a reduction in Fees or otherwise.

3.5 System Standards.

(a) The Contractor shall ensure that the System operates in a manner that (i) meets or exceeds the System Standards and any other requirement stated in the Agreement and (ii) is con-sistent with the Documentation. In the event of conflict, a requirement in the Agreement will take precedence over a requirement in the Documentation.

(b) The Contractor shall ensure that every Update (i) will not have an adverse impact on the overall performance and operation of the System; (ii) will be backwards compatible with the System unless otherwise agreed to by the parties; and (iii) will be backwards compati-ble with any applicable Non-System Equipment unless otherwise agreed to by the parties.

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3.6 Service Standards.

(a) Generally, the Contractor shall provide each Service (i) in accordance with the Agreement;

(ii) in an expedient, professional, and competent manner; and (iii) once the System (as a whole) has been accepted by the City, in a manner that allows the City to use the System without significant functional downtime to ongoing operations.

(b) The Contractor shall ensure that every person providing any Service to the City (including any employee of the Contractor or a third party acting on Contractor’s behalf) will have skills and training that meet or exceed industry standards, and the Contractor shall replace any person providing the Service to the City if the City, in its sole discretion, determines either (i) that the person is incompetent, careless, unsuitable, objectionable, or otherwise does not comply with this obligation or (ii) that the person’s involvement is contrary to the best interests of the City. Regardless of the reason for replacement, the Contractor’s re-placement must have reasonably sufficient skill, experience, and project knowledge to fulfill applicable obligations under the Agreement.

(c) The Contractor shall meet or exceed industry standards related to prevention of a Security Vulnerability and shall handle any Security Issue that occurs in accordance with sec-tion 3.7.

3.7 Handling of Security Issues. The existence of a Security Issue constitutes a Breach by the Contractor that must be cured in accordance with article 10, generally, and the following, spe-cifically:

(a) The Contractor shall promptly notify the City of the Security Issue, and that notice must disclose the extent to which Sensitive City Content was or may have been disclosed. The Contractor shall not delay that notice for purposes of performing any action required under subsection (b) and may delay that report only to the extent authorized by Law or needed to determine the general nature of the Security Issue. Contractor’s notice under this subsec-tion is effective to initiate the cure process in section 10.2 without any action by the City.

(b) The Contractor shall cure the Breach by eliminating the Security Issue in a manner that meets or exceeds industry standards, including any standard for the speed with which elim-ination of the Security Issue should occur, which supersedes the default period for cure in section 10.2.

(c) If, before completion of the actions required under subsection (b), the Contractor identifies any information that would assist the City in mitigating or otherwise responding to the Security Issue, the Contractor shall immediately provide that information to the City by email unless prohibited by Law from doing so.

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(d) The Contractor shall not send notice of any Security Issue to any law enforcement agency, regulatory authority, user, or other person or entity for or on behalf of the City unless re-quired to do so by Law or expressly requested to do so by the City. But if the City requests that the Contractor send any such notice, the Contractor shall prepare and send each such notice (i) in accordance with applicable requirements for timing and content under Law, which the Contractor acknowledges may vary depending on the residency of a person whose information is disclosed; (ii) at no expense to the City; and (iii) following review and approval of the notice and distribution list by the City.

(e) No more than 30 days after the Security Issue has been eliminated, the Contractor shall provide the City a written root cause assessment and future incident mitigation plan that sets out details regarding the Contractor’s investigation of the Security Issue. Upon the City’s request, the Contractor shall provide a second, more in-depth investigation and re-sults of its findings.

(f) If the City determines that the Security Issue was caused, in whole or in part, by any act or omission of the Contractor, the Contractor shall, as part of curing the Breach, reimburse the City for any cost or expense incurred by the City in responding to or remediating the Security Issue.

3.8 Approval of Third-Party Performance. Except as otherwise provided in section 5.2 (de-livery of Hardware) or section 7.2 (provision of Hosting Services), the Contractor shall not utilize any third party to perform any of Contractor’s obligations the Agreement without prior approval of the City, which may, in the City’s sole discretion, be withheld or granted subject to conditions.

This prohibition applies without regard to the form of agreement between the Contractor and the third party (e.g., subcontract or otherwise) or the nature of the relationship between the Contractor or the third party (e.g., agent, independent contractor, or otherwise). If the Contractor requests approval of a third party under this section, the Contractor shall provide the City with any infor-mation necessary for the City to evaluate that request.

3.9 Conditions for Third-Party Performance. If a third party performs any obligation of the Contractor under the Agreement, the following conditions apply, in addition to any other require-ments in the Agreement regarding a specific type of third-party performance and regardless of whether that third party has been approved in accordance with section 3.8:

(a) Except as necessary to perform the Contractor’s obligations under the Agreement, the Con-tractor shall not transfer any City Content to the third party or allow the third party to access any City Content.

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(b) The Contractor shall ensure that the third party complies with the Agreement. If a third party fails to comply with the Agreement, that failure constitutes Breach by the Contractor.

The Contractor shall cure any such Breach in accordance with section 10.2, and the City may require as a condition of that cure that the Contractor remove or replace the applicable third party.

(c) Any recital, representation, declaration, statement of fact, warranty, or consent in the Agreement that is made by the Contractor with respect to the third party or with respect to an action to be performed by the third party is deemed to be made by the Contractor for itself and on behalf of the third party. Accordingly, if any such recital, representation, dec-laration, statement of fact, warranty, or consent is or becomes false or is otherwise not fulfilled by the Contractor or the third party, it constitutes Breach by the Contractor.

3.10 Compliance with Law. The Contractor shall, in its performance of the Agreement, comply with every applicable federal, state, and local constitution, charter, statute, ordinance, rule, regu-lation, policy, and procedure, along with every applicable judgement, order, or other form of decree issued by an authority with jurisdiction over the matter at issue (collectively, “Law”). Addition-ally, by executing, amending, or renewing the Agreement, the Contractor is deemed to have made each certification required under Florida Statutes section 287.135 at the time of the applicable execution, amendment, or renewal.

3.11 Governmental Approval. The Contractor shall obtain every permit, license, certification, or other form of approval from a government agency that is required by Law for the Contractor’s performance of the Agreement (“Governmental Approval”), with the cost of any such Govern-mental Approval included in the applicable Fee. Upon request of the City, the Contractor shall provide the City with documentation of any such Governmental Approval.

3.12 Living Wage Requirements. The living wage requirements in St. Petersburg City Code Chapter 2, Article V, Division 9 (collectively and as may be amended from time to time, the “Liv-ing Wage Requirements”) are incorporated into the Agreement, and Contractor shall comply with those Living Wage Requirements. Accordingly, the Contractor shall pay its employees for any hours worked pursuant to the Agreement in accordance with the Living Wage Requirements and comply with all other Living Wage Requirements. Contractor’s failure to comply with the Living Wage Requirements constitutes a Breach by the Contractor and will result in consequences for non-compliance set forth in St. Petersburg City Code Chapter 2, Article V.

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ARTICLE 4

INTELLECTUAL PROPERTY

4.1 License.

(a) The Contractor hereby grants to the City the non-exclusive, non-sublicensable, non-trans-ferrable right and license to use every Deliverable that embodies Intellectual Property in accordance with the limits provided by the Agreement (collectively, the “License”) for the following periods of time:

(1) The License for any Hardware and associated Firmware is perpetual.

(2) The License for any Local Software is perpetual.

(3) The License for any Hosted Software is effective throughout the Term.

(4) The License for any Documentation is perpetual.

(b) The License is paid for in full by the Fees and may be exercised without payment of any additional royalty or other form of payment by the City.

(c) Subject only to the express limitations in the Agreement, including any limit on the number of users, the License may be exercised by any official, officer, employee, agent, contractor, subcontractor, or volunteer of the City in the course of any lawful business or function of the City, without geographic limitation.

(d) If any aspect of the System is utilized by the public to interact with the City, the City may, for the purpose of providing support to the public or developing Law or internal policies or procedures, reproduce and adapt (i) any image of that aspect of the System and (ii) any Documentation related to that aspect of the System.

(e) With respect to any Deliverable that is not Hosted Software, the City may copy and use that Deliverable for archival backup, disaster-recovery, or other internal purposes.

4.2 No Transfer of Ownership. The License does not transfer ownership of any Intellectual Property to the City. Accordingly, the owner of Intellectual Property in any Deliverable, whether the Contractor or a third party, retains ownership of that Intellectual Property. Accordingly, the City shall not intentionally (i) remove or modify any markings or notice of any Intellectual Prop-erty in any Deliverable; (ii) reverse engineer, disassemble, or decompile any Software; or

(iii) make any Deliverable available to any third party except as authorized by the License.

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4.3 Third-Party Intellectual Property.

(a) The License provides the City with the right and license to use any third-party Intellectual Property incorporated into a Deliverable (“Third-Party IP”), regardless of whether the Agreement expressly identifies that Third-Party IP. For example, if a third party holds the copyright for a code library that has been incorporated into the Software pursuant to a license granted by that third party to the Contractor but is not mentioned anywhere in the Agreement, the License nonetheless includes a sublicense from the Contractor to the City to use that code library in accordance with the Agreement.

(b) In appendix E, the Contractor has provided either (i) disclosure of every obligation of the City imposed by the owner of that Third-Party IP (each, a “Third-Party IP Obligation”) or (ii) a warranty that no Third-Party IP Obligations exist. A Third-Party IP Obligation applies only with respect to the applicable Third-Party IP and is inapplicable to every other aspect of the System.

(c) The City acknowledges that the Contractor’s right to use Third-Party IP may allow the applicable third party to modify a Third-Party IP Obligation without permission of the Con-tractor or the City. The following provisions apply to any such modification:

(1) If the Contractor receives notice of such a modification, the Contractor shall pro-vide that notice to the City.

(2) If the modification would result in appendix E being incomplete or incorrect, that constitutes an Undisclosed Third-Party IP Obligation under subsection (d).

(3) If the modification frustrates the purpose of the Agreement or is inconsistent with any material term of the Agreement, the modification constitutes a Breach by the Contractor that must be cured in accordance with subsection (e).

(d) If at any time during the Term, a Third-Party IP Obligation is not disclosed in appendix E (an “Undisclosed Third-Party IP Obligation”), the following provisions apply:

(1) The undisclosed Third-Party IP Obligation constitutes a Breach by the Contractor that must be cured in accordance with subsection (e).

(2) Violation of an Undisclosed Third-Party IP Obligation by the City does not consti-tute Breach by the City, but it may give rise to the Contractor’s indemnity obligations, as more particularly described in section 9.3.

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(e) If a Breach (as defined in article 10) concerns infringement, misappropriation, or other vi-olation related to or arising from Third-Party IP, the Contractor shall cure the Breach in accordance with the following:

(1) The Contractor may cure the Breach by removing the Third-Party IP at issue from the System.

(2) The Contractor may cure the Breach by negotiating with the applicable third party to eliminate the Third-Party IP Obligation at issue.

(3) If the Breach is the Contractor’s failure to actually hold a right to Third-Party IP that was purportedly granted as part of the License, the Contractor may cure that Breach by obtaining the missing right and executing any amendment of the Agree-ment or other document necessary to include the missing right in the License.

(4) If the Breach is an Undisclosed Third-Party IP Obligation that does not frustrate the purpose of the Agreement, the Breach may be cured by an amendment to the Agree-ment to include the Undisclosed Third-Party IP Obligation. If the City will incur any additional costs in complying with the Undisclosed Third-Party IP Obligation, the City may condition its acceptance of that amendment upon a reduction in Fees to offset those increased costs.

4.4 Status of Updates. The Contractor’s installation of an Update is deemed to be a grant of whatever right and license is necessary to incorporate that Update into the scope of the License, and after any Update has been installed in accordance with the Agreement, that Update is deemed part of the applicable Software.

4.5 Copyleft IP Prohibited. “Copyleft IP” means software subject to a license that requires as a condition of use, modification, or distribution that the software be (i) disclosed or distributed in source code or similar form; (ii) licensed for the purpose of making derivative works; or (iii) re-distributable at no charge. Copyleft IP specifically includes any software subject to the GNU General Public License, GNU Lesser General Public License, or any similar license. The Con-tractor shall not include any Copyleft IP in the Software.

4.6 Effect of Bankruptcy. For purposes of section 365(n) of the Bankruptcy Code, the parties intend the License to be a license of rights to “intellectual property” and the applicable Deliverable to be an “embodiment” of “intellectual property,” as those terms are defined in section 101 of the Bankruptcy Code. Nothing in the Agreement limits the City’s rights under section 365(n) of the Bankruptcy Code or constitutes an election by the City under section 365(n) of the Bankruptcy Code. But the City expressly reserves the right to request any such intellectual property or

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4.7 City Intellectual Property. Nothing in the Agreement transfers ownership of any City Intellectual Property to the Contractor or any other third party. Accordingly, the City retains own-ership of all (i) any Intellectual Property embodied in City Content, including City Content processed or stored by the System; (ii) any data, document, or other information created by the City using the System; and (iii) any work flow, business process, training material, report, or other information conceived, invented, created, or acquired by the City independently of any Service.

4.8 Artificial Intelligence. The Contractor shall not use any Sensitive City Content to train, fine-tune, or otherwise improve any large-language model or other artificial intelligence system unless that model or system is for the City’s exclusive use and is not available to any other cus-tomer or third party. This section does not prohibit the use of such a model or system to evaluate Sensitive City Content in a transitory manner that avoids retaining or incorporating the Sensitive City Content in(to) the applicable model or system.

ARTICLE 5

HARDWARE

5.1 Conditional Applicability. If the Contractor has no obligation to provide Hardware under the Agreement, the terms of the Agreement are modified as follows: (i) every other section within this article is severed from the Agreement in its entirety and (ii) every other provision of the Agree-ment concerning Hardware and Firmware is severed from the Agreement in accordance with section 11.11 except for the defined terms for Hardware and Firmware. Otherwise, the Contractor is obligated to provide Hardware and Firmware in accordance with the Agreement.

5.2 Third-Party Delivery. Without modifying any condition for third party performance un-der section 3.9, the Contractor may use a third party to deliver Hardware without prior approval of the City under section 3.8 if the Contractor guarantees that the applicable third party has insurance coverage that meets or exceeds the following:

(a) Commercial general liability insurance in an amount of at least $1,000,000 per occurrence, $2,000,000 aggregate in occurrences form. This policy must include coverage for (i) bodily injury; (ii) property damage; (iii) personal and advertising injury; (iv) products and com-pleted operations; and (v) contractual liability under the Agreement.

(b) Commercial automobile liability insurance of $1,000,000 combined single limit covering all owned, hired, and non-owned vehicles.

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(c) Workers’ compensation insurance as required by Florida law and Employers’ Liability In-surance in an amount of at least $100,000 each accident, $100,000 per employee, and $500,000 for all diseases.

5.3 Ownership of Hardware. Upon the City’s acceptance of any Hardware in accordance with section 3.3, ownership of that Hardware is deemed transferred from the Contractor to the City. Until such transfer of ownership occurs, title to and risk of loss in such Hardware remains with the Contractor.

5.4 Firmware License. The Contractor’s delivery of Hardware is deemed to be a grant of whatever right and license is necessary to incorporate any Firmware within that Hardware into the scope of the License.

5.5 Firmware Updates. In addition to any other provision governing an Update, the provisions of this section apply with respect to every Update to Firmware. The Contractor shall notify the City when an Update for Firmware is available for installation, and the City shall determine whether to accept or reject that Update in accordance with section 3.3. An Update to Firmware may be installed only after it has been accepted by the City, and the City shall control the installa-tion of each such Update. Accordingly, the Contractor shall not install any Update to Firmware without the City’s express consent to install that Update.

5.6 Warranties. The Contractor shall ensure that, at the time of delivery, every Hardware Deliverable (i) will satisfy all requirements of the Agreement; (ii) will be backwards compatible with the System unless otherwise agreed to by the parties; (iii) will be backwards compatible with any applicable Non-System Equipment unless otherwise agreed to by the parties; (iv) will be free from defects in materials and workmanship; (v) will be fit for the purpose for which such Hardware is ordinarily employed and for any other purpose set forth in the Agreement; and (vi) will have clear title and be free of all liens, claims, or encumbrances of any kind. Each warranty established by this section runs through the end of the Term unless a longer period is provided elsewhere in the Agreement.

ARTICLE 6

LOCAL SOFTWARE

6.1 Conditional Applicability. If the Contractor has no obligation to provide Local Software under the Agreement, the terms of the Agreement are modified as follows: (i) every other section within this article is severed from the Agreement in its entirety and (ii) every other provision of the Agreement concerning Local Software is severed from the Agreement in accordance with sec-tion 11.11 except for the defined term for Local Software. Otherwise, the Contractor is obligated to provide Local Software in accordance with the Agreement.

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6.2 Updates to Local Software. In addition to any other provision governing an Update, the provisions of this section apply with respect to every Update to Local Software. The Contractor shall notify the City when an Update for Local Software is available for installation, and the City shall determine whether to accept or reject that Update in accordance with section 3.3. An Update to Local Software may be installed only after it has been accepted by the City, and the City shall control the installation of each such Update. Accordingly, the Contractor shall not install any Up-date to Local Software without the City’s express consent to install that Update.

6.3 Use for Internal Purposes. Pursuant to subsection 4.1(e), the License allows the City to use a Deliverable for internal purposes, which includes installation of Local Software in a non-production environment for internal testing or configuration by the City.

ARTICLE 7

HOSTED SOFTWARE

7.1 Conditional Applicability. If the Contractor has no obligation to provide Hosted Software under the Agreement, the terms of the Agreement are modified as follows: (i) every other section within this article is severed from the Agreement in its entirety and (ii) every other provision of the Agreement concerning Hosted Software and Hosting Services is severed from the Agreement in accordance with section 11.11 except for the defined terms for Hosted Software and Hosting Services. Otherwise, the Contractor is obligated to provide Hosted Software and Hosting Services in accordance with the Agreement.

7.2 Hosting Service Provider. Unless the Scope of Work identifies a third-party provider for the Hosting Services, the Contractor shall provide Hosting Services itself, without the use of any third-party.

7.3 Availability of Hosted Software. During the Implementation Term, as appropriate, and throughout each Usage Term, the Contractor shall provide all Hosting Services necessary for the City to access the Hosted Software in accordance with the following:

(a) The Hosted Software must be available to the City as described in the document attached to the Agreement as appendix D‐1 (the “Hosting Standards”). Otherwise, the Contractor shall issue to the City the service credits set forth in the Hosting Standards (the “Service Credits”). If the System is not available during a Permitted Delay (as defined in sec-tion 11.4), that period of unavailability will be included in the calculation of Service Credits. The parties acknowledge (i) that damages to the City resulting from failure to meet the Hosting Standards would not be readily ascertainable; and (ii) that the Service Credits are a reasonable and proportionate measure of the damage that would be expected to follow from the Contractor’s failure to meet the Hosting Standards.

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(b) If the Hosting Services fail to meet the Hosting Standards in any two of three consecutive months, then, in addition to any other remedy available to the City, the City may immedi-ately declare the Contractor in Default in accordance with article 10, and in the event of termination due to such Default, the City will not be liable for any liability, obligation, or penalty to the Contractor.

7.4 Updates to Hosted Software. In addition to any other provision governing an Update that does not exclude Updates to Hosted Software, the following provisions also apply with respect to every Update to Hosted Software:

(a) For every Update to Hosted Software, the Contractor shall provide the City with notice of that Update in accordance with the following, which are listed in descending order of pri-ority:

(1) If the Update is necessary to address a Security Vulnerability, the Contractor shall not delay the Update to provide notice and shall provide the City with notice no more than 5 days after making the Update.

(2) If the Update is considered by the Contractor to be a major Update, the Contractor shall provide the City with at least 15 days’ notice of that Update.

(3) Otherwise, the Contractor shall provide the City with at least 5 days’ notice of that Update.

(b) Once the City has received notice of an Update to Hosted Software in accordance with this section, the City has 30 days from the date of that notice or the date on which that Update actually occurred, whichever is later, to either (i) expressly accept that Update or (ii) notify the Contractor that the Update has resulted in a Breach that must be cured in accordance with section 10.2 (with the City’s acceptance of the cure of that Breach constituting ac-ceptance of the Update). If the City fails to take either of those actions during that 30-day period, the City is deemed to have accepted the Update as of the end of that 30-day period.

7.5 Security, Generally. As part of the Hosting Services, the Contractor shall comply with the following provisions in a manner that meets or exceeds all applicable industry standards and best practices:

(a) The Contractor shall maintain and enforce an information security program with respect to the Hosted Software and Hosting Services (including safety and physical and technical security policies and procedures).

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(b) The Contractor shall provide technical and organizational safeguards against accidental, unlawful, or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, commingling, or processing of any City Content that is processed, stored, or otherwise handled by Hosted Software or Hosting Services (“Hosted Content”).

(c) The Contractor shall secure and defend all locations, equipment, systems and other mate-rials, and facilities employed in connection with the provision of Hosting Services against any “hacker” and other person or entity who may seek, without authorization, to disrupt, damage, modify, access, or otherwise use the Hosting Services, the Hosted Software, or any information processed by or stored in the Hosted Software.

(d) The Contractor shall monitor the Hosted Software and Hosting Services for any potential area where security could be breached.

7.6 Security of Sensitive City Content. If any of the Hosted Content is considered Sensitive City Content, the following provisions apply in addition to the general security standards set forth in section 7.5:

(a) The Contractor shall ensure that all Hosting Services (including both data processing and storage) occurs within the contiguous United States.

(b) The Contractor shall ensure the implementation of security controls consistent with NIST 800-53 Moderate or better, including encryption in transit and at rest, strict role-based ac-cess, MFA for all privileged accounts, comprehensive audit logging, and documented incident-response procedures.

7.7 Credit Card Security. If the System processes credit card information, the following pro-visions apply in addition to the general security standards set forth in section 7.5:

(a) The Contractor acknowledges that the System is subject to the following data security standards (collectively and as each may be amended from time to time, the “Credit Card Security Standards”): (i) the Fair and Accurate Credit Transactions Act of 2003 and any associated regulation; (ii) the Payment Application Data Security Standard (PA-DSS); and

(iii) any applicable Payment Card Information (PCI) rule, practice, standard, or program (including Visa CISP, MasterCard SDP, Discover DISC, and American Express DSOP).

(b) The Contractor shall ensure that…