Base_Agreement.pdf

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AGREEMENT FOR CLOUD-ENABLED SYSTEM

IMPLEMENTATION, USAGE, AND SUPPORT

THIS AGREEMENT (“Agreement”) is made and entered into on the day of , 20 , (“Effective Date”) by and between (“Contrac-tor”) and the City of St. Petersburg, Florida, (“City”) (collectively, “Parties”).

NOW, THEREFORE, in consideration of the promises and covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowl-edged, the Parties agree as follows:

1. Definitions. The defined terms set forth below are used in this Agreement, and unless context indicates otherwise, any reference to a defined term in the singular includes the plural and vice versa.

A. “City Data” means any information, data, or other content that is (i) uploaded, sub-mitted, 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 this Agreement or at the written 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 Data is also deemed to be City Data.

B. “Component” means any Hardware, Firmware, or Software included in the Sys-tem.

C. “Firmware” means any computer code embedded in Hardware for the purpose of operating or controlling that Hardware or allowing that Hardware to interact with a Non-System Element.

D. “Hardware” means any tangible physical component of the System (including but not limited to any cable, adapter, dongle, input or output device, or data storage device) that is provided or implemented by the Contractor pursuant to this Agree-ment and is used locally and not for the provision of Hosted Software or Hosting Services.

E. “Hosted Data” means any City Data that is processed, stored, or otherwise handled by the Hosted Software or Hosting Services.

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F. “Hosted Software” means any Software that is computing, storage, or other soft-ware 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.

G. “Hosting Service” means any hosting, management, operation, data storage, or other service provided by the Contractor that allows the City to access and use the Hosted Software.

H. “Implementation Service” means any service of the Contractor required to com-pete installation and configuration of the System by the Contractor and training of City users in accordance with this Agreement.

I. “Intellectual Property” means any copyright, patent right, trademark, trade secret, or other form of intellectual property, regardless of jurisdiction, along with any ap-plication, registration, or renewal for any of the foregoing, regardless of jurisdic-tion.

J. “Licensed Deliverable” means any Component or other deliverable provided by the Contractor pursuant to this Agreement that the City will use pursuant to Usage Right as more particularly described in Section 7. The Licensed Deliverables in-clude but are not limited to (i) Software; (ii) Firmware; and (iii) Support Documen-tation.

K. “Local Software” means any Software that is not Hosted Software, including but not limited to any desktop software, mobile application, API, or interface run on a computer or mobile device.

L. “Non-System Element” means any City-owned or -controlled hardware, software, firmware, system, computer network, or other element, regardless of manufacturer, that is not a part of the System but that is connected to the System at any time.

M. “Service” means an Implementation Service, Support Service, or Hosting Service unless context clearly indicates otherwise.

N. “Software” means any computer code used in the System other than Firmware, including (i) any desktop software, mobile application, API, or interface run on a computer or mobile device and (ii) any computing, storage, or other software that is provided as a service to the City through the internet, including but not limited

3 of 33 T-04 / 00610403 / v08 to any cloud-based server, browser-based application, or other computer code run-ning on a non-City computer and accessed through a web service or other internet protocol.

O. “Support Documentation” means any documentation related to the System, whether in printed or electronic form, provided by the Contractor pursuant to this Agreement, including but not limited to documentation describing the specifica-tions and expected operation of the System.

P. “Support Service” means any service for support of the System provided by the

Contractor pursuant to this Agreement following completion of all Implementation

Q. “System” means the combination of Components and Hosting Services that, func-tioning together, make up the cloud-based system implemented and supported by the Contractor pursuant to this Agreement.

R. “Update” means any error correction, patch, update, revision, fix, upgrade, new release, or other change to Software or Firmware implemented at any time follow-ing the City’s initial acceptance of the Software or Firmware receiving that Update.

S. “Usage Right” means any license, sublicense, or other right pursuant to which the

City may access or use Intellectual Property pursuant to this Agreement. A Usage Right may apply to the Intellectual Property of the Contractor or the Intellectual Property of a third party (e.g., a code library used in Software that was licensed to the Contractor by a third-party and then sublicensed by the Contractor to the City), and any reference in this Agreement to the “grant” or “granting” of a Usage Right is intended to encompass whatever grant, transfer, sublicense, assignment, or other action is legally necessary or appropriate to provide the City with the right to use the applicable Intellectual Property in the manner described in this Agreement.

2. Term.

A. As defined in this Section 2, this Agreement will have an Implementation Term, an

Initial Usage Term, and, if extended in accordance with Section 2(D), one or more Renewal Usage Terms.

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

The Contractor shall perform all Implementation Services in accordance with any

4 of 33 T-04 / 00610403 / v08 schedule provided in the Scope of Work and shall fully complete all Implementation Services no later than days after the Effective Date.

C. The “Initial Usage Term” will begin immediately following the conclusion of the

Implementation Term and will continue for a period of year(s) from that date, unless terminated as provided elsewhere in this Agreement.

D. Following the Initial Usage Term, this Agreement may be extended for an indefinite number of successive renewal terms of year(s) each (each a “Renewal Usage Term”) if each such extension is mutually agreed upon by both Parties in writing.

E. At the start of the Initial Usage Term and any Renewal Usage Term, the Agreement will continue on the same terms that were in effect at the conclusion of the imme-diately preceding Term unless the Parties agree in writing to amend the terms of the Agreement.

F. Unless context indicates otherwise, (i) the word “Term” applies equally to the Im-plementation Term, the Initial Usage Term, and any Renewal Usage Term and

(ii) the phrase “Usage Term” applies equally to the Initial Usage Term and any Renewal Usage Term.

3. Agreement Components.

A. The components of the Agreement are this document; the appendices to this docu-ment; the attached Purchase Order (“Purchase Order”); and the following doc-uments, which are made a part hereof by reference (collectively, “Other Docu-ments”):

(i) The City’s solicitation documents (“Document 1”)

(ii) Contractor’s best & final offer, if any (“Document 2”)

(iii) Questions & clarifications, if any (“Document 3”)

(iv) Contractor’s response to the City’s solicitation documents (“Doc-ument 4”)

B. In the event of an inconsistency or conflict between or among the components of this Agreement, the following order of precedence shall govern: (i) this document, exclusive of its appendices; (ii) the appendices to this document; (iii) the Purchase Order; and (iv) the Other Documents. In the event of an inconsistency or conflict between or among the Other Documents, the order of precedence shall be the order

5 of 33 T-04 / 00610403 / v08 the documents are listed above (e.g. Document 1 shall govern over Document 2, Document 2 shall govern over Document 3, etc.).

4. Scope of Work. In accordance with this Agreement, the Contractor shall provide the City with the following deliverables, which are more particularly described in the scope of work attached to this Agreement as Appendix A (“Scope of Work”):

A. As more particularly described in Section 7, the Contractor is granting to the City every Usage Right needed for the City to use each Licensed Deliverable in accord-ance with this Agreement.

B. During the Implementation Term, as appropriate, and at all times during each Usage

Term, the Contractor shall perform or ensure the performance of all Hosting Ser-vices necessary to provide the City with access to the Hosted Software in accord-ance with this Agreement, including the security, redundancy, and availability re-quirements described in Sections 8–10.

C. During the Implementation Term, the Contractor shall perform all Implementation

Services necessary to provide the City with the System. The Implementation Ser-vices include (i) project management and requirements gathering; (ii) installation, configuration, integration, and testing of the System; (iii) user training for the Sys-tem; and (iv) any other service described in the Scope of Work that is explicitly designated as an Implementation Service or that contributes to the initial implemen-tation of the System.

D. During the Implementation Term, the Contractor shall complete all Implementation

Services in accordance with any schedule or deadline set forth in the Scope of Work.

Any such schedule or deadline for Implementation Services will not be adjusted automatically due to any cure period provided by Section 19 and may be adjusted only through written agreement between the Parties, which constitutes an amend-ment to this Agreement.

E. Upon the City’s acceptance of the entire System in accordance with Section 6, all

Implementation Services will be deemed complete.

F. Throughout each Usage Term, the Contractor shall perform the Support Services, which include (i) maintaining and providing access to up-to-date Support Docu-mentation; (ii) providing “help desk” support for the System; (iii) providing any Update needed to keep the System in compliance with the requirements set forth in this Agreement; (iv) providing any Update that has been made generally available to other users of the Software or Firmware, as applicable; and (v) any other service

6 of 33 T-04 / 00610403 / v08 described in the Scope of Work that is explicitly designated a Support Service or that occurs following the City’s acceptance of the component of the System being supported through that Service.

5. Payment and Fees.

A. The City shall pay the Contractor for its performance of this Agreement only as explicitly set forth in this Agreement, which includes the document attached to this Agreement as Appendix B (the “Payment Schedule”). All payments or amounts set forth in this Agreement are in U.S. Dollars unless otherwise indicated.

B. During the Implementation Term, the City shall pay the Contractor a comprehen-sive fee (the “Implementation Fee”) that covers all of the following: (i) all Imple-mentation Services; (ii) the Hardware; (iii) any perpetual Usage Right for a Li-censed Deliverable; (iv) any term-limited Usage Right for a Licensed Deliverable used during the Implementation Term; and (v) any Hosting Service provided during the Implementation Term. The Implementation Fee shall not exceed $ in total.

C. During each Usage Term, the City shall pay the Contractor a recurring fee (the

“Usage Fee”) that covers all of the following: (i) any term-limited Usage Right for a Licensed Deliverable used during that Term; (ii) the Hosting Services during that Term; and (iii) the Support Services during that Term. During the Initial Usage Term, the Usage Fee may not exceed $ per year.

D. The Implementation Fee and Usage Fee (collectively, “Fees”) include all out-of-pocket expenses required to comply with the terms of this Agreement, including but not limited to transportation, mileage, lodging, and meals. Except as specifically provided by this Agreement, the Contractor shall, at its own expense, 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 this Agreement. No increase in any Fee will be effective unless made in accordance with the Contract Adjust-ment process set forth in section 42.

E. During any Renewal Usage Term, the City shall continue paying the Usage Fee at the rate in effect at the conclusion of the previous Usage Term unless the Contractor proposes new rates at least 90 days before the start of the Renewal Usage Term and the City agrees in writing to a new rate before the start of the Renewal Usage Term in accordance with the Contract Adjustment process set forth in section 42. The

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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 amount charged by the Con-tractor for comparable usage rights or services provided to another customer of the Contractor.

F. The Contractor shall invoice the City in accordance with procedures established by the City, and if the Contractor is in full compliance with the terms of this Agree-ment at the time an invoice is submitted to the City, the City shall pay that invoice within 30 days of receipt. Otherwise, City is not obligated to pay any Fee to the Contractor unless the Contractor is in full compliance with the terms of this Agree-ment. During any period during which the City delays payment of any Fee due to Contractor’s failure to comply with this Agreement, the Contractor shall not termi-nate, suspend, impair, degrade, or otherwise limit any Usage Right, Hosting Ser-vice, or Support Service.

6. Acceptance; Updates.

A. Except as provided by Section 6(D), the Contractor shall, upon delivering to the

City any deliverable required under this Agreement (each an “Inspected Delivera-ble”), provide the City with a written summary of any Inspected Deliverable deliv-ered to the City at that time. Following receipt of such Inspected Deliverable and written summary, the City shall inspect each Inspected Deliverable to determine whether it complies with this Agreement; and the City shall accept any Inspected Deliverable if it complies with this Agreement.

B. If the City accepts an Inspected Deliverable, the City shall provide the Contractor with written notice of such acceptance. If the City rejects an Inspected Deliverable, the City shall provide the Contractor with written notice of the reasons for the re-jection, and the Contractor shall bring that Inspected Deliverable into compliance with this Agreement in accordance with Section 19.

C. No testing, trial use, or other form of inspection of any Inspected Deliverable con-stitutes acceptance of that Inspected Deliverable or limits the City’s right to reject that Inspected Deliverable.

B. Upon the City’s acceptance of any Hardware in accordance with this Section 6, 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.

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C. The Contractor shall notify the City in writing when an Update for Local Software or Firmware is available for installation, and the City shall, in accordance with this Section 6, determine whether to accept or reject that Update. An Update to Local Software or Firmware 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 Update to Local Software or Firmware without the City’s express written consent to install that specific Update.

D. If possible, the Contractor shall notify the City of any major Update to the Hosted

Software at least 15 days in advance of making such Update. Otherwise, the Con-tractor shall notify the City of any such major Update to the Hosted Software as soon as possible and in no event more than 15 days after making such an Update.

After any Update has been installed in accordance with this Section 6, that Update is deemed part of the Software or Firmware, as applicable, and included within the scope of the applicable Usage Right granted pursuant to Section 7.

7. Usage Rights and Intellectual Property.

A. The Contractor hereby grants to the City, to be exercised by any officer, employee, agent, contractor, subcontractor, elected or appointed official, or volunteer of the City, the non-exclusive, fully sublicensable, fully transferrable right and license to take any the following actions, alone or in combination, in the course of any lawful business or function of the City without the payment of any royalty or fee other than as explicitly stated in the Agreement and without geographic limitation, sub-ject only to those limitations imposed by law or explicitly stated in this Agreement:

(i) The City may access and use the Hosting Services and Hosted Software during the Term.

(ii) The City may install and use the Local Software in perpetuity.

(iii) The City may use the Hardware and Firmware in perpetuity.

(iv) The City may access and use Support Documentation in perpetuity.

(v) The City may take any other action with respect to a Licensed Deliverable that is authorized by this Agreement.

B. Each Usage right granted by Contractor pursuant to this section is royalty-free and paid for in full through the City’s payment of Fees under this Agreement.

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C. The Contractor has identified in Appendix C any Licensed Deliverable that will be used by the City pursuant to a Usage Right granted to Contractor by a third-party (e.g., a code library used in Software that was licensed to the Contractor by a third-party and then sublicensed by the Contractor to the City) (each a “Third-Party Usage Right”). The Contractor has also disclosed in Appendix C the applicable terms of any such Third-Party Usage Right, and those terms are incorporated into this Agreement directly or by reference. In the event of conflict between a term in Appendix C and a term in the body of this Agreement or in any other Appendix to this Agreement, the term that provides the greatest rights to the City will control.

D. If the Agreement incorporates any Third-Party Usage Right and the applicable third party elects to change any of those terms during a Usage Term, the Contractor shall notify the City in writing of each change no more than 10 calendar days after learn-ing of the change. In the 30 calendar days following either receipt of such a notice or the City’s independent determination that the third party has elected to make such a change, whichever occurs first, the City may elect to terminate the Agree-ment without penalty by providing written notice of such termination to the Con-tractor. No more than 30 calendar days after receiving such notice from the City, the Contractor shall provide the City with a pro rata refund of any amount pre-paid by the City for usage or support of a Component or Service during that Usage Term.

Such refund does not include the Implementation Fee.

E. The City may copy any Licensed Deliverable other than Hosted Software for ar-chival backup, disaster-recovery, or other internal purposes. Such internal purposes include installation of the Local Software in non-production environments for test-ing and configuration purposes. But unless explicitly authorized by this Agreement, the City shall not intentionally (i) remove or modify any markings or notice of the Contractor’s proprietary rights to the Local Software; (ii) copy, reverse engineer, disassemble, or decompile the Local Software; or (iii) make the Local Software available to any third party.

F. The City may grant Usage Rights for any Licensed Deliverable to any third party to the extent necessary for the City to use the System in accordance with this Agree-ment or to transfer ownership of Hardware to a third party.

G. For purposes of section 365(n) of the Bankruptcy Code, the Parties intend each

Usage Right for a Licensed Deliverable to be a license of rights to “intellectual property” and each Licensed Deliverable to be an “embodiment” of “intellectual property,” as those terms are defined in section 101 of the Bankruptcy Code. Noth-

10 of 33 T-04 / 00610403 / v08 ing in this Agreement limits the City’s rights under section 365(n) of the Bank-ruptcy Code or constitutes an election by the City under section 365(n) of the Bank-ruptcy Code. But the City explicitly reserves the right to request any such intellec-tual property or embodiment of intellectual property held by a trustee for the Con-tractor to the full extent authorized by section 365(n)(3) of the Bankruptcy Code.

H. The owner of any Licensed Deliverable, whether the Contractor or a third party, retains exclusive ownership of all Intellectual Property contained in that Licensed Deliverable unless otherwise provided for in this Agreement or a document that explicitly transfers ownership of that Licensed Deliverable in whole or in part to the City.

I. The City retains ownership of (i) any City Data; (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.

J. This section 7 survives termination of the Agreement.

8. Security of Hosted Software and Hosting Services.

A. Performance by Third Party. To the extent that a third party is utilized by the

Contractor party to provide any Hosted Software, Hosting Service, or Support Ser-vice, the following provisions apply:

(i) The Contractor shall notify the City of the identity of the third party provid-ing the Hosting Service along with any other information about that third party that the City requests for the purpose of verifying that third party’s compliance with this Agreement.

(ii) The Contractor acknowledges that the Contractor will be responsible for the third party’s compliance or non-compliance with the terms of this Agree-ment as more particularly described in Section 11

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

(i) 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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(ii) 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 City Data processed by or stored in the Hosted Software or Hosting Service.

(iii) The Contractor shall secure and defend all locations, equipment, systems and other materials, and facilities employed in connection with the provi-sion 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 infor-mation processed by or stored in the Hosted Software.

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

(v) The Contractor shall not transfer any City Data to any third party or allow any third party to access any City Data except as needed to perform Con-tractor’s obligations under this Agreement.

C. Credit Card Security Standards: If the System processes credit card infor-mation, the following provisions apply:

(i) The Contractor acknowledges that the System is subject to the following data security standards as each may be amended from time time(collec- tively, the “Credit Card Security Standards”): (a) the Fair and Accurate Credit Transactions Act of 2003 and any associated regulation; (b) the Pay- ment Application Data Security Standard (PA-DSS); and (c) any applicable Payment Card Information (PCI) rule, practice, standard, or program (in-cluding Visa CISP, MasterCard SDP, Discover DISC, and American Ex-press DSOP).

(iii) In addition to the general security standards set forth in Section 8(B), the

Contractor shall ensure that the System complies with each applicable Credit Card Security Standard at all times and provide the City with docu-mentation of such compliance upon request by the City.

D. Security Issues. In the event that the Contractor detects or otherwise becomes aware of any security breach or unauthorized access to the Software or to any loca-tions, equipment, systems and other materials, and facilities employed in connec-tion with the provision of Hosting Services (collectively, a “Security Issue”), the following provisions apply:

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(i) The Contractor shall report the Security Issue to the City and may delay that report only to the extent authorized by law or necessary to determine the general nature of the Security Issue and develop recommendations for the City to prevent or mitigate the Security Issue. The Contractor shall not delay this report for purposes of performing the actions required under sub-sub-section (ii).

(ii) The Contractor shall remedy the Security Issue in a timely manner and de-liver to the City a root cause assessment and future incident mitigation plan with regard to the Security Issue that sets out written details regarding the Contractor’s investigation of the Security Issue and, upon the City’s written request, provide a second, more in-depth investigation and results of its findings.

(iii) If, before completion of the actions required under sub-subsection (ii), the

Contractor identifies information that would assist the City in mitigating or otherwise responding to the Security Issue, the Contractor shall immedi-ately provide that information to the City unless prohibited by law from doing so.

(iv) The Contractor shall not send notice of any Security Issue to any law en-forcement agency, regulatory authority, consumer, or other person or entity for or on behalf of the City unless required to do so by law or explicitly requested to do so in writing by the City. But if the City requests that the Contactor send any such notice, the Contractor shall prepare and send each such notice at its sole expense following review and approval of the notice and distribution list by the City.

(v) If the Security Issue is caused, in whole or in part, by any act or omission of the Contractor, the Contractor shall reimburse the City for any cost or expense incurred by the City in providing notice of the Security Issue in a manner consistent with applicable law, City policy or procedure, or industry best practice.

E. Access to Local Software or Non-System Elements. With respect to the Con-tractor’s access to Local Software or a Non-System Element through the Hosted Software or the Hosting Services, the following provisions apply:

(i) The Contractor may access Local Software or a Non-System Element only

(i) with the prior written authorization of the City, (ii) through the City’s

13 of 33 T-04 / 00610403 / v08 security gateways and firewalls; and (iii) in compliance with the City’s ap-plicable security policies. The City may modify or revoke the authorization described in this Section 8(E) any time at any time and for any reason.

(ii) The Contractor shall not perform any Hosting Services in a manner that exposes any Local Software or any Non-System Element to a security breach or unauthorized access.

F. Security Audits. During the Term of this Agreement and for three years thereafter, the Contractor shall maintain complete and accurate records concerning its perfor-mance of the obligations set forth in this Section 8 and shall make those records and relevant personnel available during normal business hours for inspection and audit by the City or an independent data security expert, which may include pene-tration and security tests of any Hosted Software or Hosting Service. The City is not obligated to perform any such audit, but if the City elects to perform such an audit, the City shall (i) give the Contractor at least 14 days’ notice of such audit;

(ii) undertake no more than two such audits per calendar year; (iii) conduct such audit in a manner designed to minimize disruption of the Contractor’s normal busi-ness operations; and (iv) conduct such audit in a manner that complies with the terms and conditions of all data confidentiality, ownership, privacy, security, and restricted-use provisions of this Agreement.

G. Regulatory and Compliance Audits. Any authorized representative of any reg-ulatory agency, taxing authority, or private entity that functions in a quasi-regula-tory manner that has jurisdiction over the City in connection with its regulatory functions (each, a “Regulator”) shall, upon request, have the same audit rights as those set forth in Section 8(F), provided that no condition or restriction stated in Section 8(F) applies to any Regulator to the extent it is contrary to applicable Law.

The Contractor shall cooperate with any individual conducting such an audits and timely comply with any legal and regulatory directives and reasonable recommen-dations that result from such an audit. Without limiting any of the Contractor’s other obligations under this Sections 8–9, if the Contractor engages a third party auditor to perform a Statement on Standards for Attestation Engagements No. 16 (SSAE

16) audit of the Contractor’s operations, information security program, or disaster recovery/business continuity plan, the Contractor shall provide a copy of the audit report to the City no more than 14 days after the Contractor’s receipt of such report, and any such audit reports is deemed to be Contractor’s Confidential Information in accordance with Section 12.

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9. Redundancy, Data Backup, and Disaster Recovery of Hosted Software and Hosting Services. The Contractor shall, in accordance with the provisions of this Section 9, main-tain disaster-avoidance procedures designed to safeguard the Hosted Data, the capability of the Hosted Software, and the availability of the Hosting Services. The force majeure provisions of Section 35 do not limit Contractor’s obligations under this Section 9.

A. Primary Hosting Facility. The Contractor shall ensure that the primary system from which the Software and Hosting Services are provided is located in the con-tiguous United States.

B. Redundant Hosting and Connectivity. The Contractor shall simultaneously op-erate a mirror system at a hardened data center facility in the contiguous United States that is geographically remote from the primary system from which the Hosted Software and Hosting Services are provided (the “Secondary Backup Fa-cility”). Except for its location and housing facility, the mirror system shall: (i) be identical in all respects to the primary system; (ii) have hardware and software, net-work connectivity, power supplies, backup generators, and other similar equipment and services that operate independently of the primary system; (iii) have fully cur-rent backups of all Hosted Data stored on the primary system; and (iv) have the ability to provide the Hosting Services in accordance with this Agreement during the performance of routine and remedial maintenance or any outage or failure of the primary system. The Contractor shall operate, monitor, and maintain such mir-ror system so that it may be activated within one minute of any failure of the Host-ing Services.

C. Data Storage and Backup. Unless otherwise explicitly stated in this Agreement, there is no limit on the amount of City Data that may be stored in the System, and the Usage Fee covers all storage of City Data. The Contractor shall conduct backups of City Data at least every four hours and store such backup City Data in a location and manner that is consistent with industry best practices. Unless otherwise explic-itly stated in this Agreement, the Contractor shall not count any such backup of City Data in allotting or calculating any data storage actually used or permitted to be used by City or any associated Fee.

D. Disaster Recovery / Business Continuity.

(i) The Contractor shall maintain a business continuity and disaster-recovery plan for the Hosting Services (the “BCDR Plan”) and provide the City, upon request, with a current copy of the BCDR Plan, along with any reports or summaries relating to past testing of or pursuant to the BCDR Plan.

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(ii) The Contractor shall actively test, review and update the BCDR Plan on at least an annual basis using industry best practices as guidance, and any such update to the BCDR Plan is be subject to the requirements of this Section.

(iii) The Contractor shall implement the BCDR Plan in the event of any un-planned interruption of the Hosting Services. If the Contractor fails to rein-state the Hosting Services and restore access to the Hosted Software within the periods of time set forth in the BCDR Plan, the City may, in addition to any other remedies available hereunder, in its sole discretion, immediately terminate this Agreement in accordance with Section 20.

E. Data Export. If the City requests a comprehensive export of all City Data, the

Contractor shall provide such export no more than ten days after receiving such request. To the extent such City Data is stored in its native format (e.g., Word, Ex-cel, PowerPoint, PDF, etc.), it must be exported in that native format. Otherwise, such City Data must be exported in downloadable Excel, comma-separated values, or other agreed-upon format. If any City Data is stored in a database and exported in table format, the Contractor shall provide a current copy of the database schema for those tables within 10 business days of request by the City. This subsection (E) survives for 90 days following expiration or earlier termination of this Agreement.

10. Availability of Hosted Software and Hosting Services.

A. The Contractor, through its performance of the Hosting Services, shall make the

Hosted Software available to the City in accordance with the services level stand-ards attached to this Agreement as Appendix D (“Hosting Service Level Stand-ards”).

B. If the Contractor fails to meet the Hosting Service Level Standards, the Contractor shall issue to the City the service credits set forth in Appendix D (“Service Cred-its”). The Parties acknowledge (i) that damages resulting from Contractor’s failure to meet the Hosting Service Level Standards would not be readily ascertainable;

and (ii) that the Hosting Service Credits are a reasonable and proportionate measure of the damage that would be expected to follow from Contractor’s failure to meet the Hosting Service Level Standards.

C. If the Contractor fails to meet the Hosting Service Level Standards in any two of three consecutive months, then, in addition to any other remedy available to the

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City, the City may immediately terminate this Agreement without providing Con-tractor with notice of default or an opportunity to cure, and in the event of such termination, the City will not be liable for any liability, obligation, or penalty to the Contractor.

11. Third-party performance. If a third party provides any Component or Service pursuant to the Agreement, in whole or in part, the following provisions apply, regardless of the legal or business relationship between the Contractor and that third party:

A. The third party may perform any obligation of the Contractor under the Agreement or perform any action that the Contractor has permission or discretion to take under the Agreement. But the Contractor shall ensure that such performance by the third party fulfills the requirements of the Agreement in full, and any deviation from the requirements of the Agreement by the third party constitutes a breach of the Agree-ment by the Contractor.

B. If the Contractor is prohibited from taking any action under the Agreement, the

Contractor shall ensure that the third party does not take that prohibited action. Ac-cordingly, if the third party takes any action that the Contractor is prohibited from taking, it constitutes a breach of the Agreement by the Contractor.

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, declaration, statement of fact, warranty, or consent is or becomes false or is otherwise not fulfilled by the Contractor or the third party, it constitutes a breach of the Agreement by the Contractor.

D. Any breach caused in whole or in part by the third party is deemed to be the sole responsibility of the Contractor for purposes of this Agreement, and the Contractor shall cure such breach in accordance with Section 19.

E. The Contractor acknowledges (i) that the City may withhold payment on an invoice pursuant to section 5 even if the applicable failure to satisfy a requirement of the Agreement is the fault of the third party, in whole or in part; (ii) that section 7 ap-plies to any Usage Right that flows from a third party; and (iii) that the Contractor’s obligations under section 13 apply to any Claim arising from the action or inaction of the third party as well as any Claim asserted by the third party.

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12. Confidentiality.

A. Each party (“Receiving Party”) shall not disclose, publish, or disseminate the Con-fidential Information (as defined below) of the other party (“Disclosing Party”) to anyone other than those of such Receiving Party’s employees and subcontractors with a need to know, or as may be required by legal process or applicable Laws (including but not limited to Chapter 119, Florida Statutes, and the court decisions construing the same). Each party agrees to accept the other party’s Confidential Information for the sole purpose of carrying out such Receiving Party’s authorized activities under this Agreement. Each party agrees not to make copies of the other party’s Confidential Information except to the extent permitted pursuant to this Agreement. Each party agrees not to use the Confidential Information of the other party for its own or any third party’s benefit without the prior written approval of an authorized representative of the Disclosing Party in each instance. In the event a Receiving Party is required to disclose the Disclosing Party’s Confidential Infor-mation in accordance with applicable Laws or by an order of a court or governmen-tal agency, the Receiving Party shall give written notice to the Disclosing Party to enable the Disclosing Party to make a reasonable effort to obtain a protective order or other confidential treatment for the Confidential Information. Such notice shall be provided prior to disclosure unless otherwise required by court order or applica-ble Laws. Contractor acknowledges that, in the event of a public records request, the City may be limited in the amount of notice that it may be able to provide Con-tractor prior to disclosure of records and agrees that the City Attorney shall have the sole and absolute discretion to determine when public records must be released in order to comply with Chapter 119, Florida Statutes, and the court decisions con-struing same. By designating information as Confidential Information, Contractor agrees to indemnify and hold harmless the Indemnified Parties for any award to a plaintiff for damages, costs and reasonable attorney’s fees incurred by the City by reason of any legal action challenging Contractor’s claim. Contractor shall require as a condition of any subcontract that the subcontractor expressly acknowledges and agrees to be bound by the same confidentiality requirements to which Contrac-tor is bound by this Agreement.

B. “Confidential Information” means confidential and proprietary information of ei-ther party that is disclosed to the other party which, in the case of written infor-mation, is marked “confidential” or “proprietary” and which, in the case of infor-mation disclosed orally or stored electronically, is identified at the time of disclo-sure as confidential and proprietary and summarized and confirmed in writing as such by the Disclosing Party within thirty (30) days of the disclosure. Confidential

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Information shall not include information that (i) as of the Effective Date or after the Effective Date is or becomes generally available to the public through no fault or breach of the Receiving Party; (ii) the Receiving Party can demonstrate to have had rightfully in its possession prior to disclosure by the Disclosing Party; (iii) is independently developed by the Receiving Party without the use of any Confiden-tial Information; or (iv) the Receiving Party rightfully obtains from a third party who has the right to transfer or disclose it. No representations, expressed or implied, are being made through the disclosure of Confidential Information.

C. The terms of this Section 12 survive termination of this Agreement.

13. Indemnification.

A. Contractor shall defend at its expense, pay on behalf of, hold harmless and indem-nify the City, its officers, employees, agents, elected and appointed officials and volunteers (collectively, “Indemnified Parties”) from and against any and all claims, demands, liens, liabilities, penalties, fines, fees, judgments, losses and dam-ages (collectively, “Claims”), whether or not a lawsuit is filed, including, but not limited to Claims for damage to property or bodily or personal injuries, including death at any time resulting therefrom, sustained by any persons or entities; and costs, expenses and attorneys’ and experts’ fees at trial and on appeal, which Claims are alleged or claimed to have arisen out of or in connection with, in whole or in part, directly or indirectly:

(i) The performance of this Agreement (including any amendments thereto) by

Contractor, its employees, agents, representatives or subcontractors;

(ii) The failure of Contractor, its employees, agents, representatives or subcon-tractors to comply and conform with applicable Laws (as defined herein);

(iii) Any negligent act or omission of Contractor, its employees, agents, repre-sentatives, or subcontractors, whether or not such negligence is claimed to be either solely that of Contractor, its employees, agents, representatives or subcontractors, or to be in conjunction with the claimed negligence of oth-ers, including that of any of the Indemnified Parties;

(iv) Any reckless or intentional wrongful act or omission of Contractor, its em-ployees, agents, representatives, or subcontractors;

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(v) Contractor’s failure to maintain, preserve, retain, produce, or protect records in accordance with this Agreement and applicable Laws (including but not limited to Florida laws regarding public records); or

(vi) Any violation of any Usage Right, including but not limited to any license violation, claim of license violation, infringement, or claim of infringement of any patent, trademark, copyright, trade secret, or other intellectual prop-erty right or proprietary interest arising out of any Intellectual Property.

B. The provisions of this paragraph are independent of, and will not be limited by, any insurance required to be obtained by Contractor pursuant to this Agreement or oth-erwise obtained by Contractor, and shall survive the expiration or earlier termina-tion of this Agreement with respect to any claims or liability arising in connection with any event occurring prior to such expiration or termination.

14. Insurance.

A. Contractor shall carry the following minimum types and amounts of insurance at its own expense:

(i) 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 completed operations; and (v) con-tractual liability under the Agreement. Such contractual liability coverage must provide and pay for a defense for all claims or demands covered by the Contractor’s indemnification obligations under this Agreement and have an amount sufficient to cover the Contractor’s indemnification obligations under this Agreement.

(ii) Automobile liability insurance of $1,000,000 combined single limit cover-ing all owned, hired and non-owned vehicles.

(iii) Workers’ Compensation insurance as required by Florida law and Employ-ers’ Liability Insurance in an amount of at least $100,000 each accident, $100,000 per employee, and $500,000 for all diseases.

(iv) Cyber liability insurance in an amount of at least $5,000,000 per occurrence.

This policy must include coverage for (a) security and privacy liability, in-cluding privacy breach response costs, regulatory fines and penalties, and cyber extortion; (b) media liability, including infringement of copyright, 20 of 33 T-04 / 00610403 / v08 trademark, and trade dress; and (c) errors and omissions in any Software, Firmware, or Service.

(v) Any other insurance coverage (a) that is required under applicable law;

(b) that would be reasonably associated with the provision of the Delivera-bles; or (c) that is actually carried by the Contractor, even if such coverage is broader in scope or has greater limits than those stated elsewhere in this section 14

B. All of Contractor’s insurance policies, except Workers’ Compensation, shall name the Indemnified Parties as additional insureds.

C. All policies shall provide that the City will be provided notice at least thirty (30) days prior to any cancellation, reduction or material change in coverage.

D. Contractor shall provide the City with Certificates of Insurance on a standard

ACORD form reflecting all required coverage. At the City’s request, Contractor shall provide copies of current policies with all applicable endorsements.

E. All insurance required shall be provided by responsible insurers licensed in the

State of Florida and rated at least A- in the then current edition of AM Best’s Rating

F. If any coverage is on a “Claims Made” basis, it must include the retro date of cov-erage.

G. Contractor hereby waives all subrogation rights of its insurance carriers in favor of the Indemnified Parties. This provision is intended to waive fully, and for the ben-efit of the Indemnified Parties, any rights or claims which might give rise to a right of subrogation in favor of any insurance carrier.

H. All coverage must be made on a primary and noncontributory basis

I. The City shall have the right to reasonably increase the amount or expand the scope of insurance to be maintained by Contractor hereunder from time to time.

15. Notices. Unless and to the extent otherwise provided in this Agreement, all notices, de-mands, requests for approvals and other communications which are required to be given by either party to the other shall be in writing and shall be deemed given and delivered on the date delivered in person, upon the expiration of five (5) days following the date mailed

21 of 33 T-04 / 00610403 / v08 by registered or certified mail, postage prepaid, return receipt requested to the address pro-vided below, or upon the date delivered by overnight courier (signature required) to the address provided below.

CITY:

City of St. Petersburg Procurement and Supply Management Department P. O. Box 2842 St. Petersburg, FL 33731 Phone: 727-893-7027 Attention: Stephanie Swinson

CONTRACTOR:

16. Severability. Should any paragraph or portion of any paragraph of this Agreement be ren-dered void, invalid or unenforceable by any court of law for any reason, such determination shall not render void, invalid or unenforceable any other paragraph or portion of this Agree-ment.

17. Due Authority. Each party to this Agreement that is not an individual represents and war-rants to the other party that (i) it is a duly organized, qualified and existing entity authorized to do business under the laws of the State of Florida, and (ii) all appropriate authority exists so as to duly authorize the person executing this Agreement to so execute the same and fully bind the party on whose behalf he or she is executing.

18. Assignment. The Agreement may not be assigned or transferred by the Contractor without the prior written consent of the City, and any purported attempt to assign or transfer the Agreement in violation of this provision is void.

19. Cure of Breach by Contractor. If the City provides the Contractor with written notice of the Contractor’s breach of warranty or other failure to comply with this Agreement (for purposes of this Section 19, a “Breach”), the Contractor shall, at its own expense, take