Base_Agreement_-_Drones_&_Accessories,_00776732.docx

AGREEMENT

Body of Agreement THIS AGREEMENT (“Agreement”) is made and entered into on the ___ day of ___________, 20__, (“Effective Date”) by and between _____________________ (“Contractor”) 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 acknowledged, the Parties agree as follows:

Contractor Duties. Contractor shall provide the Hardware and Services set forth in this Agreement and its appendices for the City in full and complete accordance with this Agreement. Without limiting the generality of the foregoing, Contractor shall provide the City with a drone, accessories, and associated support, equipment, software, and training as documented in the Scope of Work set forth in Appendix A.

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.

“City Data” means any information, data, or other content that is (i) uploaded, submitted, 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.

“Component” means any Hardware, Firmware, or Software included in the System.

“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.

“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 Agreement and is used locally and not for the provision of Hosted Software or Hosting Services.

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

“Hosted Software” means any 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.

“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.

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

“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. The Licensed Deliverables include but are not limited to (i) Software; (ii) Firmware; and (iii) Support Documentation.

“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.

“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.

“Service” means all services provided by Contractor under this Agreement, including Implementation Services, Support Services, professional services, Software, or Hosting Services unless context clearly indicates otherwise.

“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 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.

“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 specifications and expected operation of the System.

“Support Service” means any service for support of the System provided by the Contractor pursuant to this Agreement following completion of all Implementation Services.

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

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

“Usage Right” means any license, sublicense, intellectual property right, proprietary interest, or other right pursuant to which the City may access or use a Licensed Deliverable in accordance with this Agreement. A Usage Right may derive from an ownership interest held by the Contractor or held 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), 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 Licensed Deliverable in the manner described in this Agreement.

Term. The initial “Term” commences on the Effective Date and remains in full force and effect until Contractor has performed its obligations under this Agreement, the City has accepted all services in accordance with this Agreement, and after the expiration of all warranty periods and the satisfactory completion of all warranty-related work.

Agreement Components.

The components of the Agreement are this document; the appendices to this document; the attached Purchase Order (“Purchase Order”); and the following documents, which are made a part hereof by reference (collectively, “Other Documents”):

________The City’s solicitation documents (“Document 1”) ________Contractor’s best & final offer, if any (“Document 2”) ________Questions & clarifications, if any (“Document 3”) ________Contractor’s response to the City’s solicitation documents (“Document 4”) 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 the documents are listed above (e.g. Document 1 shall govern over Document 2, Document 2 shall govern over Document 3, etc.).

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” or “SOW”):

As more particularly described in Section 8, the Contractor is granting to the City every Usage Right needed for the City to use each Licensed Deliverable in accordance with this Agreement.

The Contractor shall perform or ensure the performance of all Hosting Services necessary to provide the City with access to the Hosted Software in accordance with this Agreement, including the security, redundancy, and availability requirements described in Sections 9–11.

Contractor shall perform all Implementation Services necessary to provide the City with the System. The Implementation Services include (i) project management and requirements gathering; (ii) installation, configuration, integration, and testing of the System; (iii) user training for the System; 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 implementation of the System.

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 will not be adjusted automatically due to any cure period provided by Section 20 and may be adjusted only through written agreement between the Parties, which constitutes an amendment to this Agreement.

Throughout the Term, the Contractor shall perform the Support Services, which include (i) maintaining and providing access to up-to-date Support Documentation; (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 described in the Scope of Work that occurs following the City’s acceptance of the component of the System being supported through that Service.

Hardware and Services may be added only through an amendment made to and in accordance with this Agreement.

Payment and Fees.

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. After the first annual period of this Agreement, all City payments for each subsequent annual period of the Agreement are subject to annual appropriations in accordance with section 30 of this Agreement.

The City shall pay the Contractor for Services and Hardware in accordance with the Pricing in an amount not to exceed ________________.

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 the Pricing or Total Fees will be effective unless made in accordance with the Contract Adjustment process set forth in section 41.

The Contractor shall invoice the City in accordance with procedures established by the City, and the City shall pay that invoice within 30 days of receipt.

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 submission of such an invoice. Additionally, if the Contractor has not satisfied all requirements of the Agreement at the time an invoice is submitted, the City may withhold payment on that invoice until such date as the Contractor has satisfied all requirements of the Agreement and has submitted a new invoice that demonstrates correction of each deficiency to the City’s satisfaction. During any period in which the City withholds payment pursuant to this section, the Contractor shall not terminate, suspend, impair, degrade, or otherwise limit any service or right provided to the City pursuant to the Agreement.

Acceptance; Updates.

The Contractor shall, upon delivering to the City any deliverable required under this Agreement (each an “Inspected Deliverable”), provide the City with a written summary of any Inspected Deliverable delivered 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.

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 rejection, and the Contractor shall bring that Inspected Deliverable into compliance with this Agreement in accordance with Section 20.

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

Upon the City’s acceptance of any Hardware in accordance with this Section 7, 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.

The Contractor shall provide reasonable prior notice when an Update for Software or Firmware is scheduled to occur.

Usage Rights and Intellectual Property.

The Contractor hereby grants to the City the following:

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

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

The City may access and use Support Documentation in perpetuity.

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

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.

The Contractor has identified in 0 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 Hosted 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 D 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 D 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.

If the Agreement incorporates any Third-Party Usage Rights 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 learning 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 Agreement without penalty by providing written notice of such termination to the Contractor. 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.

The City may copy any Licensed Deliverable other than Hosted Software for archival backup, disaster-recovery, or other internal purposes.

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

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. Nothing in this 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 explicitly reserves the right to request any such intellectual property or embodiment of intellectual property held by a trustee for the Contractor to the full extent authorized by section 365(n)(3) of the Bankruptcy Code.

The owner of any Licensed Deliverable, whether the Contractor or a third party, retains exclusive ownership of all methods, ideas, concepts, algorithms, trade secrets, trademarks, trade names, logos, and other 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.

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.

This section 8 survives termination of the Agreement.

Security of Hosted Software and Hosting Services.

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 Service, the following provisions apply:

The Contractor shall notify the City of the identity of the third party providing 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.

The Contractor acknowledges that the Contractor will be responsible for the third party’s compliance or noncompliance with the terms of this Agreement as more particularly described in Section 12.

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:

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).

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 while processed by or stored in the Hosted Software.

The Contractor shall secure and defend all locations, equipment, systems and other materials, 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.

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

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 Contractor’s obligations under this Agreement.

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 locations, equipment, systems and other materials, and facilities employed in connection with the provision of Hosting Services (collectively, a “Security Issue”), the following provisions apply:

The Contractor shall report the Security Issue to the City and may delay that report only to the extent authorized by law or needed 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-subsection (ii).

The Contractor shall remedy the Security Issue in a timely manner and deliver 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.

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 immediately provide that information to the City unless prohibited by law from doing so.

The Contractor shall not send notice of any Security Issue to any law enforcement 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.

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.

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

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 security gateways and firewalls, and (iii) in compliance with the City’s applicable security policies. The City may modify or revoke the authorization described in this Section 9(D) any time at any time and for any reason.

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.

Security Audits. During the Term of this Agreement and for three years thereafter, the Contractor shall maintain complete and accurate records concerning its performance of the obligations set forth in this Section 9 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 penetration 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 business 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.

Regulatory and Compliance Audits. Any authorized representative of any regulatory agency, taxing authority, or private entity that functions in a quasi-regulatory 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 9(E), provided that no condition or restriction stated in Section 9(E) applies to any Regulator to the extent it is contrary to applicable Law. The Contractor shall cooperate with any individual conducting such audits and timely comply with any legal and regulatory directives and reasonable recommendations that result from such an audit. Without limiting any of the Contractor’s other obligations under Sections 9–10, 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 44.

Redundancy, Data Backup, and Disaster Recovery of Hosted Software and Hosting Services. The Contractor shall, in accordance with the provisions of this Section 10, maintain 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 34 do not limit Contractor’s obligations under this Section 10.

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

Redundant Hosting and Connectivity. The Contractor shall simultaneously operate 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 Facility”). 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, network connectivity, power supplies, backup generators, and other similar equipment and services that operate independently of the primary system; (iii) have fully current 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 mirror system so that it may be activated within one minute of any failure of the Hosting Services.

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 explicitly 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.

Disaster Recovery / Business Continuity.

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.

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 10(D).

The Contractor shall implement the BCDR Plan in the event of any unplanned interruption of the Hosting Services. If the Contractor fails to reinstate the Hosting Services 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 21.

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, Excel, 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.

Availability of Hosted Software and Hosting Services.

The Contractor, through its performance of the Hosting Services, shall make the Hosted Software available to the City in accordance with the services level standards attached to this Agreement as Appendix C (“Hosting Level Standards”).

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 C (“Service Credits”). 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.

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 City, the City may immediately terminate this Agreement without providing Contractor 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.

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:

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 Agreement by the Contractor.

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. Accordingly, if the third party takes any action that the Contractor is prohibited from taking, it constitutes a breach of the Agreement by the Contractor.

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.

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 20.

The Contractor acknowledges (i) that the City may withhold payment on an invoice pursuant to section 6 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 8 applies to any license, sublicense, intellectual property right, proprietary interest, or other right to access or use a Licensed Deliverable 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.

Indemnification.

Contractor shall defend at its expense, pay on behalf of, hold harmless and indemnify 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 damages (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:

The performance of this Agreement (including any amendments thereto) by Contractor, its employees, agents, representatives or subcontractors;

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

Any negligent act or omission of Contractor, its employees, agents, representatives, 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 others, including that of any of the Indemnified Parties;

Any reckless or intentional wrongful act or omission of Contractor, its employees, agents, representatives, or subcontractors;

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 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 property right or proprietary interest arising out of any operation or use of the System.

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

Insurance.

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

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) contractual 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.

Automobile liability insurance of $1,000,000 combined single limit covering all owned, hired and non-owned vehicles.

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

Cyber liability insurance in an amount of at least $1,000,000 per occurrence. This policy must include coverage for (a) security and privacy liability, including privacy breach response costs, regulatory fines and penalties, and cyber extortion; (b) media liability, including infringement of copyright, trademark, and trade dress; and (c) errors and omissions in any Software, Firmware, or Service.

Any other insurance coverage (a) that is required under applicable law, (b) that would be reasonably associated with the provision of the Deliverables, 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.

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

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

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.

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 Services.

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

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 benefit of the Indemnified Parties, any rights or claims which might give rise to a right of subrogation in favor of any insurance carrier.

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

J. If the insurance carried by Contractor has broader coverage than required in this Agreement, then that broader coverage, including but not limited to additional insured requirements, is deemed to be the requirement in this Agreement. If Contractor’s insurance limits are greater than the minimum limits set forth herein, then Contractor's insurance limits are deemed to be the required limits in this Agreement.

City liability. To the extent permitted under applicable law, the City accepts no liability, responsibility, or indemnity obligation for any third-party claim or damage arising out of or in connection with the Agreement or the possession or use of any deliverable provided by the Contractor pursuant to this Agreement. Nothing in the Agreement is intended to serve as a waiver of sovereign immunity by the City or acceptance by the City of any liability in excess of limits provided to the City under applicable law.

Notices. Unless and to the extent otherwise provided in this Agreement, all notices, demands, 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, on the sent date of an email, or upon the expiration of five (5) days following the date mailed by registered or certified mail, postage prepaid, return receipt requested to the address provided 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: 727-893-4109 Attention: Stephanie Swinson

Contractor:

Severability. Should any section or portion of any section of this Agreement be rendered void, invalid or unenforceable by any court of law for any reason, such determination shall not render void, invalid or unenforceable any other section or portion of this Agreement.

Due Authority. Each party to this Agreement that is not an individual represents and warrants 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.

Assignment. Contractor shall make no assignment of this Agreement without the prior written consent of the City. Any assignment of this Agreement contrary to this section shall be void and shall confer no rights upon the assignee.

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 20, a “Breach”), the Contractor shall, at its own expense, take whatever steps are necessary to cure the Breach. The Contractor shall cure the Breach on or before a deadline agreed to by the Parties or, in the absence of such a mutually agreed-upon deadline, no more than thirty (30) days after receiving notice of the Breach. If the City determines that the Contractor has failed to cure the Breach by that deadline, the City may take one or more of the following actions: (i) terminate the Agreement, (ii) require the Contractor to execute an amendment reducing the Total Fees to reflect the damages to the City caused by the Breach, or (iii) avail itself of any other right or remedy available under this Agreement or applicable Laws. In the event that another provision of this Agreement provides specific terms for addressing a failure to comply with this Agreement, those specific terms will control in the event of conflict with the general terms set forth in this Section 20.

Termination.

If the Contractor provides the City with written and specific notice of a violation of the terms of the City’s Usage Rights for a Licensed Deliverable, the City shall cure the violation no later than thirty days after receiving such notice. During that period, the Contractor shall not terminate, suspend, impair, degrade, or otherwise limit any Usage Right, Hosting Service, or Support Service. But if the City fails to cure the violation during the cure period provided by this Section 21(A), the Contractor may terminate this Agreement and the City’s Usage Right for that Licensed Deliverable; provided, however that Contractor shall provide the City with all video evidence retained or stored in accordance with this Agreement.

If the Contractor fails to cure any Breach in accordance with Section 20, the City may terminate this Agreement immediately. Additionally, the City may terminate this Agreement as provided in Florida Statutes section 287.135 and 488.095.

If the City determines that Contractor has failed to comply with any of the terms and conditions of this Agreement related to safety, indemnification, or insurance coverage, the City may terminate this Agreement immediately, without providing Contractor with notice of default or an opportunity to cure.

The City may terminate this Agreement at any time and for any reason upon thirty (30) days written notice to Contractor. In the event of termination by the City pursuant to this Section 21(D), the City shall (i) pay the Contractor for any Service performed prior to termination for which the City has not already paid; (ii) pay the Contractor for any Hardware that the City has accepted but for which the City has not already paid, and as further described in this section. and (iii) return to the Contractor any Hardware that the City has not accepted. Otherwise, the City is not obligated for any other payment to the Contractor.

If the City terminates the Agreement for cause, the Contractor shall make a pro rata refund of the most recent payment of the fees for any unused Services (e.g., if the City terminates the Agreement three months after paying the annual fees for Services, the Contractor shall refund 75% of the amount of those annual fees for Services for the nine months remaining).

Termination of this Agreement is deemed to be a termination of the Purchase Order and the Other Documents.

After Termination. Contractor will not delete City Data following termination except as mutually agreed upon by the Parties. Within 90 days from termination of this Agreement, the City agrees to purchase continuing data storage from Contractor at then current list prices until such time that all City Data has been retrieved by the City from Contractor. The City will not incur additional fees if the City downloads City Data from Contractor’s System.

Post-Termination Assistance. Contractor will provide the City with a feature that allows the City to download data in bulk and that includes naming conventions that preserve reasonable access to the data in addition to any other assistance that Contractor generally makes available to all customers. Requests for Contractor to provide additional assistance in downloading or transferring City Data, including (a) Contractor’s data export API, or (2) Contractor’s data egress service, will result in additional fees and Contractor will not warrant or guarantee readability in the external system. City Data generated from Contractor Devices may be exported in the mp4 format. For City Data generated from other means, the data will be exported in the format it was recorded. Contractor shall provide a structured data element, similar to XML, providing all data elements, including metadata and audit trails, related to each individual video file. That data structure shall maintain the referential integrity of the data element relationships.

Governing Law and Venue. The laws of the State of Florida govern this Agreement and any dispute arising from it. Venue for any action arising out of the Agreement brought in state court shall be in Pinellas County, St. Petersburg Division, and venue for any action arising out of the Agreement brought in federal court shall be in the Middle District of Florida, Tampa Division, unless a division shall be created in St. Petersburg or Pinellas County, in which case the action shall be brought in that division. Each party waives any defense, whether asserted by motion or pleading, that the courts specified in this section are an improper or inconvenient venue. Moreover, the Parties consent to the personal jurisdiction of the courts specified in this section and irrevocably waive any objections to said jurisdiction.

Amendment. This Agreement may be amended only in writing executed by the Parties. No click-through, click-wrap, browse-wrap, or other contractual provision presented by the System to a user of the System (each, a “Click-through Provision”) may serve as an amendment to this Agreement, and this Agreement supersedes any Click-Through Provisions with respect to the City and with respect to any person who uses the System pursuant to this Agreement.

Entire Agreement. This Agreement, including the appendices, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, whether oral or written, between them. Any conflicting terms or conditions or any terms or conditions related to attorneys’ fees, disclaimer of warranties, or indemnification set forth by Contractor in a quote or invoice are void and of no effect, even if such communication or document is attached to a purchase order issued by the City under this Agreement.

Compliance with Laws. Contractor shall comply at all times with all federal, state, and local statutes, rules, regulations and ordinances, the federal and state constitutions, and the orders and decrees of lawful authorities having jurisdiction over the matter at issue (collectively, “Laws”), including but not limited to Florida laws regarding public records. Contractor shall also comply with all applicable City policies and procedures. Contractor hereby makes all certifications required under Florida Statute section 287.135.

Third Party Beneficiary. Notwithstanding anything to the contrary contained in this Agreement, persons or entities not a party to this Agreement may not claim any benefit hereunder or as third-party beneficiaries hereto.

No Liens. Contractor shall not suffer any liens to be filed against any City property by reason of any work, labor, services or materials performed at or furnished to City property, to Contractor, or to anyone using City property through or under Contractor. Nothing contained in this Agreement shall be construed as a consent on the part of the City to subject City property or any part thereof to any lien or liability under any Laws.

No Construction against Preparer of Agreement. This Agreement has been prepared by the City and reviewed by Contractor and its professional advisors. The City, Contractor and Contractor’s professional advisors believe that this Agreement expresses their agreement and that it should not be interpreted in favor of either the City or Contractor or against the City or Contractor merely because of their efforts in preparing it.

Use of Name. Subject to the requirements of Florida laws regarding public records, neither party shall use the other party’s name in conjunction with any endorsement, sponsorship, or advertisement without the written consent of the named party.

Non-appropriation. The obligations of the City as to any funding required pursuant to this Agreement (including any acceleration of payment or penalty resulting from termination of the Agreement before the end of the then-current Term) are 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 appropriated, sufficient monies for the funding that is required during that year. Notwithstanding the foregoing, the City is not be prohibited from pledging any legally available non-ad valorem revenues for any obligations heretofore or hereafter incurred, which pledge shall be prior and superior to any obligation of the City pursuant to this Agreement.

City Consent and Action.

For purposes of this Agreement, any required written permission, consent, acceptance, approval, or agreement by the City means…