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HomeMy WebLinkAboutExhibit - Agreement.miami Registry Service Agreement This Registry Services Agreement ("Agreement") is entered into as of the last date written below by and between Minds + Machines, LLC ("M+M" or "Provider"), a Florida limited liability company, with offices at 55 Merrick Way, Ste. 406, Coral Gables, FL 33134, and the City of Miami, Florida, USA, a Florida municipal corporation, ("City") maintaining offices at 3500 Pan American Drive, Miami, FL 33130. Together, M+M and the City are referred to herein as the "Parties" and individually as "Party" or "M+M" or `Provider" if it pertains to the Minds + Machines, LLC and as "City" if it pertains to the City of Miami." RECITALS WHEREAS, the Internet Corporation for Assigned Names and Numbers ("ICANN") is the authority responsible for the program intended to expand the availability of top-level domain names by administering an application process wherein an Applicant applies to run a new Top Level Domain Registry ("the ICANN Application") and under which a successful applicant will become a "Registry Operator" and must enter into a Registry Agreement with ICANN (the "ICANN Agreement"); and WHEREAS, ICANN has awarded the M+M the contract as Registry Operator for the .miami TLD and a copy City Resolution awarding this Agreement is attached as Exhibit "A"; and WHEREAS, M+M has significant experience in creating, launching, managing, and operating geographic top-level domains, including the creation and administration of a successful policy framework; and WHEREAS, M+M has paid to ICANN One Hundred Eighty Five Thousand Dollars ($185,000.00) as an application fee for the .miarni ICANN application; and WHEREAS, M+M's management has a long history of successful business ventures, including many in the area of Internet domain names; and WHEREAS, M+M wishes to operate .miami as a business and to provide the City with the specified percentage of revenue as set forth in detail below; and WHEREAS, the City of Miami's share, as depicted in the Negotiated Term Sheet, attached as Exhibit B, is fifty percent (50%) of gross revenues, to be paid on a quarterly basis, over the five (5) year contract term; and WHEREAS, M+M has guaranteed a minimum annual payment to the City of Two Hundred Fifty Thousand Dollars ($250,000); and Page 1 of 22 Initials: M+M City: WHEREAS, M+M has committed to annual marketing costs of at least Two Hundred Forty Thousand Dollars ($240,000), the majority of which would be spent locally in Miami; and WHEREAS, the City wishes to create .miami pursuant to the process set forth by ICANN; and WHEREAS, the City supported M+M's ICANN Application and provided a signed Letter of Support; and WHEREAS, the City wishes to 'work with M+M to provide policy guidance with regard to the rules of registration for .miami Second Level Domains; and WHEREAS, the City wishes to receive a portion of gross revenues generated by the sale of domain names by M+M's operation of .miami; and, WHEREAS, all responsibility for obtaining all governmental and regulatory approvals and permits, if any, will rest with M+M; NOW THEREFORE, for and in consideration of the mutual promises, benefits and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, with full intention to be legally bound, the Parties hereby AGREE as follows: 1. INCORPORATIONS; PRIORITY OF PROVISIONS; DEFINITIONS 1.1. Incorporations;. Priority of Provisions: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. The City Commission Resolution authorizing this Agreement is attached as Exhibit A. The Negotiated Term Sheet is hereby incorporated into and made a part of this Agreement as attached Exhibit B, except as modified by this Agreement. To the extent there is a conflict between any term in any exhibit to this Agreement and this Agreement's terms and conditions, the terms and conditions in this Agreement will supersede those in any attached Exhibit. M+M's Response to Request for Proposals No. 291270, dated March 1, 2012 is hereby incorporated into and made a part of this Agreement as Exhibit C. The order of precedence whenever there is conflicting or inconsistent language between documents is as follows: (1) This Agreement; (2) The Negotiated Term Sheet; (3) the City's Request for Proposals; (4) Addenda/Addendum to the Request for Proposals; and (5) Provider'.s Response to the Request for Proposals. In the event of any express or implied conflict between any of the foregoing documents, the following shall be as follows: • If there is a conflict with the Request for Proposal and/or the Response to Request for Proposal, this Agreement shall prevail. The City reserves the right to resolve any contradictions and to correct any errors contained in its proposal documents, Page2of22 Initials: M+M City: subject to written mutual agreement of the Parties, which will not be unreasonably withheld, conditioned or delayed. Any conflicts between the RFP and any Addendum shall be resolved in favor of the provisions of this Agreement. 1.2. Terms: For purposes of this Agreement, the terms below have the following meanings: Authoritative Root means the Root Zone file, published by the Authoritative Root Servers of the Internet domain name system, and which identifies Top -Level Domain Name zone servers. City Representative Is a single individual, appointed or selected by the City Manager, with whom M+M may communicate regarding policy formation and other matters. Consensus Policy means any policy adopted by ICANN as a result of policy development undertaken by ICANN and subsequently adopted by the ICANN Board as a Consensus Policy. DNS means the Internet Domain Name System. Gross Revenues total sales or total revenues received, less returns or allowances for certain limited, and defined arms' length transactions authorized in advance and in writing by the City Manager, the City Chief Financial Officer, or their authorized City Representative designee , by M+M realized under or in connection with this Agreement. This shall apply to all revenue received by M+M resulting from second level domain name sales and renewals. ICANN is the Internet Corporation for Assigned Names and Numbers, a California non-profit corporation which operates the IANA function and is responsible for coordinating and making policy for four key functions of the Internet: (i) the coordination of the domain name system, (ii) the allocation of Internet protocol (IP) address space, (iii) the assignment of protocol parameters, and (iv) the management of the root server system. Insolvency Event means an event in which the City or M+M becomes insolvent, makes an assignment for the benefit of creditors, files a voluntary or involuntary petition under the bankruptcy or insolvency laws of any jurisdiction, appoints a trustee or receiver for its property or business, or is adjudicated bankrupt or insolvent. Registrant means the person or other entity that registers a specific second -level domain name with a Registrar, thereafter holding the exclusive right to use that specific domain name for a definite period of time, provided certain conditions are met and any applicable registration fees are paid to the Registrar. Registrar means any person or other entity that provides direct domain name registration and access services to a domain -name registrant including, Page 3 of 22 Initials: WPM City: Registry Registry Data Registry Database Registry Services Second -Level Domain, or SLD Top -Level Domain, or TLD without limitation, processing second -level domain -name registrations for Internet end users, billing and collecting revenue for the same, and sending necessary DNS information to the Registry for entry into the Registry Database. means that particular entity which maintains the list of second -level domain names under a top-level domain name, and specifically which receives DNS information from Registrars, inserts that information into a centralized database (the "Registry Database"), and propagates or causes to be propagated the information in Internet zone files ("Zone File Data") on the Internet such that Internet users around the world can access Internet domain names in the Registry Database via the DNS. Also referred to as the Registry Operator. means the individual parts of all data maintained in electronic form in the Registry Database, including Zone File Data, all data submitted by Registrars, and all other data concerning particular second -level domain name registrations, or name servers to which second -level domain names are pointed, relating to a single top-level domain. means the aggregate of all Registry Data as stored in a single and computer readable file or files. Has the standard industry meaning stated in Section below. means a sub -domain name to a top-level domain name and specifically that portion of the complete domain name which begins to the left of the ultimate dot (i.e., period), reading from left to right. By way of example, in the domain name "exarnple.tld", "example" is the second -level domain. means, with respect to a complete domain name, the portion of the same contained after the last dot (i.e., period), reading from left to right. By way of example, in the domain name "example.tld", "tld" is the top-level domain. 2. M+M'S OBLIGATIONS 2.1. Performance of Registry Functions. Upon delegation of .miami to M+M, M+M will, at its own expense, perform or cause to be performed all Registry Services, and in all technical respects function as a Registry for .miami, or subcontract, with prior consent of the City, which may be withheld, denied or conditioned, at the sole discretion of the City, those responsibilities to a third party whom M+M will oversee. Provider represents and warrants to the City that Provider: (i) possesses all qualifications, licenses and expertise required to perform the Services described in Exhibit "A"; (ii) is and shall be, at all times during the term hereof, fully qualified and trained to perform the Services described in Exhibit "A"; and (iii) the Services will be performed in the manner described in Exhibit "A", and in any submittals approved by the City and Provider. Page 4 of 22 Initials: M+M City: 2.2. Registry Services. In its capacity as direct or indirect provider of Registry Services for .miami, and in accordance with the final New gTLD Applicant Guidebook published 4 June 2012 (or any revisions to it), and found at http://newgtlds.ieann.org/en/applicants/agb/guidebook-full-04jun12-en.pdf as of the date of this Agreement (the "Guidebook") at Section 2.2.3.1, or in accordance with any ICANN Consensus Policy, M+M will be responsible for (a) the receipt of data from registrars concerning registrations of domain names and name servers; (b) provision to registrars of status information relating to the zone servers for .miami; (c) dissemination of .miami zone files; (d) operation of the registry zone servers; (e) dissemination of contact and other information concerning domain name server registrations in .miami as reasonably required by the ICANN Agreement; (f) other products or services that the Registry Operator is required to provide because of the establishment of a Consensus Policy (as defined above); (g) any other products or services adopted by M+M that only a registry operator is capable of providing, by reason of its designation as the registry operator; and (h) material changes to any Registry Service within the scope of (a), (b),(c),(d) or (e) above ("Registry Services"). 2.3. ICANN Fees. M+M will pay to ICANN all additional fees in connection with the successful Application, including ongoing ICANN fees charged TLD Registries for the Initial Term and any Subsequent Terms, 2.4. Service Level Agreements. M+M will provide registry services to the performance level required by Specification 10 of ICANN' s new gTLD Agreement, found at http://newgtlds.icann.org/en/applicants/agb/agreement-approved-20novl 3 -en.pdf (or any revisions to it). 2.5. Third -Party Providers. M+M may provide Registry Services through third party subcontractors at no cost to the City, and may provide Registry Services to others at no cost to the City regardless of whether they have a TLD that is similar to ,miami. M+M shall be solely responsible for payments to such third party subcontractors. 2.6. ICANN Compliance and Requirements. M+M will comply with all ICANN Consensus Policies related to the Registry Services, with all ICANN service level requirements, and will implement ICANN-mandated data escrow services, domain name system security extensions, IPv6, uniform rapid suspension, IP claims procedures, whose directory services, and connection to the Trademark Clearinghouse Database for sunrise and trademark claims services. 2.7. Policy Guidance. Upon delegation of ,miami, M+M will provide City, through City Representative, with reasonable consultation and guidance on ICANN policies and City policy development. 2.8. Staffing and Liaison. M+M has a staff sufficient to manage .miami in a professional manner according to best practices within the domain name industry. Page 5 of 22 Initials: M+M City: 2.9. Use of Registry Data and Registry Database. M+M will comply with relevant Federal and Florida laws and Consensus Policies regarding use of, and may, consistent with usual and customary business practices, and with City Manager's or designees prior written approval, make its own use of, the Registry Data, the Registry Database, and all information submitted by Registrants or Registrars in connection therewith, which approval shall not be unreasonably withheld. 2.10. Marketing. M+M will market the .miami TLD to let City residents, businesses, and organizations know about the opportunity. M+M will also provide registrars, premium name brokers, and auctioneers with discounts and incentives to promote .miami. M+M will furnish to the City a sample marketing plan that they have successfully implemented in the past, attached as Exhibit D, for concurrence by City Manager or designee. The sample marketing plan shall have at least the same elements as were included in .berlin and .london. M+M will additionally furnish copies of their non-privileged/protected trade secret .berlin and .london Marketing Plans to the City Manager at least thirty (30) days prior to signing this Agreement. 2.11. Permits and Approvals. M+M shall be responsible for obtaining all governmental permits and approvals as may be required for installation of the supplies, equipment and materials and for the performance of its obligations hereunder. The City shall cooperate with M+M in obtaining all such permits and approvals. In no event shall the City, however, be responsible for payment of any permit fees. Any equipment furnished by M+M shall conform to all federal, state and local code requirements. M+M shall furnish copies of each permit or license which is required to perform the work to the City before M+M commences the portion of the work requiring such permit or license. 2.12. Disclaimers. Websites and domain names in the Miami TLD may include facts, views, contents or opinions of individuals, entities or organizations not affiliated with either the City or M+M. The City and/or M+M do not endorse, guarantee, or warrant the accuracy, completeness, or timeliness of these facts, views, content, or opinions. The City and/or M+M specifically disclaim all liability for any claims or damages, and specifically excluding any express or implied warranties including the warranty of fitness for a particular purpose or the warranty of merchantability, that may result from the facts, views, contents, opinions, or expressions of individuals, organizations or entities not affiliated with either the City and/or M+M appearing on these sites. Unless otherwise specified or agreed in writing websites and domain names in the .miami TLD are maintained by third parties and not either by the City or M+M. The City and/or M+M make no effort to independently verify information on any website or domain name in the .miami TLD, nor does it attempt to exert editorial control over such information. This Section will survive the expiration or cancellation of this Agreement. 2.13. Payments; Taxes; Revenue Share. M+M agrees to remit to the City Gross Revenues from the sale of domain names in .miami according to Exhibit B, attached hereto and incorporated herein by reference. Page 6 of 22 Initials: M+M City: a. M+M has guaranteed a minimum annual payment to the City of Two Hundred Fifty Thousand Dollars ($250,000), (the minimum annual payment shall be payable in equal quarterly installments of Sixty Two Thousand, Five Hundred Dollars and 00/100 ($62,500.00)1 on or before the last business day of each calendar month) against a percentage of gross revenues stated below, whichever may be greater; and b. The minimum annual payment will be paid to the City as against the following percentage of quarterly gross revenues: fifty (:50%) percent, or the proportionate amount of the minimum guarantee, whichever is greater. In the first or second extended terms of this Agreement, if any, shall increase to the following percentage of quarterly gross revenues fifty-five (55%) or the proportionate amount of the minimum guarantee, whichever is greater. Gross revenues will be as defined in this Agreement. Payments shall be made on a quarterly basis, by cashier's check or certified check to the City of Miami c/o City of Miami Chief Financial Officer, 444 SW 2"a Ave. Miami, FL 33130-1910. c. M+M shall use and submit a Gross Revenues Report, a sample of which is attached herewith and incorporated herein as Exhibit E, to itemize any and all reportable Gross Revenues. d. M+M shall be responsible in addition to the foregoing payments to pay any and all local, state, federal, and international tax (e.g. sales, use, income, gross receipts, intangible• etc., et. al.), levy, tariff, charge, assessment or imposition imposed by any governmental or private agency on its duties and functions including its sales under this Agreement. The City will have no tax liabilities as a result of this Agreement. e. Late Payments. Payments not made within thirty (30) days of when due shall accrue interest at the statutory rate twelve percent (12%) per annum until paid. f. Audits. (i) At its option, City may at any time, upon ten (10) business days' prior written notice to M+M but no more than once each year, arrange for an auditor selected by City from either the City's Auditor General's Office or a nationally recognized firm of certified public accountants that is not paid on a contingency basis to conduct a complete audit of the applicable records and operations of M+M evidencing Gross Revenues from sales during the period covered by any statement issued by M+M. M+M shall make available to the City's auditor at a location within Miami -Dade County on the day set forth in City's notice, requiring such audit, all of the applicable books, source documents, accounts and records requested by the City and any other materials which such auditor reasonably deems necessary or desirable for the purpose of making such audit. M+M shall promptly pay to City the amount of Page 7 of 22 Initials: M+M City: any deficiency in Gross Revenues disclosed by any such audit. If such audit shall disclose that M+M statement of Gross Revenues is understated to the extent of five percent (5%) or more, then, unless M+M shall dispute the results of such audit, City may bill to M+M the cost of such audit, which shall be paid by M+M within thirty (30) days after M+M receipt of City's invoice. (ii) In the event that any such audit shall disclose that M+M records and such other materials provided by M+M to City's auditor are inadequate, in the opinion of an independent auditor serving as City's auditor, to disclose accurately M+M Gross Revenues, then M+M shall have thirty (30) days to cure any deficiencies raised by City's auditor and shall then notify City so that City's auditor can continue its audit. City's exercise of the foregoing remedy shall in no way limit or otherwise affect City's ability to exercise other remedies available to it, nor shall M+M obligations pursuant to the terms, covenants and conditions of this Agreement (including, without limitation, M+M obligation with respect to reporting Gross Revenues) be in any manner reduced or diminished by the exercise of such remedy. (iii) The City shall additionally have such audit and inspection rights as set forth in 18-100 to 18-102, Miami City Code as amended, which are deemed to be incorporated by reference herein. 2.14. Insurance; Indemnity and Hold Harmless. M+M shall furnish the City of Miami, c/o Risk Management Department, 444 SW 2nd Avenue, 9th Floor, Miami, Florida 33130, within thirty (30) days of the latest date written on the signature page below, Certificate(s) of Insurance which indicate that insurance coverage has been obtained which meets the requirements as outlined below: I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Personal and Adv. Injury $ 1,000,000 Products/Completed Operations $ 1,000,000 B. Endorsements Required City of Miami included as an Additional Insured Contingent & Contractual Liability Premises and Operations Liability II. Business Automobile Liability A. Limits of Liability Page 8 of 22 Initials: M+M City: Bodily Injury and Property Damage Liability Combined Single Limit Owned/Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami included as an Additional Insured III. Worker's Compensation As required by Chapter 440, Florida Statutes, as amended, as applicable. A. Limits of Liability Statutory -State of Florida Waiver of Subrogation IV. Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit B. Professional Liability/Errors and Omissions Coverage Combined Single Limit Each Claim $1,000,000 General Aggregate Limit $1,000,000 Deductible not to exceed 10% Provider understands and acknowledges its contracts al responsibility to furnish the City with a certificate of insurance in accordance with the terms contained in Section 2.14 titled Insurance Indemnity and Hold Harmless. Provides understands that the City expected to be listed as an additional insured solely with respect to the Commercial General Liability Policy as required under the terms of Section 2.14 but in lieu of the additional insured endorsement, alternate policy language from the provider's insurer will be added to the policy to mirror the same defense mechanism and settlement structure as proposed under the additional insured endorsement provision in accordance with the terms of this section, with the understanding that the insurance carrier will not be prejudiced in its defense of the claim, thus allowing for mutual co-operation as reasonably required by the carrier for dealing with a particular claim arising out, or resulting from any actions, or claims contemplated by this agreement. Alternate policy language shall be subject to the prior written approval of the City's Risk Management Department, Provider further understands and agrees that should the proposed alternate policy language noted as Indemnity to Principal Clause is not readily available, or Page 9 of 22 Initials: M+M City: accepted by any of the provider insurance carriers, then the provider hereby agrees, and accepts its contractual obligation under applicable section, and warrants to procure such endorsement in favor of the City pursuant to Section 2.14 of the agreement.2 Indemnification and Hold Harmless. M+M shall indemnify, hold harmless and defend the City, its officials, officers, directors, and employees, from liabilities, damages, losses, and costs, including, but not limited to reasonable attorney's fees, to the extent caused by the negligence, failure to exercise the applicable standard of care, negligent act or omission, recklessness or intentional wrongful misconduct of Provider and persons employed or utilized by M+M in the performance of this Agreement and will indemnify, hold harmless and defend the City, its officials, officers, directors and employees against, any civil actions, statutory or similar claims, damages arising or resulting from the permitted work, or from failure to comply with any applicable code, statute, ordinance, rule or regulation relating to this Agreement, the award, modification, amendment or performance of this Agreement, any breach of contract, any "statutory" violation, including patent, copyright, and claims relating to domain name system failure, registry system failure, root server failure, internet protocol address failure, access delays or interruptions, data non -delivery or mis-delivery, unauthorized use of passwords, unauthorized use of M+M's registration services, arising from "hacking" or otherwise, or breach of security, any and all intellectual property claims, including, without limitation, infringement claims, and further including any other civil actions arising from this Agreement. These indemnifications shall survive the term, or termination, of this Agreement. In the event that any action or proceeding is brought against City by reason of any such claim or demand, M+M shall, upon written notice from City, resist and defend such action or proceeding, M+M expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by M+M shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City or its officers, and employees. M+M will defend at its expense any suit brought against City to the extent it is based on a third -party claim alleging that the services provided by M+M directly infringe a local, federal, and/or international law, rule or regulation, including but not limited to Intellectual Property. M+M duties to defend and indemnify are conditioned upon the following: M+M agrees that if, as a result of The City's business activities within the geographical limits for clients, any party brings a claim against the City, its officials, officers, directors, employees, clients, agents, representatives, contractors or assigns due to M+M's failure to perform its obligations under this Agreement, M+M will treat such claim as if made against you and make the same payment to that we would have made to you, provided that the City: a. accepts that M + M can control the claim's defense and settlement in accordance with Page 10 of 22 Initials: M+M City: the terms of this section; b. The City has, in writing or otherwise, not admitted liability or prejudiced the defense of the claim before M + M is notified of it; c. The City gives M+M the available information and co-operation we reasonably require for dealing with the claim. City will promptly notify M+M in writing of the Infringement Claim; M+M will have sole control of the defense of the suit and all negotiations for its settlement or compromise; and City providing to M+M cooperation and, if requested by Provider, reasonable assistance In the defense of the Infringement Claim. In addition to M+M's obligation to defend, and subject to the same conditions, M+M will pay all damages finally awarded against City by a court of competent jurisdiction for an Infringement Claim or agreed to, in writing, by M+M in settlement of an Infringement Claim. If an Infringement Claim occurs, or in M+M's opinion is likely to occur, M+M shall notify the City promptly and the City shall have the option of terminating this Agreement without any liability. M+M may at the City's option and the M+M's expense: (a) procure for City the right to continue using the M+M`s Product or (b) replace or modify M+M's Product so that it becomes non -infringing while providing functionally equivalent performance. M+M will have no duty to defend or indemnify for any Infringement Claim that is based upon: (a) the combination of the M+M Product with any software, apparatus or device not furnished by M+M; (b) the use of ancillary equipment or software not furnished by Provider and that is attached to or used in connection with M+M Product; (c) M+M Product designed or manufactured in accordance with City's designs, specifications, guidelines or instructions, if the alleged infringement would not have occurred without such designs, specifications, guidelines or instructions; (d) a modification of the M+M Product by a party other than M+M; or (e) use of the M+M Product in a manner for which the M+M Product was not designed or that is inconsistent with the terms of this Agreement. In no event will M+M's liability resulting from its indemnity obligation to City extend in any way to royalties payable on a per use basis or the City's revenues, or any royalty basis other than a reasonable royalty based upon revenue derived by Provider from City from sales or license of the infringing Provider Product. 2.15 Compliance with Laws. M+M agrees to comply with and observe all applicable local, state, federal, and international laws, codes, regulations, and ordinances, as they may be amended from time to time, that may in any way affect the products and services offered by M+M, including but not limited to: a. Executive Order 11246, which prohibits discrimination against any employee, applicant, or client because of race, creed, color, national origin, sex, or age with regard to, but not limited to, the following: employment practices, rate of pay or other compensation methods, and training selection. Page 11 of 22 Initials: M+M City: b. Occupational, Safety and Health Act (OSHA), as applicable to this Formal Solicitation. c. The State of Florida Statutes, including without limitation, Section 287.133(3)(A) on Public Entity Crimes. d. Environment Protection Agency (EPA), as applicable to this Formal Solicitation. e. Uniform Commercial Code (Florida Statutes, Chapter 672). f. Americans with Disabilities Act of 1990, as amended. g. National Institute of Occupational Safety Hazards (NIOSH), as applicable to this Formal Solicitation. h. National Forest Products Association (NFPA), as applicable to this Formal Solicitation. i. City Procurement Ordinance City Code Section 18, Article III, as applicable. j. Conflict of Interest, City Code Section 2-611.61. k. Cone of Silence, City Code Section 18-74. 1. The Florida Statutes Sections 218.70 and 218.79 on Prompt Payment. m. Public Records, Florida Statute Section 119, including, without limitation, Section 119.0701. n. City of Miami City Charter and Code, asapplicable. o. State of Florida Ethics Code, Chapter 112, Florida Statutes, The Miami -Dade County and City of Miami Conflict of Interest and Code of Ethics Ordinance. p. ICANN's, ICANNS' successor in interest, or other regulating authority of its kind as may exist or be incorporated from time to time, rules, laws, regulations, and procedures. q. Intellectual Property Laws, Rules and Codes as applicable. The listing above is for reference of the parties and does not limit or exclude other applicable international, federal, state, and local laws. 3. CITY'S OBLIGATIONS 3.1. Designation as Exclusive Registry Services Provider. During the term of this Agreement, Page 12 of 22 Initials: M+M City: the City shall not authorize any other entity to apply for .miami on the City's behalf, or support or engage any other party to perform Registry Services for .miami. The City's Letter of Support granted, recognized, and supported M+M's sole, exclusive and unhindered right and privilege to market, sell, auction, barter, donate, or otherwise allocate SLDs under .miami as M+M, in its sole discretion, shall decide. M+M will incorporate and implement the City's guidance with regard to policies governing .miami. 3.2. Policy Guidance. Upon delegation of .miami to M+M, the City agrees to provide guidance to M+M with regard to policies governing .miami. This guidance is to be provided first in reasonable time and with reasonable clarity as to allow M+M to incorporate and implement it. Subsequently, as and when required, M+M agrees to consult with the City Representative regarding policies that M+M, considers being important. 3.3. Recognition in Authoritative Root Server System. The City will provide all reasonable assistance to ensure that the Authoritative Root Servers will point to the zone servers designated by M+M throughout the term of this Agreement. Provider shall promptly notify the City, in writing, of any issues or problems with the Authoritative Root Servers system. 3.4, Designation of Representative. The City Manager shall appoint an individual representative, who shall be a natural person, (the "City Representative") to act on its behalf with respect to the formation of policy and other matters concerning .miami. The City Manager may remove such individual and appoint another individual to serve in such capacity at its sole discretion. 3.5, Reserved Names. The City Manager shall provide to M+M all domain names that the City wishes to reserve for itself and not make available for sale. 4. CITY REPRESENTATIONS AND WARRANTIES; M+M REMEDIES 4.1. City Representations and Warranties. The City represents, warrants, and covenants that: a. it will not assign, nor license all or any portion of its rights or obligations set forth herein except as may otherwise be provided herein; and b. it has the right to enter into this Agreement and to grant the rights discussed herein,; and c. that the Letter of Support provided to M+M to apply for .miami has been duly authorized and properly obtained from the City Commission and City Manager, respectively, of the City with the power and authority to grant the rights set forth in the Letter of Support; and Page 13 of 22 Initials: M+M City: d. that M+M's exercise of its rights granted by the City and as expressly set forth in the Letter of Support hereunder will not knowingly infringe any rights of any third party. 4.2 M+M and City Remedies. In addition to any legal or equitable remedies otherwise available to M+M and the City, as applicable, in the event of a breach by the M+M or the City, as applicable, of this Agreement or a representation or warranty hereunder, the non - breaching party will be entitled to apply for an injunction to enforce the terms of this Agreement. Each party will bear its own attorney's fees for any such injunction. 4.3 No Waiver of Remedies. No forbearance, delay, or indulgence by either Party in enforcing the provisions of this Agreement will prejudice or restrict the rights of that Party nor will any waiver of its rights operate as a waiver of any subsequent breach and no right, power, or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that Party and each such right, power, or remedy will be cumulative. 5. TERM AND TERMINATION 5.1 Term. This Agreement shall remain in force for five (5) years unless earlier terminated by the City as provided below. Providing that M + M is not in default, the City and M + M shall have the option to extend the term for two (2) additional period(s) of five (5) years each, subject to continued satisfactory performance of M + M as determined by the City Manager or the Manager's authorized designee, and to the availability and appropriation of funds. M + M must notify the City Manager in writing not less than ninety (90) days prior to the expiration of the term of its request to extend this Agreement. The City will prepare an amendment to this Agreement evidencing such extension which must be executed by the parties within thirty (30) days. The amendment granting the extension to the Agreement shall include an increase to the percentage of quarterly gross revenues to fifty-five (55%) percent or the proportionate amount of the minimal guarantee, whichever is greater. No City Commission authorization is required for these two (2) extensions of this Agreement, unless otherwise provided by amendment or legislation. The total cumulative term of this Agreement shall not exceed fifteen (15) years. 5.2 Termination by the City upon an occurrence of default. If M+M defaults in its perfortxxance under this Agreement and does not cure the default within thirty (30) days after written notice of default, the City Manager may terminate this Agreement, in whole or in part. The City Manager shall have the right to terminate this Agreement upon the occurrence of an event of default as provided in this Section or the failure of M+M to comply with any material term of its duties and responsibilities hereunder. 6. LIMITATION OF LIABILITY; NO WARRANTY 6.1 Neither party will be liable to the other party for any indirect, special, incidental, consequential, or punitive damage of any kind —including lost profits (whether or not either party has been advised of the possibility of such loss or damages) —by reason of any act or omission in its performance under this agreement including, but not limited to, Page 14 of 22 Initials: M+M City: such damages arising out of M+M or third party service or system failure, including domain name system failure, registry system failure, root server failure, internet protocol address failure, access delays or interruptions, data non -delivery or mis-delivery, unauthorized use of passwords, unauthorized use of M+M's registration services, arising from "hacking" or otherwise, or breach of security, even if M+M has been advised of the potential for such damages, and even if M+M may foresee such possible damages. Either party's liability to the other party will be limited to a party's direct damages which are the proximate result of the other party's willful or negligent act or omission. This section does not apply to payments to be made by M+M to the City under this agreement, which are expressly excluded from the limitations of this section. 6.2. Force Majeure. Notwithstanding anything to the contrary herein, neither Party will be liable to the other Party or any other person or entity for any loss or damage, or deemed to be in breach of this Agreement due to a failure to perform, wholly or in part, under this Agreement if such nonperformance is due to causes beyond a Party's control, including computer failure, lack of access to the Internet, Internet transmission delay or failure, voicemail failure, or other telecommunications systems failure, acts of God, fire, explosion, earthquake, vandalism, third party theft, hurricane, tornado, wind, flood, storm or other natural occurrences; any law, order, regulation, direction, action, or lawful demand of any Federal, state, local, or foreign governments having jurisdiction over any of the parties or of any department, agency, commission, court, bureau, corporation, or another instrumentality of any one or more such governments, or of any civil or military authority, national emergencies, insurrection, terrorism, riots, wars, strikes, lockouts, work stoppages, or other such labor difficulties. By way of example, and not limitation, M+M will not be liable to the City in the event its Registry services are interrupted due to computer failure, including failure of its registry servers. 7. NOTICES 7.1. Notice Addresses. Whenever any notice or demand is to be given under this Agreement, the notice must be in writing and addressed to the Parties at their addresses below: If to the City With a copy to: Tito M+M: Daniel J. Alfonso, City Manager 444 SW 2nd Av, l Otis Floor Miami, Fl. 33130 Kevin Burns, City Information Technology Director 444 SW 2nd Av.5th Floor Miami, Fl. 33130 Minds and Machines LLC Attn: Antony Van Couvering 3100 Donald Douglas Loop - Hangar 7 Santa Monica CA 90405 avc@mindsandmachines.com Page 15 of 22 Initials: M--M City: With a copy to: Derek A. Newman Newman Du Wors LLP 1201 Third Avenue, Suite 1600 Seattle, WA 98101 derek@newmanlaw.com 7.2. Effectiveness of Notice Deliveries. Notices delivered by express courier service in the manner of quickest delivery (e.g., Federal Express or DHL) will be considered delivered three (3) business days following dispatch. Notices mailed by official national mail service (e.g., U.S. Mail), postage prepaid, registered, or certified with return receipt requested, will be considered delivered ten (10) business days after mailing. Notices delivered by any other method will be considered given upon receipt. Notices by facsimile transmission and email are acceptable under this Agreement provided that they are transmitted to the other Party's then current facsimile number or email address and are considered delivered one (1) hour after transmission if sent during the recipient's business hours, or at 10:00 a.m. (recipient's time) the next business day. 8. DISPUTE RESOLUTION; GOVERNING LAW/FORUM SELECTION 8.1. Mandatory Arbitration. Any dispute arising out of or relating to the Agreement that cannot be amicably settled by direct negotiations between the Parties will be submitted to final and binding arbitration in accordance with the Revised Florida Arbitration Code as supplemented by then -prevailing commercial rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator(s) may be entered by any court with competent jurisdiction. The arbitration will be held in the Miami -Dade County, Florida, and the Parties will jointly sign all documents required for the arbitration and selection process within ten (10) days from request by either Party provided that any refusal by a Party to execute such documents will not prevent or delay the demand for arbitration. The matter will be heard by one (1) arbitrator agreed upon by both parties unless it is mutually agreed that more than one (1)but not more than three(3) mutually acceptable arbitrators should hear the matter and the arbitrator's decision will be based upon this Agreement and Florida Laws, including the Revised Florida Arbitration Code, Chapter 682, Florida Statutes, as amended; provided that the Arbitrator will not be allowed to award punitive damages, or other exemplary relief, or attorney's fees. Each party will pay their own attorney's fees. The parties will split the costs of the arbitration proceeding on an equal, pro -rated basis. 8.2. Injunctive Relief, Equitable Claims, and Enforcement; Attorney's Fees. Notwithstanding the foregoing, nothing contained herein will prohibit either party from initiating judicial proceedings for the purpose of obtaining equitable relief only, or from utilizing the judiciary for the additional limited purpose of obtaining and/or enforcing prejudgment or post judgment enforcement remedies, or other provisional remedies such as attachment or execution. In all other respects this, Section 8, will govern resolution of any controversy or claim arising out of or relating to this Agreement. Each party shall bear Page 16 of 22 Initials: M+M City: their own attorney's fees in all arbitration, civil, or other proceedings regardless of the outcome, excepting if the City must seek relief to enforce M+M obligations to indemnify the City or carry insurance under Section 2.14. 8.3. Court to Compel Arbitration and Enforce Arbitration Award. Any award rendered in an arbitration held pursuant to this Agreement will be final and binding and there will be no right to appeal any such award to a court of competent jurisdiction in Miami -Dade County. Similarly, by agreeing to submit controversies or claims arising out of or relating to this Agreement to final and binding arbitration, the Parties understand and agree that they are giving up any right they might have had to have the dispute itself heard in court before a judge or a jury or in any other forum in Miami -Dade County. The Parties further understand that a refusal to submit to arbitration may subject the refusing party to a court order requiring that the dispute be decided by arbitration. 8.4. Governing Law/Forum Selection. This Agreement is governed by the laws of the State of Florida, USA. The Parties hereby consent to the exclusive personal jurisdiction of the state and federal courts in Miami -Dade County, Florida for any and all claims or disputes arising out of, to enforce, construe, or otherwise relating to M+M's Registry services, the City's authority as designated representative of .rniami, or this Agreement. In the event the arbitration provision of Section 8.1 above does not apply, the exclusive venue for such action will be the United States District Court for the Southern District of Florida. If such dispute does not fall within the jurisdiction of the United States Federal Courts, then the exclusive venue for such action will be in Miami -Dade County's Circuit Court. The Parties each waive any right to object to venue or jurisdiction based on inconvenient forum or for any other reason, and the Parties waive any statutory or other right pursuant to the laws of the jurisdiction in which they reside to have a case relating to this Agreement adjudicated or resolved in that jurisdiction. 9. INTELLECTUAL PROPERTY 9.1. M+M Intellectual Property. All right, title, and interest in and to the Registry Services, including M+M's shared registration system, DNS, and whose systems as well as all APIs and interconnection between approved authentication and directory providers, and their associated hardware, software, object code, source code, toolkits, data, and reports currently in existence and any and all improvements thereto is owned exclusively by M+M; providing, however, that any right, title, and interest in and to the Registry Services developed in relation to this Agreement by M+M shall be owned exclusively by the City upon expiration or termination of this Agreement. 10. GENERAL PROVISIONS 10.1. Assignment/Delegation. The parties enter into this Agreement based on the unique qualifications of the City and of M+M and, but for those unique qualifications, neither M+M nor the City would enter into this Agreement. Accordingly, neither this Agreement, nor the rights nor obligations hereunder, may be assigned or delegated by the City or by Page 17 of 22 Initials: M+M City: M+M, without the prior written consent of the other party which may be conditioned, withheld or denied and any purported assignment of rights or delegation of duties by the City will be of no force or effect. 10.2. Full Integration. This Agreement constitutes the entire agreement between the Parties related to the subject matter herein. No prior or contemporaneous written, oral, or electronic representation, negotiation, or agreement form a part of this Agreement, and this Agreement supersedes all prior oral, electronic, or written agreements, negotiations, or representations by or between the Parties relating to the subject matter of this Agreement. 10.3. Amendments in Writing. No amendment, modification, or supplement to this Agreement will be effective unless it is in writing and signed by authorized representatives of both Parties. 10.4. No Third Party Beneficiaries. This Agreement does not provide any rights, remedies, or benefits to or for any person or entity not a Party to this Agreement including, but not limited to, Registrars and Registrants. 10.5. Severability. If any provision of this Agreement is held invalid, unenforceable, or void, the remainder of the Agreement will not be affected thereby and will continue in full force and effect. 10.6. Relationship Between the Parties. The Parties are not partners or joint venturers and there is no employment relationship between them. 10.7. Interpretation. Each Party has read and understood all parts of this Agreement and has had the benefit of counsel in negotiating its terms. Accordingly, no rule of contract interpretation that runs against the drafter will be applied in any subsequent dispute over the terms and conditions contained in this Agreement. The Parties have jointly drafted this Agreement and this section applies to both Parties. 10.8. Counterparts. The Parties may execute this Agreement in two or more counterparts, which will, in the aggregate, be signed by each party. Each counterpart will be deemed an original instrument as against any party who has signed it. Facsimile and email copies of this Agreement are acceptable as original copies. 10.9. Headings. Captions and headings are for convenience and reference only. The language of the captions and headings does not explain, modify, amplify, limit, expand, interpret, or construe this Agreement in any manner whatsoever. IN WITNESS WHEREOF, the Parties agree to the above terms, and to be bound by this Agreement, as of the last date written below: Page 18 of 22 Initials: M+M City: THE CITY OF MIAMI, FLORIDA CITY OF MIAMI, FLORIDA, a municipal (SEAL) Corporation of the State of Florida ATTEST: By: By: Daniel J. Alfonso, City Manager Todd B Hannon, City Clerk Date : Date: APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: By:. By: Victoria Mendez, City Attorney Ann -Marie Sharpe , Risk Management Director MINDS AND MACHINES, LLC ATTEST: By: Corporate Secretary (Signature) of Authorized Manager ( , Vice President) 3 Minds and Machines, LLC (Affix Company Seal) 3 Attach a company resolution indicating the authority of the signatory to sign for and bind the company. Page 19 of 22 Initials: M+M City: EXHIBIT A CITY OF MIAMI COMMISSION RESOLUTION 14-12-00265 Page 20 of 22 initials: M+M City: EXHIBIT "B" Negotiated Term Sheet for the Award of a Professional Services Agreement in Response to Informal RFP 291270 to Establish, Operate and Administer Dot Miami Page 21 of 22 Initials: M+M City: EXHIBIT C M + MACHINES, LLC RESPONSE TO CITY RFP Page 22 of 22 Initials: M+M. City: