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HomeMy WebLinkAboutExhibit!Iitg of A[trxxtti ANNIE PEREZ, CPPO DANIEL J. ALFONSO Chief -Procurement Officer City Manager SUPPLEMENT TO CONTRACT NO. RFP #915-96-02 FOR WEB CONTENT MANAGEMENT SYSTEM BETWEEN THE CITY OF GRAND RAPIDS AND OPENCITIES, INCORPORATED The City of Miami ("City") is accessing the above mentioned contract to procure Web Content Management System ("WCMS"). That certain Contract No. RFP #915-96-02 titled "Web Content Management System" made and entered effective as of December 6, 2016 is attached hereto and is incorporated by reference herein. This Supplement to the Contract between the City of Grand Rapids and OpenCities, Incorporated ("OC") Includes City of Miami legal requirements. The term of this Agreement is as stated in the first paragraph of the City of Grand Rapids/OpenCities Contract. The effective date of access by the City of Miami is August 1, 2017. a) Article 4, of the Agreement titled "Fees and Payment Terms", Subsections 4.1, 4.2, 4.3, 4.4, and 4.5 are hereby deleted in their entirety, and replaced with the following: 4.1 Subscription Fees. Customer will pay OpenCities the annual subscription fee and other fees set forth in Schedule A (the "Fees") during the Initial Term and the applicable Fees for each Renewal Term, which Fees are based on the resident population of Customer Except as otherwise expressly provided in this Agreement, all Fees are non -cancelable and non-refundable. The Fees for the first year of the Initial Term are payable within 45 days of execution of this Agreement, and the Fees for each successive year during the Initial Term and each Renewal Term shall be payable net 45 days from the date of OpenCities' invoice. 4.2 Fee Adjustments. Upon expiration of the Initial Term, Fees may be adjusted for each Renewal Term to take into account any increases in the Consumer Price Index for all Items as published by the US Bureau of Labor Statistics and any adjustments in the resident population of Customer's region. This cannot exceed 3% total in any 1 year. No later than ninety (90) days prior to the commencement of any Renewal Term, Customer agrees to provide OpenCities, upon OpenCities' request, with the then current resident population within Customer's region, and OpenCities shall revise the Fees for the ensuing Renewal Term if the population of the region has increased or decreased such that it falls within a different population band. Customer's initial population band is set out in Schedule A. OpenCities shall notify Customer of any Fees adjustments made pursuant to this Section 4.2 at least seventy (70) days prior to the commencement of the applicable Renewal Term. 4.3 Excess Usage. If Customer uses any bandwidth or storage space in excess of the "allocated bandwidth and storage space' set forth in Schedule A, OpenCities may, in its sole discretion, require that Customer pay additional traffic and server storage charges calculated in accordance with Schedule A. Customer's and its users' use of the SaaS and access to it is Customer's responsibility. Customer is responsible for any unauthorised access to the SaaS resulting in bandwidth and/or storage usage exceeding the allocated limits and any associated charges. 4.4 Overdue Charges. If any invoiced amount is not received by OpenCities by the due date, then without limiting OpenCities' rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) OpenCities may condition future subscription renewals on payment terms shorter than those specified herein. In all actions or proceedings arising out of this Agreement each party shall bear their own attorney's fees and related costs such as paralegals, etc. 4.5 The Fees charged by OpenCities do not include any taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes'). OpenCities is responsible for paying all Taxes associated Customer's purchase of the SaaS. The Customer will provide OpenCities with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, OpenCities is responsible for taxes assessable against it based on its income, property and employees. The City of Miami is tax exempt and a copy of the tax exemption is attached as Exhibit 1. b) Article 5 of the Agreement titled "Customer Data & Security", Subsections 5.2, 5.3, 5.4, 5.5, 5.6 and 5.9, are hereby deleted in their entirety, and replaced with the following: 5.2 Responsibility for Customer Data. Customer is solely responsible for Customer Data, including their accuracy, quality, appropriateness, legality, and the means by which the Customer Data is acquired; OpenCities shall have no responsibilities or liabilities therefor. Customer represents and warrants to OpenCities that: (a) Customer owns or has the right to use Customer Data, and has the right to grant OpenCities the licence set forth in Section 5.1. (b) All Customer Data will be "server ready" and otherwise remain fully compatible with OpenCities' SaaS (including all software and operating systems); and (c) Customer has obtained all necessary rights, releases and consents to allow the Customer Data to be collected, used, and disclosed in the mariner contemplated by this Agreement and to grant OpenCities the rights herein. 5.3 OpenCities' Use of Customer Data. Unless it receives Customer's prior written consent, or as required by Florida law, OpenCities will not: (a) access, process, or otherwise use Customer Data other than as necessary to facilitate the SaaS; and (b) intentionally grant any third -party access to Customer Data, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, OpenCities may disclose Customer Data, including, without limitation, user profile information (i.e. name, e- mail address, etc.), IP addressing and traffic information, and usage history, as required by applicable law or by proper legal or governmental authority. OpenCities will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer's expense. 5.4 Protection of Customer Data. OpenCities will use commercially reasonable, industry standard administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of the Customer Data, including implementation of measures designed to prevent unauthorized access, use, modification, disclosure and loss of the Customer Data. OpenCities will archive Customer Data on a regular basis during the Term by performing six (6) daily backups and eight (8) weekly backups for the purposes of disaster recovery. In the event of equipment failure or data corruption, OpenCities will restore from the most recent uncorrupted archive. In the event of corruption of all of OpenCities archives, or in the event that an old archive is used to restore data, Customer will have the responsibility of uploading new Customer Data to Customer's Website. OpenCities will not be liable for incomplete, out-of-date, corrupt, or otherwise deficient Customer Data recovered from OpenCities backups. 5.5 No Obligation to Monitor; Right to Remove. OpenCities may, but has no obligation to, monitor, and review or edit Customer Data. In all cases, OpenCities reserves the right to remove, delete or disable access to any Customer Data that OpenCities determines, in its sole discretion, to be in violation of this Agreement (including the Acceptable Use Policy) or is illegal, damaging, problematic, objectionable or otherwise Page 2 inappropriate pursuant to applicable Florida law. OpenCities may take such action without prior notification of Customer. 5.6 Privacy Policy. The Privacy Policy applies only to the SaaS and does not apply to any third -party websites or services linked to the SaaS or recommended or referred to through the SaaS or by OpenCities staff. 5.9 Aggregate & Anonymized Data, Notwithstanding the provisions above of this Article 5, OpenCities may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. ("Aggregate Data" refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its users.) c) Article 6 of the Agreement titled "Customer's Obligations & Restrictions", Subsections 6.1, 6.2, 6.4, and 6.5, are hereby deleted in their entirety, and replaced with the following: 6.1 Acceptable Use. Customer will comply with OpenCities' AUP as in effect from time to time. Customer will not: (a) sell, resell, license, sublicense, distribute, make available, rent or lease the SaaS or use the SaaS for service bureau or time-sharing purposes or in any other way allow third parties to exploit or access the SaaS, except users accessing Customer's Website as specifically authorized by this Agreement; (b) use the SaaS to store or transmit infringing, libelous, or otherwise unlawful or tortious materials, or to store or transmit materials in violation of third -party privacy rights; (c) use the SaaS to store or transmit Malicious Code; (d) share non-public SaaS features or content with any third parties; (e) frame or mirror any part of the SaaS other than framing on Customer's own intranets or otherwise for Customer's internal business purposes; (f) reverse engineer any portions of the SaaS, or (g) access the SaaS in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the SaaS, or to copy any ideas, parts, features, functions or graphics of the SaaS. In the event that it suspects any breach of the requirements of this Section 6.1, including without limitation by Customer's users, OpenCities may suspend Customer's access to the SaaS without advance notice, in addition to such other remedies as OpenCities may have. Neither this Agreement nor the AUP requires that OpenCities take any action against Customer or any users or other third parties for violating the AUP, this Section 6.1, or this Agreement, but OpenCities is free to take any such action it sees fit Any breach of the AUP or any of the provisions of this Article 6 will entitle OpenCities to elect to terminate this Agreement upon written notice to Customer. 6.2 Unauthorized Access; Security. Customer will take reasonable steps to prevent unauthorized access to the SaaS and the network, including without limitation, protecting its passwords and other log -in information. Customer will notify OpenCities immediately of any known or suspected unauthorized access to or use of the SaaS or breach of its security and will use best efforts to stop said breach. Customer shall not; (d) interfere with or disrupt the integrity or performance of the SaaS or attempt to gain unauthorized access to the SaaS, or OpenCities' or its suppliers' related systems and networks; or (e) commit, cause or allow any breach of any applicable laws, regulations, government direction or industry standard or code; or (f) access or attempt to access the SaaS by any means other than through the portals or interfaces provided by OpenCities; or (g) override or attempt to override any security components included in or underlying the SaaS; or (h) engage or attempt to engage in any actions that directly or indirectly interferes with or burden the proper operation of OpenCities' infrastructure. 6.4 Responsibility for Users; SaaS Access. (a) Customer is responsible and liable for any unauthorized conducts, or conducts that would violate the AUP or this agreement, committed by Customer or its users; and Page 3 (b) any use of the SaaS through Customer's account, whether authorized or unauthorized. Customer agrees to indemnify OpenCities against any loss or damage (except where and to the extent that such loss or damage is consequential in nature) that OpenCities suffers as a result of any unauthorized access to OpenCities' SaaS or network or those of OpenCities' suppliers. 6.5 Required Third Party Services. (a) Customer will establish and maintain, at its own expense, all telecommunication equipment and access lines necessary to gain access to the SaaS. (b) In order for OpenCities to provide some of the services under this Agreement, Customer may be required to give OpenCities access to or provide login information and password information for accounts or services Customer may have with third party providers. When Customer provides OpenCities with this information or provides OpenCities with access to these third -party accounts, Customer warrants that it has all the necessary contractual and legal rights to give OpenCities such access, login information and passwords. (c) Customer acknowledges that OpenCities will not have any responsibilities or liabilities with regard to any third -party services used by the Customer on or through the OpenCities-formed web content such as payment and e-commerce services, and any use of such third -party services will be at Customer's own risk. Customer further acknowledges that the technical ability to link to such services (such as the possibility of a "PayPal" button), is provided only as part of the SaaS but will not be deemed to create any liabilities or responsibilities for OpenCities. (d) Where any third -party SaaS integration is found to cause issues concerning performance, stability or security, OpenCities reserves the right to disable or remove that third -party SaaS in order to restore OpenCities' SaaS to acceptable levels. d) Article 7 of the Agreement titled "OpenCities IP & Feedback", Subsections 7.1, and 7.2, are hereby deleted in their entirety, and replaced with the following: 7.1 OpenCities retains all rights, title, and interests in and to the SaaS, including, without limitation all software used to provide the SaaS and all graphics, user interfaces, logos, and trademarks reproduced through the SaaS. This Agreement does not grant Customer any intellectual property licenses or rights in or to the SaaS or any of its components or any Documentation. Customer recognizes that the SaaS and its components and the Documentation are protected by copyright and other applicable laws. 7.2 Feedback. OpenCities has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer or other users provide to OpenCities, and nothing in this Agreement or in the parties' dealings arising out of or related to this Agreement will restrict OpenCities's right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the user in question. Customer hereby grants OpenCities a five (5) year, irrevocable right and license to exploit Feedback in any and every way. ("Feedback" refers to any suggestion or idea for improving or otherwise modifying any of Open Cities' products or services.) e) Article 8 of the Agreement titled "Confidential Information", Subsections 8.1, 8.2, and 8.3, are hereby deleted in their entirety, and replaced with the following:. 8.1 "Confidential Information" refers to the following items: (a) any document either party marks "Confidential"; (b) any information either party orally designates as "Confidential" at the time of disclosure, provided the disclosing party confirms such designation in writing within ten (10) Business Days; (c) any OpenCities' software and all Documentation and other information in the OpenCities Knowledge Bank, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information that the receiving party Page 4 should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is in the receiving party's possession at the time of disclosure; (b) is independently developed by the receiving party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, not as a result of the receiving party's improper action or inaction; or (iv) is approved for release in writing by the disclosing party. 8.2 Nondisclosure. Neither OpenCities nor Customer will use Confidential Information for any purpose other than in performance of this Agreement (the "Purpose"). Each of OpenCities and Customer agrees that it will not: (a) disclose Confidential Information to any of its employees or contractors unless such persons need access in order to facilitate the Purpose, and in the case of a contractor, such contractor executes a nondisclosure agreement with the appropriate party with terms no less restrictive than those of this Article 8; and (b) disclose Confidential information to any other third parties without the disclosing party's prior written consent. Without limiting the generality of the foregoing, each party will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Each party agrees that it will promptly notify the other party of any misuse or misappropriation of the other party's Confidential Information that comes to its attention. Notwithstanding the foregoing, each party may disclose Confidential Information as required by applicable law, including The Public Records Act of the State of Florida, Chapter 119, Florida Statutes or by proper legal or governmental authority, provided that such party gives the other party prompt notice of any such legal or governmental demand and reasonably cooperates with the other party in any effort to seek a protective order or otherwise to contest such required disclosure, at the other party's expense. OpenCities will comply with the Florida Public Records Act as applicable to its services under this Agreement, including, without limitation Section 119.0701, Fla. Stat. IF THE OPENCITIES HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER119, FLORIDA STATUTES, TO THE CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTRACT THE CUSTODIAN OF PUBLIC RECORDS AT: Email: publicrecords cr miamigov.com, or regular mail at City of Miami Office of City Attorney, 444 SW 2nd Ave, 9'h floor, Miami, FL 33130. 8.3 injunction; Applicable Law; Venue; Attorney's Fees. The parties agree that breach of this Article 8 would cause the disclosing party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, and that the disclosing party will be entitled to request injunctive relief against such breach or threatened breach,. Florida law will apply to the terms, interpretation and to all actions or proceedings arising under this Agreement. Venue shall be in courts of competent jurisdiction in Miami -Dade County, FL. Each party will bear their own attorney's fees. f) Article 10, of the Agreement titled "Indemnification", Subsections 10.1, 10.2, 10.3, are hereby deleted in their entirety, and replaced with the following: 10.1 Indemnification of Customer. Subject to the other provisions of this Section 10.1, Open Cities shall indemnify and save/hold harmless and defend Customer and Customer's Associates (as defined below in Section 10.3) against any third party claim, suit, or proceeding alleging that the SaaS or the permitted use thereof infringes any U.S. trademark, patent, copyright, or trade secret right of a third party (collectively, "Customer indemnified Claims") and will indemnify Customer and Customer's Associates from any damages, attorney's fees and costs finally awarded against Customer and Customer's Associates as a result of, of for amounts paid by Customer and Customer's Associates in a settlement approved by Open Cities in writing of, a Customer Indemnified Claim. (a) If in OpenCities reasonable judgment any Customer Indemnified Claim, or threat of any such Claim, materially interferes with Customer's use of the SaaS, OpenCities will, after consultation with Customer, at OpenCities' option and in its sole discretion, either (i) substitute functionally equivalent non -infringing SaaS or SaaS Documentation; (ii) modify the SaaS to make it non -infringing, (iii) obtain for the Council at OpenCities expense the right to continue using the infringing SaaS; or, (iv) if Open Cities' determines that it cannot achieve any of the foregoing on a reasonable commercial basis, it may, by written notice, Page 5 require Customer to cease using the SaaS, in which case OpenCities shall refund Customer a pro-rata portion of the Fees (as set out in Schedule A) for the SaaS for such period of time for which Customer was unable to use the SaaS. (b) OpenCities' obligations set forth in this Section 10.1 do not apply to the extent that an Indemnified Claim arises out of: (a) Customer's breach of this Agreement; (b) revisions or modifications to the SaaS or any components thereof made by a party other than OpenCities if such infringement would not have occurred but for such revisions or modifications; (c) Customer's failure to incorporate or use any Version Updates, or any other updates or upgrades that would have avoided the alleged infringement, provided OpenCities offered such other updates or upgrades were provided to Customer without charge; (d) inclusion of the Customer Data; (e) the use of the SaaS other than for its intended purposes or contrary to OpenCities' Specifications; or (f) combination, operation or use of the SaaS with equipment, programs, hardware or software not provided by OpenCities if in OpenCities reasonable judgment such infringement is caused thereby. (c) The provisions of this Section 10.1 state OpenCities entire liability and Customer's sole and exclusive remedy in the event of any Customer Indemnified Infringement Claims. 10.2 Indemnification of OpenCities. Customer will indemnify and defend OpenCities and OpenCities' Associates (as defined below in Section 10.3) against any and all claims, liabilities, losses, damages, costs and expenses (including attorney's fees and costs) (a) arising out of or related to Customer's or its users' actual use or misuse of, or failure to use the SaaS, including without limitation: (b) claims by Customer's users or by Customer's employees or agents; (c) claims related to unauthorized disclosure or exposure of personally identifiable information or other private Confidential Information, including Customer Data; (d) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by any Customer Data; and (e) claims that use of the SaaS harasses, defames, or defrauds a third party or violates the CAN -Spam Act of 2003 or any other law or restriction on electronic advertising (collectively, "OpenCities Indemnified Claims," 10.3 Litigation & Additional Terms. The obligations of the indemnifying party ("Indemnitor") pursuant to Section 10.1 above will be excused to the extent that the indemnified parties (the "Indemnified Parties") or any Indemnified Party's Associates fails to provide prompt written notice to the Indemnitor of the applicable Indemnified Claim or to reasonably cooperate with the Indemnitor if such failure or lack of cooperation materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided that the Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (A party's "Associates" are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.) g) Article 11, of the Agreement titled "Limits of Liability", Subsections 11.1, 11.2, and 11.3, are hereby deleted in their entirety, and replaced with the following: 11.1 LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF OPENCITIES AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE ACTUAL FEES RECEIVED BY OPENCITIES UNDER THIS AGREEMENT FOR THE PORTION OF THE SAAS OR SERVICES GIVING RISE TO SUCH CLAIM DURING THE PRECEDING TWELVE-MONTH PERIOD. 11.2 EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL OPENCITIES OR ITS AFFILIATES BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR LOSS OF REVENUES OR GOODWILL, BUSINESS INTERRUPTION, LOSS OR INACCURACY OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR LOST PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT. Page 6 11.3 CLARIFICATIONS & DISCLAIMERS. THE LIABILITIES LIMITED BY THIS ARTICLE 11 APPLY (a) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE, (b) EVEN IF OPENCITIES IS ADVISED IN ADVANCE OF THE POSSIBiLITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (c) EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, THE LIABILITIES LIMITED BY THIS ARTICLE 11 SHALL NOT INCLUDE LIABILITY (i) UNDER THE INDEMNITY PROVIDED IN SECTION 10.1, (ii) FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE, (iii) FOR DAMAGE TO TANGIBLE PERSONAL PROPERTY, OR (iv) FOR FRAUD OR WILLFUL MISCONDUCT. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS ARTICLE 11, OPENCITIES' LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. FOR THE AVOIDANCE OF DOUBT, OPENCITIES' LIABILITY LIMITS AND OTHER RIGHTS SET FORTH IN THIS ARTICLE 11 APPLY LIKEWISE TO OPENCITIES' AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, AGENTS, SPONSORS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AND OTHER REPRESENTATIVES. h) Article 13, of the Agreement titled "Miscellaneous", Subsections 13.1, 13.7, 13.8, 13.9 , 13.10 and 13.16, are hereby deleted in their entirety, and replaced with the following: 13.1 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, neither may make commitments on the other's behalf. The parties agree that no OpenCities employee or contractor is or will be considered an employee of Customer. 13.7 Choice of Law. This Agreement with the City will be governed by and construed under the laws of the State of Florida regardless of choice or conflict of laws principles. Venue in any proceedings between NeoGov and the City will be in a court of competent jurisdiction located in Miami -Dade County, Florida. Each party shall bear their own respective attorney's fees_ 13.8 Dispute Resolution. If at any time a dispute arises out of or in connection with this Agreement, the parties will have their respective designated representatives meet in good faith with a view to resolving the dispute within a period of 15 Business Days from the issue of a written notice of dispute by one party to the other party. Should the parties not be able to resolve the dispute within the 15 Business Days, then both parties will refer the matter to their own appropriate level of senior executive management respectively for resolution. If the relevant senior executive management are unable to resolve the dispute within a further 10 Business Days, then the parties agree that the dispute must then be referred to mediation. The parties will agree on a suitable person to act as mediator having industry knowledge and expertise to facilitate resolution. Failing agreement on such appointment, either party may apply to JAMS to appoint a mediator. The dispute for mediation must be heard within 20 Business Days of a mediator being appointed. Nothing in this clause is intended to preclude a party from seeking equitable or injunctive relief. Neither party shall have the right to initiate litigation until 30 Business Days after the second mediation conference held by the parties, unless the other party has materially breached its obligation to mediate. All dispute resolution proceedings will be conducted in Miami -Dade County, Florida and Florida law will apply. The parties will share equally in the costs of a mediator and each bear their other respective costs. 13.9 In the event of any conflicts among the attachments to this Agreement, the documents incorporated herein be referenced and the main body of this Agreement, the following order of precedence will govern, with lower numbers governing over higher ones: (1) the main body of this Agreement; and (2) any other referenced attachments or documents; (3) any OpenCities policy posted online, including without limitation the AUP or Privacy Policy. if there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement, or provision of this Agreement, the term, statement, requirement, or provision contained in this Agreement shall prevail and be given effect. 13.10 Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party because of authorship Page 7 13.16 Other Provisions; Insurance Coverages: The Contractor shall provide andmaintain continued insurance coverage as required by the City throughout the life of the Agreement. Failure to maintain insurance coverage required by the City, or failure to provide proof of the required coverage in a timely manner, shall result in cancellation of the Agreement. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Personal and Adv. Injury Products/Completed Operations B. Endorsements Required City of Miami listed as additional insured Contingent & Contractual Liability Premises and Operations Liability Primary Insurance Clause Endorsement II. Business Automobile Liability $ 1,000, 000 $ 2,000,000 $ 1,000,000 $ 1,000,000 A. Limits of Liability 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 Endorsements Required City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation 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 IV. Professional/Errors and Omissions/Cyber Liability Combined Single Limit Page 8 Each Claim General Aggregate Limit Retro Date Included $1,000,000 $1,000,000 The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no Tess than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and for certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. i} The following Subsections are added to Article 13, titled "Miscellaneous". 13.17 Notices. OpenCities may send notices pursuant to this Agreement to Customer's email address provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to the person identified below at the email address provided for such person, and such notices will be deemed received 72 hours after they are sent. Notices to OpenCities: Address: 1230 45th Avenue, San Francisco, CA 94122 Attention: Cynthia Francis Email: cynthia@opencities.com Notices to Customer: Daniel J. Alfonso City Manager City of Miami 444 SW 2nd Avenue, 10th Floor Miami, Florida 33130 Victoria Mendez City Attorney City of Miami 444 SW 2nd Avenue, 9th Floor Miami, Florida 33130 Annie Perez, CPPO Procurement Director City of Miami 444 2nd Avenue, 6th Floor Miami, Florida 33130 Page 9 13.18 Invoice Information Invoices will be submitted via email to: Payables©miamigov.com Company: The City of Miami Name: Donald Bolden, AP Supervisor Street: 444 SW 2nd Ave, 6th floor City, State, Zip: Miami, FL 33130 Email: payables@miami.com Phone: 305-416-1335 13.19 Equal Employment Opportunity: In the performance of this Agreement, Enterprise shall not discriminate against any firm, employee or applicant for employment or any other firm or individual in providing services because of sex, age, race, color, religion, ancestry, disability, or national origin. 13.20 Mediation: This parties may, at their discretion, agree in writing to resolve any dispute between them arising under this Agreement by submitting such dispute to non —binding mediation by a certified mediator in Miami - Dade County, Florida. The parties shall split the cost of the mediator. The decision of the mediator shall not be binding. 13.21 Contingency Clause: Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds, failure to allocate or appropriate funds, and/or change in applicable laws, city programs or policies, or regulations, upon thirty (30) days written notice. 13.22 Force Majeure: A "Force Majeure Event" shall mean an act of God, act of governmental body or military authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo.. In the event that either party is delayed in the performance of any act or obligation pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use its best efforts to rectify any condition causing such delay and shall cooperate with the other party to overcome any delay that has resulted. 13.23 No Conflict of Interest: Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of interest, Enterprise hereby certifies to the City that no individual member of Enterprise, no employee, and no subcontractors under this Agreement or any immediate family member of any of the same is also a member of any board, commission, or agency of the City. Enterprise hereby represents and warrants to the City that throughout the term of this Agreement, Contractor, its employees, and its subcontractors will abide by this prohibition of the City Code. 13.24 No Third -Party Beneficiary: No persons other than the Enterprise and the City (and their successors and assigns) shall have any rights whatsoever under this Agreement. Page 10 13.25 Truth -in -Negotiation Certification, Representation and Warranty: Enterprise hereby certifies, represents and warrants to the City that on the date of Contractor's execution of this Agreement, and so long as this Agreement shall remain in full force and effect, the wage rates and other factual unit costs supporting the compensation to Enterprise under this Agreement are and will continue to be accurate, complete, and current. Enterprise understands, agrees and acknowledges that the City shall adjust the amount of the compensation and any additions thereto to exclude any significant sums by which the City determines the contract price of compensation hereunder was increased due to inaccurate, incomplete, or non -current wage rates and other factual unit costs. All such contract adjustments shall be made within one (1) year of the end of this Agreement, whether naturally expiring or earlier terminated pursuant to the provisions hereof. 1) Articlel4, Counterparts, is hereby added as follows: This Agreement may be executed in three or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute one and the same agreement. Page 11 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by theft respective officials thereunto duly authorized. OPENCITIES, INCORPORATED, CITY OF MIAMI, a municipal corporation: a Delaware Corporation: BY: DATE: ATTEST: Corporate Secretary/Notary Public Corporate Seal/Notary Seal BY: DATE: Daniel J. Alfonso, City Manager ATTEST: Todd Hannon, City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe, Director Risk Management APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez, City Attorney Page 12