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HomeMy WebLinkAboutExhibitCity of Miami, Florida SS 21-22-009 PROFESSIONAL SERVICES AGREEMENT By and Between The City of Miami, Florida And CONTRACTOR This Professional Services Agreement ("Agreement") is entered into this day of , 2022 by and between the City of Miami, a municipal corporation of the State of Florida, whose address is 444 S.W. 2nd Avenue, 10th Floor, Miami, Florida 33130 ("City"), and, Touchstone IQ LLC, a Colorado Limited Liability Company, qualified to do business in the State of Florida whose principal address is 1635 Blake St., STE 200, Denver, CO 80202 , hereinafter referred to as the ("Contractor"). RECITALS: WHEREAS, the City wishes to engage the Services of Contractor, and Contractor wishes to perform the Services for the City; and WHEREAS, the City and the Contractor desire to enter into this Agreement under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, Contractor and the City agree as follows: TERMS: 1. RECITALS AND INCORPORATIONS; DEFINITIONS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. The Software License Addendum ("SLA") is hereby incorporated into and made a part of this Agreement and attached hereto as Exhibit "A". The Software & Help Center Support Services proposal is hereby incorporated into and made a part of this Agreement and attached as Exhibit "B". The Contractor's Insurance Certificate is hereby incorporated into and made a part of this Agreement as attached Exhibit "C". The order of precedence whenever there is any conflicting or inconsistent language between documents is as follows in descending order of 1 City of Miami, Florida SS 21-22-009 priority: (1) Professional Services Agreement ("PSA"), inclusive of any amendments which may be authorized by the City and executed by the parties, if any; and (2) Software license Addendum 2. TERM: The Agreement shall become effective on the date on the first page, and shall be for the duration of eight (8) years: initial term of four (4) years, with an option to renew for two (2) additional two (2) year periods. The City, acting by and through its City Manager, shall have the option to renew or terminate the Agreement for convenience, that is, for no cause; or terminate for cause due to a default. 3. SCOPE OF SERVICES: A. Contractor agrees to provide the Services as specifically described, and under the special terms and conditions set forth in Exhibits "A", "B", and "C" hereto, which by this reference is incorporated into and made a part of this Agreement. B. Contractor represents to the City that: (i) it possesses all qualifications, licenses, certificates, authorizations, registrations, and expertise required for the performance of the Services, including but not limited to full qualification to do business in Florida; (ii) it is not delinquent in the payment of any sums due the City, any City agency or instrumentality, , including payment of accounts, debts, permits, fees, occupational licenses, etc., nor in the performance of any obligations or payment of any monies to the City; (iii) all personnel assigned to perform the Services are and shall be, at all times during the term hereof, fully qualified and trained to perform the tasks assigned to each; (iv) the Services will be performed in the manner described in Exhibit "A"; and (v) each person executing this Agreement on behalf of Contractor has been duly authorized to so execute the same and fully bind Contractor as a party to this Agreement. C. Contractor shall at all times provide fully qualified, competent and physically capable employees to perform the Services under this Agreement. Contractor shall possess and maintain any required licenses, permits and certifications to perform the Services under this Agreement. City may require Contractor to remove any employee the City deems careless, 2 City of Miami, Florida SS 21-22-009 incompetent, insubordinate, or otherwise objectionable and whose continued services under this Agreement is not in the best interest of the City. 4. COMPENSATION: A. The amount of compensation payable by the City to the Contractor will be based upon the rates quoted in Exhibit "C" hereto, which by this reference is incorporated into and made a part of this Agreement. Compensation may not exceed the rates quoted in Exhibit "C". Any compensation exceeding such rates shall not be authorized and will be deemed gratuitous work. B. Payment shall be made in arrears based upon work performed to the satisfaction of the City within thirty (30) days after receipt of Contractor's invoice for Services performed, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should the City require one to be performed. Invoices shall be sufficiently detailed so as to comply with the "Florida Prompt Payment Act", §218.70. - 218.79, Florida Statutes, and other applicable laws. No advance or future payments shall be made at any time. C. Contractor agrees and understands that (i) any and all subcontractors providing Services related to this Agreement shall be paid through Contractor and not paid directly by the City, and (ii) any and all liabilities regarding payment to or use of subcontractors for any of the Services related to this Agreement shall be borne solely by Contractor. D. Prices shall remain firm and fixed for the term of the Contract, including any renewal or extension periods unless Customer Price Index ("CPI") adjustment clause is requested and accepted pursuant to the Solicitation. 5. OWNERSHIP OF DOCUMENTS: Contractor understands and agrees that any information, data, document, report or any other material whatsoever which is given by the City to Contractor, its employees, or any subcontractor, or which is otherwise obtained or prepared by Contractor solely and exclusively 3 City of Miami, Florida SS 21-22-009 for the City pursuant to or under the terms of this Agreement, is and shall at all times remain the property of the City. Contractor agrees not to use any such information, data, document, report or material for any other purpose whatsoever without the written consent of the City Manager, which may be withheld or conditioned by the City Manager in his/her sole discretion. Contractor is permitted to make and to maintain duplicate copies of the files, records, documents, etc. if Contractor determines copies of such records are necessary subsequent to the termination of this Agreement; however, in no way shall the confidentiality as permitted by applicable laws be breached. The City shall maintain and retain ownership of any and all data and documents which result upon the completion of the work and Services and prepared by Contractor solely and exclusively for the City pursuant to or under the terms of this Agreement as per the terms of this Section 5. 6. AUDIT AND INSPECTION RIGHTS AND RECORDS RETENTION: A. Contractor agrees to provide access to the City or to any of its duly authorized representatives, to any books, documents, papers, and records of Contractor which are directly pertinent to this Agreement, for the purpose of audit, examination, excerpts, and transcripts. The City may, at reasonable times, and for a period of ten (10) years following the date of final payment by the City to Contractor under this Agreement, audit and inspect, or cause to be audited and inspected, those books, documents, papers, and records of Contractor which are soley related to Contractor's performance under this Agreement. Contractor agrees to maintain any and all such books, documents, papers, and records at its principal place of business for a period of ten (10) years after final payment is made under this Agreement and all other pending matters are closed. Contractor's failure to adhere to, or refusal to comply with, this condition shall result in the immediate cancellation of this Agreement by the City. The audit provisions set forth 18-102 of the Code of the City of Miami, Florida as same may be amended or supplemented, from time to time, are applicable to this Agreement. 4 City of Miami, Florida SS 21-22-009 B. The City may, at reasonable times during the term hereof, inspect the Contractor's facilities and perform such tests, as the City deems reasonably necessary, to determine whether the goods or services required to be provided by Contractor under this Agreement conform to the terms hereof. Contractor shall make available to the City all reasonable facilities and assistance to facilitate the performance of tests or inspections by City representatives. The inspection provisions set forth 18-101 of the Code of the City of Miami, Florida as same may be amended or supplemented, from time to time, are applicable to this Agreement. All audits, tests and inspections shall be subject to, and made in accordance with, the provisions of Sections 18-100, 18-101, and 18-102 of the Code of the City of Miami, Florida, which apply to this Agreement, as same may be amended or supplemented, from time to time. 7. AWARD OF AGREEMENT: Contractor represents and warrants to the City that it has not employed or retained any person or company employed by the City to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the award of this Agreement. 8. PUBLIC RECORDS: A. Contractor understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City Agreements, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable laws. Contractor's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. B. Contractor shall additionally comply with Section 119.0701, Florida Statutes, including without limitation: (1) keep and maintain public records that ordinarily and necessarily would be required by the City to perform this service; (2) if required, provide the public with access to public records on the same terms and conditions as the City would at the cost provided by 5 City of Miami, Florida SS 21-22-009 Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that public records that are exempt or confidential and exempt from disclosure are not disclosed except as authorized by law; (4) meet all requirements for retaining public records and transfer, at no cost, to the City all public records in its possession upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements; and, (5) provide all electronically stored public records that must be provided to the City in a format compatible with the City's information technology systems. Notwithstanding the foregoing, Contractor shall be permitted to retain any public records that make up part of its work product solely as required for archival purposes, as required by law, or to evidence compliance with the terms of the Agreement. C. SHOULD CONTRACTOR DETERMINE TO DISPUTE ANY PUBLIC ACCESS PROVISION REQUIRED BY FLORIDA STATUTES, THEN CONTRACTOR SHALL DO SO AT ITS OWN EXPENSE AND AT NO COST TO THE CITY. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THE CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (305) 416-1800, VIA EMAIL AT PUBLICRECORDS@MIAMIGOV.COM, OR REGULAR MAIL AT CITY OF MIAMI OFFICE OF THE CITY ATTORNEY, 444 SW 2ND AVENUE, 9TH FLOOR, MIAMI, FL 33130. THE CONSULTANT MAY ALSO CONTACT THE RECORDS CUSTODIAN AT THE CITY OF MIAMI DEPARTMENT WHO IS ADMINISTERING THIS CONTRACT. 9. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Contractor understands that agreements with local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, ethics, funding, lobbying, record keeping, etc. City and Contractor agree to comply with and observe all such applicable federal, state and local laws, rules, regulations, codes and ordinances, as they may be amended from time to time. 6 City of Miami, Florida SS 21-22-009 Contractor further agrees to include in all of Contractor's agreements with subcontractors for any Services related to this Agreement this provision requiring subcontractors to comply with and observe all applicable federal, state, and local laws rules, regulations, codes and ordinances, as they may be amended from time to time. 10. INDEMNIFICATION: Contractor shall indemnify, hold and save harmless, and defend (at its own cost and expense), the City, its officers, agents, directors, departments, and/or employees, from all liabilities, damages, losses, judgements, and costs, including, but not limited to, reasonable attorney's fees, to the extent caused by performance of this Agreement by the Contractor, the Contractor's compliance and/or noncompliance with the provisions of this Agreement, and all laws and regulations pertaining to the Contractor's services which are applicable to the Contractor, the negligence, recklessness, negligent act or omission, or intentional wrongful misconduct of Contractor and persons employed or utilized by Contractor in the performance of this Contract. Contractor shall further, hold the City, its officials and employees, indemnify, save and hold harmless for, and defend (at its own cost), the City its officials and/or employees against any civil actions, administrative, regulatory, statutory or similar claims, injuries or damages arising or resulting from the Services, even if it is alleged that the City, its officials, and/or employees were negligent. In the event that any action, cause of action, claim, demand or proceeding (collectively "Claim(s)") is brought against the City by reason of any such Claim(s), the Contractor shall, upon written notice from the City, resist and defend such action or proceeding by counsel reasonably satisfactory to the City Attorney. The Contractor expressly understands and agrees that any insurance protection required by this Contract or otherwise provided by the Contractor shall in no way limit the responsibility to indemnify, hold, keep and save harmless and defend the City or its officers, employees, agents, and instrumentalities as herein provided. The indemnification provided above shall obligate the Contractor to defend, at its own expense, to and through trial, mediation, arbitration, administrative, regulatory, appellate, 7 City of Miami, Florida SS 21-22-009 supplemental or bankruptcy proceedings, or to provide for such defense, at the City's option, any and all claims of liability and all suits and actions of every name and description which may be brought against the City, whether performed by the Contractor, or persons or entities employed or utilized by Contractor. These duties will survive the cancellation or expiration of the Contract. This Section will be interpreted under the laws of the State of Florida, including without limitation and interpretation, which conforms to the limitations of Sections 725.06 and/or 725.08, Florida Statutes, as they may be applicable, and as they may be amended. Contractor shall require all sub -Contractor agreements to include a provision that each sub -Contractor will indemnify, hold harmless and defend the City in substantially the same language as this Section. The Contractor agrees and recognizes that the City shall not be held liable or responsible for any claims which may result from any actions or omissions of the Contractor in which the City participated either through review or concurrence of the Contractor's actions. In reviewing, approving or rejecting any submissions by the Contractor or other acts of the Contractor, the City, in no way, assumes or shares any responsibility or liability of the Contractor or sub -Contractor under this Contract. Ten dollars ($10) of the payments made by the City constitute separate, distinct, and independent consideration for the granting of this Indemnification, the receipt and sufficiency of which is voluntarily and knowingly acknowledged by the Contractor. 11. DEFAULT: If Contractor fails to comply materially with any term or condition of this Agreement, or fails to perform in any material way any of its obligations hereunder, and fails to cure such failure after reasonable notice from the City, setting forth the thirty (30) time period to cure, then Contractor shall be in default. Contractor understands and agrees that termination of this Agreement under this section shall not release Contractor from any obligation accruing prior to the effective date of termination. Should Contractor be unable or unwilling to commence to perform the Services within 8 City of Miami, Florida SS 21-22-009 the time provided or contemplated herein, then, in addition to the foregoing, Contractor shall be liable to the City for all expenses incurred by the City in preparation and negotiation of this Agreement, as well as all costs and expenses incurred by the City in the re -procurement of the Services, including consequential and incidental damages. 12. RESOLUTION OF AGREEMENT DISPUTES: Contractor understands and agrees that all disputes between Contractor and the City based upon an alleged violation of the terms of this Agreement by the City shall be submitted to the City Manager for his/her resolution, prior to Contractor being entitled to seek judicial relief in connection therewith. In the event that the amount of compensation hereunder exceeds Twenty - Five Thousand Dollars and No/Cents ($25,000), the City Manager's decision shall be approved or disapproved by the City Commission. Contractor shall not be entitled to seek judicial relief unless: (i) it has first received City Manager's written decision, approved by the City Commission if the amount of compensation hereunder exceeds Twenty -Five Thousand Dollars and No/Cents ($25,000), or (ii) a period of sixty (60) days has expired, after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation (one hundred twenty (120) days if City Manager's decision is subject to City Commission approval); or (iii) City has waived compliance with the procedure set forth in this section by written instruments, signed by the City Manager. In no event may the amount of compensation under this Section exceed the total compensation set forth in Section 4 (A) of this Agreement. 13. TERMINATION; OBLIGATIONS UPON TERMINATION: A. The City, acting by and through its City Manager, shall have the right to terminate this Agreement, in its sole discretion, for convenience, and without penalty or any stated cause, at any time, by giving written notice to Contractor at least thirty (30) calendar days prior to the effective date of such termination. In such event, the City shall pay to Contractor compensation for Services rendered and approved expenses incurred prior to the effective date of termination. In no event shall the City be liable to Contractor for any additional compensation and expenses 9 City of Miami, Florida SS 21-22-009 incurred, other than that provided herein, and in no event shall the City be liable for any consequential or incidental damages. The Contractor shall have no recourse or remedy against the City for a termination under this subsection except for payment of fees due prior to the effective date of termination. B. The City, by and acting through its City Manager, shall have the right to terminate this Agreement, in its sole discretion, and without penalty, upon the occurrence of an event of a material breach hereunder, and failure to cure the same within thirty (30) days after written notice of default. In such event, the City shall not be obligated to pay any amounts to Contractor for Services rendered by Contractor after the date of termination, but the parties shall remain responsible for any payments that have become due and owing as of the effective date of termination. In no event shall the City or Contractor be liable to the other for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the City or Contractor be liable for any direct, indirect, consequential or incidental damages. 14. INSURANCE: A. Contractor shall, at all times during the term hereof, maintain such insurance coverage(s) as may be required by the City. The insurance coverage(s) required as of the Effective Date of this Agreement are attached hereto as Exhibit "D" and incorporated herein by this reference. The City's agreement and title number must appear on each certificate of insurance. The Contractor shall add the City of Miami as an additional insured to its commercial general liability, and auto liability policies, and as a named certificate holder on all policies. Contractor shall correct any insurance certificates as requested by the City's Director of Risk Management. All such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage(s) and shall be furnished to the City Risk Management Director on Certificates of Insurance indicating such insurance to be in force and effect and any cancelled or non -renewed policy will be replaced with no coverage gap and a current Certificate of Insurance will be provided. Completed Certificates of Insurance shall be filed 10 City of Miami, Florida SS 21-22-009 with the City prior to the performance of Services hereunder, provided, however, that Contractor shall at any time upon request file duplicate copies of the Certificate of Insurance with the City. B. If, in the judgment of the City, prevailing conditions warrant the provision by Contractor of additional liability insurance coverage or coverage which is different in kind, the City Risk Management Director reserves the right to require the provision by Contractor of an amount of coverage different from the amounts or kind previously required and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. Should the Contractor fail or refuse to satisfy the requirement of changed coverage within thirty (30) days following the City's written notice, this Agreement shall be considered terminated on the date that the required change in policy coverage would otherwise take effect. C. Contractor understands and agrees that any and all liabilities regarding the use of any of Contractor's employees or any of Contractor's sub -Contractors for Services related to this Agreement shall be borne solely by Contractor throughout the term of this Agreement and that this provision shall survive the termination of this Agreement. Contractor further understands and agrees that insurance for each employee of Contractor and each sub -Contractor providing Services related to this Agreement shall be maintained in good standing and approved by the City's Director of Risk Management throughout the duration of this Agreement. D. Contractor shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the duration of this Agreement, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this Agreement and any extension hereof, Contractor shall be responsible for submitting new or renewed insurance certificates to the City's Director of Risk Management as soon as coverages are bound with the insurers. In the event that expired certificates are not replaced, with new or renewed certificates which cover the term of this Agreement and any extension thereof: 11 City of Miami, Florida SS 21-22-009 (i) the City shall suspend this Agreement until such time as the new or renewed certificate(s) are received in acceptable form by the City's Director of Risk Management; or (ii) the City may, at its sole discretion, terminate the Agreement for cause and seek re -procurement damages from Contractor in conjunction with the violation of the terms and conditions of this Agreement. E. Compliance with the foregoing requirements shall not relieve Contractor of its liabilities and obligations under this Agreement. 15. NONDISCRIMINATION: Contractor represents to the City that Contractor does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Contractor's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Contractor further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 16. ASSIGNMENT: The Contractor's services are considered unique and specialized. This Agreement shall not be assigned, sold, transferred, pledged, or otherwise conveyed by Contractor, in whole or in part, and Contractor shall not assign any part of its operations which are related to the performance of this Agreement, without the prior written consent of the City Manager, which may be withheld or conditioned, in the City's sole discretion through the City Manager. 17. NOTICES: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, 12 City of Miami, Florida SS 21-22-009 addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. TO CONTRACTOR: Jonathan Paul Dierkinq Touchstone IQ LLC 1635 Blake St., STE 200 Denver, CO 80202 TO THE CITY: Arthur Noriega V City Manager 444 SW 2nd Avenue, 10th Floor Miami, FL 33128-1910 Annie Perez, CPPO Director of Procurement/Chief Procurement Officer 444 SW 2nd Avenue, 6th Floor Miami, FL 33130-1910 Victoria Mendez City Attorney 444 SW 2nd Avenue, 9th Floor Miami, FL 33128-1910 Asael Marrero Director of Building Department 444 SW 2nd Avenue, 4th Floor Miami, FL 33128-1910 18. MISCELLANEOUS PROVISIONS: A. This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue in any proceedings between the parties shall be in Miami -Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion, memorandum, or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties freely, knowingly irrevocably waive any rights to a jury trial in any actions or proceedings between them related to this Agreement. 13 City of Miami, Florida SS 21-22-009 B. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. C. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then the same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. D. Contractor shall comply with all applicable laws, rules and regulations in the performance of this Agreement, including but not limited to licensure, registration, and certifications required by law for professional service Contractors performing these services. E. This Agreement constitutes the sole and entire Agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto. Except as otherwise set forth in Section 2 above, the City Manager shall have the sole authority to extend, amend, or modify this Agreement on behalf of the City. All changes and/or modifications to this Agreement shall be approved in advance and in writing by the Office of the City Attorney as to legal form and correctness, and executed in writing by the City and the Contractor. F. Title and paragraph headings are for convenient reference and are not a part of this Agreement. G. Nothing contained in this Agreement is any way intended to be a waiver of the limitation placed upon the Indemnitees' liability as set forth in Chapter 768, Florida Statutes. Additionally, the Indemnitees do not waive sovereign immunity, and no claim or award against 14 City of Miami, Florida SS 21-22-009 the Indemnitees shall include attorney's fees, investigative costs, pre -suit or adjusting costs, or pre -judgment interest. H. If any term or provision of this Agreement, or combination of the same, is in violation of any applicable law or regulation, or is unenforceable or void for any reason, such term, provision or combination of same shall be modified or reformed by the court to the minimum extent necessary to accomplish the intention of the entire Agreement to the maximum extent allowable, under any legal form, without violating applicable law or regulation. Notwithstanding, the remainder of the Agreement shall remain binding upon the parties. This Subsection shall not apply if there is a material breach of this Agreement causing cancelation or cancellation for convenience. 19. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 20. INDEPENDENT CONTRACTORS: Contractor has been procured and is being engaged to provide Services to the City as an independent contractor, and not as an agent or employee of the City. Accordingly, neither Contractor, nor its employees, nor any subcontractor hired by Contractor to provide any Services under this Agreement shall attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Contractor further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Contractor, its employees, or any subcontractor hired by Contractor to provide any Services hereunder, and Contractor agrees to provide or to require subcontractor(s) to provide, as applicable, workers' compensation insurance for any employee or agent of Contractor rendering Services to the City under this Agreement. Contractor further understands and agrees that Contractor's or subcontractors' use or entry upon City properties shall not in any way change its or their status as an independent contractor. 15 City of Miami, Florida SS 21-22-009 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 or regulations, upon thirty (30) days written notice. 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. 23. CITY NOT LIABLE FOR DELAYS: Contractor hereby understands and agrees that in no event shall the City be liable for, or responsible to Contractor or any subcontractor, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) in work herein provided for, or any damages whatsoever related thereto, because of any injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over which the City has no control. 24. USE OF NAME: 16 City of Miami, Florida SS 21-22-009 Contractor understands and agrees that the City is not engaged in research for advertising, sales promotion, or other publicity purposes. Contractor is allowed, within the limited scope of normal and customary marketing and promotion of its work, to use the general results of this project and the name of the City. The Contractor agrees to protect any confidential information provided by the City and will not release information of a specific nature without prior written consent of the City Manager or the City Commission. 25. NO CONFLICT OF INTEREST: Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of interest, Contractor hereby certifies to the City that no individual member of Contractor, no employee, and no subcontractor under this Agreement nor any immediate family member of any of the same is also city employee or a member of any board, commission, or agency of the City. Contractor 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. Contractor additionally agrees during the term of this Agreement not to serve as a paid expert witness, affiant or otherwise furnish evidence adverse to the City in a Claim brought against the City by any third party. 26. NO THIRD -PARTY BENEFICIARY: No persons other than the Contractor and the City (and their successors and assigns) shall have any rights whatsoever under this Agreement. 27. SURVIVAL: All obligations (including but not limited to indemnity and obligations to defend and hold harmless) and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement shall survive such expiration or earlier termination. 28. TRUTH -IN -NEGOTIATION CERTIFICATION, REPRESENTATION AND WARRANTY: 17 City of Miami, Florida SS 21-22-009 Contractor 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 Contractor under this Agreement are and will continue to be accurate, complete, and current. Contractor 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. 29. COUNTERPARTS, ELECTRONIC SIGNATURES: This Agreement may be executed in three (3) or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute one and the same agreement. This Agreement may be executed in counterparts, each of which shall be an original as against either Party whose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. An executed facsimile or electronic scanned copy of this Agreement shall have the same force and effect as an original. The parties shall be entitled to sign and transmit an electronic signature on this Agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Any party providing an electronic signature agrees to promptly execute and deliver to the other parties an original signed Agreement upon request. 30. ENTIRE AGREEMENT: This instrument and its exhibits constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 18 City of Miami, Florida SS 21-22-009 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. ATTEST: Print Name: Catherine Burge Title: CMO (Corporate Seal) "City" ATTEST: By: "Contractor" Touchstone IQ LLC By: Print Name: Jonathan Dierking Title: CEO (Authorized Corporate Officer) CITY OF MIAMI, a municipal corporation Todd B. Hannon, City Clerk Arthur Noriega V, City Manager APPROVED AS TO LEGAL FORM APPROVED AS TO INSURANCE AND CORRECTNESS: REQUIREMENTS: Victoria Mendez Ann -Marie Sharpe City Attorney Director of Risk Management 19 City of Miami, Florida SS 21-22-009 COMPANY RESOLUTION (This Resolution needs to authorize the signatory to sign) WHEREAS, Touchstone IQ LLC a LLC (company type: Inc., LLC.), desires to enter into an Agreement with the City of Miami for the purpose of performing the work described in the contract to which this resolution is attached; and WHEREAS, the (board type; Board of Directors for Inc, Board of Managers for LLC.) at a duly held company meeting has considered the matter in accordance with the bylaws of the company; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD of (same as identified above) that this company is authorized to enter into the Agreement with the City, and the CEO (company officer title) and the CMO (company officer title) are hereby authorized and directed to execute the Agreement in the name of this Company and to execute any other document and perform any acts in connection therewith as may be required to accomplish its purpose. IN WITNESS WHEREOF, this 4 day of March , 2022. Touchstone IQ LLC ("Contractor") An Colorado (State) Company By: (sign) Print Name: Jonathan Dierking TITLE: CEO sign) Print Name: Catherine Burge 20 City of Miami, Florida SS 21-22-009 EXHIBIT A SOFTWARE LICENSE ADDENDUM 21 SOFTWARE LICENSE ADDENDUM This Software License Addendum (the "Addendum"), dated as of , 2021 (the "Effective Date"), is by and between Touchstone IQ LLC, a Colorado limited liability company ("Touchstone") and ("Customer") and is part of and incorporated into that certain Agreement for Services [replace with actual name of operative contract] between Touchstone IQ LLC and dated as of (the "Master Agreement"). 1) Definitions. Capitalized terms not defined below have the meaning set forth in the Master Agreement. "Access Credentials" means any username, identification number, password, or other security code or method used to verify an individual's identity and authorization to access and use the Hosted Services. "Action" has the meaning set forth in Section 10)a). "Addendum" has the meaning set forth in the preamble. "Affiliate" of any Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than fifty percent (50%) of the voting securities of a Person. "Authorized User" means each of the individuals authorized to use the Services pursuant to the terms and conditions of this Addendum. "Confidential Information" has the meaning set forth in Section 8)a). "Customer" has the meaning set forth in the preamble. "Customer Data" means information, data and other content, in any form or medium that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Hosted Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User. "Customer Indemnitee" has the meaning set forth in Section 10)a). "Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third -party services. "Disclosing Party" has the meaning set forth in Section 8a. "Documentation" means any user manuals or instructions that Touchstone provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services. 1 4845-3675-0286.1 "Effective Date" has the meaning set forth in the preamble. "Force Majeure Event" means any circumstances beyond either party's reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Addendum, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. "Harmful Code" means any virus, worm, malware, or other malicious computer code. "Hosted Services" means the software -as -a -service offering described in any statement of work issued pursuant to the Master Agreement, including to host, manage, operate and maintain the Software for remote electronic access and use by Customer and its Authorized Users. "Indemnitee" has the meaning set forth in Section 10)c). "Indemnitor" has the meaning set forth in Section 10(c). "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction. "Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity. "Personal Information" means information provided to Touchstone by or at the direction of Customer, information which is created or obtained by Touchstone on behalf of Customer, or information to which access was provided to Touchstone by or at the direction of Customer, in the course of Touchstone's performance under this Agreement that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government -issued identification numbers, passwords or personal identification numbers ("PINs"), user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, health, genetic, medical, or medical insurance data, answers to security questions, and other personal identifiers), in case of both subclauses (i) and (ii), including, without limitation, all Sensitive Personal Information. Customer's business contact information is not by itself Personal Information. 2 4845-3675-0286.1 "Professional Services" means those professional services provided by Touchstone to Customer pursuant to the Scope of Services, Exhibit A-1 of the Master Agreement. "Receiving Party" has the meaning set forth in Section 8(a). "Representatives" means, with respect to a party, that parry's employees, officers, directors, consultants, agents, independent contractors, service providers, sublicenses, Subcontractors and legal advisors. "Resultant Data" means data and information related to Customer's use of the Services that is used by Touchstone in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. "Services" means both Hosted Services and Professional Services, as set forth in any statement of work issued pursuant to the Master Agreement. "Service Credits" has the meaning set forth in Schedule B. "Sensitive Personal Information" means an (i) individual's government -issued identification number (including Social Security number, driver's license number, or state -issued identification number); (ii) financial account number, credit card number, debit card number, or credit report information, with or without any required security code, access code, personal identification number, or password that would permit access to an individual's financial account; or (iii) biometric, genetic, health, medical, or medical insurance data. "Software" means the Touchstone software application or applications, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Touchstone provides remote access to and use of as part of the Hosted Services. "Subcontractor" has the meaning set forth in Section 2(d). "Touchstone" has the meaning set forth in the preamble. "Touchstone Indemnitee" has the meaning set forth in Section 10(b). "Touchstone Platform" means the Software, Documentation and Touchstone Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, that are directly provided or used by Touchstone or any Subcontractor in providing the Services. "Touchstone Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of Touchstone or any Subcontractor. "Touchstone Systems" means the information technology infrastructure used by or on behalf of Touchstone in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Touchstone or through the use of third -parry services. "Third Party Data" means information, data and other content, in any form or medium that is collected, downloaded or otherwise received, directly or indirectly from a third party by or through the Hosted Services. 3 4845-3675-0286.1 2) Hosted Services. a) Provision of Services. Touchstone shall provide Hosted Services to Customer according to the terms of this Addendum, during the term set forth in the statement(s) of work describing such services, in accordance with the terms of those statement(s) of work. b) Service and System Control. Except as otherwise expressly provided in this Addendum, as between the parties: i) Touchstone has and will retain sole control over the operation, provision, maintenance and management of the Hosted Services and Touchstone Platform; and ii) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Touchstone Platform by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User. c) Touchstone Changes. Touchstone reserves the right, in its sole discretion, to make any changes to the Services and Touchstone Platform that it deems necessary or useful to maintain or enhance the Services or Touchstone Platform or to comply with applicable Law. Any changes that require an increase in cost, whether in the form of a one-time charge, or increase in monthly subscription or installment fee shall be first submitted in writing and approved by Customer. d) Subcontractors. Touchstone may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor"), provided that all Subcontractors are bound by confidentiality and data security obligations no less restrictive than those in this Addendum. Any breach of this Addendum by a Subcontractor shall be deemed to be a breach by Touchstone. 3) Professional Services. From time to time, the parties may agree that Touchstone will provide to Customer certain Professional Services, such as configuration and implementation, etc. The scope of such services, and additional terms if any, shall be set forth in a separate statement of work effective upon the execution of such statement by both parties ("Statement of Work"). Each such Statement of Work shall be subject to, and a part of this Addendum, except as otherwise expressly agreed in writing by the parties. 4) Service Levels and Credits; Support Services. a) Service Levels and Credits. Subject to the terms and conditions of this Addendum, Touchstone will ensure the Hosted Services are reasonably available in accordance with the Service Level Exhibit set forth in Schedule A to this Addendum. b) In the event of a Service Level Failure, Touchstone shall issue a credit to Customer in the amount and as set forth in Schedule B to this Addendum, subject to the limitations therein. c) Support Services. The Hosted Services include Touchstone's standard customer support services set forth in Schedule B to this Addendum. 5) Reservation of Rights and Customer Restrictions. a) Reservation of Rights. Nothing in this Addendum grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services or 4 4845-3675-0286.1 Touchstone Platform, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services and the Touchstone Platform are and will remain with Touchstone or the applicable third -party rights holder. Except for the limited licensed expressly provided in this Addendum grants Touchstone any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, Customer Data, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Customer Data are and will remain with Customer or the applicable third -party rights holder. b) Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Touchstone Platform except as expressly permitted by this Addendum and, in the case of third -party materials, the applicable third -party license Addendum. Further, Customer shall not, except as this Addendum expressly permits: i) copy, modify, or create derivative works or improvements of the Services or Touchstone Platform; ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Touchstone Platform to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the object source code of the Services or Touchstone Platform, in whole or in part; iv) access or use the Services or Touchstone Platform other than by an Authorized User through the use of his or her own then -valid Access Credentials, including through bypass or breach or any security device or protection used by the Services or Touchstone Platform v) input, upload, transmit or otherwise provide to or through the Services or Touchstone Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Touchstone Systems or Touchstone's provision of services to any third party, in whole or in part; vii) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Touchstone Platform, including any copy thereof; viii) access or use the Services or Touchstone Platform for purposes of competitive analysis of the Services or Touchstone Platform, the development, provision or use of a competing software service or product or any other purpose that is to Touchstone's detriment or commercial disadvantage; or ix) upload or transmit any Personal Information to or through the Touchstone Platform. 6) Customer Obligations. a) Customer Systems and Cooperation. Customer shall: (a) set up, maintain and operate in good repair all Customer Systems on or through which the Services are accessed or used as set forth in 5 4845-3675-0286.1 Documentation; and (b) provide Touchstone Personnel with such access to Customer's premises and Customer Systems as is necessary for Touchstone to perform the Services. b) Responsibility for Users. Customer shall be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information uploaded to or transmitted through the Touchstone Platform. 7) Intellectual Property Rights. a) Services and Touchstone Platform. All right, title and interest in and to the Services and Touchstone Platform, including all Intellectual Property Rights therein, are and will remain with Touchstone and the respective rights holders in any third -party materials. b) Customer Data. As between Customer and Touchstone, Customer is and will remain the sole and exclusive owner of all Customer Data, subject to the rights granted in Section 10(c). c) Limited Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary for Touchstone to perform and enforce this Agreement and exercise Touchstone's rights and perform Touchstone's obligations hereunder, including but not limited to the improvement of the Hosted Services, the Touchstone Platform and for the benefit of Customer. d) Feedback. If Customer or any of its employees, contractors, or Authorized Users sends or transmits any communications or materials to Touchstone by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Touchstone is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Touchstone on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. 8) Confidentiality. a) Confidential Information. In connection with this Addendum each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 8(b) (Exclusions), "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Parry's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential." Without limiting the foregoing, all Touchstone Platform and the terms and existence of this Addendum are the Confidential Information of Touchstone. Customer Data is Confidential Information. Resulting Data is not Confidential Information. b) Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Addendum; (b) was or becomes generally 6 4845-3675-0286.1 known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Addendum; (c) was or is received by the Receiving Party on a non - confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information. c) Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with the Master Agreement or this Addendum; ii) not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Addendum; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 8(c); and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8(c); iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own confidential information and in no event less than a reasonable degree of care; and iv) ensure its Representatives' compliance with, and be responsible and liable for, any of its Representatives' non-compliance with, the terms of this Section 8. d) Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information, then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8(c);. 9) Representations and Warranties. a) Mutual Representations and Warranties. Each party represents and warrants to the other party that: i) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; ii) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Addendum; iii) the execution of this Addendum by its representative whose signature is set forth at the end of this Addendum has been duly authorized by all necessary corporate or organizational action of such party; and 7 4845-3675-0286.1 iv) when executed and delivered by both parties, this Addendum will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. b) Additional Touchstone Representations and Warranties. Touchstone represents and warrants to Customer that Touchstone will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner, and that the Touchstone Systems will remain free of Harmful Code. c) Additional Customer Representations and Warranties. Customer represents and warrants to Touchstone that Customer owns or otherwise has and will have the necessary rights to all Customer Data and all Third Party Data to permit Touchstone to conduct the Services. d) DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9)a), SECTION 9)b) AND SECTION 9)c), ALL SERVICES AND THE TOUCHSTONE PLATFORM ARE PROVIDED "AS -IS" AND TOUCHSTONE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND TOUCHSTONE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON - INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, TOUCHSTONE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR TOUCHSTONE PLATFORM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. ALL THIRD -PARTY MATERIALS ARE PROVIDED "AS - IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD - PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD -PARTY OWNER OR DISTRIBUTOR OF THE THIRD -PARTY MATERIALS. IN NO EVENT WILL TOUCHSTONE HAVE ANY LIABILITY FOR THE COMPLETENESS, ACCURACY, TIMELINESS OR RELIABILITY OF ANY THIRD -PARTY DATA. 10) Indemnification. a) Touchstone Indemnification. Touchstone shall defend Customer and its affiliates and their respective officers, directors, and employees and, agents, successors and assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to (i) any claim, suit, action or proceeding (each, an "Action") by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such Losses arise from any allegation in such Action that the use of the Hosted Service (excluding, for avoidance of doubt, Customer Data and Third Party Data) infringes an Intellectual Property Right; (ii) gross negligence or willful misconduct by Touchstone or any of its Representatives on behalf of Touchstone in connection with this Addendum. The foregoing obligation does not apply to any Action or Losses arising out of or relating to Losses arising from any modification of the Services or Touchstone Platform by any party other than authorized representatives of Touchstone IQ LLC. b) Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 10)a) or 8 4845-3675-0286.1 Section 10(b), as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 10(c) will not relieve the Indemnitor of its obligations under this Section 10) except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. c) Mitigation. If any aspect of the Hosted Services is, or in Touchstone's opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third -party Intellectual Property Right, Touchstone may, at its option and sole cost and expense: i) obtain the right for Customer to continue to use the Hosted Services materially as contemplated by this Addendum; ii) modify or replace the Hosted Services, in whole or in part, to seek to make the Hosted Services non -infringing, while providing materially equivalent features and functionality; or iii) if neither of (i) or (ii) are achieved despite reasonable efforts, by written notice to Customer, terminate this Addendum and the Master Agreement. 11) Force Majeure. a) No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Addendum, for any failure or delay in fulfilling or performing any term of this Addendum, (except for any payment obligation), when and to the extent such failure or delay is caused by a Force Majeure Event. Either party may terminate this Addendum if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more. b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the party affected by such failure or delay shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. 12) Miscellaneous. a) Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Addendum. b) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Addendum shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. c) Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Addendum or otherwise use the 9 4845-3675-0286.1 other parry's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Touchstone may include Customer's name in its lists of Touchstone's current or former customers of Touchstone in promotional and marketing materials, the City of Miami can freely use the public - facing dashboard and its likeness for purposes of training materials, public outreach, and education related to the Building Energy and Water Consumption Benchmarking and Retuning Ordinance d) Unless otherwise provided for in the Master Agreement, all notices, requests, consents, claims, demands, waivers and other communications under this Addendum have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 13)d)): If to Touchstone: Touchstone IQ LLC Attn: Jon Dierking jon.dierking@touchstonebenchmarking.com Address: 1635 Blake St. STE 200 Denver, CO 80202 If to Customer: Name: Attn: Email: Address: Notices sent in accordance with this Section 13)d) will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) [when sent, if by e-mail, (with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours]; and (d) on three (3) days after the date mailed by certified or registered mail, return receipt requested, postage prepaid. e) Interpretation. For purposes of this Addendum the words "include," "includes" and "including" are deemed to be followed by the words "without limitation". The parties intend this Addendum to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Addendum to the same extent as if they were set forth verbatim herein. f) Headings. The headings in this Addendum are for reference only and do not affect the interpretation of this Addendum. g) Order of Precedence. This Addendum shall control over any provision in the Master Agreement or any exhibit thereto. h) Assignment. Neither party may assign the rights under the Master Agreement without the prior written consent of the other party Any purported assignment, delegation or transfer in violation of this Section 13)h) is void. i) No Third -party Beneficiaries. This Addendum is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is 10 4845-3675-0286.1 J) intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Addendum. Amendment and Modification; Waiver. No amendment to or modification of this Addendum is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Addendum, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Addendum shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or of any other right, remedy, power or privilege. k) Severability. If any provision of this Addendum is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Addendum or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Addendum so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. 1) Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Addendum or the transactions contemplated hereby. 11 4845-3675-0286.1 SCHEDULE A TOUCHSTONE SERVICE LEVEL COMMITMENT 1. Certain Definitions. a. "Available" means available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Documentation. Availability when expressed as a percentage means the percentage of time that the Hosted Services are Available in a given calendar month, and excludes time during a Scheduled Maintenance Period. "Availability" and "Unavailable" have correlative meanings. b. "Scheduled Maintenance Period" means the period from Sunday 2:OOAM CST to Sunday 6:OOAM CST, or such period otherwise agreed to in writing by Touchstone and Customer. c. "Service Level Failure" means a material failure of the Hosted Services to meet the Availability requirements set forth in this Service Level Agreement. d. "Services Downtime" means an inability to access the Hosted Services other than during the Scheduled Maintenance Period as verified by Touchstone. 2. In the event of Services Downtime, Customer shall be entitled to credits from Touchstone against amounts owed by Customer ("Service Credits") as follows: a. If the total Availability of the Hosted Services in a calendar month is less than 99.99% but at least 98.0%, Touchstone will issue a credit to Customer in the amount equaling to 5% of that calendar month's charges for the Hosted Services. b. If the total Availability of the Hosted Services in a calendar month is less than 98.0% but at least 95%, Touchstone will issue a credit to Customer in the amount equaling to 20% of that calendar month's charges for the Hosted Services. c. If the total Availability of the Hosted Services provided by Touchstone in a calendar month is less than 95.0% but at least 90%, a credit for services will be issued to the Customer in the amount equaling to 30% of that month's charges. In addition to the foregoing, if the total Availability of the Hosted Services provided by Touchstone in two consecutive calendar months is less than 90%, such Availability shall be deemed to be a material breach giving rise to a right of Customer to terminate this Agreement. 3. The Hosted Services will not be considered Unavailable if the impaired ability of Customer or its Authorized Users to access or use the Hosted Services is due, in whole or in part, to any: (a) access to or use of the Hosted Services by Customer or any Authorized User, or using Customer's or an Authorized User's Access Credentials, that does not comply with this Agreement and the Documentation; (b) any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement; (c) Customer's or its Authorized User's Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Touchstone pursuant to this Agreement; (f) disabling, suspension or termination of the Services as permitted by the Agreement. 4. Touchstone has no obligation to issue any Service Credit unless Customer reports the Service Level Failure to Touchstone promptly on becoming aware of it. 12 4845-3675-0286.1 SCHEDULE B SUPPORT SERVICES I. Touchstone's standard sunnort services include the followinn: Function Standard Support Offering New User Setup Included New User Web Training Included Configuration Changes (within original project scope) Included Email Support Included; unlimited Incident Limit Unlimited Phone Support Included during business hours, 9:00AM — 5:00 PM Mountain time Incident Acknowledgement Within 1 hour Resolution Estimate Severity Level 1: as quickly as possible, with updates every 6 hours Severity Level 2: As quickly as possible, with daily updates Severity Level 3: Correction with a maintenance release of the software Severity Level 4 or 5: None, unless escalated. II. A Touchstone customer service representative ("CSR") will perform the following steps once the incident is reported by Customer: A. Support Procedures: 1) Obtain an adequate description of the issue, including requests for screen shots or system logs from the person reporting the issue or making the support request (the "Requestor"). 2) Provide a solution (if known) to the Requestor and close the incident. Requestor will receive an email confirmation. 3) If the incident is not so closed, assign a severity level and problem type that is appropriate for the Customer's business needs and Customer's support terms. If the incident is a Severity 1 or 2 as determined below, the CSR will work with the Requestor until the issue is resolved or until it is determined that an error in the Hosted Services exists. 4) If issue is not known, attempt to recreate the problem in a test environment and Requestor will receive an estimate of the resolution time via email. 5) Attempt to provide an acceptable work around, if available, to the Requestor 6) If no resolution is available, record the suspected error for development or second level to analyze, as appropriate. 13 4845-3675-0286.1 7) Once resolution is made available from development or second level support, test resolution. 8) If resolution test is successful, correction will be provided to the Requestor. 9) Once resolution is implemented, email confirmation of the resolution is sent to the Requestor. 10) Issue is closed. B. Problem Type: 1) Bug - documented instance when the Hosted Services do not produce the proper results, or a function works differently than stated in Documentation. A severity level will be logged and appropriate action taken. 3) User Error or Training - The Authorized User was improperly using the Hosted Services for the desired results. 2) Feature Request - A new feature or function desired by Requestor that currently is not delivered within the Hosted Services. C. Severity Levels: 1) Severity 1 - Unable to use the Hosted Services. Hosted Services crash and/or machine hangs. 2) Severity 2 — Hosted Services are severely restricted due to a defect encountered for which there is no acceptable circumvention. Hosted Services do not function properly; there is an impediment to business use. 3) Severity 3 - Able to proceed with limited function which is not crucial to business use. Either the defect is serious, but an acceptable circumvention exists, or the defect is not serious, although no circumvention exists. Hosted Services do not function properly, but there is a known work around, or no impediment to the business function. 4) Severity 4 - No immediate impact to business use or defects that are non - reproducible, but should be documented. 5) Severity 5 - Error due to Authorized User's lack of knowledge or invalid use of the Hosted Services. D. Support Actions taken: 1) Severity 1 - Immediate assignment of development staff to diagnose and correct the problem. The fix will be tested and a new program template is created in order to replace the design of the defunct application code. Any agents necessary to correct data corruption will be included in the new program template, and instructions provided on the correction procedure. The CSR will schedule the implementation of the resolution with the Customer contact. 14 4845-3675-0286.1 2) Severity 2 — If the CSR is unable to solve the incident or answer the request within the resolution estimate time per Customer's support terms, the incident is sent to the Product Development Manager and assigned to the appropriate development staff or second level support. The fix will be tested and a new program template created in order to replace the design of the defunct application code if necessary. Any agents necessary to correct data corruption will be included in the new program template, and instructions provided on the correction procedure. The CSR will schedule the implementation of the resolution with the Customer contact. 3) Severity 3 - The CSR should be able to provide an acceptable work around to the issue recorded and the issue resolved to the Customer's satisfaction. 4) Severity 4 - The CSR should be able to provide an acceptable work around. If further action is required, such as minor changes to the program, the issue will be logged for the development staff, and placed in a queue for implementation in a designated future release of the Hosted Services. 5) Severity 5 - The CSR should be able to provide an answer and the issue is logged, but not assigned to Development. Customer shall not be charged for system failures. 15 4845-3675-0286.1 City of Miami, Florida SS 21-22-009 EXHIBIT B SOFTWARE & HELP CENTER SUPPORT SERVICES PROPOSAL 22 City of Miami, Florida SS 21-22-009 EXHIBIT C CERTIFICATE OF INSURANCE 23 City of Miami, Florida SS 21-22-009 EXHIBIT D INSURANCE REQUIREMENTS INSURANCE REQUIREMENTS -PROFESSIONAL SERVICES AGREEMENT I. 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 B. 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 24 City of Miami, Florida SS 21-22-009 IV. Professional Liability/Errors and Omissions Coverage Combined Single Limit Each Claim General Aggregate Limit Retro Date Included $1 ,000,000 $1,000,000 V. Network Security and Privacy Injury (Cyber Liability) Each Claim Policy Aggregate Retro Date Included $1,000,000 $1,000,000 Consultant agrees to maintain professional liability/Errors & Omissions coverage, along with Network Security and Privacy Injury (Cyber) coverage, for a minimum of 1 year after termination of the contract period subject to continued availability of commercially reasonable terms and conditions of such coverage. 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 less 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 /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 25 A`GRLI CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 3/4M/DD/ /2022 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER AssuredPartners of Washington, LLC PMB #369, 19689 7th Ave NE, Ste 183 Poulsbo WA 98370 CONTACT NAME: John Dewing PHONE FAX (A/C No Ext): 360-626-2011 (A/C, No): 360-626-2011 E-MAIL ADDR ESS: john.dewing@assuredpartners.com INSURER(S) AFFORDING COVERAGE NAIC # INSURERA: RLI INSURANCE COMPANY 13056 INSURED OVERLAY-01 Touchstone IQ LLC 1635 Blake Street, Ste 200 Denver CO 80202 INSURERB: North American Capacity Insurance Company 25038 INSURERC: INSURERD: INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: 1313778730 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTRINSD TYPE OF INSURANCE ADDL SUBR WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) LIMITS A X COMMERCIAL GENERAL LIABILITY PSB0005622 8/1/2021 8/1/2022 EACH OCCURRENCE $ 2,000,000 CLAIMS -MADE X OCCUR DAMAGE TO RENTED PREMISES (Ea occurrence) $ 1,000,000 MED EXP (Any one person) $ 10,000 PERSONAL & ADV INJURY $ 2,000,000 GEN'L AGGREGATE X LIMIT APPLIES Tar-LOC PER: GENERAL AGGREGATE $ 4,000,000 PRODUCTS - COMP/OP AGG $ 4,000,000 $ A AUTOMOBILE X X LIABILITY ANY AUTO OWNED x SCHEDULED AUTOS NON -OWNED AUTOS ONLY PSA0002076 8/1/2021 8/1/2022 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ $ UMBRELLA LIAB EXCESS LIAB O OCCUR CLAIMS -MADE EACH OCCURRENCE $ AGGREGATE $ DED RETENTION $ $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANYPROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below Y / N N/A PSW0003236 8/1/2021 8/1/2022 X PER STATUTE OTH- ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 A B Professional Liab;Claims Made Cyber Liability; Claims -Made RDP0044210 C-4LSP-149808-CYBER-2021 8/1/2021 8/1/2021 8/1/2022 8/1/2022 Per Claim $2,000,000 Per Claim $1,000,000 Aggr $2,000,000 Aggr $1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) The certificate holder is an additional insured per the attached. CERTIFICATE HOLDER CANCELLATION City of Miami 444 S.W. 2nd Avenue, 10th Floor Miami FL 33130 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE -, PL (I ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD City of Miami, Florida SS 21-22-009 EXHIBIT E COMPANY RESOLUTION AND EVIDENCE OF QUALIFICATION TO DO BUSINESS IN FLORIDA (To be provided upon document execution) 26 TOUCHSTONEn Touchstone IQ Software & Heln Center Support Service: PREPARED FOR City of Miami PREPARED BY Jon Dierking I jon.dierking@touchstoneiq.com February 18, 2022 COPYRIGHT @2022 TOUCHSTONE IQ LLC 1 %TOUCHSTONEn Scope of Work Overview Touchstone IQ LLC (Touchstone) proposes the following scope of work to deliver the requested building benchmarking software and help Center support services. Based on our experience operating other building ordinance programs utilizing our benchmarking software, Touchstone IQ for Governments', we believe the following scope of work and licensed software will provide the best customer experience while delivery a high level of building compliance data quality. Software -as -a -Service (Baas) Solution Software System Design Overview Our proposed approach includes utilizing our Touchstone IQ for Governments' cloud - based Software -as -a -Service (SaaS) solution. This design will allow for automated integration with Portfolio Manager with real-time tracking of building data. The system also facilitates communication tracking with building owners, provides marketing tools, and reporting, among other functionalities. The Touchstone IQ for Governments' software includes the following system functionalities. • Tracking all past and current building data including, but not limited to: o Address, sq-ft, building ID, parcel number, GIS coordinates, etc. • Tracking additional building data in custom database fields including, but not limited to: o Solar installations and capacity, EV charger installations, and 40/50 year recertification status • Tracking all past and current building contact info including, but not limited to: o Building owner, management company, Portfolio Manager consultant, condo association, designated representative, etc. • Auto -integration with Portfolio Manager reporting o Automatic nightly download of new building report submissions o Year -over -year tracking of all Portfolio Manager report data • Auto -integration with online exemption request form • Automatically scan imported benchmark submissions for 40+ errors beyond Portfolio Manager's checks; o Examples - EUI outside normal range, abnormal score, non-matchingsq-ft, unrealistic # of worker, unusual operating hours, missing utility data, etc. COPYRIGHT @2022 TOUCHSTONE IQ LLC 2 TOUCHSTONEn • Creates customizable errors flags for help center staff review o Automated email response to building owners based on submission status or error flags • Online city accessed customizable dashboard to monitor: o Percent approved, in -progress, denied, exempt, error flags, etc. • API integration with City department data, where available (i.e. violation/fines, permitting, finance) • Customizable reports for all data with a large set of pre -developed reports • Email and Phone communication tracking • Direct email generation for customer help center management and marketing/outreach • Record modification tracking by user (i.e. track all changes to a building record) • Automated building owner scorecards Data Tracking Upon completion of the Touchstone IQ for Governments' setup and configuration, as detailed in the implementation section below, Miami staff will have the ability to easily track, manage, and report on the all data received from building owners through their Portfolio Manager reports. The automated functionality of the nightly downloads directly from Portfolio Manager and instant data quality checking significantly reduces the demand on Miami's help center staff. Additional data can be directly imported through API's, online form sites, or uploaded via a csv file format. Miami staff also have the ability to attach pdf files, such as energy audit reports, directly to building owner records. Building owner exemption requests are facilitated through an online exemption form process. Help Center staff are automatically notified of any new exemption requests and have the ability to approve or deny the request via the software. 0 SIZE ELFI ENERGY., In Progress 21,307 61.40 INIA Last`rear: WA Sp. feet Weather Normalized Lasffear WA Last.. WA Q 151mv,1707e.,cel„e, ags for this building Building PF.C.1.635 D. 927726.9 lege Center Portfolio Ma m`o ReaDate: v oValid ID ore,' ryes ossgeooks 2) Alert, rl ass Government Type: WA Assessor., 21.307 ©H. College Ave •Z2L.z !A isler Money LIs+ Dashboard and Data Tracking Solution Through the Touchstone IQ for Governments dashboard, help center staff can track building reporting overall progress metrics, dive into the details of specific buildings and easily track communications with building owners. The dashboard can be customized to present a host of different information such as: COPYRIGHT @2022 TOUCHSTONE IQ LLC 3 %TOUCHSTONEn • Overall compliance rates • Overall average Energy Star Score or by building type • Average EUI • Exemption request averages and types • Daily or monthly help center interacation rates The Touchstone team will work with Miami staff to configure the dashboard to meets your needs. Help Center Communication Tracking The proposed solution also includes a robust help center communication tracking tool. This tool allows help center staff to track phone interactions with building owners as well as directly send, receive, and track emails received from building owners. The solution also includes the ability to setup pre -canned email templates that can be used by help center staff to respond to regularly received questions. These templates are saved within the system and can be quickly accessed, personalized as necessary, and then directly emailed from the solution. The system can also send and track compliance notifications that are emailed to building owners. Compliance and/or violation notices that are mailed via the postal service can be generated within the system and attached to each building record. Reporting The Touchstone IQ for Governments' system provides robust reporting functionality on all aspects of the collected data. This includes the ability to create custom reports with charts and graphics as well as exporting specific data metrics in Xcel or csv. Pre -developed reports are provided within the base system with the ability to create custom reports to meet Miami's needs. COPYRIGHT @2022 TOUCHSTONE IQ LLC 4 Scorecard Development and Distribution Touchstone will work with Miami staff to design a customized building owner scorecard design that can be automatically sent out to the individual building owners upon closing of the annual benchmarking data set. The scorecard format is based on pre - developed designs that can be customized and branded for Miami. The scorecard creation and data inputs will be automated through the Touchstone IQ for Governments' solution. Scorecards will be distributed through personalized emails, easily executed by the City staff within the software solution. A sample of data that can be presented in the scorecards include, but are not limited to: • Energy Star Score • EUI • How their building Energy Star Score and EUI compares to peers by o Building type o Size o Neighborhood, etc. • Savings potential (high level cost and payback information) • Energy efficiency program support materials (rebates, incentive programs, tax credits, etc.) TOUCHSTONEn ENERGY PERFORMANCE SCORECARD Scott's Liquid Gold Building %. DENVER Jan. -[TANI, n 1995 5560 Your Energy Star Score 43 Compared to average 0 This ,morale `v all bulMlnes neat to become 303: mare energy efficient This InuildIng used th,n last year $42,303 411-9227 NEXT STEPS Get Advk , Contad PACE Business bility arcl report -in, rcsults.dctcrminc how to find accuracy, your d nallloble rebate, xwwrt and REBATES XcelEnergy Assess 01.1I, a Quo li fi. 5ervim Pro,. to nicently ltleseVleo ive eethervrebsIte to Prescriptive. Rebates Custom Rebates EnerEy THANK YOU laiaila .rer tt raw BwIJ energy use W M1el7.a!' troTZT sldnrirsireovevwl is dl =se rivlueeopnari d r�. nJ�neiiea.e rlmn PACEi Upgrade Pe▪ troconm,sieni ,'nd,nes Please see xM1c,casrtc tar rc,..art details_ nfi+[a9,.nnm Ana 796n72n� ,.Nr Interval, MU!) ronr Oiannual sefalltr,td vri dew Le real. ',building Ine Irurn don 5CoLveiable[1aner p Redder County Partners Zara Clean Environment PrexnQtive Rebates uss In Rebate umbruty Ac sahmIna v endlna dolrar value b • and seernod era 6Y ~ Web Hosted Interactive Map Development Touchstone will provide Miami with a customized web -based interactive map presenting individual building performance metrics. The interactive map design allows users to view building compliance statistics, Energy Star rating, EUI, as well as compare buildings by size, type, location, and numerous other data points. This data is compiled year -over -year to provide historical comparison ability. COPYRIGHT @2022 TOUCHSTONE IQ LLC 5 %TOUCHSTONEn The map integrates directly with the Touchstone IQ for Governments' solution and updates automatically as new building reports are submitted. The map provides enhanced visuals, comparison capabilities, and reporting. ENERGIZE DENVER BENCHMARKING MAP gl rt DENVER E�vl"ohM1ry, • 10, ,:1,1,, . _ •7'•• • 16,•911,t0000" ". 1 Safeway• jar a• • f :3.1 t-se�.wa� 0.' • • ' • %a •""et . le ..` • • AY" ' A • • •e ',k ••tea •• i• .al HEALTHY BUILDINGS HEALTHY PEOPLE rl 11" VI 57%:�:;d ";"°"IAA �:o 4.5%2016 .._ EFFICIENT BUILDINGS COLLABORATIVE MAP ® ma SP1262: Skfin". S I Tv•, �aa Software System Setup and Integration Project Setup Touchstone proposes to start the project with a team kick-off meeting to introduce the Touchstone staff and obtain direct input from the City's team on the design and implementation of the software solution. The project kick-off meeting will focus on tackling the following key tasks: • Define staff roles • Outline project communication structure • Review software solution functionalities and data integration channels System Design - Discovery Sessions Touchstone will conduct a series of discovery sessions with the Miami team to identify the core data tracking and data presentation needs of the city team. This session will also include a discussion and review of the state of the covered building list, building owner data, and city data source integration points. Data Tracking and Presentation Functionality The data tracking and data presentation needs review will discuss items such as, but not limited to: 1) Current state of covered building list and owner data 2) The City's data presentation preferences 3) Building owner communication tracking design a. Email / outreach templates that can be configured in the software 4) Building owner scorecard options and designs COPYRIGHT @2022 TOUCHSTONE IQ LLC 6 % TOUCHSTONEQ 5) Building or program data to be tracked beyond information provided within the Portfolio Manager reports a. Performance verification reports, energy audits, EE retrofit data, etc. Deliverables Deliverables for the system design and configuration discussion sessions will include a comprehensive action report detailing: 1) Data tracking and presentation functionality specification document 2) Current and future data sources Software & Database Configuration Database Configuration Based on the discovery session input from the City's team, Touchstone's web / database development staff will configure the core Touchstone IQ for Governments' platform. This will include, but is not limited to: 1) Building data tracked 2) Dashboard configurations 3) Building contact information 4) Portfolio Manager automated report download configuration 5) Direct APIs and automated webforms a. i.e. online exemption request forms, API's to city data (when available) 6) Building Communication tracking configurations (email/phone) 7) Building performance metrics (audits, EE retrofit data) Data Upload Upon approval of the initial information layout and design, Touchstone will upload the final covered building list, contact information, and additional datapoints identified within the discovery sessions. The Touchstone web team will also configure the automated nightly download of the Energy Star Portfolio Manager data request report for the upcoming year's submissions. COPYRIGHT @2022 TOUCHSTONE IQ LLC 7 Building Owner Communication Design & Configuration Touchstone will work with the city's team to develop the content and design of the building owner communications facilitated through the software platform. Touchstone will facilitate a working session with the city team to review the various communication channels, their impact on building owners and the different potential functionalities. %TOUCHSTONEDQ Yaing [BE Building owner communication channels include: 1) Building owner automated email response a. Report approved, in process, denied, etc. 2) Building owner compliance notice emails and mailing templates 3) Standardized help center email templates 4) Building owner scorecard design and configuration Approved automated email responses will be input into the system to respond to activities such as submittal status, submittal errors, or approvals. This will also include standardized email templates that can be used by the help center staff when communicating with building owners. Touchstone will also upload the approved scorecard design/language for automated direct emailing functionality. City Team Account Setup Touchstone will setup user accounts for all Miami staff approved for access to the software platform. Touchstone will work with Miami's project manager to identify and configure the access and security level of each individual user. Testing and Refinement Once the software solution has been configured and the initial data upload has been completed and tested by the Touchstone team, we will provide an online demonstration of the system to Miami staff. We will then work with the City staff to discuss any feedback on the configuration or data aspects and the update the system accordingly. City staff will be able to provide direct feedback to our program manager as well as ongoing punch list items. We also use an online issues/resolution tracking tool, which the City staff will have access to through the testing and refinement phase. City Staff Training & Go Live Once all building data, automated email, and scorecard language have been uploaded and tested within the system, Touchstone will provide one in -person training as well as COPYRIGHT @2022 TOUCHSTONE IQ LLC 8 % TOUCHSTONE�Q additional web -based training session with City staff. We will also provide digital training manuals for both use of the system as well as help center process flows. As new functionalities are provided in the future, additional online trainings will be provided. Upon completion of testing and city staff training, Touchstone and Miami staff will execute the final system acceptance and begin accepting building owner reporting and help center administration use of the system. Ongoing Technical Support and Maintenance Touchstone will provide ongoing technical support and maintenance services. In addition to these services Touchstone will also support Miami in annual ongoing data update / upload activities such as: 1) Annually adding newly constructed buildings to the covered buildings list (list compiled by Miami staff) 2) Annually updating building ownership contact information from assessor data (list compiled by Miami staff) 3) Annual rollover of Portfolio Manager reporting links Help Center Program Design & Setup Project Setup Touchstone proposes to start the project with a team kick-off meeting to introduce the Touchstone staff and obtain direct input from the City's team on the design and implementation of the City's benchmarking ordinance. The project kick-off meeting will focus on tackling the following key tasks • Define staff roles • Outline project communication structure • Review the City's benchmarking ordinance and implementation details • Review and confirm project schedule • Define what constitutes success Program Design & Material Development The Touchstone I eam will begin this phase by developing program informational materials for outreach as well as building owner education. Templates for all of the following materials will be developed and then customized for city's program design. We recommend materials including, but not limited to: COPYRIGHT @2022 TOUCHSTONE IQ LLC 9 %TOUCHSTONEn • Informational website o Program overview o Step-by-step compliance instructions • Portfolio Manager details • Auto energy data upload integration with local utility • Details on alternative data collection processes for smaller utilities • How to report • Six -part YouTube series on how to report • Ordinance formal letters to building owners o 1st year will include physical postal letters o Following years will include digital letters, where email addresses are available • Email templates • Informational PowerPoint presentations for building owners o Coordination with EnergyStar staff and utilities, where possible • Training PowerPoint for local utility and energy efficiency consulting companies Touchstone can host this website, but we have found that it will be more effective if it is hosted on the City's own internal website. Touchstone is open to either option. If the website will be hosted by the City, our expectation is that Touchstone will develop all website content and that web development will be executed by the City. Touchstone will develop drafts for all of the aforementioned materials, which will be reviewed and approved by City staff for comment and approval. Communication Channel Setup The Touchstone Team will setup a Help Center to manage all communication and data tracking. We will setup a single 1-800 number to be directed to all Help Center staff. We also recommend setting up a single master email account as well as City branded individual emails for each Help Center staff member. Emails will be channeled through the Touchstone software using the master email address, but personal communication from individual Help Center staff may be preferred to provide better individual customer service. Training Manual and Process Flow Development Touchstone will develop process flows for all major activities that will be executed by Help Center staff. This may include, but are not limited to: • Data entry • When and how to respond to questions COPYRIGHT @2022 TOUCHSTONE IQ LLC 10 %TOUCHSTONEn • Customer question escalation procedures • Notification delivery procedures (approved, denied, missing data, exempt etc.) Touchstone will also develop an internal Help Center staff training manual and PowerPoint to address all aspects of the position including how to utilize the different process flow charts as well as the script language to be used during building owner interactions. Communication Script Development The Touchstone Team will develop email, direct letter, and call scripts for Help Center staff to utilize when communicating with building owners and managers. Script language and documents will be developed for, but not limited to, addressing the following building owner touch points. • Regularly received call questions o How do I use Portfolio Manager? o Where do I obtain by utility data? o How do I submit for certification? o Is there a penalty for not submitting? • Script for outgoing non-compliance phone calls o Address both missing data or missed deadline • Standardized email responses o Address similar questions as developed for phone calls • Define a process for escalating more complex questions to City staff Touchstone will develop draft scripts, which will be reviewed and approved by city staff. Building Owner Communication Design & Configuration Touchstone will work with the city's team to develop the content and design of the building owner communications facilitated through the software platform. Touchstone will facilitate a working session with the city team to review the various communication channels, their impact on building owners and the different potential functionalities. 6. Building owner communication channels include: 5) Building owner automated email response a. Report approved, in process, denied, etc. COPYRIGHT @2022 TOUCHSTONE IQ LLC 11 %TOUCHSTONEn 6) Building owner compliance notice emails and mailing templates 7) Standardized help center email templates 8) Building owner scorecard design and configuration Approved automated email responses will be input into the system to respond to activities such as submittal status, submittal errors, or approvals. This will also include standardized email templates that can be used by the Help Center staff when communicating with building owners. Help Center Administration Once the Help Center initial setup is complete, Touchstone will transition to live ongoing Help Center Administration. The Help Center will be staffed with trained sustainability / benchmarking consultants from 9:OOam - 5:OOpm, Monday through Friday. The Help Center will be regularly staffed by one sustainability consultant. Additional representatives will be added during peak periods, as needed. CD All phone calls and emails received through the Help Center will be answered directly or responded to within 24 hours. Communications received at the end of the day on Friday or over the weekend will be responded to on Monday, at the latest. Our Help Center staff will utilize screen sharing technology to easily identify submission issues and correct building owner problems in real-time. Our staff will also coordinate with local Utilities to facilitate auto utility data uploads, where possible. All building owner communications will be tracked through the software for both emails and phone calls. Help Center staff will have access to all past communication notes and emails to better assist building owners. Submission Management Help Center staff will receive, track, and manage all building owner compliance submissions. Submission approval, denial, and requests for additional information will be tracked by Help Center staff within the Touchstone software. Help Center staff will respond within three days to all building owner exemption requests. COPYRIGHT @2022 TOUCHSTONE IQ LLC 12 %TOUCHSTONEn Building Owner Data Updates Through the course of providing Help Center outreach and submission support, staff may receive updated building and/or owner data. Help Center staff will continually update the data tracking system to reflect this new data. For parcels with multiple qualifying buildings, Help Center staff will work with the City to assign new Benchmarking ID's for compliance tracking purposes. Training and Outreach Training Touchstone will provide both web -based and in -person trainings. Trainings will be both presentation and interactive help sessions to achieve the most effective results. We will deliver one in -person training per month for the three months prior to submission deadlines. We will look to coordinate, when possible, with representatives from Energy Star. Touchstone will also provide an online video training series customized for the City's reporting program. Compliance Outreach Help Center staff will perform Outreach activities to help educate building owners on compliance requirements. This will include email blasts and direct phone calls. We will support direct mailings through the development of content and building address lists. It is expected that the City will cover all costs associated with direct mail printing and postage. Direct outreach activities will include the following tasks. • Send two formal compliance reminder notices each year o Email and mail (mailer production and distribution costs to be covered by the City) • Send one formal violation reminder notice each year for non -compliant building owners o Email and mail (mailer production and distribution costs to be covered by the City) • After the compliance deadline, staff will call non -compliant building owners. o If deemed necessary, a 2nd round of non-compliance calls will be made to building owners who have yet to submit 2 months after the submittal deadline. Touchstone will target achieving a minimum compliance rate of 90%. COPYRIGHT @2022 TOUCHSTONE IQ LLC 13 Scorecard Development and Distribution Post the close of the reporting data request, Touchstone staff will manage the design and distribution of the annual building owner scorecard. This will include working with city staff on defining the scorecard metrics, building owner action items and recommendations. Scorecards will be distributed through personalized emails as pdf attachments. %TOUCHSTONEn ENERGY PERFORMANCE SCORECARD Scott's Liquid Gold Building DENVER an.-oec]O17 1995 Your Energy Star Score 43 Compared to average 1r 1 usa imam, higher than fnE �D.,aea+s bPek,, tebemmn This building used $42,303 Year End Reporting The Touchstone Team will provide end of year reporting detailing the results of the program. This will include compliance rate metrics; year -over -year energy, water and GHG savings estimates; call and email counts; and recommendations for improving the program design for the following year. Reporting will be provided in both Excel data metric and Word/PDF formats. Pricing and Fee Structure Touchstone proposes to perform the services outlined within the scope of work using initial setup fees and ongoing annual licensing and support service fees. The following table lists the fee structure based on an increasing number of buildings managed in the system over 4 years with two optional 2-year extensions. The Touchstone IQ for Governments software license for Year 1 (2022) is prorated for 6 months. The Annual Help Center Management services are prorated for 6 months to include only initial outreach/communication and basic help center support. • 2022 and 2023 (502 buildings) • 2024 (832 buildings) • 2025 and beyond (1746 buildings) COPYRIGHT @2022 TOUCHSTONE IQ LLC 14 no TOUCHSTONEn Fee Item Year 1 (2022) Fee Year 2 (2023) Fee Year 3 (2024) Fee Year 4 (2025) Fee Optional Optional Years 5-6 (2026-27) Annual Fee Years 7-8 (2027-28) Annual Fee Software Setup & License Software Setup and Integration (Includes 10% discount for software & Help Center dual contract) $58,500 Software License (Touchstone IQ for Governments' License) $10,000 $40,040 $46,640 $61,190 $61,190 $61,190 Public Disclosure Map Setup (One-time Fee) $10,500 Public Disclosure Map Annual License $6,500 $6,500 $6,500 $6,500 $6,500 $6,500 Sub Total $85,500 $46,540 $53,140 $67,690 $67,690 $67,690 Benchmarking Program Design and Help Center Management Program Design and Material Setup (Includes 10% discount for software & Help Center dual contract) $58,500 Annual Help Center Management (Includes 5% discount for each optional 2-year extension) $23,825 $47,650 $72,400 $133,490 $126,816 $120,141 Sub Total $82,325 $47,650 $72,400 $133,490 $126,816 $120,141 TOTAL $167,825 $94,190 $125,540 $201,180 $194,506 $187,831 1) Software setup & integration fees billed 50% at pro ect initiation & 50% at Go Live 2) Touchstone IQ for Governments' annual licensing fee invoiced at the initiation of the project and then on Jan 1st of each following year. The first -year license fee is prorated based on a Go Live date of July 1, 2022. 3) Program Design and Material Setup billed 50% at project initiation with the remaining 50% 3-months after project initiation 4) Annual Help Center Management fee invoiced on a time & material basis not to exceed the annual budget amount. COPYRIGHT @2022 TOUCHSTONE IQ LLC 15