SOCRATA ~ C150072 CITY OF TIGARD,OREGON-CONTRACT SUMMARY FORM
THIS FORMMUST ACCOMPANY EVER Y CONTRACT
Contract Title: SUBSCRIPTION TO SOFTWARE SERVICES_ Number: C Dom,
Conttactor SOCRATA Contract Total: $1.9,300
Canttact Overview.:Pro-tide softs>are setxices for public website that contains curretut budget informab.on in
a giaphic format.foi.Tigard citizens
Initil Risk Level: ❑ Extrem.c ❑ Hi;h ❑ Modeiate Q Loi,
Risk Reduction Steps:
Risk Comments.
Risk Signatute:
Contract 1\1anager: 'I'ob-4LaFrance F-.t: 2406 Department: Finance&IT
Tvpe. ❑ Purchase Agreement ❑ Personal Seivice Q General Service ❑ Public Improvement
❑
IGk ❑ Other: Start Date. 6/15/2015 End Date: 6/30/2018_
Quotes/Blds/PioposaL FIRMmoo- TT/ ORE
_Account String: Fund-Division-Account Work Order—Activity Tyne Amount
FY 2016 600-2000-54001 $6500
FY 2017 600-2000-54001 $6500
FY 2018 600-2000-54001. $6500
FY
FY
Approvals - LCRB Date:
Department Comments
Department Signature.
Purchasing Comments:
Purchasing Signature:
CltC Manager Comments:
Citi-Manager Signature:
After securing all required approvals,forward original copy to the Contracting and Purchasing Office along with a
completed Contract Checklist.
C
WO4
CITY OF TIGARD,OREGON
PURCHASE AGREEMENT FOR
SUBSCRIPTION TO SOFTWARE SERVICES—OPEN BUDGET
THIS AGREEMENT made and entered into this 15"' day of June, 2015 by and between the City of
Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and Socrata, Inc.
hereinafter called Seller,collectively hereinafter called the"Parties."
RECITALS
WHEREAS, Seller has submitted a bid or proposal to City for subscription access to certain
software; and
WHEREAS, Seller is in the business of providing certain software sen-ices and is aware of the
purposes for which City will use the software;and
WHEREAS, City and Seller wish to enter into a contract under which City shall subscribe to the
software as described in Seller's bid or proposal;
THEREFORE,The Parties agree as follows:
1. GOODS TO BE PROVIDED
City shall purchase a subscription to software services from Seller in accordance with:
A. The scope of ser`ices (including any addenda) attached hereto as Exhibit A and
incorporated herein by this reference;
B. The Seller's proposal dated Nlay 27, 2015 which was accepted by City and is attached
hereto as Exhibit B and incorporated by this reference;and
C. The City's Standard Terms and Conditions attached hereto as Exhibit C and
incorporated by this reference.
2. EFFECTIVE DATE AND DURATION
This Agreement shall become effective upon the date of execution by the City's Local Contract
Review Board and shall expire, unless otherwise terminated or extended on June 30, 2018. All
goods under this Agreement shall be delivered and completed prior to the expiration of this
Agreement.
3. COMPENSATION
A. City hereby agrees to pay Seller Nineteen Thousand Five Hundred and No/100 Dollars
($19,500.00)for the goods, including shipping and handling, billable in three (3)
installments of $6,500.00 each annually in advance at the commencement of each
subscription period from 2015-2018. The total purchase price shall be considered
payment for all Sellers' obligations described in this agreement. Seller shall invoice City
the purchase price annually in advance upon the commencement of the subscription of
the goods. City shall have thirty (30) days after receipt of invoice in which to make
payment. Seller shall be responsible for the payment of all taxes associated with the sale
of the goods. City is exempt from the payment of Federal Excise Tax. Seller may
charge monthly interest at the maximum amount permitted by law, on late payment of
undisputed amounts and may suspend all or a portion of the Services with five (5) day's
prior written notice to City in the event of non-payment of undisputed amounts.
B. Seller shall promptly advise City in the same manner as it does its City base of all
reasonably available technological advances that are known or become known to Seller
while this agreement is in effect which may result in the goods having added value,
capacity, or usefulness when used for City's purpose. If Seller intends to provide goods
incorporating technological advances and still meeting the specifications and the City's
needs at no additional charge, Seller shall provide City with prior notice of the proposed
change in accordance with its standard operating procedures..
C. The City certifies that sufficient funds are available and authorized for expenditure to
finance costs of this contract during the City's 2015-2016 fiscal year. Funding for future
fiscal years shall be subject to the adoption of the budget by the Tigard City Council.
4. ASSIGNMENT/DELEGATION
Neither party shall assign or transfer any interest in or duty under this Agreement without the
written consent of the other and any attempted assignment or transfer without the written
consent of the other party shall be invalid.
5. SUBMITTING BILLS AND MAKING PAYMENTS
All notices and bills shall be made in writing and may be given by personal delivery,mail or fax.
Payments may be made by personal delivery, mail, or electronic transfer. The following
addresses shall be used to transmit notices,bills,payments,and other information:
CITY OF TIGARD SOCRATA,INC.
Attn: Toby LaFrance,FIS Director Attn: Legal
Address: 13125 SW Hall Blvd. Address: 83 South King Street,Suite 107
Tigard, Oregon 97223 Seattle,WA 98104
Phone: 503) 639-2406 Phone: 206) 340-8008
Email: tobv ti rd-or. ov Email: contracts@socrata.com
6. TERMINATION
City has the right, in its sole discretion, to terminate without cause or for no cause, to
termination this Agreement at any time by giving 30 days'prior written notice to Seller. If City
terminates the contract pursuant to this section, it shall pay Seller for goods shipped by Seller
prior to receipt by Seller of the notice of termination. City may deduct the amount of damages,
if any, sustained by City due to any uncured breach of contract or warranty by Seller. Damages
for breach of contract or warrants- shall be those allowed by Oregon law, reasonable and
necessary attorney fees,witness fees (expert and non-expert),and other costs of litigation at trial
and on appeal. Notwithstanding the foregoing, all subscription fees for goods paid under this
agreement are payable annually in advance and are non-refundable for termination without
cause or for no cause of annualized subscriptions.
7. ACCESS TO RECORDS
City shall have access to such books, documents, papers and records of Seller as are directly
pertinent to this Agreement for the purpose of making audit, examination, excerpts and
transcripts for a period required by law.
8. FORCE MMEURE
Neither City nor Seller shall be considered in default because of any delays in completion and
responsibilities hereunder due to causes beyond the control and without fault or negligence on
the part of the parties so disenabled, including but not restricted to, natural disaster, war, civil
unrest,volcano,earthquake, fire, flood, epidemic,quarantine restriction,area-wide strike, freight
embargo,unusually severe weather or delay of subseller or supplies due to such cause;provided
that the parties so disenabled shall within ten (10) days from the beginning of such delay,notify
the other party in writing of the cause of delay and its probable extent. Such notification shall
not be the basis for a claim for additional compensation. Each party shall, however, make all
reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon
cessation of the cause,diligently pursue performance of its obligation under the.agreement.
9. NON-DISCRIMINATION
Seller agrees to comply with all applicable requirements of federal and state civil rights and
rehabilitation statues, rules, and regulations. Seller also shall comply with the Americans with
Disabilities Act of 1990, ORS 659.425, and all regulations and administrative rules established
pursuant to those laws.
10. WARRANTY AGAINST DEFECTS
Seller warrants that the goods shall conform to the specifications under Exhibit A for the
duration of the subscription term Such defects shall include any failure of the goods to meet
Seller's specifications or the description contained in Exhibit A. If within the warranty
period City discovers such a defect, Seller shall repair or replace the defective item or
component to conform to the specifications free of charge. If after three attempts Seller is
unable to eliminate a defect, or if Seller does not commence the warranty work within the
time allowed in this paragraph, City shall have the right to terminate the subscription. Seller
shall commence all warranty work within 48 hours of receiving notice of the warranty claim,
or as otherwise mutually agreed to by the parties.
11. INTELLECTUAL PROPERTY WARRANTY
Seller warrants that to the best of its knowledge and as of the date of this agreement,none of
the goods, the use thereof or any of the applications, processes or designs employed in the
manufacture thereof infringes the valid claims of any letter patent, patent application,
copyright,trade secret or any other property right of any third party.
12. SUPPORT AND MAINTENANCE SERVICES
Basic Support is provided by Seller under http://support.socrata.cotn/home and Seller shall
be available via email at su _port a,socrata.com. Enhanced or premium support may be
purchased as set forth under a Services Order, and is subject to additional fees. Seller
encourages the City to sign up for updates at our status site at .http://status.soctata-cotn.
This provides information on planned maintenance window and statuses and updates if
there are any critical or medium issues in flight. Seller regularly upgrades and updates the
Services. This means that the Services are continually evolving. Some of these changes will
occur automatically, while others may require City to schedule and implement the changes.
The changes may also mean that the City needs to upgrade its equipment in order to make
efficient use of the Services. Seller shall provide City with advance notification in this case.
13. INDEMNITYMOLD HARMLESS
Seller ("Indemnifying Party") agrees to, and shall, indemnify- and defend the City and its
directors, officers,agents, employees, successors and assigns (the "Indemnified Party', from
any and all third party claims, suits, proceedings, judgments, damages and costs (including
reasonable attorneys' fees and expenses) arising from or directly related to (i) the Services as
to infringement of a patent, trademark or copyright, and (ii) physical property damage or
bodily injury-due to negligence of Indemnifying Party.
The Indemnified Party-must notify the Indemnifying Party promptly in writing of any claim
and provide the Indemnifying Party all authority-, information and assistance, at the
Indemnifying Patty's expense, reasonably- necessary to defend or settle such claim. The
Indemnifying Party shall bear full responsibility for the defense of such claim (including any
settlements); provided, however, that (a) the Indemnified Party shall be kept informed on a
regular basis by the Indemnifying Party as to the status of any such claim, (b) any settlement
that contains a stipulation to or acknowledgement of wrongdoing or requires any specific
performance or other non-pecuniary remedy shall require the written consent of the
Indemnified Party (which shall not be unreasonably withheld or delayed) and (c) the
Indemnified Party shall have the right to participate in the defense of a claim at its own
expense.
Indemnifier's duty to indemnify shall not apply to the extent that such a claim is based on (a)
unauthorized modifications to the Service if the Service without such modifications would
not give rise to such claim, (b) representations, warranties or other statements made by
Indemnitee but not specifically authorized by Indemnifier herein or otherwise in writing, (c)
use of the Service in combination with any other products, services, applications or activities,
if the use of the Service alone would not give rise to such claim, (d) use of the Service in a
manner inconsistent with the Documentation or in a manner not authorized under this
Agreement, (e) use or marketing of the Service in a manner inconsistent with any applicable
law, rule or regulation, (f) the gross negligence or willful misconduct of Indemnitee, (g) if
and to the fullest extent the Services contains,uses, or references any Open Source software,
component, or other third-party Open Source materials.
Notwithstanding the foregoing, if the Services become, or in the opinion of Indemnifier's
may become, the subject of a claim of infringement, Indemnifier's may at its sole discretion,
(i) procure for City the right to use the Services free of any liability, (ii) replace or modify the
Services with functionally equivalent services to make its use non-infringing or, (iii) if neither
of these alternatives is commercially reasonable, terminate the Agreement and pay City a
prorated portion of any fees paid in advance by City (based on the remaining portion of
Services period for which such fees were paid). THIS SECTION 13 STATES THE SOLE
AND EXCLUSIVE LIABILITY OF EACH PARTY FOR ANY INFRINGEMENT OF
THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
14. INSURANCE
Contractor and its subcontractors shall maintain insurance acceptable to City in full force and
effect throughout the term of this contract. Such insurance shall cover allrisks arising directly
or indirectly out of Contractor's activities or work hereunder, including the operations of its
subcontractors of any tier.
The policy or policies of insurance maintained by the Contractor and its subcontractor shall
provide at least the following limits and coverages:
A. Commercial General Liability- Insurance: If Seller will be installing or testing the goods,
or otherwise performing services on City's premises, Seller shall provide a certificate
indicating that Seller has commercial general liability= insurance covering Bodily Injury
and Property Damage on an "occurrence" form (CG 2010 1185 or equivalent). This
coverage shall include Contractual Liability insurance. Coverage will include $2,000,000
per occurrence and $3,000,000 general annual aggregate. Said insurance shall name City
as an additional insured and shall require Contractor to provide written notice to City
thirty (30) days prior to cancellation. If Seller hires a subseller to perform services on
City's premises, Seller shall ensure that Seller's subseller complies with this paragraph.
B. Business Automobile Liability Insurance: If Seller will be delivering the goods, Seller
shall provide City a certificate indicating that Seller has business automobile liability
coverage for all owned, hired, and non-owned vehicles. The Combined Single Limit per
occurrence shall not be less than $2,000,000. Said insurance shall name City as an
additional insured and shall require written notice to City thirty (30) days in advance of
cancellation. If Seller hires a carrier to make delivery, Seller shall ensure that said carrier
complies with this paragraph.
C. Workers' Compensation Insurance: The Seller, its subsellers, if any, and all employers
providing work, labor or materials under this Contract that are either subject employers
under the Oregon Workers' Compensation Law and shall comply with ORS 656.017,
which requires them to provide workers' compensation coverage that satisfies Oregon
law for all their subject workers or employers that are exempt under ORS 656.126. Out-
of-state employers must provide Oregon workers' compensation coverage for their
workers who work at a single location within Oregon for more than 30 days in a
calendar year. Sellers who perform work without the assistance or labor of any
employee need not obtain such coverage. This shall include Employer's Liability
Insurance with coverage limits of not less than $500,000 each accident.
D. Certificates of Insurance: As evidence of the insurance coverage required by the
contract, the Seller shall furnish a Certificate of Insurance to the City. No contract shall
be effected until the required certificates have been received and approved by the City.
The certificate will specify and document all provisions within this contract.
15. ATTORNEY'S FEES
In case suit or action is instituted to enforce the provisions of this contract, the parties agree
that the losing party shall pay such sum as the court may adjudge reasonable attorney fees and
court costs, including witness fees (expert and non-expert), attorney's fees and court costs on
appeal.
16. COMPLIANCE WITH STATE AND FEDERAL LAWS/RULES
Seller shall comply with all applicable federal, state and local laws, rules and regulations,
including, but not limited to, the requirements concerning working hours, overtime, medical
care, workers compensation insurance, health care payments, payments to employees and
subsellers and income tax withholding contained in ORS Chapter 279, the provisions of
which are hereby made a part of this agreement.
17. CONFLICT BETWEEN TERMS
It is further expressly agreed by and between the parties hereto that should there be any conflict
between the terms of this instrument in the proposal of the contract, this instrument shall
control and nothing herein shall be considered as an acceptance of the terms of proposal
conflicting herewith.
18. SEVERABILITY
In the event any provision or portion of this Agreement is held to be unenforceable or invalid
by any court of competent jurisdiction, the validity of the remaining terms and provisions shall
not be affected to the extent that it did not materially affect the intent of the parties when they
entered into the agreement.
19. GOVERNING LAW
This agreement shall be governed and construed in accordance with the laws of the State of
Oregon, v ithout resort to any jurisdiction's conflict of laws,rules, or doctrines. Any claim,
action, suit, or proceeding (collectively, "the Claim") between the City and the Contractor
that arises from or relates to this agreement shall be brought and conducted solely- and
exclusively within the Circuit Court of Washington County for the State of Oregon.
Provided, however, if the claim must be brought in a federal forum, then it shall be
brought and conducted solely and exclusively within the Portland office of the United States
District Court for the District of Oregon. Contractor hereby consents to the in personate
jurisdiction of said courts.
20. COMPLETE AGREEMENT
This Agreement,including the exhibits,is intended both as a final expression of the Agreement
between the parties and as a complete and exclusive statement of the terms. In the event of an
inconsistency between a provision in the main body of the Agreement and a provision in the
Exhibit, the provision in the main body of the Agreement shall control. In the event of an
inconsistency between Exhibit A and any other exhibit,Exhibit A shall control. In the event of
an inconsistency between Exhibit C and Exhibit B, Exhibit B shall control. The pre-printed
terms and conditions included as part of any purchase order or other standard or form
issued by City for purchases under this agreement that are in conflict with this agreement are
of no force and effect, even if such form is accepted by Contractor, inclusive of those
contained in Exhibit C. No modification of this Agreement shall be effective unless and until
it is made in writing and signed by both patties. No waiver,consent,modification,or change of
terms of this Agreement shall bind either party unless in writing and signed by both parties.
Such waiver, consent, modification, or change if made, shall be effective only in specific
instances and for the specific purpose given. There are no understandings, agreements, or
representations, oral or written, not specified herein regarding this Agreement. Seller, by the
signature of its authorized representative, hereby acknowledges that Seller has read this
Agreement,understands it and agrees to be bound by its terms and conditions.
IN FITNESS WHEREOF, City has caused this Agreement to be executed by its duly authorized
undersigned officer and Seller has executed this Agreement on the date hereinabove first written
CITY OF TIGARD SOCRATA,INC.
-Ti-el � 40��n av "444--1
By:Au zed City Representative By: Authorized Contractor 14resentative
C f P/ I S V—Wt
Date Date
EXHIBIT A
SCOPE OF SERVICES
Socrata Open Data Arps
These apps are ready-to-deploy consumer apps that are purpose built for specific high-value
datasets.
• Open Budget: A ready-to-deploy app that allows citizens to explore their government's
budget, along every step of the process, and at every le--el of the allocation hierarchy. Users,
with and without budget data expertise, are able to understand how the budget impacts their
interests and their neighborhood, via an intuitive and location-aware UX. For use with
Socrata Open Data Portal and as part of the Socrata Financial Transparency Suite of apps
that used together,provide an end-to-end view of the flow of public money.
Seller Professional Services Descriptions
Application Launch Package
For each of the applications:
• Creation of project charter including goals for go-live
• App Activation
• (1) Kickoff Call and weekly followup meetings through launch date
• DNS setup
• Administrative training on the app including content management
• Training and education on the app and on the data schema including supporting
documentation
• Training and education on data ingress and our toolset,including DataSyncTM
• Data integration services within scope of total hours budgeted
Total professional services hours not to exceed 15 hours in aggregate among Seller's staff
EXHIBIT B
SELLER'S PROPOSAL
Order Form For: City of Tigard, OR
Billing Contact
Socrata, Inc.
83 S. King St, Suite 107
Seattle,WA 98104
Phone: (206) 340-8008
Email: inonzerrat.morales@socrata.com
Customer Contact
Toby LaFrance
13125 SW Hall Blvd.
Tigard, OR 97223
Product
App-OB Open Budget 3 years $6,500 $6,500 $6,500
PS-Apps Apps Launch Package Included Included Included
All values quoted in USD Sub-Total: $6,500
Pricing is valid until:NFAMM at 5:00pm PST
Standard Conditions:
1. By signing this Order Form,you are offering to purchase the products and services listed above.
Your offer to purchase becomes a binding commitment upon acceptance by Socrata, and is not
subject to the issuance of any further purchase orders, confirmations or other events. Socrata
Products and Services descriptions can be viewed in Exhibit A.
2. The shipping address listed above will be used to determine the appropriate taxing jurisdiction
of the products and services purchased.
3. Special conditions override standard conditions in the event of an inconsistency.
Special Conditions:
1. The City of Tigard has the opportunity to purchase CrimeStat (Service Connect for Crime Data)
within 30 days of contractual agreement at a strategic price of$3500 for the first year.
EXHIBIT C
CITY OF TIGARD,OREGON
GENERAL TERMS&CONDITIONS FOR THE PURCHASE OF SUPPLIES AND/OR
SERVICES
1. DEFINITIONS: 'Contract'shall mean the entire written agreement between the Parties,including but not limited to any
Invitation to Bid,Request for Proposal,or submitted quote and its specifications,terms,conditions,solicitation instructions,
addenda,contract amendments,price agreement documents,and purchase order.
`Contractor' shall mean a person or organization with which the Citv of Tigard has contracted for the purchase of
goods or services. The terms `Contractor' and `Seller' are synonymous as used in the Uniform Commercial code
(Oregon Revised Statute(ORS)chapter 72).
`City'means the City of Tigard,Oregon and is synonymous with`Buyer'as used in ORS chapter 12. `City'shall also
mean an Oregon Cooperative Procurement Program (ORCPP) member if the purchase is being made under the
State's cooperative purchasing program as authorized by ORS 279A and Tigard's Public Contracting Rules.
`Parties'shall collectively mean the`City'and the`Contractor'.
2. ACCEPTANCE OF CONTRACT: This Contract is the City's offer to purchase the goods and/or services
described herein from the Contractor. The City's placement of this Contract is expressly conditioned upon
Contractor's acceptance of all the terms and conditions of purchase contained on or attached to this Contract.
3. WORKERS'COMPENSATION: The Contractor,its subcontractors,and all employers providing work,labor,or
materials under this Contract are subject employers under the Oregon Workers' Compensation Law and shall
comply with ORS 656.017,which requires them to provide Oregon Workers'Compensation coverage that satisfies
Oregon law for all their subject workers. Contractor shall also comply with ORS 279B.230 regarding payment for
medical care.
4. STANDARD AND SPECIAL TERMS AND CONDITIONS: The terms and conditions printed on this page are
standard to City contracts for the purchase of goods or trade services. There may also be special terms and
conditions detailed in an Invitation to Bid,Request for Proposals, Quote Request,or other documents which may
apply to this contract,and which are incorporated by this reference herein.
5. DELIVERY: All deliveries shall be F.O.B. destination with all transportation and handling charges paid by
Contractor unless specified otherwise in the Contract. Responsibility and liability for loss or damage shall remain
with Contractor until final inspection and acceptance when responsibility shall pass to the City except as to latent
defects,fraud,and Contractor's warranty obligations.
6. INSPECTIONS: Goods furnished under this Contract shall be subject to inspection and test by the City at times
and place determined by the City. If the City finds goods furnished to be incomplete or not in compliance with
solicitation specifications, the City may reject the goods and require Contractor to either correct them without
charge or deliver them at a reduced price,whichever is equitable under the circumstances. If Contractor is unable
or refuses to cure any defects within a time deemed reasonable by the City, the City may reject the goods and
cancel the contract in whole or in part. Nothing in this paragraph shall in any way affect or limit the City's rights as
Buyer,including the rights and remedies relating to rejection under ORS 72.6020 and revocation of acceptance
under ORS 72.6080.
7. WARRANTIES: Unless otherwise stated,all goods shall be new and current model and shall carry full manufacturer
warranties. Contractor warrants all goods delivered to be free from defects in labor,material and manufacture and
to be in compliance with solicitation specifications. All implied and expressed warranty provisions of the Uniform
Commercial Code (ORS chapter 72) are incorporated in this contract. All warranties shall run to the City.
Contractor warrants that the material and/or equipment furnished do not infringe any patent registered trademark or
copyright,and agrees to save,hold harmless,and indemnify the City in the event of any claim of infringement.
8. CASH DISCOUNT: If the City is entitled to a cash discount,the period of computation shall commence on the
date the entire order is delivered or the date the invoice is received,whichever is later.
9. PAYMENT: Payment for completion of City contracts is typically made within 30 days following the date the entire
order is delivered or the date the invoice is received,whichever is later.
10. TERMINATION: This Contract may be terminated by mutual consent of both parties or by the City at its sole
discretion. The City may cancel an order for goods at any time with written notice to Contractor, stating the
extent and effective date of termination. Upon receipt of this written notice, Contractor shall stop
performance under this Contract as directed by the City.If this Contract is so terminated,Contractor shall be paid
in accordance with the terms of the Contract for goods delivered and accepted if Contractor's damages arising out of
return of the goods cannot be mitigated by the resale as provided in the Uniform Commercial Code (ORS
72. 060).
11. FORCE MAJEURE: Neither City nor Contractor shall be held responsible for delay or default caused by fire,riot,
acts of God and/or war,which is beyond the Party's reasonable control. The City maJ terminate this contract
upon written notice after determining such delay or default will reasonably prevent successful performance
of this Contract.
12. BREACH OF CONTRACT: Should Contractor breach any of the provisions of this Contract,the City reserves the
right to cancel this Contract upon written notice to Contractor. Contractor shall be liable for any and all damages
suffered by the City as the result of Contractor's breach of Contract including but not limited to incidental and
consequential damages, as provided in ORS 72.7110 to 72.7170. In the event of repeated breach of public
and/or private contracts, Contractor shall be subject to disqualification for City contracts, as provided in
ORS chapter 279B and Tigard's Public Contracting Rules.
13. INDEMNIFICATION: Contractor agrees to defend,indemnify, and hold harmless City, City's officers,employees,
agents,and representatives from and against all liability,claims,demands,judgments,penalties,and causes of action of
any kind or character,or other costs or expensed incidental to the investigation and defense thereof,of whatever nature,
resulting from or arising out of the activities of the Contractor or is subcontractors, agents, or employees under this
Contract,except,however,that the foregoing shall not apply to liability that arises out of City's negligence.
14. ACCESS TO RECORDS: Contractor shall maintain all fiscal records relating to this Contract in accordance with
generally accepted accounting principles and shall maintain any other records relating to this Contract in such a
manner as to clearly document Contractor's performance hereunder. The City and its duly authorized
representatives shall have access to such fiscal records and to all other books,documents,papers,plans and writings
of Contractor which relate to this Contract,to perform examination,and audits and make excerpts and transcripts.
15. AMENDMENTS: The terms of this contract shall not be waived,altered, modified, supplemented or amended in
any manner whatsoever without prior written approval of the City.
16. SEVERABILITY: Nothing contained herein shall be construed to require the commission of any act contrary to law,and
wherever there is an;T conflict between the provisions contained herein and any present or future statute,law,ordinance or
regulation contrary to which to the parties have no legal right to contract, the latter shall prevail. The provision of this
Contract,which is affected,shall be curtailed and limited only to the extent necessary to bring it within the requirement of the
law.
17. WAIVER: Failure of the City to enforce any provision of this Contract shall not be a waiver or relinquishment by the
City of its right to such performance in the future not of the right to enforce any other provisions of this
Contract.
18. GOVERNING LAW;JURISDICTION,VENUE: This Contract shall be governed and construed in accordance
with the laws of the State of Oregon,without resort to any jurisdiction's conflict of laws,rules,or doctrines. Any
claim, action, suit, or proceeding (collectively, "the Claim") between the City and the Contractor that arises
from or relates to this Contract shall be brought and conducted solely and exclusiT-ely within the Circuit
Court of Washington County for the State of Oregon. Provided, however, if the claim must be brought in a
federal forum, then it shall be brought and conducted solely and exclusively within the Portland office of the
United States District Court for the District of Oregon. Contractor hereby consents to the in personam jurisdiction
of said courts.
19. ASSIGNMENT/SUBCONTRACT/SUCCESSORS: The Contractor shall not assign or subcontract any of its rights
or obligations hereunder without the prior written approval of the City. Any unapproved assignment shall be void.
Contractor shall be fully responsible for the acts or omissions of any subcontractors and all persons employed by them,and
neither the approval by City of any subcontract nor anything contained herein shall be deemed to create any contractual
relation between the subcontractor and the City. The provisions of this Contract shall be binding upon,and shall inure
to the benefit of,the Parties to the Contract and their respective successors and assigns.
20. COMPLIANCE WITH APPLICABLE LAWS: Contractor shall comply with all federal, state and local laws,codes,
regulations and ordinances applicable to the provision of goods under this contract,including,without limitation,the
provisions of ORS 279C.505,279C.515,and 279B.235,as set forth below and the provisions of.(i) Title VI of the
Civil Rights Act of 1964; (ii) Section V of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities
Act of 1990 (Pub L No 101- 336). ORS 659.425, and all amendments of and regulations and administrative rules
established pursuant to those laws; and (iv) all other applicable requirements of federal and state civil rights and
rehabilitation statutes,rules and regulations.
21. PAYMENTS REQUIRED BY ORS 279C.505 AND 279B.220: For all goods provided under this Contract,
Contractor shall(i)pay promptly,as due,all persons supplying labor or material;(u)pay all contributions or amounts due
the Industrial Accident Fund from the Contractor or any subcontractor; (iii) not permit ani lien or claim to be filed
or prosecuted against the state, county, school district, municipality,municipal corporation or subdivision thereof;
and(iv)pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167.
22. CITY PAYMENT OF CONTRACTOR CLAIMS: If Contractor fails,neglects, or refuses to pay promptly as due,
any claim for labor or services furnished to the Contractor or any subcontractor by any person in connection with
the goods provided under this Contract, the City may pay such claim and charge the amount of the payment
against funds due or to become due the Contractor under this Contract. The pa-ment of a claim by the City pursuant
to paragraph 21 shall not relieve the Contractor or its surety, if any, from obligation with respect to any unpaid
claims.
23. HOURS OF LABOR: No person shall be employed by the Contractor for more than ten hours in any one
day, or 40 hours in any one week, except in cases of necessity, emergency, or where public policy
absolutely requires it, and in such cases the laborer shall be paid at least time-and-a-half pay
for all overtime in excess of ten hours a day and for work performed on Saturday and on the legal
holidays,including each Sunday,as specified in ORS 27913.020 and 279C.540.
24. SAFETY AND HEALTH REQUIREMENTS: Goods and services provided under this Contract shall comply
with all federal Occupational Safety and Health Administration (OSHA) requirements and with all Oregon
safevy and health requirements,including those of the State Workers'Compensation Division.
25. AWARD TO FOREIGN CONTRACTOR: If Contractor is not domiciled in or registered to do business in the
State of Oregon, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of
State Corporation Division all information required by those agencies relative to this contract. The Cit; shall
withhold final payment under this contract until Contractor has met this requirement.
26. RECYCLABLE PRODUCTS: Contractor shall use recyclable products to the maximum extent economically
feasible in the performance of this Contract. Contractor shall specify the minimum percentage of recycled product in
the goods provided.
27. MATERIAL SAFETY DATA SHEET (MSDS): In accordance with the OR-OSHA Hazard Communication
Rules in OAR chapter 437, Contractor shall provide the City with a Material Safety Data Sheet for any goods
provided under this Contract which may release, or otherwise result in exposure to, a hazardous chemical under
normal conditions of use(OAR 437-002-0360). In addition,Contractor must label,tag or mark such goods.
28. LICENSEXERTIFICATION: The Contractor shall have a business license from the City and be EEO certified,
if required under City Code.
SCHEDULE 1 To AGREEMENT
This incorporates into the.agreement by reference the following Contractor's Terms of Use for the
Subscription Service.
1. City is granted only a nonexclusive right to use and access the Contractor service (Service) up to
the capacity purchased.
2. City is granted a limited, nonexclusive, non-sublicensable, non-transferable term license to
access and use the Service and the online Contractor software applications made available by
Contractor, if any, for use by City with the Service (Site Applications), including the right to
load, store and display City Content (defined below) on the Service.
3. City may not: operate or use the Service or the Site Applications on behalf of other entities or
persons (e.g., operate as a service bureau) other than as may be approved by Contractor;modify
or otherwise make any derivative uses of the Service or the Site supplications, or any portion
thereof; use of the Service or the Site Applications other than for their intended purposes; or
reverse engineer the Service.
4. City must use the Service and Site Applications in conformance with applicable laws, rules and
regulations including, without limitation, all applicable privacy laws. Any use of the Service and
the Site Applications other than as specifically authorized, vrithout the prior written permission
of Contractor,is prohibited and may result in Contractor terminating access.
5. Except for the rights expressly granted to the City, Contractor retains all of its intellectual
property rights in the Service and underlying software, and no rights, title or interest to the
underlying software are transferred to the City.
6. City must (i) maintain the security of City's password or key provided by Contractor to access
and load City Content on the Service; and (ii) accept all risks of unauthorized access to the City
Content or other information City provides to Contractor. City is responsible for all activity that
occurs under City's account,and City should not share password with any third party.
7. City may not upload any content: (i) that is unlawful, libelous, defamatory, obscene,
pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity
rights, abusive, inflammatory, fraudulent or otherwise objection; (ii) that would constitute,
encourage or provide instructions for a criminal offense, violate the rights of any party, or that
would otherwise create liability or violate any local, state, national or international law; or (iii)
that may infringe any patent, trademark, trade secret, copyright or other intellectual or
proprietary right of any party.
8. By posting any City Content, City represents and warrants to Contractor: (i) that it has the
lawful right to distribute and reproduce such City Content; (ii) that none of the City Content
impersonates any person or entity or otherwise misrepresents City's affiliation with a person or
entity; (iii) that none of the City Content is subject to any export control laws or
regulations; (iv) that there are no unsolicited promotions, political campaigning, advertising or
solicitations; (y) that the private information of any third party, including, without limitation,
addresses, phone numbers, email addresses, Social Security numbers and credit card numbers is
provided with the authorization of such third party; (vi)there are no viruses, corrupted data or
other harmful, disruptive or destructive files; and (vii) that the City Content that is not
objectionable or which may expose Contractor or the users to any harm or liability of any type.
9. During the term of this Agreement, City grants Contractor and its affiliates a nonexclusive,
royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt,
publish, translate, create derivative works from, distribute, analyze, perform and display City
Content on or in connection with the Service, for the provision of Services or to provide
services to users. Once City Content is provided, Contractor and user have a limited ability to
control or delete such content.
10. City grants Contractor and its affiliates and sublicensees the right to display and use City's name,
trademark and/or logos provided by City (City Marks) in connection with the City Content and
the Service. All goodwill associated with Contractor's use of the City Marks will inure to the
benefit of City and Contractor will comply with City's Trademark guidelines.
11. Contractor takes no responsibility and assumes no liability for any City Content or user content
posted, stored or uploaded to the Services by City or any third party. Contractor reserves the
right to remove any content or information if it violates the terms of this Agreement or
applicable law.
12. EXCEPT AS SET FORTH IN SECTION 10, 11 AND 12 OF THE AGREEMENT, THE
SERVICE AND THE SITE APPLICATIONS ARE PROVIDED ON AN "AS IS" BASIS
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.
CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-
INFRINGEMENT AS TO THE INFORMATION, CONTENT AND MATERIALS
WITHIN THE SERVICE. WHILE CONTRACTOR WILL ATTEMPT TO MAKE CITY'S
ACCESS AND USE OF THE Service and SITE .APPLICATIONS SAFE, CONTRACTOR
CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR
THE SITE APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS THAT ARE OUTSIDE CONTRACTOR'S REASONABLE CONTROL.
13. Contractor is not liable to the City for any indirect, consequential, incidental or special damages
(including without limitation, lost profits and lost data, information or content) arising out of
the use of the Service, regardless of the theory of liability (including negligence and strict
liability). IN NO EVENT WILL THE AGGREGATE LIABILITY OF CONTRACTOR,
WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE,
WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT
LIABILITY OR OTHER THEORY EXCEED ANY FEES CITY PAID TO
CONTRACTOR IN THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM
AROSE.
14. City will treat all non-public Contractor information as confidential, and may not disclose or use
that information for any purpose, other than for purposes of this Agreement. City must comply
with applicable export control laws.
15. City acknowledges and agrees that any materials City submits regarding the Service and the Site
Applications, including but not limited to questions, comments, suggestions,ideas, plans, notes,
drawings, original or creative materials or other information (Suggestions), are non-confidential
and will become the sole property of Contractor. Contractor will own all Suggestions, including
all intellectual property rights therein, and will be entitled to the unrestricted use and
dissemination of Suggestions for any purpose, commercial or otherwise, without
acknowledgment or compensation to City.
16. The Service and Site Applications are commercial products, developed at private expense, and
provided with restricted rights. Use, reproduction, release, modification or disclosure of the
Service and Site Applications, or any part thereof, including technical data, by the United States
Government is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian
agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military
agencies.
17. City Contentineans any datasets, discussion forums, and other interactive areas, features or
services which City creates, posts or stores or uploads to the Service, including, without
limitation, any content, messages, materials, data, datasets, data structures, spreadsheets, entries,
information, text,music, sound,photos,video,graphics, code or other items or materials.