HomeMy WebLinkAbout07-18-16 CC Mtg - C2. OpenCounter PSA for Business Licensing Software1
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Brit Fontenot, Economic Development Director Wendy Thomas, Community Development Director
SUBJECT: OpenCounter Software Contract
MEETING DATE: July 18, 2016
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Approve the City Manager’s signature on the attached Software Agreement with OpenCounter for the Zoning Check module for Business Licensing.
BACKGROUND: OpenCounter software is an interactive program that pulls information from the
Unified Development Code and GIS mapping information to create an interactive program that will
allow new or relocating businesses to easily determine where they can locate as a permitted or conditional use. Both Economic Development and Community Development have determined that
this program will be helpful in assisting businesses locating within the City of Bozeman. As the
business license program continues to evolve and improve, the utilization of technology to assist
business owners at an on-demand schedule will further enhance the City’s commitment to being “open
for business”.
The City Attorney and IT have both reviewed and approved the proposed agreement.
ALTERNATIVES: If the Commission chooses not to enter into an agreement with OpenCounter the
software will not be purchased.
FISCAL EFFECTS: Economic Development and Community Development included half of the
purchase of this software program in our FY 17 budgets. The cost of the program is $5,250.
Attachments: OpenCounter Master Service Agreement
Report compiled on: July 6, 2016
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OPENCOUNTER ENTERPRISES, INC.
MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement") is entered into as of ______________, 2016 (the
“Effective Date”) by and between Open Counter Enterprises, Inc., a Delaware corporation, with
principal offices at 25 Taylor Street, San Francisco CA, 94102 (“OpenCounter”) and the City of
Bozeman, Montana, a self governing municipal corporation organized and existing under its Charter and
the laws of the State of Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771-1230
(“City”).
Recitals
Whereas, City is an agency or division of state or local government, and wishes to be
supplied by OpenCounter with access to certain software-based services provided by City and
accessed via the Internet (as further described in an applicable Service Order, the “Hosted Service”) and
related professional services for its own use and that of persons and/or businesses applying for one or
more permits, the issuance of which is within the jurisdiction of City (“Permit Applicant(s)”); and
Whereas, OpenCounter is willing to provide to City Hosted Services and related professional
services pursuant to service orders entered into by the parties in a form substantially similar to that set
forth in Exhibit A hereto (“Statement of Work”), and subject to the terms and subject to the conditions
of this Agreement.
Now, therefore, in consideration of the foregoing and the mutual promises made herein,
the parties hereto, intending to be legally bound, agree as follows:
1. Hosted Service Implementation and Use
i. Implementation. OpenCounter shall use its commercially reasonable efforts to perform the
Implementation by the Implementation Target Date; provided, however, that City shall cooperate
with OpenCounter to carry out all tasks reasonably necessary for Implementation of the Hosted
Service, including without limitation providing to OpenCounter all City Content required for the
Implementation. OpenCounter shall consult with City and provide assistance as reasonably
necessary for City to carry out such tasks. OpenCounter shall notify City in writing when the
Hosted Service is available for access and use by City and Permit Applicants.
ii. Right to Use the Hosted Service. Upon completion of the Implementation, and in consideration of
all obligations of City hereunder, including, without limitation, the payment by City of any
applicable fees, OpenCounter hereby grants to City, during the Term of this Agreement, a non-
exclusive, non-transferable (except as otherwise provided for herein), right and license to access
and use the Hosted Service, and to make a reasonable number of copies of and use the
Documentation in connection with such use of the Hosted Service.
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OpenCounter + Bozeman, Montana Master Services Agreement 2
iii. Restrictions on Resale. The foregoing license does not permit City to, and City hereby agrees not to,
resell, relicense, re-syndicate or otherwise sublicense the Hosted Service to any third-party, except
as may be expressly set forth herein.
iv. Use of Hosted Service by Permit Applicants. OpenCounter hereby agrees to allow Permit
Applicants to use the Hosted Service, solely to the extent necessary to provide information to City
regarding applications for permits the issuance of which are within City’s jurisdiction, provided that
Permit Applicants shall be required to consent to OpenCounter’s Terms of Service presented to
Permit Applicants when they register with the Hosted Service (“Terms of Service”). City
understands and agrees that if any Permit Applicant declines to agree to the Terms of Service,
OpenCounter has no obligation to permit such Permit Applicant to access or use the Hosted Service
v. Use Restrictions. City shall not: (i) access and/or use the Hosted Service in order to design, create or
build a service or product that is competitive with the Hosted Service, or which uses ideas, features
or functions that are similar to the Hosted Service; (ii) license, sublicense, sell, resell, transfer,
assign, distribute or otherwise commercially exploit or make available to any third party the Hosted
Service, except as expressly permitted herein; (iii) modify or make derivative works based upon the
Hosted Service or any part thereof, or directly or indirectly disassemble, decompile, or otherwise
reverse engineer the Hosted Service or any portion thereof.
vi. Suspension of Access to Hosted Service. OpenCounter may suspend City’s access to the Hosted
Service at any time in order to: (i) prevent damages to, or degradation of, OpenCounter's network
integrity; (ii) comply with any law, regulation, court order, or other governmental request or order
which requires immediate action; or (iii) otherwise protect OpenCounter from potential legal
liability; provided, however, OpenCounter will use commercially reasonable efforts to provide City
with a minimum of five (5) business days’ prior written notice of any such suspension. In addition, if
City fails to pay, within ten (10) days of receiving written notice, when due any amounts owed
hereunder, OpenCounter may suspend City’s access to the Hosted Service. If suspended,
OpenCounter will promptly restore use of the Hosted Service to the City after the event giving rise
to the suspension has been resolved to OpenCounter’ reasonable satisfaction.
vii. Proprietary Rights. The Hosted Service, including all Intellectual Property Rights therein and
thereto, and any modification thereof, are and shall remain the exclusive property of OpenCounter.
City shall not take any action that jeopardizes the proprietary rights of OpenCounter or its licensors
or acquire any right in the Hosted Service or OpenCounter Confidential Information, except the
limited rights expressly granted in this Agreement.
viii. Internet and Telecommunications Connections. City shall be responsible for obtaining any and all
Internet and/or telecommunication connections used by City to access the Hosted Service.
OpenCounter shall have no responsibility or liability for any interruption or delay in accessing or
using the Hosted Service arising out of such Internet or telecommunications connections.
ix. Licenses to OpenCounter:
a) City Content. City hereby grants to OpenCounter a limited right and nonexclusive license,
without the right to grant or authorize sub-licenses, during the Term of this Agreement to use
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OpenCounter + Bozeman, Montana Master Services Agreement 3
and reproduce City Content, solely for the purpose of facilitating the performance of
OpenCounter’s obligations under this Agreement.
b) Data Captured by the Hosted Service. City agrees that, subject to OpenCounter’s
confidentiality obligations below, OpenCounter may aggregate data captured by the Hosted
Service in connection with the use of the Hosted Service by City and Permit Applicants
(“Captured Data”) with data captured by the Hosted Service from its use by other parties
(collectively, “Aggregated Data”).
c) City agrees that solely as part of the Aggregated Data, OpenCounter may use, reproduce,
distribute, prepare derivative works from the Captured Data, provided that under no
circumstances will OpenCounter use the Captured Data in a way that identifies City or
individual Permit Applicants as the source of the data. The license granted in this Section 1.9(c)
shall survive any termination or expiration of this Agreement.
x. City Data. In the event this Agreement expires or is terminated, OpenCounter will make available to
the City a file, in a format mutually agreed upon by the parties, within sixty (60) days of such
termination or expiration if the City so requests at the time of termination or expiration. Upon
termination for cause, OpenCounter shall have no obligation to maintain or to forward to City any
City Content after sixty (60 days) of the effective date of such termination.
2. Fees, Payments and Taxes
i. Fees. Fees for use of the Hosted Service and the provision of Professional Services are set forth in
Exhibit B, and unless otherwise set forth therein are due and payable within thirty (30) days of
receipt of an invoice by City.
ii. Past Due Accounts. Accounts that are past due will be subject to a monthly charge of one and one-
half percent (1.5%) per month, or the maximum rate permitted by the law, whichever is less.
iii. Suspension of Services for Nonpayment. After notification by OpenCounter to City, accounts more
than sixty (60) days past due will be subject to suspension of Support Services until payment is
received.
iv. Taxes. No taxes apply.
3. Term and Termination
i. Term. Unless earlier terminated by either party as hereinafter provided, this Agreement shall
commence upon the Effective Date and remain in effect for a minimum period of two (2) years, or
such longer period as may be set forth in the applicable Service Order. This Agreement may, upon
mutual written agreement, renew for consecutive one (1) year increments following the original
Term.
ii. Termination for Cause. Either party may terminate this Agreement for a breach by the other party
of any of its material terms, provided the non-breaching party provides to the breaching party thirty
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OpenCounter + Bozeman, Montana Master Services Agreement 4
(30) days written notice describing such breach and offering the breaching party an opportunity to
cure. Failure to cure a material breach within the notice period shall result in automatic termination
of this Agreement.
iii. Termination for Non-Appropriation. This Agreement will terminate without any penalty at the end of
any fiscal year in the event that funds are not appropriated for the following fiscal year.
4. Indemnification
i. Consultant agrees to indemnify, defend, and hold harmless the City, its officers, agents, and
employees from and against any and all claims, demands, actions, damages, or judgments,
including associated costs of investigation and defense arising in any manner from Consultant’s
negligence, recklessness, or willful misconduct in the performance of this agreement.
ii. Consultant agrees to indemnify, defend, and hold harmless the City, its officers, agents, and
employees from and against any and all third party claims, demands, actions, damages, or
judgments, including associated costs of investigation and defense, that OpenCounter’s
Professional Services or the Hosted Service infringe a third party’s Intellectual Property Rights.
iii. Insurance. OpenCounter shall at OpenCounter’s expense secure insurance coverage through an
insurance company or companies duly licensed and authorized to conduct insurance business
Montana which insures the liabilities and obligations specifically assumed by OpenCounter in this
section 4. The insurance coverage shall not contain any exclusion for liabilities specifically assumed
by OpenCounter in this Section. OpenCounter shall furnish to the City an accompanying certificate
of insurance and accompanying endorsements naming City as additional insured in amounts not
less than as follows:
a. Workers’ Compensation: statutory;
b. Commercial General Liability: $1,000,000 per claim; $2,000,000 annual aggregate;
c. Professional Liability: $1,000,000 per claim; $2,000,000 annual aggregate.
The City must approve all insurance coverage and endorsements prior to OpenCounter
commencing work.
5. Confidential Information
i. Restrictions on Use and Disclosure of Confidential Information. The parties agree to maintain the
confidentiality of each other’s Confidential Information and not use such information except in
furtherance of this Agreement during the term of the Agreement and for a period of three (3) years
after the termination of this Agreement.
ii. Exceptions. The parties agree that, unless required by law, they will not make each other’s
Confidential Information available in any form to any third party, or use each other’s Confidential
Information for any purpose other than the performance of this Agreement.
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OpenCounter + Bozeman, Montana Master Services Agreement 5
6. Representations, Warranties and Service Level Agreement
i. Mutual Warranties. Each party represents and warrants the following to the other party: (i) such
party has the full corporate right, power, and authority to enter into this Agreement, to perform the
acts required of it hereunder; (ii) the execution of this Agreement by such party, and the
performance by such party of its obligations and duties hereunder, do not and will not violate any
agreement to which such party is a party or by which it is otherwise bound; and (iii) when executed
and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of
such party, enforceable against such party in accordance with its terms. Each party warrants that it
will comply with all laws and regulations applicable to its provision, or use, of the Hosted Service.
ii. Service Level Agreement. The Hosted Services is subject to the Service Level Agreement, which
sets forth City’s exclusive remedy for any breach thereof. OpenCounter will provide 24-7 technical
support for the duration of the contract utilizing the following Service Level Agreement (SLA) for
remediation of errors / bugs and inconsistencies:
a. Critical: The defect affects critical functionality or critical data. It does not have a
workaround. Example: Unsuccessful installation, complete failure of a feature. A plan for full
resolution will be provided within twelve (12) hours of the notification.
b. Major: The defect affects major functionality or major data. It has a workaround but is not
obvious and is difficult. A plan for full resolution will be provided within one (1) business day
of the report.
c. Minor: The defect affects minor functionality or non-critical data. A plan for full resolution
will be provided within three (3) business days of the first report.
d. Trivial: The defect does not affect functionality or data. It does not even need a
workaround. It does not impact productivity or efficiency. It is merely an inconvenience.
Example: Petty layout discrepancies, spelling/grammatical errors. Full resolution will be
provided within three (3) business days of the first report.
iii. Security. OpenCounter will maintain industry-standard technical and organizational measures and
security controls intended to protect City Data against accidental loss or change, unauthorized
disclosure or access, or unlawful destruction. OpenCounter will conduct security assessments on
at least a yearly basis, and a report on the security assessment will be provided to City on request.
City Data will be stored at a data storage facility within the United States. Should OpenCounter
discover or reasonably believe unauthorized access to City Data has occurred, OpenCounter will
report to Customer any such unauthorized access, use or disclosure as soon as practicable, but in
no event more than one (1) business day after discovery. As soon as practicable after discovery
OpenCounter will provide City with the following information: the nature of the unauthorized
access, the City Data accessed, who accessed the City Data (if known), what OpenCounter has
done to mitigate any damage to City, and what corrective action OpenCounter plans to take to
prevent future unauthorized access.
iv. Uptime. OpenCounter will host and maintain the Service 24 hours per day, 7 days per week, and
365 days per year. OpenCounter will keep the Service available to its intended users (including,
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OpenCounter + Bozeman, Montana Master Services Agreement 6
without limitation, City and its end users) 99.99% of the time with the exception of scheduled
maintenance pre-approved by City (the “Uptime”).
v. Disclaimer of Warranties. THE WARRANTIES SET FORTH IN THIS SECTION STATE
OPENCOUNTER’S EXCLUSIVE WARRANTIES TO CITY AND ANY THIRD PARTY CONCERNING
THE HOSTED SERVICE AND ANY PROFESSIONAL SERVICES AND OPENCOUNTER’S ONLY
OBLIGATIONS, AND CITY’S EXCLUSIVE REMEDIES, FOR BREACH OF ANY SUCH WARRANTIES.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(iii), OPENCOUNTER MAKES NO, AND HEREBY
EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW)
ALL OTHER, WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, ARISING FROM COURSE OF
DEALING OR USAGE OF TRADE, OR STATUTE, AS TO THE HOSTED SERVICE, THE
PROFESSIONAL SERVICES OR ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
EXPRESSLY EXCLUDED. OPENCOUNTER DOES NOT WARRANT THAT CITY CONTENT INPUT
INTO THE HOSTED SERVICE BY OPENCOUNTER WILL BE ACCURATE OR FREE OF ERRORS, (THE
OPERATION OF THE HOSTED SERVICE WILL BE COMPLETELY SECURE, ERROR FREE OR
UNINTERRUPTED, OR ALL ERRORS WILL BE CORRECTED. CITY ASSUMES ALL RISK OF DELAYS
OR INTERRUPTIONS IN ACCESS TO OR USE OF THE HOSTED SERVICE RESULTING FROM USE
OF THE INTERNET AND/OR TELECOMMUNICATIONS TO ACCESS THE HOSTED SERVICE, AND
OPENCOUNTER SHALL HAVE NO LIABILITY FOR ANY SUCH DELAYS OR INTERRUPTION.
7. Limited Liability
i. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE
WHATSOEVER, OR FOR ANY COST OF COVER OR FOR COST OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT. SUCH LIMITATION ON DAMAGES INCLUDES, BUT IS NOT LIMITED TO, LOST
GOODWILL, LOST PROFITS, LOSS OF DATA OR SOFTWARE OR WORK STOPPAGE,
REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BROUGHT, EVEN IF A PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD
HAVE BEEN REASONABLY FORESEEN, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT. OPENCOUNTER’S
MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR ANY PRODUCT OR SERVICE, WHETHER BASED ON CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE
AMOUNT OF THE FEES CITY HAS PAID TO OPENCOUNTER UNDER THIS AGREEMENT IN THE
PREVIOUS TWELVE (12) MONTHS, AND IF SUCH DAMAGES RESULT FROM OR RELATE TO CITY’S
USE OR INABILITY TO USE THE HOSTED SERVICE, SUCH LIABILITY SHALL BE LIMITED TO THE
FEES PAID BY CITY FOR THE COMPONENT OF THE HOSTED SERVICE GIVING RISE TO THE
CLAIM IN THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE
CLAIM. OPENCOUNTER SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY DATA
PROVIDED BY CITY. UNDER NO CIRCUMSTANCES SHALL OPENCOUNTER HAVE ANY LIABILITY
OR RESPONSIBILITY FOR THE ACCURACY OF ANY CITY CONTENT THAT IS PUT INTO THE
HOSTED SERVICES, WHETHER INPUT BY CITY, PERMIT APPLICANTS OR OPENCOUNTER,
INCLUDING, WITHOUT LIMITATION, INACCURACIES IN CITY CONTENT INTRODUCED DURING
THE INPUT BY OPENCOUNTER OF SUCH CITY CONTENT INTO THE HOSTED SERVICE. THE
FOREGOING LIMITATION OF LIABILITY IS INDEPENDENT OF, AND SHALL NOT BE DEEMED TO
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OpenCounter + Bozeman, Montana Master Services Agreement 7
MODIFY OPENCOUNTER’S OBLIGATION UNDER, ANY EXCLUSIVE REMEDIES FOR BREACH OF
WARRANTY SET FORTH IN THIS AGREEMENT AND OPENCOUNTER’S INDEMNIFICATION
OBLIGATIONS IN SECTION 4.
8. Miscellaneous
i. Entire Agreement. This Agreement, together with any Exhibits completely and exclusively state the
entire agreement of the parties regarding its subject matter, and supersedes, and its terms govern,
all prior proposals, agreements, or other communications between the parties, oral or written,
regarding such subject matter.
ii. Assignment. Neither this Agreement nor any rights or obligations of City hereunder may be
assigned by City in whole or in part without the prior written consent of OpenCounter. Any
assignment in violation of this Section will be null and void. OpenCounter may assign this
Agreement in its entirety to a successor in interest in connection with a merger, acquisition or sale
of all or substantially all of its assets with the prior written consent of the City, which shall not be
unreasonably withheld.
iii. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the
performance of its obligations hereunder (except for the payment of money) on account of strikes,
shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action,
labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable
control of such party.
iv. Governing Law; Jurisdiction and Venue. This Agreement and all matters arising under or related to
its formation or performance whether sounding in contract, tort, or otherwise shall be governed in
all respects by the laws of the of the State of California, without reference to conflict of laws
principles and under the federal laws of the United States, as such may apply. If Federal jurisdiction
exists, the parties hereby consent to exclusive venue and jurisdiction in the Federal Courts of San
Francisco, California. If no Federal jurisdiction exists, the parties consent to exclusive venue and
jurisdiction in the State Courts of San Francisco, California.
v. Headings. The section headings appearing in this Agreement are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or extent of such section
or in any way affect this Agreement.
vi. Precedence of Terms. In the event of any conflict between the terms of this Agreement and the
terms of any purchase order or acknowledgement, the terms of this Agreement shall control.
Acceptance by OpenCounter of any purchase order placed by City is conditioned on City’s assent
to the terms set forth herein. OpenCounter’s fulfillment of any purchase order shall not imply
OpenCounter’s acceptance of any pre-printed terms on such purchase order. Any such conflicting
terms shall be of no force or effect.
vii. No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or
other form of joint enterprise between the parties.
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OpenCounter + Bozeman, Montana Master Services Agreement 8
viii. Nondiscrimination. OpenCounter will have a policy to provide equal employment opportunity in
accordance with all applicable state and federal anti-discrimination laws and regulations.
OpenCounter will not refuse employment to a person, bar a person from employment, or
discriminate against a person in compensation or in a term, condition, or privilege of employment
because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual
or perceived sexual orientation, gender identity, physical or mental disability, except when the
reasonable demands of the position require an age, physical, or mental disability, marital status or
sex distinction. OpenCounter shall require these nondiscrimination terms of its sub-contractors
providing services under this agreement.
ix. Notices. All notices or reports permitted or required under this Agreement shall be in writing and
shall be delivered by personal delivery or by certified or registered mail, return receipt requested,
and shall be deemed given upon personal delivery or five (5) days after deposit in the mail. Notices
shall be sent to the parties at the addresses set forth above or such other address as either party
may designate for itself in writing.
x. Severability. In the event that any provision of this Agreement shall be unenforceable or invalid
under any applicable law or be so held by applicable court decision, such unenforceability or
invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event,
such provision shall be changed and interpreted so as to best accomplish the objectives of such
unenforceable or invalid provision within the limits of applicable law or applicable court decisions
xi. Waiver and Modification. The failure of either party to require performance by the other party of
any provision hereof shall not affect the full right to require such performance at any time
thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held
to be a waiver of the provision itself. This Agreement shall not be modified except by a
subsequently dated written amendment signed on behalf of OpenCounter and City by their duly
authorized representatives
xii. Waiver of Rule of Construction. Each of the parties and their counsel have carefully reviewed this
Agreement, and, accordingly, the normal rule of construction to the effect that any ambiguities in
this Agreement are to be construed against the drafting party shall not apply in the interpretation of
this Agreement.
9. Definitions
i. “Confidential Information” means any information disclosed by one party to the other, which, if in
written, graphic, machine-readable or other tangible form is marked as “Confidential” or
“Proprietary”, if disclosed orally or by demonstration, is identified at the time of initial disclosure as
confidential and reduced to a writing marked “Confidential” and delivered to the receiving party
within thirty (30) days of such disclosure, or which because of its nature should have reasonably
been understood by the receiving party to be confidential even in the absence of actual notification
of such status. Confidential Information shall include, without limitation, information regarding
party’s business plans, finances, pricing, products or services, investors, research and development
and City information. Confidential Information may also include information disclosed to a
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OpenCounter + Bozeman, Montana Master Services Agreement 9
disclosing party by third parties. The Hosted Service and all features and functions therein shall be
the Confidential Information of OpenCounter.
ii. “City Content” means any information or data related to City, whether supplied by City or a Permit
Applicant, that is input into the Hosted Service by City or a Permit Applicant, provided by City or a
Permit Applicant to OpenCounter in connection with use of the Hosted Service by City and/or
Permit Applicants.
iii. “Documentation” means the information made generally available by OpenCounter to its customers
that describes the form, features and/or operation of the Hosted Service, whether contained in a
tangible medium, such as written format, tape, magnetic or other media, or made available in an
electronic format. Documentation shall include any updates of Documentation that OpenCounter
may make available to City pursuant to this Agreement
iv. “Hosted Service” means those components of the OpenCounter hosted service offering described
in any Service Order entered into under this Agreement, to the extent that such Service Order is
then in force and effect
v. “Implementation” means the implementation process and tasks described in Exhibit A.
vi. “Implementation Target Date” means the date for which Implementation is targeted to be complete,
as set forth in Exhibit A.
vii. “Intellectual Property Rights” means any and all (by whatever name or term known or designated)
tangible and intangible and now known or hereafter existing (i) rights associated with works of
authorship throughout the universe, including, but not limited to, all exclusive exploitation rights,
copyrights, neighboring rights, moral rights and mask-works, (ii) trademark, trade dress, and trade
name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other
industrial property rights, (v) all other intellectual and industrial property and proprietary rights (of
every kind and nature throughout the universe and however designated), whether arising by
operation of law, contract, license or otherwise, and (vi) all registrations, applications, renewals,
extensions, continuations, divisions or reissues thereof now or hereafter in force throughout the
universe.
viii. “Permit Applicant” means a third party individual or entity seeking to obtain one or more permits
from City
ix. “Professional Services” means the professional services described in Exhibit A, to be performed for
City by OpenCounter.
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OpenCounter + Bozeman, Montana Master Services Agreement 10
In Witness Whereof, the parties have executed this Agreement by
their duly authorized representatives.
For OpenCounter Enterprises City of Bozeman
By
Name Peter Koht Chris Kukulski
Title President City Manager
Address 25 Taylor Street, San Francisco, CA 94102 121 N. Rouse, Ave, Bozeman MT 59771
Approved as to
Form
Greg Sullivan, City Attorney
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OpenCounter + Bozeman, Montana Master Services Agreement 11
Exhibit A
STATEMENT OF WORK
1. Implementation Plan
OpenCounter Enterprises will create and configure an instance of the OpenCounter Zoning Tool (the
“OpenCounter Instance”) for the City of Bozeman, Montana (referred to as the “City”).
The OpenCounter instance will include information and interactive tools related to use regulations,
economic development incentives and industry-specific local permits for small business owners.
The instance will be created utilizing the following actions (“Implementation Plan”) and Phasing
(“Implementation Phase”):
Date Implementation
Phase
Line Item Description Format Responsible Party
7/1/16 Contracting Close
contract and
City PO
Privacy Policy, ToS, MSA,
Insurance, W9
OpenCounter
7/5/16 Project
Management
Send
Configuratio
n Schedule /
Steps
Send configuration
documents outlining project
scope and steps to be taken.
Set up bi-weekly project
management update
conference calls with key
project staff.
.pdf OpenCounter
Create
Basecamp
Deploy Project Management
software and invite City staff
OpenCounter
7/5/16 Server Setup
for Managed
Service
Create
tenant on
OpenCounte
r: Zoning
Set up initial framework for
import of data.
.html link OpenCounter
SSL Enable SSL Service ssl OpenCounter
7/11/16 Data Collection
for
Configuration
of Managed
Service
Geospatial
Data
Zoning shapefile(s), City
Boundaries, Zoning Overlays,
Special Taxation or Business
Improvement Districts, Utility
Service Areas ect.
shapefiles City
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OpenCounter + Bozeman, Montana Master Services Agreement 12
Date Implementation
Phase
Line Item Description Format Responsible Party
Zoning
Ordinance
Text of zoning ordinance for
import into OpenCounter
Database
.html link City
Use Tables Internal Use Tables from
Planning / Community
Development.
.xls or .csv City
7/15/16
GIS
Configuration
Import Shape
Files
Zoning, Jurisdictional, utility
and special district shape
files
OpenCounter
Scrape
HTML zoning
ordinance or
import use
table
Use Tables or Zoning
Ordinance
OpenCounter
Scrape
HTML zoning
ordinance or
import use
table and set
up
conditional
zoning logic
Use Tables or Zoning
Ordinance and for uses that
require additional
information other than use
and location for zoning
clearances, (i.e. restaurants
that serve alcohol) set
conditional logic questions
zoning.io
API
OpenCounter
7/29/16 OpenCounter:
Zoning Instance
Configure
and deploy
instance of
the
OpenCounte
r zoning
viewer for
the City
Create instance of
OpenCounter: Zoning tool
for staff to view and test
zoning and BID information.
Manage zoning in zoning.io
API.
OpenCounter
7/29/16 –
8/12/16
OpenCounter:
Zoning
Acceptance
Testing
Validation of
returns in the
OpenCounte
r: Zoning tool
Validation of zoning returns
inside the OpenCounter:
Zoning tool by City staff.
City Staff
8/15/16 Launch Public
Launch
Activities
Press Conference,
Presentation to business
groups and council.
OpenCounter and
City
2. Acceptance Testing
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OpenCounter + Bozeman, Montana Master Services Agreement 13
When an implementation milestone is ready for use and testing, OpenCounter will notify City and City
will commence acceptance testing of the implementation milestone, with such assistance and support
as necessary from OpenCounter personnel.
The acceptance test (“Acceptance Test”) will be conducted solely for the purpose of demonstrating that
the deliverable or functionality performs in accordance with its specifications set forth in the applicable
documentation (“Acceptance Criteria”). The Acceptance Test will be in a form mutually agreed upon
between the parties, and will be completed within five (5) business days of the date upon which
OpenCounter informs City that the deliverable or feature is ready for use (“Acceptance Period”).
If the implementation milestone passes the Acceptance Test, City will promptly so notify OpenCounter
in writing (“Notice of Acceptance”). If the Implementation Milestone does not pass the Acceptance
Test, City will notify OpenCounter, in writing, prior to the expiration of the Acceptance Period,
specifying in reasonable detail in what respects the Implementation Milestone has failed to meet the
Acceptance Criteria (“Notice of Rejection”).
OpenCounter will promptly correct any deficiencies set forth in the Notice of Rejection, and City will
have an additional Acceptance Period to repeat the Acceptance Test. The implementation milestone
will be deemed accepted by City upon the earlier of (i) the issuance by City of a Notice of Acceptance,
(ii) the use by City of the implementation milestone in production or (iii) the expiration of the applicable
Acceptance Period prior to the receipt by OpenCounter of a Notice of Rejection (each of the foregoing
shall constitute “Acceptance”).
3. City Responsibilities and Level of Effort
Commercial Development is a complex project involving multiple departments across the City.
It is critical to the project schedule that City staff are engaged throughout the project in order to ensure
successful outcomes. It is also important that stakeholder roles are defined so that decisions can be
made effectively and efficiently during the execution of the project.
Community Development will serve as the project sponsor (“Project Sponsor”). The Project Sponsor will
appoint a project owner (“Project Owner”) as the key executive for the project, and a project manager
(“Project Manager”) to facilitate ongoing project administration.
The Project Owner will be responsible for accepting project deliverables per the Acceptance Criteria
defined above as well as providing strategic oversight for the project.
The Project Manager will provide access to required data and resources, facilitate calls and meetings
with City staff, and provide assistance and support during on-site visits and training sessions.
OpenCounter will provide bi-weekly updates during the timeframe outlined in the Implementation Plan
described above.
The Project Manager will also facilitate calls and meetings with City Subject Matter Experts (“Subject
Matter Experts”) in specific permitting verticals and provide assistance and support with
communications with Subject Matter Experts.
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OpenCounter + Bozeman, Montana Master Services Agreement 14
Subject Matter Experts time commitments will be limited to Project Update calls on an as-needed basis
and during the verification of content during defined Acceptance Testing periods defined in the
Implementation Plan above.
4. Training
The goal of the project is to build a site that will be easy for citizens to use, and for City staff to
administer. To that end, OpenCounter will offer training sessions to educate Department staff on the
tools, technologies, and best practices of the various components of OpenCounter.
Two (2) training sessions will be offered as part of the engagement. All will be offered via online video
conferences. Training sessions will be 60 minutes each.
The schedule for the training sessions will be determined by OpenCounter and City project staff and
defined during the Project Management Phase of the Implementation Plan outlined above.
OpenCounter maintains online documentation to explain the functionality of the software.
Documentation will be updated to reflect new features. The documentation will be accessible through
the following links:
• https://help.opencounter.com
• https://opencounter.com/docs
• http://zoning.io/
5. Publicity and Post-Launch Promotion
OpenCounter will link to the City’s instance on its webpage, opencounter.com and its Twitter account
@opencounter. The City will link to the OpenCounter instance from its homepage, departmental
landing pages and in its outbound marketing and promotional materials in order to ensure that the
service is easily accessible to small business owners and entrepreneurs.
OpenCounter and the City will collaborate on a launch press release as well as a mid-year press release
featuring case studies of end users who utilize the tool. These case studies may be leveraged for
existing City marketing / program materials.
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OpenCounter + Bozeman, Montana Master Services Agreement 15
Exhibit B
COSTS AND INVOICE SCHEDULE
1. Costs
Line Item Cost
Annual Subscription $5,250
2. Invoice Schedule
Invoices Date Amount
Year 1 Subscription / Project Initiation 7/1/16* $5,250
Year 2 Subscription 7/1/17 $5,250
Year 3 Subscription 7/1/18 $5,250
*All invoices Net 30.
3. Parties
All invoices will be addressed to attention of the Community Development Director.
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