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HomeMy WebLinkAboutRFP - Hydrant Leak Monitoring SystemPage 1 of 39 REQUEST FOR PROPOSALS (RFP) HYDRANT LEAK MONITORING SYSTEM CITY OF BOZEMAN Bozeman, MT City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 October 2024 NOTICE IS HEREBY given that the City of Bozeman (City) is seeking proposals from firms to provide a hydrant leak monitoring system. Copies of the Request for Proposals are available on the City’s website. All proposals must be provided as a single, searchable PDF document file and be submitted digitally as an email attachment to the RFP Recipient email address below. Respondents are advised that Recipient’s email attachment size limit is 25MB and that only one PDF file will be allowed per response. The subject line of the transmittal email shall clearly identify the RFP title, company name and due date/time. File sizes greater than 25MB in size may be uploaded upon special arrangement of the Recipient; however, it is the respondent’s sole responsibility to ensure the file upload is completed, and that the Recipient is separately notified via email of same, prior to the given deadline. Deliver RFPs via email to the City Clerk by November 12th 2024 at 3:00 PM MST. It is the sole responsibility of the proposing party to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. The email address for submission is: procurement@bozeman.net NON-DISCRIMINATION AND EQUAL PAY The City of Bozeman is an Equal Opportunity Employer. Discrimination in the performance of any agreement awarded under this RFP on the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender identity or disability is prohibited. This prohibition shall apply to the hiring and treatment of the awarded entity’s employees and to all subcontracts. As such, each entity submitting under this notice shall include a provision wherein the submitting entity, or entities, affirms in writing it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and which also recognizes the eventual contract will contain a provision prohibiting discrimination as described above and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts. In addition, pursuant to City Commission Resolution 5169, the entity awarded a contract under this RFP and any subcontractors must abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and affirm it will abide by the above and that it has visited the State of Montana Equal Pay for Equal Work “best practices” website, or equivalent “best practices publication and has read the material. Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk (406) 582-2321, procurement@bozeman.net . Questions relating to the RFP should be directed to: Nick Pericich, Superintendent of City of Bozeman Water/ Sewer Division, 406-582-3216, npericich@bozeman.net. DATED at Bozeman, Montana, this October 23, 2024. Mike Maas City Clerk City of Bozeman For publication on: Sunday, October 26th Sunday, November 2nd Project Description Currently, the City relies on a combination of a leak detection survey program and inbound customer calls to identify distribution main leaks and/or bursts. The water system is surveyed approximately one time each year (spread out through the year). To reduce instances of water leaks going undetected for an extended period of time and conserve the City’s water resources, unplanned customer outages from pipe breaks, and damage to other infrastructure nearby to water pipes, the City is planning to deploy a leak monitoring system for distribution water mains. This project will consist of a pilot scale demonstration of a hydrant leak monitoring system with a next phase that may expand to the entire distribution system. The City will provide electronic GIS data necessary to design the pilot project and the eventual system buildout. This data will be provided by our GIS division after signing a use agreement by contacting gjorgenson@bozeman.net . This will include locations of fire hydrants, valves, pipe as well as the material and diameter of the pipe. The City may select multiple systems to pilot. Proposals will need to include at least the following: • System description • Please include a detailed description of the system. It should include at least the following. • The necessary components of the system. • How the system functions and operates. • The longevity of the system components • By what mechanisms can City personnel be notified of leaks? • Detail about any software that is required to make the system work • A cloud services questionnaire (see appendix B) will need to be produced for any cloud-based software. • Can the City manage the cellular plan for these devices? • What is the installation plan for the system? 1. What will the role of the vendor be to install the system? What is the role of the City to install the system? • What will be necessary from the City of Bozeman to install the system? • What will need to be replaced at the end of the life of the unit? 1. What is the current unit price of materials necessary for the system? 2. What types of pricing guarantees can be provided for ongoing system purchases and possibly tied to an inflationary index to ensure reasonable pricing into the future? • Leak Alerts and System Performance • Describe the leak alert system process • Give the overall percentage of circumstances when false leaks are detected for your current system. • If there are multiple processes by which leaks can be alerted under different timelines, please also include the percentage for each process and the overall percentage. • What is in this system to limit false leaks and decrease time wasted in the field? • Support and Training • Describe the support system that will be provided for the preplanning process, the installation and the maintenance and repair of the product after it’s installation. • What is the annual cost of this support system? • What will training look like both at startup and in the future? • Where will the closest technician be located in case field support is needed? • Experience Requirements • What experience does your company have with other water utilities? 1. Provide 3 references of Cities that are actively using the system preferrable in comparable climate • How long have you been producing this product and how long has it been used in practical circumstances? • How many individual units are deployed in the United States? • Demonstrate Organization Longevity and Reliability • Given the long-term commitment of the City to a particular system, once it is selected, the vendor must demonstrate it’s long-term financial viability to ensure ongoing availability to products and services. • Warranty • Describe the warranty coverage and the product(s) that are covered under this warranty. • Project Pricing • Include pricing for an initial pilot project. • Also include pilot-scale pricing for the following: 1. Training 2. Technical Support 3. Software maintenance • Affirmation of Nondiscrimination (see Appendix A) Non-completion of the Affirmation of Nondiscrimination is cause for disqualification of firms. TIMELINES, DELIVERY DEADLINE, AND INSTRUCTIONS EVENT DATE/TIME Publication dates of RFP Sunday October 26th & November 2nd 2024 Deadline for receipt of proposals November 12th 2024 3:00 pm MST Evaluation of proposals November 13th -November 27th 2024 Interviews (if necessary) and Selection of consultants Tuesday December 3rd 2024 With the exception of the advertising dates and advertised due date, the City reserves the right to modify the above timeline. Deliver RFPs via email to the City Clerk (procurement@bozeman.net) by November 12th 2024 at 3:00 pm MST. It is the sole responsibility of the proposing party to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. All proposals must be provided as a single, searchable PDF document file and be submitted digitally as an email attachment to the RFP Recipient email address procurement@bozeman.net . Respondents are advised that Recipient’s email attachment size limit is 25MB and that only one PDF file will be allowed per response. The subject line of the transmittal email shall clearly identify the RFP title, company name and due date/time. File sizes greater than 25MB in size may be uploaded upon special arrangement of the Recipient; however, it is the respondent’s sole responsibility to ensure the file upload is completed, and that the Recipient is separately notified via email of same, prior to the given deadline. I. AMENDMENTS TO SOLICITATION Any interpretation or correction of this request will be published on the City’s webpage. The deadline for questions related to this document is 12:00 pm MST on November 6th 2024. II. CONTACT INFORMATION Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk, (406) 582-2321, procurement@bozeman.net Questions relating to scope of services should be directed to: Nick Pericich, Superintendent, npericich@bozeman.net , 406-582-3216 III. SELECTION PROCEDURE A review committee will evaluate all responses to the RFP that meet the submittal requirements and deadline. Submittals that do not meet the requirement or deadline will not be considered. The review committee will rank the proposals and may arrange interviews with the finalist(s) prior to selection. Selection may be made directly based on the written RFP submission. If interviews occur, the selection of finalists to be interviewed will be made by a selection committee representing the City of Bozeman. The selection of interview candidates will be based on an evaluation of the written responses to the RFPs. All submitted proposals must be complete and contain the information required as stated in the "Request for Proposals.” IV. SELECTION CRITERIA Proposals will be evaluated based on the following criteria: • System Description (10 points) • Leak Alerts and System Performance (10 points) • Support and Training (10 points) • Experience (10 points) • Organization Longevity and Reliability (10 points) • Warranty (10 points) • Project Pricing (10 points) V. FORM OF AGREEMENT The Contractor will be required to enter into a contract with the City. This contract will be established with the successful Contractor. Attached as Appendix C and D are standard terms for the City in professional services agreements and software as a service contracts respectively. These terms are subject to revision by the City at the time of contracting. VI. CITY RESERVATION OF RIGHTS / LIABILITY WAIVER All proposals submitted in response to this RFP become the property of the City and public records and, as such, may be subject to public review. A SUBMISSION IN RESPONSE TO THIS REQUEST FOR QUALIFICATIONS CONFERS NO RIGHTS UPON ANY RESPONDENTS AND SHALL NOT OBLIGATE THE CITY IN ANY MANNER WHATSOEVER. THE CITY RESERVES THE RIGHT TO MAKE NO AWARD AND TO SOLICIT ADDITIONAL REQUEST FOR QUALIFICATIONS AT A LATER DATE. A. This RFP may be canceled or any or all responses may be rejected in whole or in part, as specified herein, when it is in the best interests of the City. If the City cancels or revises this RFP, all Respondents who submitted will be notified using email. B. The City reserves the right to accept or reject any and all proposals; to add or delete items and/or quantities; to amend the RFP; to waive any minor irregularities, informalities, or failure to conform to the RFP; to extend the deadline for submitting proposals; to postpone award for up to 60 days; to award one or more contracts, by item or task, or groups of items or tasks, if so provided in the RFP and if multiple awards or phases are determined by the City to be in the public interest. C. The City of Bozeman reserves the right to reject the proposal of any person/firm who previously failed to perform properly to the satisfaction of the City of Bozeman, or complete on time agreements of similar nature, or to reject the proposal of any person/firm who is not in a position to perform such an agreement satisfactorily as determined by the City of Bozeman. D. The City of Bozeman reserves the right to determine the best qualified Contractor and negotiate a final scope of service and cost, negotiate a contract with another Contractor if an agreement cannot be reached with the first selected Contractor, or reject all proposals. E. The contract between the City of Bozeman and the successful Contractor will incorporate the proposal into the contract. F. This RFP does not commit the City to award a contract. The City assumes no liability or responsibility for costs incurred by firms in responding to this request for proposals or request for interviews, additional data, or other information with respect to the selection process, prior to the issuance of an agreement, contract or purchase order. The Contractor, by submitting a response to this RFP, waives all right to protest or seek any legal remedies whatsoever regarding any aspect of this RFP. G. The City reserves the right to cancel, in part or in its entirety, this RFP including, but not limited to: selection procedures, submittal date, and submittal requirements. If the City cancels or revises this RFP, all Contractors who submitted proposals will be notified using email. H. Projects under any contract are subject to the availability of funds. VII. NONDISCRIMINATION AND EQUAL PAY POLICY The City of Bozeman requires each entity submitting under this notice shall affirm, on a separate form provided, that it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, sexual preference, gender identity, or disability in fulfillment of a contract entered into for the services identified herein and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts it enters into in the fulfillment of the services identified herein. Failure to comply with this requirement shall be cause for the submittal to be deemed nonresponsive. In addition, pursuant to City Commission Resolution 5169, the entity awarded a contract under this RFP and any subcontractors must abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and affirm it will abide by the above and that it has visited the State of Montana Equal Pay for Equal Work “best practices” website, or equivalent “best practices publication and has read the material. VIII. MISCELLANEOUS A. No Oral Agreements. No conversations or oral agreements with any officer, employee, or agent of the City shall affect or modify any term of this solicitation. Oral communications or any written/email communication between any person and City officer, employee or agent shall not be considered binding. B. No Partnership/Business Organization. Nothing in this solicitation or in any subsequent agreement, or any other contract entered into as a result of this solicitation, shall constitute, create, give rise to or otherwise be recognized as a partnership or formal business organization of any kind between or among the respondent and the City. C. Employment Restriction and Indemnity. No person who is an owner, officer, employee, contractor, or consultant of a respondent shall be an officer or employee of the City. No rights of the City’s retirement or personnel rules accrue to a respondent, its officers, employees, contractors, or consultants. Respondents shall have the responsibility of all salaries, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums appurtenant thereto concerning its officers, employees, contractors, and consultants. Each Respondent shall save and hold the City harmless with respect to any and all claims for payment, compensation, salary, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums in any way related to each respondent’s officers, employees, contractors and consultants. D. Accessibility. Upon reasonable notice, the City will provide assistance for those persons with sensory impairments. For further information please contact the ADA Coordinator Max Ziegler at 406-582-3232 or the City’s TTY line at 406-582-2301. E. Procurement. When discrepancies occur between words and figures in this solicitation, the words shall govern. No responsibility shall attach to a City employee for the premature opening of an RFP not properly addressed and identified in accordance with these documents. F. Governing Law. This solicitation and any disputes arising hereunder or under any future agreement shall be governed and construed and enforced in accordance with the laws of the State of Montana, without reference to principles of choice or conflicts of laws. IX. ATTACHMENTS The following exhibits are incorporated in this RFP: Appendix A: Non-Discrimination Affirmation Appendix B: Cloud Services Questionnaire Appendix C: Form of Professional Services Agreement Appendix D: Form of Software as a Service Agreement END OF RFP Appendix A NONDISCRIMINATION AND EQUAL PAY AFFIRMATION ____________________________________(name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer’s employees and to all subcontracts. In addition, ____________________________________(name of entity submitting) hereby affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and affirm it will abide by the above and that it has visited the State of Montana Equal Pay for Equal Work “best practices” website, or equivalent “best practices publication and has read the material. ______________________________________ Name and title of person authorized to sign on behalf of submitter Appendix B Cloud Services Questionnaire 1) Service Levels: What level of service should we expect? What is the City’s recourse for excessive downtime? Refund of percentage of monthly fee? 2) Data Ownership: Who owns the data we provide and what can be done with the data? 3) ADA Compliance: If your proposed services include websites, they must be AA compliant as defined by WCAG (Web Content Accessibility Guidelines) standards. 4) Data Security: How secure is our data and how is it being kept secure? a. If this is a multi-tenant environment on the same hardware how is our data kept separate and secure from other customers, including any PII (Personally Identifiable Information) that may be gathered? b. If PII is gathered, is it encrypted in transit and at rest? c. If credit card transactions are occurring is your system fully PCI compliant? 5) Data Integrity: What do you do as a vendor to ensure our data maintains its integrity? 6) We require data centers to be located in the United States: What country will our data be located in? 7) Responding to legal demands to disclose data: What is your process when someone subpoenas or requests our data from you as a vendor? 8) Reporting: What is your protocol for data breaches? 9) Disaster Recovery: What protections/protocols do you have in place to mitigate disasters? 10) Business Continuity/Exit: If you decide to bring your business to an end or we end our relationship what happens to our data? If you give us a copy of our data, what format options will there be for our data and what assistance will you provide getting our data to us? 11) Termination rights and consequences: What is your termination policy both for you as a vendor and us as a customer? Questionnaire Completed by:____________________________ Date:_________________ Appendix C PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, ____________, _______________, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the _____ day of ______________, 202_, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. Contractor agrees to be bound by its responses to the City’s Cloud Questions, attached to this Agreement as Exhibit B and made part of this Agreement. Such responses constitute material consideration for the City to enter into this Agreement and the responses are material representations regarding the Contractor’s performance. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be _________________ or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _____________________ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor 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. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 17. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 18. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 19. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 20. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 23. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 24. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 25. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 26. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 27. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 28. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 29. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 30. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 31. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 32. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than __________________________. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** Appendix D Software as a Service Agreement This Software as a Service Agreement (“Agreement”), is made and entered into this _____ day of ____________, 202__ (“Effective Date”), by and between the City of Bozeman, Montana, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, ____________, _______________, with a mailing address of __________________, hereinafter referred to as “Provider.” The City and Provider may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the Parties hereto agree as follows: 1. Definitions. a. “Aggregated Statistics” means data and information related to the City's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. b. “Authorized User” means the City's employees, consultants, contractors, and agents (i) who are authorized by the City to access and use the Services under the rights granted to the City pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder. c. “Confidential Information” means, subject to Montana’s Open Records Law, all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. With respect to the City, Confidential Information must also include any and all information transmitted to or stored by Provider in connection with performance of its obligations under this Agreement, including, but not limited to, personally identifiable information (“PII”) of residents, employees or people included within the City’s data, including name, address, phone number, e-mail address, date of birth, social security number, patient records, credit card information, driver’s license number, account numbers, PINs and/or passwords, any other information that could reasonably identify a person, and products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential.” Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without reference to or use of the disclosing Party’s Confidential Information. d. “City's Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of the City or an Authorized User through the Services, including, without limitation, the City's meter data and other energy data related to the City's facilities located in the State of Montana. This information, data, and content may also include that which is considered Confidential Information. e. “Data Incident” means a breach of the City or the Provider’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the City’s Data through the Services licensed to the City by the Provider. f. “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to the City either electronically or in hard copy form/end user documentation relating to the Services. g. “Intellectual Property Rights” or “IP Rights” means any and all rights that may exist under patent law, copyright law, publicity rights law, moral rights law, trade secret law, trademark law, unfair competition law or other similar protections, whether or not such rights are registered or perfected. h. “Provider IP” means the Services, the Documentation, and any and all intellectual property provided to the City or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of the City's access to or use of the Services, but does not include the City's Data. i. “Services” means the on premise software-as-a-service license described in the Scope of Services. See attached Exhibit A. 2. Purpose. City agrees to enter into this Agreement with Provider to perform for the City the Services described in the Scope of Services, incorporated into this Agreement and attached as Exhibit A. 3. Term and Termination. a. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for _______ months from such date (the “Initial Term”). This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions. The Parties may extend this Agreement for three (3) additional one (1) year terms. b. Notice of Non-Renewal. A Party to this Agreement gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then- current term (each a “Renewal Term” and together with the Initial Term, the “Term”). c. Termination. i. Provider may terminate this Agreement, effective on written notice to the City if the City: 1) fails to pay any amount when due hereunder, and such failure continues more than sixty (60) days after Provider’s delivery of written notice thereof; or 2) breaches any of its obligations under Paragraph 6 of this Agreement ii. Any Party to this Agreement may terminate their obligations under this Agreement, effective on written notice to the other Parties, if another Party materially breaches this Agreement, and such breach: 1) is incapable of cure; or 2) being capable of cure, remains uncured sixty (60) days after the non-breaching Party provides the breaching Party with written notice of such breach; or iii. Any Party to this Agreement may terminate this Agreement, effective immediately upon written notice to the other Parties, if the other Party: 1) becomes insolvent or is generally unable to pay or fails to pay its debts as they become due; 2) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; 3) makes or seeks to make a general assignment for the benefit of its creditors; or 4) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. d. Expiration. Provider must notify the City 90 days in advance of this Agreement’s expiration date. e. Effect of Expiration or Termination. No expiration or termination will affect the City's obligation to pay all Fees that may have become due before such expiration or termination or entitle the City to any refund. 4. Scope of Services. Provider must perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, this Agreement governs. Provider agrees to be bound by its responses to the City’s Cloud Questionnaires, incorporated into and attached to this Agreement as Exhibit B and made part of this Agreement. Such responses constitute material consideration for the City to enter into this Agreement and the responses are material representations regarding the Provider’s performance. 5. Access and Use. a. Provision of Access to Services. Subject to and conditioned on the City's payment of fees and compliance with the terms and conditions of this Agreement, Provider grants the City a non-exclusive, non-transferable license to the Services during the Term. This license to the Services is solely for use by the City and its Authorized Users and must be accessed and used in accordance with the terms and conditions set forth in this Agreement. Unless otherwise agreed upon and detailed in the Scope of Services, such access and use is limited to the City's internal use. If applicable, Provider must provide to the City the necessary passwords and network links or connections to allow the City to access the Services. b. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider grants to the City a non-exclusive, non-sublicensable, non- transferable license to use the Documentation during the Term solely for the City's internal business purposes in connection with its use of the Services. c. Designated Authorized Users. The City may designate the number of Authorized Users permitted to access the Services. d. Reservation of Rights. Provider reserves all rights not expressly granted to the City in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to the City or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP. e. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend the City's and any Authorized User’s access to any portion or all of the Services if: i. Provider reasonably determines 1) there is a threat or attack on any of the Provider IP; 2) the City's or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other Customer or vendor of Provider; 3) the City, or any Authorized User, are using the Provider IP for fraudulent or illegal activities; or 4) Provider’s provision of the Services to the City or any Authorized User is prohibited by applicable law; ii. any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable the City to access the Services; or iii. in accordance with Section 5(a)(iii) (any such suspension described in sub- section (i), (ii), or (iii), a “Service Suspension”). Provider must use commercially reasonable efforts to provide written notice within five (5) business days prior to any planned Service Suspension to the City and provide updates regarding resumption of Services following any Service Suspension. Provider must use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider may be subject to liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that the City or any Authorized User may incur as a result of a Service Suspension. f. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor the City's use of the Services, and collect and compile Aggregated Statistics. As between Provider and the City, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. The City acknowledges that Provider may compile Aggregated Statistics based on the City's Data input into the Services. The City agrees that Provider may: 1) make Aggregated Statistics publicly available in compliance with applicable law, and 2) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify the City or the City's Confidential Information. 6. The City's Responsibilities. a. The City is responsible for all uses of the Services and Documentation resulting from access provided by the City, directly or indirectly. The City must use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and must cause Authorized Users to comply with such provisions. b. Unless otherwise agreed, the City is responsible for creating and modifying its data into the Services, and keeping the City’s data into the Services current and accurate. c. The City must reasonably cooperate with Provider’s performance of Professional Services. The City recognizes and agrees that performance of Professional Services is contingent upon the City’s cooperation and as set forth in Paragraph 7. d. The City may test the Provider’s Services in a live production environment to ensure that it conforms to the specifications set forth in this Agreement and all Exhibits. Upon acceptance, the City must pay the Provider in accordance with the Scope of Services. See attached Exhibit A. If the City determines that the Services do not meet the specifications set forth in this Agreement and all Exhibits, upon 60 days of receiving written notice of such deficiencies, the City may terminate this Agreement if the Provider does not cure the deficiencies. Provider must refund the City all sums already paid within five (5) business days. Such termination and refund does not bar the City from pursuing other remedies available under the Agreement or law. 7. Provider’s Obligations. To induce the City to enter into this Agreement, Provider makes the following representations: a. Provider has familiarized itself with the nature and extent of this Agreement, all exhibits including but not limited to the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Provider represents and warrants to the City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement must not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. c. Provider must ensure the Services delivered under this Agreement are adequately secure, and must provide a secure environment for all of the City’s Confidential Information, which may include, but is not limited to any hardware and software (including servers, network and data components) to be provided or used by the Provider as part of its performance under this Agreement. Provider represents that the security measures it takes in performance of its obligations under this Agreement are, and at all times will remain in compliance with all applicable laws and regulations governing Provider’s access to, use of, and handling of the City’s Data. d. If Provider creates a new version of the Services, it must make the new version available to the City at no additional cost. Provider must also provide the City with any additional features or functionalities of the Services that it may develop at no additional cost to the City. 8. Security. Provider must provide a secure environment for all of the City’s Confidential Information and any hardware and Software (including servers, network and data components) to be provided or used by Provider as part of its performance under this Agreement. Provider represents that the security measures it takes in performance of its obligations under this Agreement are, and will at all times remain in agreement with the industry’s minimum standards. Provider’s failure to comply with the industry’s minimum standards in fulfilling its obligations under this Agreement constitutes a breach of this Agreement. Additionally, Provider must contractually require any subcontractors or agents with access to the City’s Confidential Information to adhere to such Security Best Practices. 9. Indemnity/Waiver of Claims/Insurance. For other than professional services rendered, to the fullest extent permitted by law, Provider agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Provider; or (ii) any negligent, reckless, or intentional misconduct of any of the Provider’s agents. For the professional services rendered, to the fullest extent permitted by law, Provider agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Provider or Provider’s agents or employees. Such obligations must not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Provider’s indemnity under this Section must be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Provider to assert its right to defense or indemnification under this Agreement or under the Provider’s applicable insurance policies required below, the City must be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Provider was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Provider also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations must survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Provider must at Provider’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Provider in this Section. The insurance coverage must not contain any exclusion for liabilities specifically assumed by the Provider in this Section. The insurance must cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Provider must furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate; and • Cyber Liability - $1,500,000 per occurrence; $3,000,000 annual aggregate. The above amounts must be exclusive of defense costs. The City must be endorsed as an additional insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, Automobile Liability, and Cyber Liability policies. The insurance and required endorsements must be in a form suitable to City and must include no less than a thirty (30) day notice of cancellation or non-renewal. Provider must notify City within two (2) business days of Provider’s receipt of notice that any required insurance coverage will be terminated or Provider’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Provider commencing work. 10. Audit Right. Provider must retain a certified public accounting firm to perform an annual audit of the Services’ data protection features and to provide a SOC 2 Type II report, pursuant to the current standards of the American Institute of Certified Public Accountants. In addition, Provider must annually conduct its own internal security audit and address security gaps. Provider must give the City a copy of the most current report from each audit conducted within five (5) business days of receiving the report. If requested by the City, Provider must, on a bi-annual basis, permit security reviews by the City on those systems storing or processing City Data, on Provider policies and procedures relating to the foregoing, including without limitation its information security programs, and permit testing of all security processes and procedures during the term, including without limitation, penetration testing. Provider or its nominee (including its accountants and auditors) may, on reasonable request, inspect and audit the City's use of the Services under this Agreement at any time during the Term. The City must make available all books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Provider with respect to such audit. 11. General Use Restrictions. Copies of the Services created or transferred pursuant to this Agreement are licensed and may only be used as set forth in this Agreement. The City does not receive any rights to the Services other than those specifically granted in this Agreement and its incorporated exhibits. Other than what is expressly permitted by the terms of this Agreement, the City and its authorized users must not directly or indirectly copy or reproduce all or any part of the Services, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization, without Provider’s prior written permission. However, notwithstanding this restriction, the City has the right to reproduce and distribute any of the Services generated from the City’s Data. Without limiting the above restriction and right, the City receives no right to and must not: a. copy, modify, create derivative works from, distribute, publicly display, or publicly perform the Application; b. sublicense or otherwise transfer any of the rights granted to it in this Agreement and the Scope of Services; c. reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the Application; d. remove any proprietary notices from the Services or Documentation; or e. use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. 12. Independent Contractor Status/Labor Relations. The Parties agree that Provider is an independent contractor for purposes of this Agreement and is not considered a City employee for any purpose. Provider is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Provider is not authorized to represent the City or otherwise bind the City in any dealings between Provider and any third parties. 13. Resources and Support. Provider must, throughout the Term, make available such resources, including Provider personnel, as are reasonably required to: a. train designated employee(s) of the City in the use of the Services; b. support the obligations of the City provided in Paragraph 6; c. develop modifications to the Services as agreed to by the Parties in any exhibit attached to this Agreement; and d. Provider must provide technical support to the City as described in Exhibit A, Scope of Services, for the duration of this Agreement. 14. Transition Assistance. The Provider must provide transition assistance to the City when requested in writing. Upon termination of this Agreement for any reason, including but not limited to termination for cause, the Provider must assist the City in the orderly transition to a new Provider. The City must have access to the Provider’s system and the Provider’s support of that system for up to one (1) year following termination. In this instance, for up to one (1) year following termination, the City must pay the Provider at its then-current hourly rate(s). The Provider grants the City a perpetual right to use the Application and Object Code if any one of the following occurs: (a) Provider’s insolvency, bankruptcy, or involvement in an involuntary proceeding for protection of its creditors; (b) Provider materially breaches this Agreement and the City terminates the Agreement; (c) Provider fails to continue development of the Services; (d) Provider fails to provide the City with the most recent version of the Services contained in the Application; or (e) any other circumstance whereby Provider can no longer satisfy its obligation to provide Services to the State under this Agreement. 15. Limitation of Liability. The Provider's liability for contract damages is limited to direct damages. Damages caused by injury to persons or tangible property, or arising from any Provider indemnification under this Agreement, are not subject to a cap on the amount of damages. 16. Fees and Payment. Fees. The City must pay Provider the fees and make all payments as set forth in the Scope of Services, without offset or deduction. See attached Exhibit A. Any alteration or deviation from the described Services that involves additional costs above the Agreement amount will be performed by Provider only upon receiving a written request from the City. Any alteration or deviation from the Services will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing before Provider bills for any additional charges. All Fees and other amounts payable by the City under this Agreement are exclusive of taxes and similar assessments. The City is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by the City as set forth in this Agreement, other than any taxes imposed on Provider’s income. 17. Confidential Information. a. From time to time during the Term, a Party to this Agreement may disclose or make available to the other Party Confidential Information, as defined in Section 1 of this Agreement, about its business affairs. The receiving Party must not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s Authorized Users who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations established in this Agreement. b. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: i. in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order must first have given written notice to the other Party; ii. to establish a Party’s rights under this Agreement, including to make required court filings; or iii. to any Authorized User who may need to access Confidential Information in order to facilitate or execute the purpose of this Agreement. c. Unless otherwise required by law, each Party must not disclose Confidential Information to any other third party not otherwise identified in this agreement without the other Party’s prior written consent. Each Party’s obligations of non- disclosure with regard to Confidential Information are effective as of the Effective Date, and survive this Agreement and do not terminate. However, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. d. Each Party must protect Confidential Information with the same degree of care it uses to protect its own Confidential Information with of similar nature and importance, but with no less than reasonable care. Each Party agrees to promptly notify the other Party if there is a misuse or misappropriation of Confidential Information. 18. Intellectual Property Ownership; Feedback. a. Provider IP. The City acknowledges that, as between the City and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP. b. The City's Data. Provider acknowledges that, as between Provider and the City, the City owns all right, title, and interest, including all intellectual property rights, in and to the City's Data. The City grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the City's Data and perform all acts with respect to the City's Data as may be necessary for Provider to provide the Services to the City. The City also grants to Provider a non- exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display the City's Data incorporated within the Aggregated Statistics. Unless the City provides written consent, Provider must not access or use the City’s Data for any other purpose than as described in this Agreement. c. Feedback. If the City or any of its Authorized Users sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or related functionality, or any comments, questions, suggestions, or the like (“Feedback”), Provider may use the City’s Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. The City retains all right, title, and interest in the Feedback. 19. Data Location. Provider must not transfer the City’s Data outside of United States or the Provider’s location as identified in the first paragraph of this Agreement unless it receives the City’s prior written consent or unless the transfer is to the Provider’s data center and such transfer is necessary for the execution of the Services. 20. Access to Data. The City may access and copy any of the City’s Data in Provider’s possession at any time. Provider must reasonably facilitate such access and copying promptly after Customer’s request. In this instance, Provider may charge its reasonable standard fees for any such access and copying or for any fees related to the de-conversion of data. 21. Deletion of Data. Except as authorized by applicable law, Provider must not erase the City’s Data or any copy without the City’s prior written consent. 22. Data Incidents. Provider must implement and maintain a program for managing unauthorized disclosure of, access to, or use of the City’s Data. In case of a Data Incident, Provider must notify the City, in writing or by phone, within 48-hours of the incident. Provider must cooperate with the City and law enforcement agencies to investigate and resolve the Data Incident, including but not limited to providing reasonable assistance to the City in notifying injured third parties. In addition, if the Data Incident results from Provider’s breach of this Agreement or negligent or unauthorized act or omission, Provider must compensate the City for any reasonable expense related to notification of customers and provide one year of credit monitoring to any affected individual. Provider must give the City prompt access to such records related to a Data Incident. 23. Functional Warranty. Provider warrants that the Application and Services, including any modifications that are made by Provider or under Provider’s instructions do not contain any material defects, and will conform in all material respects to the specifications, functions, descriptions, standards and criteria set forth in the Agreement, its Exhibits, and the Documentation, which are all incorporated herein by reference. Provider further warrants that all post-Acceptance updates, alterations, or modifications to the Services will not materially diminish the features or functionality of the Application and Services. Provider must promptly correct any errors identified by the City in the Application and in any modification to the Application at no cost to the City. If, Provider is unable to correct such errors within 30 days following notification by the City, then Provider must at the City’s request accept return of the Application and return all money paid for the Application and maintenance. The City may also pursue any other remedies available to it under this Agreement or by law or equity. 24. Virus Warranty. Provider warrants that it has used commercially reasonable efforts to ensure against introduction of any virus into the City’s systems. Provider must immediately advise the City, in writing, upon reasonable suspicion or actual knowledge that the Services may contain a Virus. If a Virus is found to have been introduced into the City’s systems by the Services within 30 days after the Effective Date of this Agreement, Provider must repair or replace the Services within ten (10) business days. If Provider cannot accomplish the foregoing within such time, then the City must discontinue use of the Services, and Provider must refund all money paid for the Services and maintenance as set forth in the Scope of Services. See Exhibit A. Provider must use all reasonable commercial efforts, at no additional charge, to assist the City in reducing the effects of the Virus and, if the Virus causes a loss of operational efficiency or loss of data, to assist the City to the same extent to mitigate and restore such losses. In addition, Provider must indemnify, defend and hold the City harmless from any claims, suits, damages, liabilities, losses, and reasonable attorney fees resulting from any such Viruses. The limitation of liability described in Paragaph 15 does not apply to this indemnification obligation. 25. Remedy for When Services are Subject of a Claim. If any Services furnished are likely to or does become the subject of a claim of infringement of a third party’s IP Rights, then the Provider may request the City accept an alternative Service and the City may agree to one of the following alternative Services: 1) procure for the City the right to continue using the alleged infringing Services; 2) modify the Service so that it becomes non-infringing; 3) or replace it with one that is at least functionally equivalent. If the Provider is unable to any of the above three remedies, or if the use of the Services by the City is prohibited by an injunction, temporary restraining order, or other court order, the City must return the Services to the Provider within five (5) days of receiving Provider’s request in writing. The Provider must then give the City a credit equal to the amount paid to the Provider for the creation of the Services. The City is not precluded from seeking other remedies available agreed upon in this Agreement or in equity or law for any damages it may sustain due to its inability to continue using the Services. The Limitations of Liability set forth in Paragraph 15 of this Agreement does not apply to Provider’s obligations under this Section and the City’s right to seek additional remedies arising from Provider’s ‘infringement of a third party’s IP Rights. 26. Representatives and Notices. a. City’s Representative. The City’s Representative for the purpose of this Agreement must be _________________ or such other individual as City must designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission must be directed to the City’s Representative and approvals or authorizations must be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Provider may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Provider’s Representative. The Provider’s Representative for the purpose of this Agreement must be _____________________ or such other individual as Provider must designate in writing. Whenever direction to or communication with Provider is required by this Agreement, such direction or communication must be directed to Provider’s Representative; provided, however, that in exigent circumstances when Provider’s Representative is not available, City may direct its direction or communication to other designated Provider personnel or agents. c. Notices. All notices required by this Agreement must be in writing and must be provided to the Representatives named in this Section. Notices must be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 27. Miscellaneous. a. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, including the Cloud Services Questions, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: 1) this Agreement, excluding its Exhibits; 2) the Exhibits to this Agreement as of the Effective Date; and 3) any other documents incorporated herein by reference. b. Permits. Provider must provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. c. Laws and Regulations. Provider must comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. d. Nondiscrimination and Equal Pay. Provider agrees that all hiring by Provider of persons performing this Agreement must be on the basis of merit and qualifications. Provider will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. Provider 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. Provider must be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Provider represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Provider must report to the City any violations of the Montana Equal Pay Act that Provider has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Provider must require these nondiscrimination terms of its subcontractors providing services under this Agreement. e. Force Majeure. In no event must a Party to this Agreement be liable to another Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond one Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. f. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training. Provider must not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Provider acknowledges it is aware of and must comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. The City must have the right to request proof of such compliance and Provider must be obligated to furnish such proof. The Provider must be responsible for instructing and training the Provider’s employees and agents in proper and specified work methods and procedures. The Provider must provide continuous inspection and supervision of the work performed. The Provider is responsible for instructing its employees and agents in safe work practices. g. Modification and Assignability. This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Provider may not subcontract or assign Provider’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. h. Reports/Accountability/Public Information. Provider agrees to develop and/or provide documentation as requested by the City demonstrating Provider’s compliance with the requirements of this Agreement. Provider must allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Provider pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Provider must not issue any statements, releases or information for public dissemination without prior approval of the City. i. Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms or conditions of this Agreement does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. j. Attorney’s Fees and Costs. In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice must be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. k. Taxes. Provider is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. l. Dispute Resolution. i. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives must be resolved first by negotiation between senior-level personnel from each Party duly authorized to execute settlement agreements. Upon mutual agreement of the Parties, the Parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. ii. If the Parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. m. Survival. Provider’s indemnification must survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. n. Headings. The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. o. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof must continue in effect. p. Applicable Law. The Parties agree that this Agreement is governed in all respects by the laws of the State of Montana. q. Binding Effect. This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the Parties. r. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. s. Integration. This Agreement and all Exhibits attached hereto constitute the entire agreement of the Parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the Parties. There are no understandings between the Parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. t. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. u. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** END OF AGREEMENT EXCEPT FOR SIGNATURES ****