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Socialmentum LLC DBA MindMixer ftc,cit/ 0 J UN DEVELOPMENT AND SERVICES AGREEMENT 00MMyN�►p 4 1 �4l � FOR pFp F[ qR�y oay City of Rancho Palo Verdes, CA FNr �h' (Project No. 1086) This Development and Services Agreement (the "Agreement") is made and entered into as of May 22, 2013 (the "Effective Date") by and between Socialmentum, LLC, a Nebraska limited liability company, d/b/a MindMixer, located at 1111 N. 13th Street, Suite 101, Omaha, NE 68102 (the "Consultant" or "MindMixer") and City of Rancho Palo Verdes, a California municipal corporation, located at 30940 Hawthorne Blvd, Rancho Palo Verdes, CA 90275 (the "Client"). WHEREAS, Consultant is in the business of developing websites capable of hosting town hall meetings and related projects promoting an exchange of information and ideas for use by governmental and other entities; WHEREAS, Client desires to engage Consultant to develop and maintain a website capable of hosting town hall meetings and related projects for promoting an exchange of information and ideas (the "Site") for use in connection with the project identified by Client (the "Project"), and to perform certain support services related thereto, and Consultant desires to accept said engagement; and WHEREAS, the parties intend this Agreement to evidence their understanding with respect to Client's engagement of Consultant to develop the Site and perform services related thereto. NOW, THEREFORE, in consideration of the foregoing recitals and mutual covenants contained herein, the parties agree as follows: 1. SCOPE OF ENGAGEMENT. A. Development Services. Consultant shall develop and maintain the Site for Client and perform and provide certain training and support services related thereto in accordance with the terms and conditions of this Agreement and the Statement of Work that is attached hereto as Exhibit A and incorporated herein by reference ("SOW'). The services described in the SOW under "Site Development Services" and "Mindmixer University Training Sessions" are referred to herein as the "Development Services". B. Support Services. Consultant shall perform and provide certain support services to Client in accordance with the terms and conditions of this Agreement and the SOW. The services described in the SOW under "Support Services" are referred to herein as the "Support Services". If Client hereafter requests additional services not described on Exhibit A, including additional training, or Support Services in excess of the amount set forth in Exhibit A ("Additional Services", and together with the Support Services and the Development Services, the "Services"), and Consultant is willing and able to provide those Additional Services, the parties shall mutually agree upon and execute, prior to the performance of such 589490.4 Additional Services, one or more additional written SOWs that contain the terms and conditions of the Additional Services to be performed. Each such SOW shall be attached to and incorporated into this Agreement as an Exhibit. Except as otherwise provided, any Additional Services to be performed by Consultant shall be subject to the terms of this Agreement. 2. FEE PAYMENT AND TIMING. A. Fees. In consideration of Consultant's performance of the Services, hereunder, Client shall pay Consultant fees, and reimburse Consultant for expenses, each in the amounts and in accordance with the payment terms and conditions specified in this Agreement and on Exhibit B attached hereto (collectively, the "Fees"). Consultant will not be compensated for any work performed not specified in Exhibit A, including Additional Services, unless City authorizes such work in advance and in writing. B. Late Payment. Consultant shall submit monthly invoices for the Services performed in the previous month. City agrees to authorize payment for all undisputed invoice amounts within thirty (30) days of receipt of each invoice. City agrees to use its best efforts to notify Consultant of any disputed invoice amounts within ten (10) days of the receipt of each invoice. However, City's failure to timely notify Consultant of a disputed amount or claimed completion percentage shall not be deemed a waiver of City's right to challenge such amount. Except with respect to amounts disputed in good faith, all amounts due under this Agreement, if not paid within 45 days after the invoice is received by City, shall be considered late. C. Client's Failure to Pay. Client's incurring of a late payment (as determined in accordance with Section 2(B)) shall be considered a material breach of this Agreement. As such, until such breach is cured by way of full payment, Consultant may (i) refuse to deliver the reports, materials, and other deliverables that it would otherwise be obligated to deliver hereunder, (ii) cease performance of any Services, (iii) issue a notice of non-payment to Client, which, if not satisfied within 15 days after the receipt thereof, shall constitute grounds for Consultant to terminate this Agreement or the SOW applicable to the Services. These rights are not exclusive and Consultant reserves its right to seek any other rights or remedies provided in law or equity. D. Taxes. All amounts payable to Consultant as specified herein are in United States dollars. Consultant shall be responsible for any taxes imposed on the transactions contemplated by this Agreement, including all sales, use, value-added, excise and other similar taxes (including taxes in, or measured by, Consultant's income). 3. DELIVERABLES. A. Summary Document. Client, via the MindMixer Data Dashboard, will have access to produce a summary document, anytime, (the "Summary 589490.4 2 Document") that will include the following terms: (i) site analytics; (ii) "Winning Ideas" and user information associated with such ideas; (iii) summary of demographic information related to the Site's user base; and (iv) summary of additional relevant information, as applicable. B. Electronic Database. Upon request and upon termination/expiration of the Agreement, Consultant will provide Client with an electronic database (the "Database") (Database and Summary Document, collectively the "Deliverables") containing the following information: (i) user names and associated electronic mail addresses; (ii) aggregate reports containing information about the age, location and activity of the Site's users; and (iii) all user-generated content on the Site. 4. CONSULTANT OBLIGATIONS + SERVICE LEVEL AGREEMENT. A. General. (i) All Services shall be performed by qualified Consultant personnel in a professional and workmanlike manner, and in accordance with applicable industry standards. Consultant shall have sole discretion regarding the selection of the personnel to render the Services. (ii) The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Consultant will establish working hours for its personnel, and may, at its sole discretion, use the resources and materials it deems necessary to perform the Services. Consultant shall, within the specifications set forth in any applicable Schedule or SOW, determine the method, details and means of performing the Services. (iii) Consultant shall keep itself informed of all local, state, and federal ordinances, laws and regulations which in any manner affect those employed by it or in any way affect the performance of its Services pursuant to this Agreement. Consultant shall at all times observe and comply with all such ordinances, laws and regulations. (iv) Consultant represents that it is knowledgable about accessibility requirements for public websites, including, without limitation, the Federal Electronic and Information Technology Accessibility Standards, set forth at 36 C.F.R. part 1194. Consultant shall design Site to comply with such accessibility requirements. (v) Consultant is aware that cities are prohibited from violating the rights of individuals who post on the Site, including, without limitation, First Amendment rights, and Consultant shall not apply its "Website Terms and Conditions of Use" in such a manner that 589490.4 3 would violate the rights individuals who post to the Site. Prior to removing or blocking any material posted to the Site by a member of the public, Consultant shall notify Client by email directed to Ara Mihranian, which email address may be changed from time to time by Client upon notification to Consultant, and Consultant shall not remove or block any such material until written permission is granted by Client. (vi) Client, and its City Council members, officers, officials, employees, agents or volunteers shall not be liable at law or in equity occasioned by failure of Consultant to comply with this section. B. Development Services. (i) Upon the completion of the Site pursuant to a SOW, Consultant shall deliver the Site to Client for review and/or testing. Within 15 days of receipt, Client shall either notify Consultant in writing of its acceptance or rejection of the Site. Acceptance of the Site shall signify the completion by Consultant of its development obligations under this Agreement or any applicable SOW. Any notice of rejection shall include reference to specific issues in detail sufficient for Consultant to provide suitable remedial solutions. Upon completion of the remedial work, Consultant shall again deliver the Site to Client, which shall then have 5 business days within which to complete its acceptance or rejection review. Any further rejection of the Site shall follow the procedure set forth in the preceding sentence and require Client's review and response within 5 business days of Consultant's delivery of remedial work. In the event Client fails to accept or reject a remedy supplied by Consultant within the applicable 15 or 5 day periods, such failure shall be deemed to constitute acceptance. No Site may be used by Client until Client has accepted said Site. C. Support Services. (i) The Consultant's web platform will be operational and available to Client at least 99.5% of the time in any calendar month (the "MindMixer Application SLA"). If MindMixer does not meet the MindMixer Application SLA, Client will be eligible to receive the Support Service Credits described below: Uptime Percentage Support Service Credit(Days) < 99.5% - >= 99.0% 3 < 99.0% - >= 95.0% 7 < 95.0% 15 589490.4 4 (ii) Service Credit Request. In order to receive any of the Support Service Credits described above, Client must notify MindMixer within 30 days from the time Client becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Client's right to receive a Service Credit. (iii) Maximum Service Credit. The aggregate maximum number of Support Service Credits to be issued by MindMixer to Client for all Downtime that occurs in a single calendar month shall not exceed fifteen days of Service added to the end of Client's term for the Service. Support Service Credits may not be exchanged for, or converted to, monetary amounts. (iv) MindMixer Application SLA Exclusions. The MindMixer Application SLA does not apply to any services that expressly exclude this MindMixer Application SLA or any performance issues: (i) caused by factors described in the "Force Majeure" section of the Agreement; or (ii)that resulted from Client's equipment or third party equipment, or both (not within the primary control of MindMixer). (v) Records Retention. Consultant will maintain all Site records for 7 years from the effective termination date. Any request for records beyond the termination date must be made in writing 15 days prior to desired record delivery date. 5. CLIENT OBLIGATIONS. Client shall be responsible for compliance with all laws and governmental regulations affecting its use of the Services and the Site, including, without limitation, applicable open and public records laws, and Consultant shall not have any responsibility relating to Client therefore, including, without limitation, any responsibility to advise Client of such laws or regulations, except as otherwise provided herein. In the event the Client determines, in its sole and absolute discretion, that a change must be made to the Site in order to comply with any law or governmental regulation, Consultant shall make the changes requested in writing by Client. 6. TERM AND TERMINATION. A. Term. This Agreement shall commence on the Effective Date and terminate 12 months thereafter, unless otherwise terminated or extended in accordance with the provisions of this Agreement (the initial term and any extension(s) thereof, the "Term"). This Agreement may be extended for one or more additional periods, as the parties may mutually agree in writing. B. Early Termination. Either party may terminate this Agreement or any applicable SOW at any time and for any reason or for no reason, with or without cause, by providing written notice of termination to the other party 30 days prior to the effective date of such termination, or may terminate 589490.4 5 this Agreement immediately with 5 days prior written notice if the other party has materially breached this Agreement. In the event of termination, Client must pay Consultant all Fees associated with Services rendered as of the effective date of termination, calculated on a pro rata basis for any partial months, including reimbursable expenses and Consultant shall submit an invoice to City as required under this Agreement. In addition, Client acknowledges that the amount of any applicable recurring monthly Fee is based on Client's agreement to pay the fee for the entire Term, and thus, in the event Consultant terminates this Agreement due to Client's material breach of this Agreement, or if Client terminates this Agreement in a manner not expressly provided for in this Agreement, Client agrees that all monthly recurring Fees due hereunder for the remainder of the Term shall be due within 15 days following the effective date for such termination. Unless otherwise specified in this Agreement, Client will not receive any refund for payments already made by Client as of the date of termination, and Client may incur additional fees as provided herein. C. Effect of Termination. Upon termination for any reason, Client agrees that: (a) it will immediately cease using the terminated Services; and (b) Consultant may take steps to change, remove or otherwise block Client access to any Services to which Client had access. Unless otherwise agreed upon, termination of any applicable SOW shall not constitute a termination of any other applicable SOW or of this Agreement. However, the termination of this Agreement shall terminate all SOWs otherwise then in effect. 7. OWNERSHIP AND USE OF THE MATERIALS, USER CONTENT. A. Creative Materials. The parties acknowledge and agree that an integral part of the Services is the development of the MindMixer Site, which will include the development of certain information, content, text, graphics, photos, videos, software and other items, as well as their selection and arrangement (collectively, the "MindMixer Creative Materials"). Such Creative Materials are protected by copyrights, trademarks, patents, trade secrets and other intellectual property and proprietary rights, and except as otherwise provided herein, Consultant shall be considered the author of such Creative Materials and retains all right, title and interest in and to such Creative Materials. Client's rights to use the Creative Materials are limited to use solely in connection with this Agreement, the Project and the rights and obligations granted hereunder. Except as otherwise provided herein, any rights granted to Client to use the Creative Materials shall terminate upon termination of this Agreement; provided, however, Client shall retain a non-exclusive license in perpetuity to use all information, content, text, graphics, photos and videos posted to Site even if prepared or edited by Consultant. Nothing herein shall transfer from Client to Consultant any ownership rights in materials owned by Client (e.g., logos, information, content, text, graphics, photos, and videos) which might be used with the Creative Materials or on the Site, including, but not limited to copyrighted, trademarked, trade named, or similarly protected intellectual materials owned by Client. 589490.4 6 B. Client Content. The parties acknowledge and agree that Client will provide certain information, content, text, graphics, photos, and videos ("Client Content"). Client retains all rights to Client Content. Consultant's rights to use the Client Content are limited to use solely in connection with this Agreement, the Project and the rights and obligations granted hereunder. Except as otherwise provided herein, any rights granted to Consultant to use the Client Content shall terminate upon termination of this Agreement. C. User Content. The parties acknowledge and agree that the user content (including, without limitation, information, content, text, graphics, photos, videos, etc. posted by users) ("User Content") generated on the Site is not owned by either Consultant or Client, but can be used by either party for promotional purposes or any other lawful purpose during and after the Term, or as otherwise provided herein. Consultant acknowledges that the Client can and will retain, throughout the Term and thereafter, the right to use any User Content and the Deliverables for any and all purposes related to the general business of the Client, future Client projects, and any and all promotional activities related to the Site. Client will be provided with an electronic copy of all User Content at the completion of the Term. 8. INDEMNITY; LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES A. Client agrees, at its own expense, to indemnify, defend and hold harmless Consultant, its shareholders, members, officers, directors, managers, agents, employees, successors and assigns, against any and all losses, costs, liabilities, damages and/or expenses brought against Consultant by any third party to the extent based on or arising from the Project, the Services or the Site ("Third Party Claims"), excluding Third Party Claims caused in whole or in part by Consultant's negligence, willful misconduct, or breach of this Agreement, and further excluding those Claims defined in Section 8(E) below. B. Consultant agrees, at its own expense, to indemnify, defend and hold harmless Consultant, and its elected officials, officers, agents, employees, attorneys, designated volunteers, and agents serving as independent contractors in the role of City officials, against any and all losses, costs, liabilities, damages and/or expenses brought against Client by any third party to the extent based on or arising from the Project, the Services or the Site ("Third Party Claims"), excluding Third Party Claims caused in whole or in part by Client's negligence, willful misconduct, or breach of this Agreement. C. Neither Client nor Consultant shall be liable under this Agreement, or any SOW, for any indirect, incidental, special, punitive or consequential damages from any cause of action, whether in contract, tort or otherwise (but excluding third party damages for which a party is required to indemnify the other party). In no event will the total aggregate liability of Consultant for any Client claims, losses or damages arising out of this Agreement exceed the total amount of fees and other consideration 589490.4 7 actually received by Consultant under this Agreement, or any SOW. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of any other remedies. Consultant shall not be liable for any loss or damage caused by the failure of the Site to properly or timely operate. D. Consultant warrants and represents that it holds title and/or copyright to all software and/or intellectual property licensed, delivered and used pursuant to this Agreement. Consultant warrants and represents that the MindMixer Engagement Platform, software, Services, marketing materials, Deliverables, and Creative Materials (collectively, "Services and Products") do not infringe any United States patents, trademark, trade secret or copyright or other means of protecting intellectual property rights and/or interests in products or inventions held by any other person or entity. Consultant further warrants and represents that, to the extent Consultant does not hold the title or copyright or intellectual property rights and/or interests, Consultant has secured all necessary licenses, consents or approvals to use any instrumentality, thing or component as to which any intellectual property rights exists, including computer software, used in the rendering of the Services and Products provided under this Agreement. Consultant shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, equipment, devices or processes in connection with its provision of the Site, Services and Products, produced, provided or used by Consultant pursuant to this Agreement. E. Consultant shall defend, indemnify and hold harmless the Client and its elected officials, officers, agents, employees, attorneys, designated volunteers, and agents serving as independent contractors in the role of City officials (collectively, the "Indemnitees") from any and all claims, demands, causes of action, costs, expenses (including, without limitation, attorneys' fees and expert witness fees), liabilities, settlements, compromises, losses, damages or proceedings brought against the Client, which arise as a result of or relate to any claim that (i) Client's use of any of the Services and/or Products is violating federal, state or local laws or (ii) is based on an assertion that the Client's use of the MindMixer Engagement Platform under this Agreement, or any Service or Product provided by Consultant under this Agreement, constitutes an infringement of any patent, copyright, trademark, trade secret, or other means of protecting intellectual property rights and/or interests in products or inventions recognized by the United States or any other country or jurisdiction (collectively, "Claims"). With respect to any and all such Claims, Consultant shall defend Indemnitees at Consultant's own cost, expense, and risk and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse Indemnitees for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant or Indemnitees. All duties of Consultant under this Section shall survive termination of this Agreement. 589490.4 8 F. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE GREATEST EXTENT ALLOWED BY LAW, CONSULTANT HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE SITE, SERVICES, MARKETING MATERIALS, DELIVERABLES AND MATERIALS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR USE OR PURPOSE. THE SITE AND ALL SERVICES, MATERIALS AND DELIVERABLES WILL BE PROVIDED TO CLIENT"AS IS." 9. INSURANCE. A. General Liability Consultant shall at all times during the term of the Agreement carry, maintain, and keep in full force and effect, a policy or policies of Commercial General Liability Insurance, with minimum limits of one million dollars ($1,000,000) for each occurrence and two million dollars ($2,000,000) general aggregate for bodily injury, death, loss or property damage for products or completed operations and any and all other activities undertaken by Consultant in the performance of this Agreement. Said policy or policies shall be issued by an insurer admitted to do business in the State of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better. B. Professional Liability Consultant shall at all times during the term of this Agreement, carry, maintain, and keep in full force and effect a policy or policies of professional liability insurance with a minimum limit of one million dollars ($1,000,000) per claim and aggregate for errors and/or omissions of Consultant in the performance of this Agreement. Said policy or policies shall be issued by an insurer admitted to do business in the State of California and rated in Best's Insurance Guide with a rating of A:VII or better. If a "claims made" policy is provided, such policy shall be maintained in effect from the date of performance of work or services on the Client's behalf until three (3) years after the date of work or services are accepted as completed. Coverage for the post-completion period may be provided by renewal or replacement of the policy for each of the three (3) years or by a three-year extended reporting period endorsement, which reinstates all limits for the extended reporting period. If any such policy and/or policies have a retroactive date, that date shall be no later than the date of first performance of work or services on behalf of the Client. Renewal or replacement policies shall not allow for any advancement of such retroactive date. C. Automobile Liability Consultant shall at all times during the term of this Agreement obtain, maintain, and keep in full force and effect, a policy or policies of Automobile Liability Insurance, with minimum of one million dollars ($1,000,000) per claim and occurrence and two million dollars ($2,000,000) in the aggregate for bodily injuries or death of one person and five hundred thousand dollars ($500,000)for property damage arising from one incident. 589490.4 9 D. Worker's Compensation Consultant agrees to maintain in force at all times during the performance of work under this Agreement worker's compensation insurance as required by the law. Consultant shall require any subcontractor similarly to provide such compensation insurance for their respective employees. E. Notice of Cancellation (1) All insurance policies shall provide that the insurance coverage shall not be cancelled or modified by the insurance carrier without thirty (30) days prior written notice to Client, or ten (10) days notice if cancellation is due to nonpayment of premium. Additionally, Consultant shall provide immediate notice to the Client if it receives a cancellation or policy revision notice from the insurer. (2) Consultant agrees that it will not cancel or reduce any required insurance coverage. Consultant agrees that if it does not keep the aforesaid insurance in full force and effect, Client may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, Client may take out the necessary insurance and pay, at Consultant's expense, the premium thereon. F. Certificate of Insurance At all times during the term of this Agreement, Consultant shall maintain on file with the City Clerk a certificate of insurance showing that the aforesaid policies are in effect in the required amounts. The commercial general liability policy shall contain endorsements naming the Client, its officers, agents and employees as additional insureds. G. Primary Coverage The insurance provided by Consultant shall be primary to any coverage available to Client. The insurance policies (other than workers compensation and professional liability) shall include provisions for waiver of subrogation. 10. CONFIDENTIALITY. During the term of this Agreement, each party (the "Disclosing Party") may provide the other (the "Receiving Party") with certain confidential and proprietary information ("Confidential Information"). Confidential Information includes (a) all business, financial and technical trade secrets identified in writing as such, (b) any written information which is marked "Confidential", and (c) any information which is orally disclosed, identified as confidential at the time of disclosure and confirmed in writing as being confidential within 30 days thereafter. Additionally, the Summary Document and Electronic Database identified as Deliverables shall be considered Confidential Information belonging to Client. Confidential Information shall not include information that (a) is publicly known at the time of its disclosure; (b) is lawfully received by the Receiving Party from a third party not under an obligation of confidentiality to the Disclosing Party, (c) is published or otherwise made known to the public by the Disclosing Party, (d) was in the possession of, or was rightfully known by, the Receiving Party without an obligation to maintain its confidentiality prior to receipt from the Disclosing Party, or(e) information which is required to be disclosed pursuant to any court order or directive having the force of law. The Receiving Party will refrain from using the Disclosing Party's Confidential Information except to the extent necessary to exercise its rights or perform its obligations under this Agreement. Except as required by law, the Receiving Party may not 589490.4 10 . J disclose the Disclosing Party's Confidential Information to any third party, other than its affiliates or representatives who have an absolute need to know such Confidential Information in order for the Receiving Party to perform its obligations and enjoy its rights under this Agreement, and only if such persons are informed of and are subject to the provisions of this Section 10. The Receiving Party remains liable for any unauthorized use or disclosure of the Confidential Information by any such representative or affiliate. Notwithstanding the foregoing paragraph, the restrictions on disclosure of Confidential Information imposed by Section 10 shall not apply to disclosure of Confidential Information which the Client, in its independent and absolute judgment, determines must be disclosed pursuant to the California Public Records Act (the "CPRA"), the Ralph M. Brown Act, the Freedom of Information Act, a subpoena, a discovery request, a court order, or any other such requirement to produce the information pursuant to any legal process, administrative process, law, regulation or legal duty ("Disclosure Requirement"). Consultant acknowledges that some or all of the Confidential Information provided by Consultant may be disclosable pursuant to the CPRA or other Disclosure Requirement. In the event Client determines it must disclose Confidential Information pursuant to any Disclosure Requirement, Client shall give Consultant prompt written notice and sufficient opportunity to seek judicial relief; provided, however, the City shall not be required to delay its compliance beyond the deadlines imposed by law for compliance with such Disclosure Requirements. 11. WEBSITE TERMS OF USE AND PRIVACY POLICY. Consultant shall include on the Site certain terms of use ("Terms of Use") and privacy policies (the "Privacy Policy") that govern the activities of Consultant and the users on the Site, including the use of users' personal information. Client represents that it has read and is familiar with the Terms of Use and Private Policy and, to the extent applicable, shall govern itself in accordance therewith. At Client's request, such Terms of Use and Privacy Policy shall be modified if Client, in its sole and absolute discretion, deems such changes necessary to comply with applicable law. 12. GOVERNING LAW. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. 13. ASSIGNMENT. Neither party may assign any of its rights or this Agreement or delegate any of its obligations to any party without the written consent of the other, except that Consultant shall be permitted to assign or delegate in conjunction with a merger, consolidation, change in control or sale of substantially all of the assets to which the Agreement pertains, provided Consultant gives Client 30 days advance written notice of such change and the assignee or delegatee agrees in writing to be bound by the terms of this Agreement. This Agreement is binding upon and enforceable by each party's permitted successors and assigns. 14. INDEPENDENT CONTRACTOR. Client and Consultant intend at all times to be independent contractors. Neither party is an employee, joint venturer, agent or partner of the other, nor is either party authorized to assume or create any obligations or liabilities, express or implied, on behalf of or in the name of the other. The employees, methods, facilities and equipment of each party shall at all times be under the exclusive direction and control of that party. No employee benefits shall be available to Consultant or its officers, employees, or agents in connection with the performance of this Agreement. Except for Fees paid to Consultant as provided in the Agreement, Client shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for the Client. Client shall not be 589490.4 11 liable for compensation or indemnification to Consultant or its officers, employees, or agents for injury or sickness arising out of performing services hereunder. 15. NOTICES. Any notice, consent or other communication required or permitted hereunder shall be in writing. Unless otherwise provided in this Agreement, it shall be deemed given when (a) sent by commercial overnight courier with written verification of receipt, or (b) sent by registered or certified mail, return receipt requested, postage prepaid, and the receipt is returned to the sender, in each case to the address set forth on the signature page of this Agreement, or such other address of a party that is provided by that party, to the other party, in compliance with the notice requirements of this Section. 16. WAIVER. All waivers to any terms and conditions of this Agreement (or any rights, powers or remedies under it) by either party must be in writing in order to be effective. No waiver granted with respect to one matter or incident will be construed to operate as a waiver with respect to any different or subsequent matter or incident. 17. SEVERABILITY. If any provision of this Agreement is held to be unenforceable, then both Parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is unenforceable. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, INDEMNIFICATION OR EXCLUSION OF DAMAGES OR OTHER REMEDIES IS INTENDED TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY UNDER THIS AGREEMENT IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES OR OTHER REMEDIES SHALL REMAIN IN EFFECT. 18. FURTHER ASSURANCES. Each party will, from time to time during and after the term of this Agreement, upon every reasonable request and at the cost of the other party, execute documents and do all further assurances and things for the purpose of giving full effect to the terms and conditions of this Agreement. 19. CONSTRUCTION. The words "or" and "nor" are inclusive and include "and". "Including" means "including without limitation" and does not limit the preceding words or terms. The singular shall include the plural and vice versa. References to "Sections", "Subsections" or "Exhibits" shall mean the Sections of this Agreement, Subsection of this Agreement or Exhibits attached to this Agreement, unless otherwise expressly indicated. The headings or titles preceding the text of the Sections or Subsections are inserted solely for convenience of reference, and shall not constitute a part of this Agreement, nor shall they affect the meaning, construction or effect of this Agreement. 20. FORCE MAJEURE. In the event of a force majeure condition, including but not limited to fires, acts of God, terrorist attacks, labor disputes, the party whose performance is restricted shall be excused from such performance and shall commence performance when such force majeure is removed. The foregoing shall not apply to any payment obligation of Client hereunder. 21. COUNTERPARTS. This Agreement may be executed in multiple counterparts and by facsimile, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. 589490.4 12 22. COMPLIANCE WITH LAWS. Each party shall comply with all United States federal, state and local laws, statutes, rules and regulations applicable to this Agreement. 23. SURVIVAL. The provisions of this Agreement that by their nature extend beyond the expiration or earlier termination of the Agreement will survive and remain in effect until all obligations are satisfied. Notwithstanding the foregoing sentence, all of the terms and conditions in the Agreement related to confidentiality, indemnification, insurance, dispute resolution and waiver shall survive termination of this Agreement. 24. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement, together with any Exhibits attached hereto or referenced herein, constitutes the entire agreement of the parties regarding the subject matter herein and supersedes all prior or contemporaneous agreements, understandings or communications between the parties, whether written or oral. This Agreement may not be amended, modified, qualified or otherwise changed or altered except in writing executed by an authorized signatory of each party hereto. [Remainder of This Page Intentionally Left Blank; Signature Page Follows.] 589490.4 13 IN WITNESS WHEREOF, CLIENT and CONSULTANT have executed this Agreement as of the Effective Date. CLIENT: City of Rancho Palos Verdes 30940 Hawthorne Blvd Rancho Palos Verdes, CA 90275 Cri e /44_ Signature Date CAlencv't0 LEH Printed Name/Title CONSULTANT: Socialmentum, LLC 1111 N. 13th Street, Suite 101 Omah , NE 68102 tk �$igat ree t n Printed Name/Title Development and Services Agreement Signature Page EXHIBIT A SERVICES SOW#1086 FOR DEVELOPMENT AND SERVICES AGREEMENT BETWEEN Rancho Palos Verdes, CA AND SOCIALMENTUM, LLC DATED October 31, 2012. 1. Client Information. Company Name: City of Rancho Palos Verdes Contact Person: Ara Mihranian Address: 30940 Hawthorne Blvd, Rancho Palos Verdes, CA 90275 Phone: 310-544-5227 Email: aram@rpv.com 2. MINDMIXER UNIVERSITY TRAINING SESSIONS MindMixer staff will host three training sessions via WebEx or alternative web conferencing system. Training sessions will cover the following items: A. Online Community Engagement 101 B. Site Programming and Content Training C. Site Production and Community Management 3. SITE DEVELOPMENT SERVICES A. Design and Launch the Site i) Client will have access to Site beginning on the date the Site is launched (the "Launch Date"). Consultant will use its commercially reasonable efforts to conduct the Launch Date no later than . ii) Consultant will provide four (4) hours of custom site design support throughout the term of the agreement. Consultant will use its commercially reasonable efforts to fulfill all custom design request within three (3) business days. B. Domain Name and Site Hosting i) Consultant will work with Client to identify Project Name. Client shall secure and own URL. Consultant shall host Site for operation through the Term. ii) Site URL will be retained by Client upon termination of the Agreement. C. Live Site Ex.A- 1 589490.4 i) The Site shall include all aspects of the MindMixer Engagement Platform, including idea submission, idea evolvement, user voting, interactive budgeting, and expert / client feedback (two-way engagement). Consultant will provide Client access to the MindMixer Content Management Dashboard and the MindMixer Data Dashboard. ii) Client is responsible for selecting and uploading Site topics and any asset associated with each topic (i.e. photos, maps, videos, etc.). Consultant may reject topics and topic assets at sole discretion if topics contain obscene material, offensive language, or defamatory remarks about an individual or entity. iii) Client is solely responsible for the time and cost associated with topic asset production related to the Site (i.e., video introductions of topics, topic photos, map production, etc.). iv) Site will remain "live" as a read-only site for up to three (3) months after termination/expiration of this Agreement. 4. SUPPORT SERVICES A. Administration, Maintenance and Site Support i) Consultant will provide up to four (4) hours each month of Site administration, maintenance and support, including Client and user support during the Term. Support Services include, but may not be limited to the following: • Additional Client support on topic creation, topic uploading, or other site modification tasks • General user support (password reset, site navigation issues, site utilization questions, etc.) ii) Any Support Services requested in writing by Client that are in excess of the foregoing amount will be deemed Additional Services and will be billed to Client in accordance with Exhibit B. Consultant will use its reasonable efforts to promptly notify Client if the foregoing amount of Support Services has been exceeded. Ex.A-2 589490.4 l EXHIBIT B FEES SOW#1086 FOR DEVELOPMENT AND SERVICES AGREEMENT BETWEEN City of Rancho Palo Verdes, CA AND SOCIALMENTUM, LLC DATED October 31, 2012. The following is a summary of the Fees associated with the Services provided by Consultant hereunder. 1. Site Development Services a. $2,500 Site Development Services and Mindmixer University Training Sessions (combined flat one-time fee) 2. Value Added Support Services a. $250 per month for Support Services including Site administration, maintenance and support services as described in Section 4 of the SOW. Client shall incur Fees for Support Services beginning with the date Client accepts Site in accordance with Section 4(B)(i) of this Agreement, and such Fee shall be calculated on a pro rata basis for any partial months. b. Client shall pay all Fees associated with any Additional Services provided by Consultant to Client in accordance with the rate schedule set forth below. 3. General a. Client shall be responsible for paying and/or reimbursing all of the costs and expenses listed below under "Reimbursables" provided Client's advance written approval is given prior to Consultant incurring costs or expenses. b. Except as otherwise provided in Section 2 of this Agreement or in an applicable SOW, all Fees due to the Consultant will be payable within 30 days of receipt of the applicable invoice. c. All payments of the Fees must be made by cash or cash equivalent to Consultant at 1111 N. 13th Street, Suite 101, Omaha, NE 68102. Ex. B- 1 589490.4 2012 MINDMIXER RATE SCHEDULE AND REIMBURSEMENT SCHEDULE FOR "ADDITIONAL SERVICES" Effective January 1, 2012 HOURLY RATE SCHEDULE Description Rate MindMixer Principal Staff $150 / hour MindMixer Design & Development Staff $100 /hour MindMixer Support Staff $50 / hour These rates listed above are valid for the initial Term of this Agreement, and Consultant may, as a condition to agreeing to any extension of the Term, require that the rates be adjusted. REIMBURSABLES* A. CONSULTANTS: Services provided by other consultants that are invoiced to and paid by the Consultant, will be charged and reimbursed at actual cost, not to exceed the hourly rates set forth above for such equivalent services. B. FILING FEES AND OTHER COSTS ADVANCED: All filing or permit fees and other similar costs that are paid by Consultant on behalf of Client, if approved in advance by Client in writing, will be charged and reimbursed at actual cost. C. REPRODUCTION OF BID DOCUMENTS: Reproduction of bid documents (plans and specifications)will be charged and reimbursed at actual cost. D. MISCELLANEOUS EXPENSES: All miscellaneous expenses in connection with the Site and the Services, including but not limited to reproductions (i.e., plotting, photocopies, photographic reproductions, and all minor printing and materials); support materials (i.e., photographs, graphic supplies, office supplies, etc.) postage charges and phone charges are absorbed by Consultant. *Unless otherwise noted in this Agreement, reimbursable rates only apply to Additional Services. Otherwise, this Agreement is a "lump-sum" contract, meaning all labor costs and other expenses incurred by Consultant in performing the originally agreed upon Support Services are included in Paragraph 2 of this Exhibit B. Ex. B-2 589490.4