HomeMy WebLinkAboutCity Innovate; 2019-07-29;DocuSign Envelope ID: 9C2A9750-207E-4DA0-B7AC-6099AF2F4O38
MEMBERSHIP AGREEMENT
This Membership Agreement (this "Agreement") is made as of Ju I\.,\ 1-9 , 201..9_
(the "Effective Date"), by and between City Innovate, a public benefit corporatioh ("City Innovate") and
the City of Carlsbad (the "Member").
RECITALS
WHEREAS, through its Startup in Residence Network (the "STIR Network") and its associated
proprietary Startup in Residence member software platform (the "Platform"), City Innovate connects
government entities with startups to develop technology products that address civic challenges; and
WHEREAS, City Innovate and the Member desire to have the Member participate in the STIR
Network and use the Platform as a government entity Member.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, and
for good and valuable consideration, the parties hereto agree as follows:
AGREEMENT
1. The STIR Network. Participation in the STIR Network and use of the Platform progresses through four
(4) stages throughout the course of an approximately twelve (12) month period (the "Program Year"),
consisting of the following stages: ( 1) Idea Sourcing ("Stage l "), (2) Challenge Development ("Stage
2_"), (3) Application and Scoring (Startup Selection) ("Stage 3 "), and ( 4) Projects and Residency ("Stage
:f') (each as further described in Exhibit A attached hereto and collectively referred to herein as
"Stages"). City Innovate reserves the right to modify the content, approach, objectives and timing of
the Stages from time to time in its reasonable discretion.
2. Member Fee, Benefits and Obligations. In consideration of the Member's timely payment of the fee
applicable to Member as set forth in Exhibit B attached hereto (the "Member Fee") and the Member's
fulfillment of the obligations set forth in Exhibit C ( the "Member Obligations"), the Member shall be
entitled to participate in the STIR Network and City Innovate shall provide the Member with the
benefits set forth in Exhibit C attached hereto (the "Member Benefits"), which includes access to and
use of the Platform. The Member Fee shall become due and payable in accordance with Exhibit B.
The Member hereby acknowledges and agrees to use commercially reasonable efforts to cooperate with
City Innovate during the course of the Program Year and throughout each of the Stages to achieve
successful collaboration with the Startup Participants, including by using the Platform in the manner
specified by City Innovate. For the purposes of this Agreement, "Startup Participant" means any third
party entity using the Platform for purposes of working with the Member in pursuit of the Member's
desired outcomes or solutions. The Member will bear all of its own costs of participation in the STIR
Network and the Platform, which shall not be considered part of the Member Fee except as may
otherwise be set forth in Exhibit B.
3. Platform.
a. Subject to all terms and conditions of this Agreement, City Innovate shall provide Member the
right to access and use the Platform during the term hereof, solely for Member's own 1,1se in
furtherance of its participation in the STIR Network; in the manner enabled by City Innovate,
and in accordance with all applicable documentation. City Innovate reserves the right to
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modify and update the features and functionality of the Platform from time to time in its sole
discretion. Member acknowledges that the Platform may be unavailable for use from time to
time without notice to Member due to maintenance, error correction and other causes.
b. Restrictions. Member agrees not to, nor to attempt to: (i) make the Platform available to any
third party, (ii) decompile, reverse engineer, or disassemble the Platform or otherwise attempt
to reconstruct or discover any source code of the Platform, (iii) publicly disseminate
information or analysis relating to the Platform; or (iv) use the Platform to develop a
competitive offering or assist a third party in doing so.
c. Data. As between the parties, City Innovate shall own all right, title and interest in and to all
data collected by City Innovate in connection with the operation of the Platform and Member's
use thereof ("Usage Data"). Usage Data may include, by way of example and not limitation,
when and how often the Platform is used and which Platform features are used the most often.
As between the parties, Member shall own all right, title and interest in and to all content
submitted by Member's personnel in the course of use of the Platform ("Member Content"),
provided that City Innovate shall have the right to reproduce, modify, process, analyze and
otherwise use the Member Content for the operation of the Platform and for City Innovate's
internal business purposes. City Innovate reserves the right to disclose the Member Content to
the extent required to do so by applicable law or legal process.
4. Term; Termination; Temporary Suspension.
a. Term. This Agreement shall commence on the Effective Date and shall continue for a term of
three (3) years (such period, as it may be extended, sooner terminated or temporarily suspended
in accordance with the provisions of this Section 3, the "Initial Term"). After the Initial Term,
the City Manager may amend the Agreement to extend it for two (2) additional one (1) year
period ( each such period, as it may be extended, sooner terminated or temporarily suspended
in accordance with the provisions of this Section 3, a "Renewal Term") unless either party
provides notice of termination to the other party prior to the beginning of the subsequent
Renewal Term. If City Innovate provides to the Member, not later than sixty (60) days prior
to the end of the then-current term, an updated Exhibit B to this Agreement, such Renewal
Term shall be subject to any changes to the Member Fee and other terms and conditions as are
set forth on such updated Exhibit B.
b. Termination. This Agreement may be terminated prior to its expiration as set forth in Section
.l(ru above in the following manner: (i) by the Member at any time prior to the selection of a
Startup Participant during Stage 3; (ii) by either party, for any or no reason, upon thirty (30)
days' written notice to the other party; or (iii) by the non-breaching party, upon twenty-four
(24) hours prior written notice to the breaching party if one party has materially breached this
Agreement and has not cured such material breach within ten ( 10) days' notice of such breach
by the non-breaching party. In the event this Agreement is terminated by City Innovate
pursuant to the foregoing clause (ii) or by Member pursuant to the foregoing clause (iii), City
Innovate shall (provided that the Member Fee has been paid at the time of termination) refund
the Member Fee on a pro-rated basis based on the number of days that have elapsed during the
Program Year. No refund shall be due or payable to the Member under any other
circumstances.
c. Temporary Suspension. Upon receipt of the applicahlc invoice at or prior to the
commencement of each Program Year, the Member shall have the option to forego
participation in such Program Year for any reason or no reason ("Suspension Option"). To
exercise the Suspension Option, the Member shall give written notice of such election to City
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Innovate prior to the commencement of Stage 2 for such Program Year and in any event, no
later than thirty (30) days following receipt of the invoice for such Program Year. Upon the
exercise of the Suspension Option and during the remainder of such Program Year (such
period, a "Temporary Suspension"), the Member shall not be required to fulfill the Member
Obligations for such Program Year, and City Innovate shall not be required to provide the
Member Benefits to the Member for such Program Year. [ All other rights and obligations of
the parties set forth herein shall survive and continue to apply during any Temporary
Suspension.] 1
5. Intellectual Property.
a. Each party is granted a limited, non-transferable, non-exclusive license to use the other party's
trademarks and logos ("Marks") for the purpose of identifying the Member as a participant in
the STIR Network and (with respect to the license granted to City Innovate) in connection with
marketing and promoting the STIR Network, and the Marks may be used for such purposes
without the prior approval of either party. Except as set forth in the prior sentence, any and all
other uses of a party's Marks by the other party in connection with this Agreement shall be
subject to the first party's prior written approval, provided that any approval that is given
hereunder shall (unless otherwise expressly stated in writing by the approving party) be deemed
to apply to subsequent uses of the applicable Mark that are substantially similar to the approved
use until and unless such approval is revoked. All uses of Marks by a party must comply with
any reasonable trademark usage guidelines that the other party may provide. In any case, each
party agrees that it shall not utilize the other party's Marks in any manner that would reasonably
diminish its value or harm the reputation of the other party.
b. Member acknowledges that Startup Participants are participating in the STIR Network and
using the Platform in part to gain insights from government entities to help inform the
development and improvement of their products, services and technology that they intend to
broadly commercialize, and agrees that Member intends to provide ideas, suggestions and
feedback (collectively, "Feedback") to one or more Startup Participants regarding such Startup
Participant(s) actual or potential products, services and technology as part of its participation
in the STIR Network and use of the Platform. Member acknowledges and agrees that any
Feedback it may provide to a Startup Participant may be freely used by such Startup Participant
on a perpetual and irrevocable basis without provision of compensation or attribution to
Member. Member further acknowledges and agrees that it shall have no ownership interest in
any patent, copyright or other intellectual property rights associated with any product, service
or technology developed in whole or in part by any Startup Participant, and that Member will
provide such reasonable cooperation as may be requested by a Startup Participant in confirming
and perfecting such Startup Participant's ownership of the same.
c. As between the parties, City Innovate retains all, right, title and interest in and to the Platform.
To the extent Member provides City Innovate with any Feedback relating to the STIR Network
or Platform, Member acknowledges and agrees that any such Feedback may be freely used by
City Innovate on a perpetual and irrevocable basis without provision of compensation or
attribution to Member.
6. Confidentiality.
1 Does City Innovate want to permit the Members who have opted for a Temporary Suspension to be able to
continue to use City Innovate's trademarks and logos during such suspension periods?
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a. Confidential Information. Each party (the "receiving party") acknowledges that, in connection
with this Agreement, it may receive information and materials relating to the other party (the
"disclosing party") and its business that is marked "confidential and privileged." The receiving
party agrees that it shall not (i) disclose, disseminate or transfer Confidential Information to
any third parties except as authorized by this Agreement; or (ii) use such Confidential
Information for any purpose other than in performing this Agreement; provided, however, that
(y) the receiving party may make any disclosure or use of such Confidential Information to
which the disclosing party gives its prior written consent, and (z) any of the Confidential
Information may be disclosed by the receiving party to its employees or agents who need to
know such information in furtherance of this Agreement. The receiving party shall be
responsible for any breach of the confidentiality obligations set forth in this Section 5(a) by
any of its employees or agents, and agrees, at its sole expense, to take reasonable measures to
restrain its employees or agents from prohibited or unauthorized disclosure or use of the
Confidential Information.
b. Exclusions. Notwithstanding the foregoing, there shall be no obligation of confidentiality
hereunder with respect to any Confidential Information that (i) is publicly available, other than
through a breach of this Agreement by the receiving party; (ii) is developed by the receiving
party independently of, or was known by the receiving party prior to, any disclosures made by
the disclosing party to the receiving party of such information; or (iii) becomes available to the
receiving party on a non-confidential basis from a source which the receiving party reasonably
believes is not prohibited from disclosing such information to the receiving party. In addition,
the receiving party may disclose Confidential Information as may be required by law or
regulation, or to respond to governmental inquiries; provided that, in such case the receiving
party will, prior to such disclosure and to the extent permitted by applicable law, advise the
disclosing party of the disclosure requirement, request confidential treatment for the
Confidential Information disclosed and only disclose that portion of the Confidential
Information that is required to be disclosed.
c. Return of Confidential Information. Upon the disclosing party's written request, the receiving
party shall promptly return to the disclosing party or destroy, as directed by the disclosing party,
all Confidential Information in its possession or under its control, as well as any documents
that contain such Confidential Information; provided that, the receiving party may retain an
archival copy of any Confidential Information pursuant to a bona fide record retention policy,
so long as the receiving party agrees to maintain the confidentiality of such Confidential
Information.
d. Equitable Relief. The parties acknowledge and agree that any breach of this Section 6 may
cause the disclosing party immediate irreparable harm entitling the disclosing party to seek
immediate injunctive relief in addition to any other right or remedy that the disclosing party
may have at law or in equity.
7. Remedies Cumulative. All remedies, either under this Agreement or by law or otherwise afforded to
any party, shall be cumulative and not alternative.
8. Representations and Warranties.
a. Each party hereby represents and warrants that: (i) it has the right, power and authority to enter
into this Agreement. and to fully carry out its respective obligations hereunder; (ii) its execution
and delivery of this Agreement shall evidence that the same has been duly and validly
authorized and approved by all requisite action by its organization, and that no further action
is necessary to make this Agreement, and all transactions contemplated hereby, valid and
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binding on such party in accordance with the terms, conditions, and covenants hereof; and (iii)
that neither this Agreement nor the performance thereof will conflict with or violate any of its
obligations to any third party.
b. The Member further represents and warrants that all information provided by the Member to
City Innovate in connection with its participation in the STIR Network and use of the Platform
was true and correct as of the date it was so provided, and that no such information was, as of
the date it was provided, false or misleading. The Member further covenants that it will inform
City Innovate immediately upon learning of any changes in material information that the
Member has previously supplied to City Innovate.
9. Disclaimers. Notwithstanding anything to the contrary set forth herein, including without limitation
Section 2 above, City Innovate does not guarantee any of the following events will occur, and the
Member assumes the risk that any or all of the following events do not occur: (i) a suitable and/or
desirable Startup Participant is available that is capable of responding to any challenge statement
published by Member; (ii) a Startup Participant selected by the Member shall work collaboratively and
with commercially reasonable efforts with the Member to achieve the desired outcome or result; and
(iii) a Startup Participant shall meet the Member's expectations or achieve the Member's desired
outcome or result. Further to the foregoing, and for the avoidance of doubt, TO THE MAXIMUM
EXTENT ALLOWED BY APPLICABLE LAW, CITY INNOVATE PROVIDES THE MEMBER
BENEFITS (INCLUDING USE OF THE PLATFORM) AND PARTICIPATION IN THE STIR
NETWORK ON AN "AS IS" AND "AS AVAILABLE" BASIS AND GRANTS NO WARRANTIES
OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH
RESPECT TO THE MEMBER BENEFITS OR PARTICIPATION IN THE STIR NETWORK,
INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF SATISFACTORY
QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-
INFRINGEMENT.
10. LIMITATION OF LIABILITY. EXCEPT FOR ANY BREACH OF SECTION 6, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, DATA,
GOODWILL, REVENUES OR PROFITS (WHETHER OR NOT DEEMED TO CONSTITUTE A
DIRECT CLAIM OR A DIRECT DAMAGE), OR ANY CONSEQUENTIAL, SPECIAL, INDIRECT,
INCIDENTAL, PUNITIVE OR EXEMPLARY LOSS, DAMAGE, OR EXPENSE (EVEN IF THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RELATING TO
THIS AGREEMENT, THE STIR NETWORK AND THE PLATFORM, REGARDLESS OF THE
THEORY OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL THE AGGREGATE
LIABILITY OF CITY INNOVATE RELATING TO THIS AGREEMENT, THE STIR NETWORK
AND THE PLATFORM EXCEED THE AMOUNTS PAID TO CITY INNOVATE HEREUNDER
BY THE MEMBER DURING THE TWELVE ( 12)-MONTH PERIOD PRECEDING THE DATE OF
THE CLAIM. MEMBER ACKNOWLEDGES THAT CITY INNOVATE DOES NOT CONTROL
OR DIRECT THE MANAGEMENT, OPERATIONS OR ACTIVITIES OF ANY STARTUP
PARTICIPANT OR THE OFFICERS, EMPLOYEES, CONTRACTORS AND AGENTS OF ANY
STARTUP PARTICIPANT, AND AGREES THAT CITY INNOVATE AND ITS OFFICERS,
EMPLOYEES, CONTRACTORS AND AGENTS SHALL HA VE NO LIABILITY OF ANY KIND
WHATSOEVER IN CONNECTION WITH ANY ACTS OR OMISSIONS (INCLUDING
NEGLIGENCE) OF ANY STARTUP PARTICIPANT OR ITS OFFICERS, EMPLOYEES,
CONTRACTORS AND AGENTS, INCLUDING WITHOUT LIMITATION ANY BREACH OF
CONTRACT, TORT OR VIOLATION OF LAW COMMITTED BY ANY STARTUP
PARTICIPANT OR ITS OFFICERS, EMPLOYEES, CONTRACTORS AND AGENTS.
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11. Notices. All notices given in accordance with this Agreement shall be in writing and shall be deemed
effectively given upon the earlier of actual receipt or (a) personal delivery to the party to be notified,
(b) when sent, if sent by electronic mail or facsimile during normal business hours of the recipient, and
if not sent during normal business hours, then on the recipient's next business day, (c) five (5) days
after having been sent by registered or certified mail, return receipt requested, postage prepaid, or ( d)
one (1) business day after the business day of deposit with a nationally recognized overnight courier,
freight prepaid, specifying next business day delivery, with written verification of receipt. All
communications shall be sent to the respective parties at the following addresses:
City Innovate
995 Market Street
Suite 230
San Francisco, CA 94103
Attn: Kamran Saddique
kamran@cityinnovate.com
City of Carlsbad
Maria Callander
Director of Information Technology
1635 Faraday Avenue
Carlsbad, CA 92008
Maria. Callander@carlsbadca.gov
Addresses for notice purposes may be changed from time to time by written notice to the other party and
shall be effective in accordance with this Section 11.
12. Governing Law; Jurisdiction. This shall be governed by and construed under the laws of the State of
California applicable to contracts entered into and fully performed in the State of California, without
regard to its conflicts of law principles. Each party hereby consents to the exclusive jurisdiction of the
federal and state courts of San Francisco County, State of California.
13. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the
validity or enforceability of any other provision.
14. Entire Agreement. This Agreement, and all schedules and exhibits attached hereto, constitutes the
entire agreement between the parties with respect to the subject matter hereof, and any other written or
oral agreement relating to the subject matter hereof existing between the parties is expressly canceled.
15. Amendments and Waivers. This Agreement may be amended or modified, and the observance of any
term hereof may be waived ( either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument executed by (a) City Innovate and (b) the Member. No
waiver of any breach of this Agreement shall be deemed a waiver of any other breach, nor will any
waiver constitute a continuing waiver.
16. Assignment. Neither party may assign this Agreement or any rights hereunder without the other party's
prior written consent. This Agreement will be binding upon and inure to the benefit of the parties and
each of their respective successors.
17. Headings. The headings in this Agreement are for reference purposes only, do not constitute a part of
this Agreement, and shall not affect its meaning or interpretation.
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18. Third-Party Beneficiaries. This Agreement does not create, and will not be construed as creating, any
rights or interests enforceable by any person not a party to this Agreement.
19. Force Majeure. Neither party shall be liable for any delays or nonperformance directly or indirectly
resulting from circumstances or causes beyond its reasonable control, including, without limitation,
fire, epidemic or other casualty, act of God, strike or labor dispute, war or other violence, or any law,
order, or requirement of any governmental agency or authority.
20. Relationship of the Parties. Notwithstanding anything to the contrary set forth herein, for all purposes
of this Agreement, each party shall be and act as an independent contractor and not as a Member, joint
venturer, agent or employee of the other and shall not bind nor attempt to bind the other to any contract.
21. Survival. The rights and obligations of the parties set forth in Sections 3.b., 3.c., 4.b., and 5 through 21
of this Agreement shall survive any termination or expiration of this Agreement and the termination or
expiration of Member's participation in the STIR Network.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have executed this Membership Agreement as of the date
first written above.
CITY INNOVATE
by its authorized representative:
Signature of authorized representative
Kamran saddique
Full name of authorized representative
(please print)
President
Official title of authorized representative (please print)
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IN WITNESS WHEREOF, the parties have executed this Membership Agreement as of the date
first written above.
City of Carlsbad
by its authorized representative:
Signature of authorized representative
Maria Callander
Full name of authorized representative
(please print)
Director of Information Technology
Official title of authorized representative (please print)
BARBARA ENGLESON
City Clerk
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Stage 1 -Ideas Sourcing
1. Technical Guides
EXHIBIT A
STAGES
a. Read/watch webinar, knowledge base articles, guide on how to identify and source
ideas/ challenges
2. Platform Usage
a. Ability to collect ideas from Member staff via an online form
b. Ability to document ideas in product
c. Ability to categorize and manage ideas
d. Ability to convert ideas into challenges
Stage 2 -Challenge Development
I . Technical Guides
a. Article, templates, examples on how to draft challenges statements
b. Article, templates, examples on promoting challenges
2. Platform Usage
a. Member completes draft challenge statement
b. Member or a Member selected third party review draft challenges and provide comments
c. Member finalizes challenge statement
d. Member selects procurement vehicle (RFP, sole source, etc)
e. Member sets solicitation dates, and question and answer period
f. Member publishes RFP on Platform and their procurement website
g. Member advertises their challenges; City Innovate advertises all challenges publicly
h. Startups are able to find, review challenges
Stage 3 -Application and Scoring (Startup Selection)
1. Technical Guides
a. W ebinar, knowledge base article, templates, examples on how to draft evaluation
questions
b. Webinar, knowledge base article, templates on how to score respondents
2. Platform Usage
a. Member creates online questions for startups
b. Startups apply for challenges
c. Startups ask questions
d. Member responds to questions publicly
e. Government reviews, scores, selects
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Stage 4 -Projects and Residency
1. Technical Guides
a. Webinar, knowledge base articles, templates, examples on how to draft project scoping
document
b. Webinar, knowledge base articles, templates, examples on how to have a successful
project
c. Webinar, knowledge base articles, templates, examples on how to evaluate project
d. Webinar, knowledge base articles, templates, examples on contracting
2. Platform Usage
a. Member invites selected startup staff
b. Startup staff complete user profile
c. Member and startup complete project scoping document
d. Member and startup complete weekly project status survey
e. Member and startup complete project evaluation form
f. Member and startup complete monthly contracting survey
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EXHIBIT B
MEMBER FEE
Member Fee Structure & Terms of Payment
Member Fee Scale
The Member Fee payable by the Member is determined based on the annual budget of the government
organization (inclusive of enterprise budget) as set forth below:
Annual Budget of the Member Member Fee
Less than $500 million $10,000
$500 million to $1 billion $15,000
$1 billion to $5 billion $20,000
Greater than $5 billion $25,000
The Member Fee payable by the member is $10,000 for the Program Year, which runs from July 1st,
2019, to June 30th, 2020.
Terms of Payment
Subsequent to the Effective Date and at or before the commencement of the Program Year, and therefore
at or before the commencement of Stage 1 of the Program Year, and no later, City Innovate will issue an
invoice in accordance with the Member Fee Scale above, along with payment instructions, to the Member.
Payment of such invoice or notice of exercise of the Member's Suspension Option will be due and payable
( as applicable) to City Innovate within thirty (30) days of the date of such invoice and no later. Receipts
for Member Fees will be issued upon request.
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EXHIBIT C
MEMBER BENEFITS AND OBLIGATIONS
Member Benefits
• Unlimited access and utilization of City Innovates Platform, subject to the terms and conditions of
the Agreement.
• Ongoing product support and account management for Member staff
• Member advertises their challenges and City Innovate advertises all challenges publicly for
recruitment of Startup Participants
• Facilitation of technical guidance through knowledge-based materials on the product to Member
and Startup Participants.
• Support and guidance of Members and Startup Participants throughout the Projects & Residency
Stage through the product as detailed in Exhibit A
• Support to Member and Startup Participants to help them build a narrative that shares the project
outcomes at Demo Day, held at the annual conference.
• Invitation to Member to attend an annual conference in San Francisco hosted by City Innovate.
• Access to and insight from Member Challenges of other Members, and solutions thereto.
• Opportunity to enter into contracts with Startup Participants under the same terms, conditions, and
prices as prior contracts between the Startup Participants and other Members who have included
piggyback contracting language
Member Obligations
• Timely payment of Member Fee.
• Regular communication with product.
• Identification of Member Challenge( s)
• Dedicated Member point of contact for challenges
• Development and finalization of Member Challenge(s) and attendance at a scoping workshop for
each Member Challenge.
• Identification of a procurement pathway for each Member Challenge.
• Review, interview and evaluate Startup Participant applications.
• Opportunity to allow other Members to "piggyback" off of Member's RFP process with the
intention to contract with other Startup Participants.
The Member and City Innovate understand that the nature and scope of the Member Challenge may change,
initiated by either party, promptly upon written notice to the other party, and upon written agreement by
the other party.
The Member hereby agrees to accept the services provided by City Innovate as set forth above and will
use its discretion in deciding how to deploy or implement such services.
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