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HomeMy WebLinkAbout2006-040 - Agreement with Creative Minds for Website Development Services,., ~, BILL NO.2006-40 ORDINANCE NO.2006-40 AN ORDINANCE APPROVING THE FORM OF, AND AUTHORIZING THE CITY TO COMPLETE AND EXECUTE, AN AGREEMENT BY AND BETWEEN THE CITY OF RIVERSIDE, MISSOURI AND CREATIVE MINDS FOR WEBSITE DEVELOPMENT SERVICES WHEREAS, Creative Minds is in the business of providing professional services, including but not limited to website development services (the "Services"); and WHEREAS, the City of Riverside, Missouri (the "City") has determined that the City requires the Services to communicate with citizens, businesses, and the community at large, and that such Services are for a public purpose, and the City desires to retain Creative Minds to provide such Services; and WHEREAS, the City has negotiated with Creative Minds and the City and Creative Minds have reached an agreement (the "Agreement") concerning the provision of, and payment for, such services. NOW, THEREFORE, BE IT ORDAINED, by the Board of Aldermen of Riverside, Missouri, as follows: Section 1. The City of Riverside shall enter into the Agreement, to be substantially in the form attached hereto as Exhibit A, with Creative Minds, whereby Creative Minds will provide Services, and as consideration for such services the City shall pay Creative Minds LLC a total amount not to exceed Thirty Seven Thousand Nine Hundred Ninety Six and No/100 Dollars ($37,996.00). Any Additional Services shall require Board of Aldermen approval by ordinance. Section 2. The Mayor Pro Tem and the City Clerk are authorized and directed to execute the Agreement, execution of such document being conclusive proof of such approval. The Mayor Pro Tem, City Clerk, and City Administrator are each authorized and directed to perform all acts and execute any other documents necessary or desirable to effectuate the intent of this Ordinance. Section 3. The sections, paragraphs, clauses, and phrases of the Ordinance are severable and if any portion of the Ordinance is declared unlawful by the valid judgment, decree, or injunction order of a court of competent jurisdiction, such ruling shall not affect any of the remaining phrases, clauses, sentences, paragraphs, and sections of the Ordinance and all provisions of the Ordinance not specifically declared to be unlawful shall remain in full force and effect. Section 4. This ordinance shall take effect immediately. Passed this ~~~day of April, 2006. A E .2~ d~ C~ lerk Ma or Pro Tem n' ~1~: J ~' WEB SITE DEVELOPMENT AGREEMENT ~,,~ This AGREEMENT (the "Agreement") is made and entered into as of the o~~'""~ daY of May 2006 (the "Effective Date"), by and between Creative Minds, LLC, a Missouri lirriited liability company with offices at 6251 N. Belton Ct., Kansas City, MO 64151 ("Developer") and the City of Riverside, Missouri ("Client"). WITNESSETH WHEREAS, Developer is in the business of offering. services relating to, among other things, design, development and redevelopment of sites on the World Wide Web portion of the Internet, and is willing to provide services to Client on the terms and subject to the conditions set forth below; and WHEREAS, Client desires to engage Developer, and Developer desires to be engaged by Client, to provide such services on the terms and subject to the conditions set forth below. NOW, THEREFORE, in consideration of the mutual promises set forth herein, Developer and Client (collectively, the "Parties") hereby agree as follows: 1. Developer Services Developer agrees to provide Client with services for design and development of a new web site at www.riversidemo.com or another domain provided by Client (the "Web Site")asset forth or described in the proposal attached hereto as Exhibit 1 (the "Web Site Services") and to provide Client with additional services, if any, set forth or described in the "Addition~e Particees Proposal" attached hereto as Exhibit 2 and mutually agreed-upon ur~ovide on om bmaintenance (the "Additional Services"). Obligations of Developer, if any, top g g tasks for the Web Site shall be set forth and included as part of Additional Services ("Maintenance"). (The Web Site Services and the Additional Services are hereinafter referred to collectively as the "Services.") 2. Web Site Developments and Transfer 2.1 Specifications, Timeline and Client Content Developer, in consultation with Client, will design, author and develop the Website in accordance with the specifications set out in Exhibit 1 (the "Specifications"). The Developer shall prepare a detailed timeline based on information presented in Exhibit 1 and present to Client for review. The Specifications shall be subject to any restrictions or limitations set forth in Exhibit 1 or Exhibit 2. Production schedules will be established and adhered to by the Client and Developer. Where production schedules are not adhered to by the Client, final delivery date(s) will be subject to renegotiation. 2.2 Delivery of Client Content 1 ~' 1 "Client Content" shall mean any materials provided by Client for incorporation in the Web Site, including, but not limited to, any artwork, images, logos, trade names, trademarks, photographs, illustrations, graphics, audio clips, video clips, text or other intellectual property. Client shall deliver the Client Content to Developer in an electronic file format specified and accessible by Developer (e.g., .txt, .cps) or as otherwise specified in the Specifications. The Client represents to Developer and unconditionally guarantees that any Client Content furnished to Developer is owned by the Client, or Client has express written authorization from the owner to grant the license at Section 4 and authorize Developer to perform the Services. The Client fiuther agrees to hold harmless, indemnify, and defend Developer from any third party claim or suit arising from the use of Client Content. 2.3 Revisions and Alterations The Client shall provide the Developer a written request for revisions to the Website during the refinement cycle of each phase as described in Exhibit 1. Upon receipt of such requests, Developer shall, at no extra charge, use commercially reasonable efforts to implement such revision requests that are within the scope of, and consistent with, the Specifications. If Client wishes to implement any revisions to the Web Site that deviate in any material respect from the Specifications, Client shall submit to Developer a written change order containing (i) such revisions to the Website in detail and (ii) a request for a price quote for each change (collectively, the "Change Order"). Developer shall promptly evaluate the Change Order and submit to Client for its written acceptance a proposal for undertaking the applicable tasks and a price quote reflecting all associated fees associated with Client's Change Order. Client's Alterations (CA's) represent work performed on the Website in addition to the Specifications. Such additional work shall be charged at current rates and be supported with documentation upon request. No additional payment shall be made for changes required to conform to the Specifications. An estimate or hourly rate budget will be submitted in writing (e-mail) to the Client when additional work above the quoted price is required. 2.4 Transfer Upon completion of the Web Site and total and complete payment of all fees and invoices called for in Exhibit 1 hereto, Developer shall transfer the Web Site and all passwords and access codes io the Client and/or its designated third party contractor, identified on Exhibit 2 hereto, through which the Web Site maybe accessed via the World Wide Web portion of the Internet. 2.5 Work Order Forms Subsequent to the execution of this Agreement by the Parties, in the event Developer and Client agree that Developer is to perform Additional Services not in the original scope of Services hereunder, Client will provide a detailed description of the services requested, and Developer will submit to Client a cost estimate to provide the services with a description and timeline for delivery of services that Client will be free to accept or reject. 3. Proprietary Rights 3.1 Proprietary Rfghts of Client -- 2 n' 1 ,~ T As between Client and Developer, Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Nothing in this Agreement shall be construed to grant Developer any ownership right in, or license to, the Client Content, except as provided in Section 4.1 of this Agreement. 3.2 Proprietary Rights of Developer Except as provided in Section 3.1 above and Section 4.2 below, computer programming code, artwork, type, negatives, positives, plates, disks, and other intellectual property provided by Developer shall remain the sole and exclusive property of Developer or its suppliers, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively "Developer Materials"). 4. License 4.1 Grant of License-Client Client hereby grants to Developer anon-exclusive, worldwide, royalty-free license during the term of this Agreement, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, perform, display, and otherwise use Client Content as necessary to render the Services to Client under this Agreement. In no event shall Developer use any trademarks or service marks of Client without Client's prior written consent, which will not be unreasonably withheld. In addition to the foregoing, Developer may present and display the Web Site for marketing purposes to Developer's potential clients, in print and on the web and via links in electronic communications and publications, and to submit the work for inclusion in publications and award competitions. 4Z Grant of License-Develaper Subject to the terms and conditions of this Agreement, Developer grants to Client, a non- exclusive, nontransferable, perpetual, worldwide, fully-paid up license to (i) use and copy the Developer Materials which are incorporated in the Web Site and which are required for the operation of the Web Site and (ii) modify and create derivative works based upon the Developer Materials for Client's internal purposes, solely in connection with the operation of the Web Site. In no event shall Client use any trademarks or service marks of Developer without Developer's prior written consent. 5. Fees 5.1 Web Site Services Fees In consideration for the Services to be rendered by Developer in connection with this Agreement, Client shall pay to Developer, upon execution of this Agreement, fees according to the schedule set forth in Exhibit 1 in amount not to exceed Thirty Seven Nine Hundred Ninety Six dollars ($37,996). 3 5.2 Out-of-Pocket Expenses Client shall pay, or promptly reimburse Developer only for pre-approved out-of-pocket expenses incurred by Developer in connection with the performance of the Services during the term of this Agreement. Any contracts that Client makes with third party providers, the Client will be responsible for entering into those contracts and will pay to the third-party contractor any fees associated with said separate contract that are not directly related to Developer set-up, see Exhibit 2. 5.3 Late Payment Client shall pay to Developer all fees not specifically itemized on Exhibit 2 within thirty (30) days of the date of the applicable Developer invoice. If Client fails to pay any fees within thirty (30) days from the date due according to Exhibit 2, or within thirty (30) days from the date of an invoice, where applicable, late charges of (1.5%) per month will be applied. Overdue invoices may delay the completion of the project. 5.4 Term, Termination The term of this Agreement shall commence on the Effective Date and shall continue thereafter for one (1) year, unless sooner temunated by either party. This Agreement may be terminated: (i) by Client, immediately by written notice to Developer if Developer commits any breach of this Agreement and fails to remedy the breach within 30 days after Client's service on Developer of notice specifying the breach and requiring it to be remedied; or (ii) by a written agreement executed by the Parties. Upon any termination or expiration of this Agreement, Developer shall immediately deliver to Client all copies of the Website (completed or in progress), and Client Content in Developer's custody or control. In the event this Agreement is terminated, Client shall pay Developer for all Services and/or work undertaken in performance of its obligations hereunder up to the date of termination. Such payment is due and payable upon Developer's submission to Client of: (i) an invoice; and (ii) a detailed record that documents the extent to which performance of Services was completed through such date of termination. 6. Warranties 6.1 Developer Warranties Developer represents that Developer has the power and authority to enter into and perform its obligations under this Agreement. Developer warrants that the Services provided under this Agreement shall be performed in a professional manner. Developer further warrants that, for a period of ninety (90) days after Developer's transfer of the Web Site to Client under Section 2.4, the Web Site will operate substantially in accordance with the Specifications Developer shall not be deemed to have breached the warranty in the preceding sentence to the extent that Client or its agent(s) have modified the Web Site in any manner or if the Web Site incorporates unauthorized third-party materials, through framing or otherwise. Such breach by Client would make warranty null and void. 6.2 Client Warranties 4 1 n ¶, . .~ r Client represents and warrants that (a) Client has the power and authority to enter into and perform its obligations under this Agreement, (b) to the best of Client's knowledge, upon delivery to Developer, Client Content does not and shall not contain any content, materials, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (c) Client owns the Client Content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to grant the license at Section 4.1 and authorize Developer to perform the Services.. 6.3 Disclaimer of Warranty Except for the limited warranty set forth in section 6.1, Developer makes no warranties hereunder, and Developer expressly disclaims all other warranties, express or implied, including without limitation, warranties of merchantability, non-infringement and fitness for a particular purpose. 7. Miscellaneous 7.1 Entire Agreement This Agreement and attached Exhibits constitute the entire agreement between Client and Developer with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement. 7.2 Cooperation The Parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each of the Parties. 7.3 Independent Contractors Developer, its subcontractors and employees, in performance of this Agreement, are acting as independent contractors and not employees or agents of Client. 7.4 Amendments No amendment, change, waiver, or discharge,hereof shall be valid unless in writing and signed by the party against which such amendment, change, waiver, or discharge is sought to be enforced. 7.5 Force Majeure If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either __ 5 li, ~ I i party; that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes. 7.6 Missouri Law This Agreement shall be governed in all respects by the laws of the State of Missouri without regard to its conflict of laws provisions, and Client and Developer agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal court located in the City of Kansas City, Missouri, and Client and Developer hereby submit to the jurisdiction of such courts. 7.7 Assignment Developer shall not assign, without the prior written consent of Client, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement. Developer may delegate its duties under this Agreement to one or more subcontractors. 7.8 Notice Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof, (ii) if by mail, five (5) days after deposit in the United States mails, postage prepaid, certified mail, return receipt requested, (iii) if by facsimile transmission, upon electronic confirmation thereof, or (iv) if by next day delivery service, upon such delivery. All notices shall be addressed as follows (or such other address as either party may in the future specify in writing to the other): In the case of Developer: Developer Attention: ~ -~~ ~rebAAli1'S S-~, 45/Ca -mss 7 - ~~ Cv In the case of Client: Fax: '% - °~ Attention: ,~ ~y 7.9 Waiver The waiver of failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. 7.10 Severability __ 6 l I ,~ ¶, . ,1 T . . , If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. 7.11 Headings The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof. 7.12 Approvals and Similar Aetions Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. 7.13 Survival Sections 3, 4, 6, 7, and 8 shall survive the tennination or expiration of this Agreement. 1N WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as ofthe date first written above. City of R' ide ~..J gy;_~~~~ ,~/ (Signature) Name: Ravmond D. Beard Title: Mayor Pro Tem Date: si'- ~;.,. P' 1 Creativ 'n By: (Signature) Name: ~ // h L.~I'e~~al~ Title: 14n ~~'- Date: `>l- ~ n~~ 7 r T. .,