THE CORPORATION OF THE CITY OF MISSISSAUGA

PROCUREMENT SERVICES

APPENDIX 3
SPECIAL TERMS AND CONDITIONS
 The Corporation of the City of Mississauga
Procurement No. PRC003784 – Appendix 3 – Special Term and Conditions
RFNP for Physical Records Management Solution

TABLE OF CONTENTS

Appendix 3 – SPECIAL TERMS AND CONDITIONS

ARTICLE 1 – APPLICABILITY OF SPECIAL TERMS AND CONDITIONS

ARTICLE 2 – CONFLICT
ARTICLE 3 - INDEMNITIES
ARTICLE 4 - SERVICE SPECIFIC REQUIREMENTS
ARTICLE 5 - INSURANCE

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 The Corporation of the City of Mississauga
Procurement No. PRC003784 – Appendix 3 – Special Term and Conditions
RFNP for Physical Records Management Solution

Appendix 3

SPECIAL TERMS AND CONDITIONS

ARTICLE 1 – APPLICABILITY OF SPECIAL TERMS AND CONDITIONS

1.1 In addition to the Standard Terms and Condition of Contract provided for in Appendix 2, the
Supplier shall be required to comply with the Special Terms and Condition provided for in
this Appendix 3.

ARTICLE 2 – CONFLICT

2.1 In the event of a conflict between the terms and conditions of this Appendix 3, and any
terms and conditions of Appendix 2, this Appendix 3 will prevail with regard to the subject
matter therein.

ARTICLE 3 - INDEMNITIES
3.1 Indemnity from Supplier to the City

Supplier shall, both during and following the Term of this Agreement, save harmless,
defend and fully indemnify the City and its elected officials, officers, employees, agents,
representatives, successors and assigns (the "Indemnified Persons") from and against all
costs, actions, suits, claims, and demands whatsoever which may be brought against or
upon the City and/or any of the Indemnified Persons, against any loss, costs, damages
or expenses which the City and/or any of the Indemnified Persons may sustain, suffer,
incur or be liable for, resulting from, arising from or in any way related to or as a result
of:

(a) any breach, violation, or non-performance of the terms, covenants representations,

warranties and obligations on the part of Supplier, Subcontractors, employees,
workers or agents as set out in this Agreement or under any related agreement;

(b) any property damage, either real or personal and either owned by the City or
others, howsoever occasioned, by Supplier, Subcontractors, employees, workers or
agents performing work under this Agreement or under any related agreement;

(c) any personal or bodily injury to any person or persons, including death resulting at
any time therefrom, howsoever occasioned by Supplier, Subcontractors,
employees, workers or agents performing work under this Agreement or under
any related agreement; and

(d) Supplier’s fraud, negligence or willful misconduct of Supplier, Subcontractors,

employees, workers or agents in the performance of its obligations under this
Agreement or under any related agreement or under any related agreement.

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 The Corporation of the City of Mississauga
Procurement No. PRC003784 – Appendix 3 – Special Term and Conditions
RFNP for Physical Records Management Solution
(e) Any breach, violation or non-performance of the obligations described in Article 6
(Privacy).

3.2 Intellectual Property Indemnity

(a) Supplier shall defend, at its expense, any action brought against the City and the
Indemnified Persons to the extent that the action is based on a claim that the
operation or use of the Software (or any part thereof) infringes any third-party's
intellectual property rights including, without limiting the generality of the
foregoing, copyright, trade secret, patent or industrial design rights and Supplier
s h a l l indemnify and hold the City harmless with respect to all resulting court
costs, damages or settlements awarded against the City provided that:

i. the C i t y n o t i f i e s S u p p l i e r o f a n y m a t t e r i n
r e s p e c t o f w h i c h t h e foregoing may apply and of
which the City has knowledge;

ii. Supplier has sole control over the defence, settlement or

compromise of any such action; and

iii. the action is not in respect of any content or data provided

to Supplier or transmitted by the City using the System.

(b) If the Software (or any part thereof) becomes, or in Supplier's opinion is likely to
become, the subject of a claim based on an alleged infringement or breach as
aforesaid, Supplier may, at its expense and option, with prior written notice to the
C i t y , do one of the following:

i. modify the applicable part of the Software so that there

is no longer any infringement or breach, provided that
such modification does not adversely affect the
functional capabilities of the System or Software as se t
out herein;

ii. procure for the City the right to continue to use the
applicable part of the System or Software; or

iii. replace same with an equally suitable, functionally

equivalent, compatible, non-infringing System or
Software, as applicable.

ARTICLE 4 - SERVICE SPECIFIC REQUIREMENTS

4.1 Hosting Services

(a) All infrastructure requirements and all software applications required by Supplier
to enable the City to access and use the System and System Portal remotely,
including the hosting, operation and connection of the System to the internet
(collectively, the "Hosting Services") shall be the responsibility of the Supplier and
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 The Corporation of the City of Mississauga
Procurement No. PRC003784 – Appendix 3 – Special Term and Conditions
RFNP for Physical Records Management Solution
there shall be no charge for such Hosting Services other than as specifically set
forth in this A greement. The H osting Services will be p rovided at the S u p p l i e r 's
data centre l ocated at [ INSERT A DDRESS]. Except as may be necessary on an
emergency basis to maintain the continuity of the Services, Supplier shall not,
without the City's written approval, move the location where the System is located
or modify in any material respect:

(i) the composition or nature of the Services; or

(ii) the manner in which the Services are provided or delivered, if such
modification(s) could have a materially adverse effect on the operation of
the System and System Portal.

4.2 Data Security

Supplier shall perform this Agreement in accordance with reasonable security, data
protection and encryption standards and practices that are used within Canada for the
purpose of preventing, mitigating, detecting, not permitting, protecting against, and
otherwise securing the Services and City Data and City Confidential Information from any
harm, damage, sabotage, hacking, interference, interception, unauthorized access,
corruption, or fraudulent use by any person (“Security Requirements”). As part of the
Security Requirements, Supplier shall provide physical and logical protection that meets
or exceeds: (i) City Security Requirements; and (ii) reasonable information processing
industry standards of Canada, for the protection of networks and data in connection
with the provision of the Services to ensure that no third party will be able to hack into,
access or use any City Data. This may include, without limitation, the use of: (i) a security
force; (ii) gates and other barriers; (iii) electronic or physical locks; (iv) biological
identification systems, such as fingerprint scanners; (v) system identifiers and passwords; (vi)
database locks and passwords; (vii) periodic security checks; (viii) encryption; (ix) intrusion
detection/prevention systems; (x) firewalls; and (xi) anti- virus/malicious code protection.

4.3 Return of Historical Data

Upon termination, cancellation, expiration or other conclusion of the Agreement, Supplier

shall return the City Data to the City unless the City requests that such data be destroyed.
Supplier shall return City Data in its original form and in a format accessible by the City.
Supplier shall complete such return or destruction not less than thirty (30) days after the
conclusion of this Agreement. Within such thirty (30) day period, Supplier shall certify in
writing to the City that such return or destruction has been completed.

ARTICLE 5 – INSURANCE

5.1 Without restricting the indemnification provisions of this Contract, the Supplier shall at its
sole cost and expense, obtain and maintain in full force and effect at all times throughout
the Term or extended Term(s) of this Contract, insurance satisfactory to the City with
financially sound and reputable insurance companies licensed to underwrite insurance in
the Province of Ontario. The Supplier shall be responsible for payment of all amounts within
the deductible or self-insured retention under each policy of insurance. All insurance
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 The Corporation of the City of Mississauga
Procurement No. PRC003784 – Appendix 3 – Special Term and Conditions
RFNP for Physical Records Management Solution
policies required pursuant to this clause shall be primary and shall not call into contribution
any insurance available to the City and any indemnified persons. The insurance shall include
but not be limited to the following:

(a) Commercial General Liability insurance for the Work of the Supplier as
described in this Contract against claims for bodily injury, including personal
injury and death, and property damage or loss, indemnifying and protecting
the Supplier, their respective employees, servants, agents, subcontractors,
invitees or licensees, to the inclusive limit of not less than Two Million
($2,000,000) Canadian dollars per occurrence, or such amount as the City may
in its discretion determine from time to time. Such insurance shall specifically
state by its wording or by endorsement that:
(i) The City is included as an additional insured under the policy with respect
to the operations and obligations of the Supplier and their performance
of the Work as outlined in this Contract;
(ii) The policy includes contractual liability, non-owned automobile liability,
products and completed operations coverage, owner’s and Supplier’s
protective coverage, contingent employer’s liability, and employees as
additional insured;
(iii) The policy contains a cross-liability and severability of interests clause
which shall have the effect of insuring each person, firm or corporation
named in the policy as an insured in the same manner and to the same
extent as if a separate policy had been issued to each;
(iv) A waiver of subrogation rights which the insurers may have against the
City and against those for whom the City is in law responsible.

(b) Professional Liability or Errors and Omissions Insurance in the amount of not
less than Two Million ($2,000,000) Canadian dollars per claim and Two Million
($2,000,000) Canadian dollars in the aggregate and shall continue for twelve
(12) months following completion of the work.

(c) Network/Cyber Security and Privacy Liability Insurance including Payment Card
Coverage Extension which shall cover liability for financial loss, imposed by law
or assumed under contract for the failure or breach of network security, failure
to safeguard against breach caused by hacking or viruses, unauthorized release
of and/or failure to protect private personal or corporation information, theft
of hardware on which data is stored, and costs to restore and/or recreate lost
data. If applicable, such insurance shall be in an amount of at least Two Million
($2,000,000) Canadian dollars per claim, and shall be on a claims made basis
and provide for full defense costs.

5.2 Prior to entering into the Contract and throughout the Term of the Contract, the Supplier
shall deliver to the City a City Standard certificate of insurance evidencing that the
insurance required under this Contract is in effect.

A PDF fillable City Certificate of Insurance is available at:

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 The Corporation of the City of Mississauga
Procurement No. PRC003784 – Appendix 3 – Special Term and Conditions
RFNP for Physical Records Management Solution
www.mississauga.ca/certificateofinsurance

This certificate must be completed, broker/insurer stamped (digitally or otherwise), dated

and signed by an authorized insurance representative.

5.3 In the event the aforementioned policies are terminated, cancelled or materially altered,
the Supplier shall provide written notice of such termination, cancellation or material
alteration to the City at least thirty (30) days before the effective date.

5.4 The City acknowledges that some insurance requirements contained in this Contract may
be fulfilled by self-insurance on the part of the Supplier. The Supplier’s obligation
hereunder may be satisfied in whole or in part by adequately funded self-insurance
programs or self-insured retentions, provided however, that this shall not in any way limit
the liabilities assumed by the Supplier under this Contract and the Supplier shall provide
the City with the same protection from liability and defense of claims as would be afforded
by first dollar insurance. Any self-insurance at or above $2,000,000 shall require the
written approval of the City’s Contract Manager upon satisfactory evidence of the
Supplier’s capacity.

End of Appendix 3

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