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HomeMy WebLinkAboutexhibitMARKETING PARTNERSHIP AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND CARDIAC SCIENCE, INC. THIS AGREEMENT ("Agreement") is made, entered into, and effective as of the latest date set forth on the signature page hereto, by and between the City of Miami, Florida (hereinafter referred to as the "City"), with its principal place of business located at 444 S.W. 2 Avenue in Miami, Fl. 33130, and Cardiac Science, Inc., a Delaware corporation (hereinafter referred to as "Cardiac Science") with its principal place of business located at 1900 Main Street, Suite 700, Irvine, California 92614 (each, a "Party," and collectively, the "Parties"). RECITALS WHEREAS, the City's Fire -Rescue Department seeks to establish a Public Access Defibrillator (PAD) program to help save lives in Miami; and WHEREAS, the City seeks to create a Marketing Partnership Program ("MPP") to generate revenue to fund existing and additional facilities, projects, programs and activities; and WHEREAS, Cardiac Science has demonstrated an interest in the City's PAD program by submitting a proposal to enter into a Marketing Partnership with the City; and WHEREAS, the City has determined that Cardiac Science's proposal meets the objectives of the MPP and is otherwise in the best interests of the City; and WHEREAS, the City and Cardiac Science desire to enter into a contractual relationship which makes Cardiac Science the exclusive supplier of automated external defibrillators (AEDs) to City Facilities; and WHEREAS, as authorized by City of Miami Procurement Code §18-I 11, Miami City Code, this Agreement has been accepted and procured by the City from the contract of another municipality. The City of San Diego, which the Chief Procurement Officer has found was entered into pursuant to a competitive process in compliance with City laws, policies, and procedures; and WHEREAS, in connection with the exclusive supplier relationship between the parties hereto, Cardiac Science shall pay the City certain marketing rights fees as set forth herein. WHEREAS, the City Commission of the City of Miami, by Resolution No. , adopted on , has authorized the City Manager to enter into this Agreement with Cardiac Science; and NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: Section 1. Definitions The following terms shall have the following meanings whenever used in this Agreement, unless the context requires otherwise: MarketingPartnershipContract(PAD w Cardiac Science)072304(F1NAL) I.1 "AED" means an automated external defibrillator manufactured by Cardiac Science. 1.2 "City" means the City of Miami, a Florida municipal corporation located in Miami - Dade County, Florida. 1.3 "City Commission" means the local legislative body of the City. The approval of this Agreement and any amendments thereto require the approval of the City of Miami Commission. 1.4 "City's Audit Right" has the meaning contained in Section 9.1.1 herein. 1.5 "Facilities" mean, unless otherwise restricted under this Agreement, City office buildings, libraries, police and fire buildings and vehicles, park and recreational facilities and all other City facilities and offices owned or controlled by the City. Facilities do not include private sector businesses operating as lessees of the City of Miami. 1.6 "Incremental Marketing Fee" means cash paid to the City for each AED and Wall Mount sold by Cardiac Science, which meets the criteria established in this Agreement. 1.7 "Intellectual Property Rights" means all intellectual property rights throughout the world including all copyrights (including, without limitation, the exclusive right to reproduce, distribute, transmit, display, perform and create derivative works of a copyrighted work), copyright registrations and applications, trademark and service mark rights (including trade dress), trademark registrations and applications, service mark registrations and applications, patent rights (including the right to apply therefore), patent applications therefore (including the right to claim priority under applicable international conventions) and all patents issuing thereon, and inventions whether or not patentable, together with all utility and design thereof, know-how, specifications, trade names, mask -work rights, trade secrets, moral rights, author's rights, algorithms, rights in packaging, goodwill and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or any other state, country or jurisdiction. 1.8 "Marketing Partnership" means a mutually beneficial business arrangement between the City and Cardiac Science, wherein Cardiac Science pays a marketing rights fee to the City in exchange for access to the commercial marketing potentials associated with the City. 1.9 "Marketing Rights Fee" means cash paid to the City by Cardiac Science in exchange for entering into the Marketing Partnership with the City. 1.10 "Mediator" has the meaning contained in Section 11.3. " 1.11 PAD" means public access defibrillation. 1.12 "PAD Logo" has the meaning contained in Section 6.2. 1.13 "San Diego Agreement" means that certain Marketing Partnership Agreement dated October 01, 2001, between the City of San Diego and Cardiac Science which is deemed as being incorporated by reference herein and set forth in full herein. The San Diego agreement shall serve to supplement the terms of this agreement when they are silent. 2 of 18 MarketingPartnershipContract(PAD w Cardiac Science)072304(F[NAL) 1.14 "PAD Partnership" means the business arrangement between the City and Cardiac Science to implement the PAD program in the City. 1.I5 "Subcontractors" has the meaning contained in Section 9.3.1 herein. 1.16 "Wall Mount" Means the wall mount storage receptacle, manufactured by Cardiac Science, used for storing an AED (known as item # 180-2021-001 on 3-1-04). Section 2. Contractual Relationship During the term of this Agreement, Cardiac Science shall be the exclusive supplier of AEDs to the Facilities and serve as the "Official AED Provider" for the City's PAD Program. During the term of this Agreement, all automated external defibrillators purchased by the City shall be purchased from Cardiac Science. Section 3. Term The term of this Agreement shall be one (1) year from the effective date hereof, subject to the right of the City Manager to renew this Agreement annually thereafter by providing Cardiac Science with at least thirty (30) days written notice prior to the expiration of such term; provided, however, that in no event shall the term of this Agreement exceed five (5) years in duration. Section 4. Consideration 4,1 Marketing Rights Fee: Year 1, 2, 3. In consideration of the rights, benefits and privileges granted to Cardiac Science under this Agreement, Cardiac Science shall pay the City a Marketing Rights Fee of $50,000 for the first year of the Agreement, $25,000 in year two if Cardiac Science sells 226 AEDs in year one and $25,000 in year three if Cardiac Science sells 565 AEDs from inception of program to the end of year two. Cardiac Science also agrees to credit any past (past means: all sales before this contract becomes effective) City of Miami Cardiac Science AED and accessory purchases to the qualifying requirement for year 2 marketing rights fees. Said fee shall be paid to the City on the following schedule: Year 1 $20, 000 upon agreement execution $10, 000 90 days from date of agreement execution $10, 000180 days from date of agreement execution $10,000 270 daysfrom date of agreement execution Year 2 $10, 000 on agreement anniversary date (f 226 AED units sold in year 1) $5, 000 90 days from date of agreement anniversary $5, 000180 days from date of agreement anniversary $5, 000 270 days from date of agreement anniversary Year 3 $10, 000 on agreement anniversary date (if 565 units sold from inception through year 2) $5, 000 90 days from date of agreement anniversary $5, 000180 daysfrom date of agreement anniversary 3of18 MarketingPartnershipContract(PAD w Cardiac Scicnce)072304(FINAL) $5,000 270 days from date of agreement anniversary 4.2 Incremental Marketing Fee. Cardiac Science shall pay the City an incremental marketing fee (the "Incremental Marketing Fee") for each AED and Wall Mount sold by Cardiac Science to certain parties as set forth in Schedule 1 and Section 4.2.1 below. The Incremental Marketing Fee shall be paid quarterly on AED purchases and at time of invoice for AED Program Management Packages. 4.2.1 The Incremental Marketing Fee applies to all AEDs and Wall Mounts sold by Cardiac Science to any party in the zip codes listed below and/or any party that the City of Miami and/or its PAD Program refer to Cardiac Science. 33125, 33126, 33I27, 33128, 33129, 33130, 33131, 33132, 33133, 33134, 33135, 33136, 33137, 33138, 33142, 33145, 33146, 33147, 33150 Should zip code changes occur in Miami -Dade County during the term of this Agreement, the revised zip codes will apply to this Agreement. 4.3 Interest. All payments shall be made promptly when due to City of Miami. Late payments shall accrue interest at the rate of eighteen (18%) percent simple interest per annum until fully paid. Section 5. Pricing Package (this applies to those parties referred to in 4.2.1) Each AED Package sold will be sold for not more than $1,985. The package will consist of 1- G3 AED (or improved substitute that the City agrees to) with 5 year warranty, 1-three year battery, 2-sets of adult electrodes with a 2 year shelf life, 1-Quick Start Tool Kit, 1-soft carry case and 1- Ready Kit. Each AED Package sold to a government/municipal agency shall result in the agency receiving the above package and free shipping, it shall also result in Miami Fire -Rescue (MFR) receiving from Cardiac Science 1-additional three year battery or 3 ready kits (at MFR's choice). Each wall mount case will be sold for not more than $300 each. Section 6. Marketing Rights and Benefits In consideration of the Marketing Rights Fee and Incremental Marketing Fee paid to the City, as described in Section 4 above, the City grants Cardiac Science the following benefits: 6.1 Official AED Partner. The right to be designated and referred to as the "Official AED Partner of the City of Miami" and to use said designation in promotional and marketing efforts including press releases, stories, features, cable television programming, public service announcements and other communications to the public initiated by Cardiac Science or the City. 6.2 Logo Designation. Cardiac Science shall be named on all promotional materials used in connection with branding the PAD program as the "Official AED Partner of the City of Miami" (the "PAD Logo"). Production costs to produce the logo and collateral materials for the PAD Program including brochures, stickers, and posters will be paid by the City. The PAD Logo will also be placed on official City vehicles used to operate the PAD Program; provided that the size and 4of18 MarketingPartnershipContract(PAD w Cardiac Science)072304(FINAL) location of the PAD Logo placed on the City vehicles are viewable to the traveling public, as determined by both parties; and provided further that at all times during the term of this Agreement - two (2) to (4) official City vehicles shall wear the PAD Program logo. 6.3 Web Site Link. A Web site link from the City of Miami Fire Rescue's Web page that highlights the PAD Program. The PAD Program Web page will include a link to Cardiac Science's Web site and, in both form and content, will be consistent with all current and future City policies related to Web sites and any other established guidelines in the City. The City will produce all content for the initial Web page on the PAD Program, subject to the reasonable approval of Cardiac Science. The cost of any expansion to the Web page will be negotiated by the parties. 6.4 Trade Shows. The right to participate with Miami Fire Rescue in a maximum of three trade shows or speaking engagements per year, as mutually agreed upon by the parties, to represent the PAD Partnership. Costs associated with participating in and attending the trade shows and/or speaking engagements shall be borne by independently the Parties for their own respective personnel and travel costs. 6.5 Health and Safety Events. The right to participate in a maximum of three City -hosted health and safety events per year. Costs for attendance and participation will be borne independently by both parties. 6.6 Advertising Rights. The right to advertise in the City of Miami to promote the PAD Partnership and offer Cardiac Science products and services to businesses, municipalities, and school districts. Cardiac Science agrees to pay for all costs associated with the production and postage of direct mailing materials for the PAD program, provided, however, that any direct mailing campaign shall be mutually agreed to by the Parties. 6.7 PAD Program Promotion Cardiac Science shall have the right to provide the City with promotional materials regarding AED's and to hold informational seminars, at times to be mutually agreed upon by the City and Cardiac Science. City shall provide Cardiac Science with a quarterly report on the marketing and advertising of the PAD program in order to allow Cardiac Science to monitor the implementation and effectiveness of the promotional activities. Section 7. City's Rights 7.1 City's Reservation of Rights. The City expressly acting by and through its Director of Fire -Rescue reserves the right to review, comment upon and/or approve all logos, promotional materials, promotional campaigns, product placement and appearance and any and all other materials that represent Cardiac Science's efforts to publicize and/or promote the rights and benefits granted to it under this Agreement. 7.2 City's Right of First Refusal. Throughout the term of this Agreement the City is afforded a continuing right of first refusal to conduct the following classes and/or program over site within any zip code that falls within, in whole or in part, the corporate limits the City of Miami: 1) CPR Training; 2) AED Training; and 3) Program Management. 5 of 18 MarketingPartnershipContract(PAD w Cardiac science)072304(FINAL) Cardiac Science will notify the City of Miami in writing in the manner specified in §12.2 herein for issuing written notices in each instance that training, classes and/or program management as set forth above at least 10 business days before such training, classes and/or program management are scheduled. The City of Miami will respond in writing within five business days of its receipt of such notice if it elects to exercise that particular right of first refusal to teach the particular training. Failure to respond within this time frame will cause the City to lose the right of first refusal only for the individual training or classes specified in the notice. In each instance through the term of this contract that a training or class is scheduled that falls within the content of this subsection the parties shall adhere to this right of first refusal procedure. Except as otherwise specified in this Agreement, the party responsible for conducting the class or training, as applicable, will derive all revenues and incur any expenses from such class or training. Section 8. Intellectual Property The City and Cardiac Science shall each retain ownership of, and all right, title and interest in and to, their respective, intellectual property, and no license therein, whether expressed or implied, is granted by this Agreement. To the extent the parties wish to grant to the other, rights or interests in intellectual property, separate licensing agreements on mutually acceptable terms shalt be executed. Section 9. Obligations 9.1 Right to Audit. Upon reasonable notice, the Contractor shall make available to the City for examination within the City of Miami all of the data and records with respect to all matters covered by this agreement. The Contractor will permit the City, at its expense, to audit, examine, and make excerpts from such data or records, and to retain copies outside of the Contractor's premises, in order to ensure compliance with the agreement. The information retained will be kept by the City in the strictest confidence as permitted by law. The Contractor will maintain such data and records for a period of not less than three years following completion of this agreement. The City has the audit rights set forth herein and provided by §18-102, Miami City Code, which is deemed as being incorporated by reference herein. 9.1.1 Binding on Subcontractors. Cardiac Science shall include the City's Audit Right as described above, in any and all of their subcontracts, and shall ensure that these sections are binding upon all Subcontractors. 9.1.2 Compliance Required before Mediation or Litigation. A condition precedent to proceeding with mandatory mediation and further Iitigation provided for in Section 11 is Cardiac Science's full compliance with the provisions of this Section 9.1 within sixty (60) days of the date on which notice was mailed in connection with the City's Audit Right. 6of18 MarketingPartnershipContract(PAD w Cardiac Science)072304(FINAL) 9.2 Insurance. Cardiac Science shall not begin services under this Agreement until it has: a) obtained insurance certificates reflecting evidence of all insurance required in Section 9.2,1; however, the City reserves the right to request, and Cardiac Science shall submit, copies of any policy upon reasonable request by the City; b) obtained City approval of each company or companies as required by Section 9.2.2; c) confirmed that all policies contain the specific provisions required in Section 9,2.4. Further, Cardiac Science shall not modify any policy or endorsement thereto which increases the City's exposure to Toss for the duration of this Agreement, Cardiac Science retains the right to modify or change existing insurance if it does not fall below the minimum requirements required under this agreement. 9.2.1 Types of Insurance. At all times during the term of this Agreement, Cardiac Science shall maintain insurance coverages as follows: 9.2.1.1 Commercial General Liability. For all of Cardiac Science's operations, including contractual, property damage, completed operations, and independent liability, Cardiac Science shall keep in full force and effect, during any and all work in connection with this Agreement all applicable insurance to cover personal injury, bodily injury and property damage, providing coverage to a combined single limit of $1,000,000 per occurrence. Contractual liability shall include coverage of tort liability of another party to pay for bodily injury or property damage to a third person or organization. The City, its officers and employees shall be named as additional insureds on this policy. 9.2.1.2 Commercial Automobile Liability. For all of Cardiac Science's automobiles used in connection with this Agreement including owned, hired and non - owned automobiles, Cardiac Science shall keep in full force and effect, automobile insurance for bodily injury and property damage providing coverage to a combined single limit of $1 million per occurrence, as reflected on the applicable insurance certificate for each automobile. The City shall be named as an additional insured, but only for liability arising out of use of Cardiac Science's automobiles and only arising out of services performed under this Agreement. 9.2.1.3 Workers' Compensation. For all of Cardiac Science's employees who are subject to this Agreement and to the extent required by the State of Florida, Cardiac Science shall keep in full force and effect, a workers' compensation policy. That policy shall provide a minimum of $1 million of employer's liability coverage. 9.2.2 Rating Requirements. Ail insurance required by express provision of this Agreement shall be carried only by insurance companies that have been given at least an "A" or "A-" and "V" rating by AM BEST, that are licensed to do business in the State of Florida, and that have been approved by the City. 9.2.3 Deductibles. All deductibles on any policy shall be the responsibility of the Cardiac Science. 9.2.4 Specific Provisions Required. Each policy required under Sections 9,2.1.1 through 9.2.1.3 shall expressly provide, and an endorsement shall be submitted to the City, that: 7of 18 MarketingPartnershipContract(PAD w Cardiac Science)072304(FINAL) 9.2.4.1 The City of Miami and its respective elected officials, officers, employees, agents, and representatives shall be named as additional injured. The City's Additional Insured status must be reflected on additional insured endorsement form CG 20 10, or equivalent, which shall be submitted to the City. 9.2.4.2 The policies are primary and noncontributing to any insurance that may be carried by the City, as reflected in an endorsement which shall be submitted to the City. 9.2.4.3 The policies cannot be canceled, non renewed or materially changed except after thirty calendar days prior written notice by Cardiac Science to the City by certified mail, as reflected in an endorsement which shall be submitted to the City except for non-payment of premium, in which case ten days notice will be provided. 9.2.4.4 Before performing any services, Cardiac Science shall provide the City with all Certificates of Insurance accompanied with all endorsements. 9.2.4.5 Cardiac Science may obtain additional insurance not required by this Agreement. 9.3 Subcontractors. Cardiac Science's hiring of or retaining any third parties ("Subcontractors") to perform services related to the Marketing Partnership ("Subcontractor Services") is subject to the prior approval by the City, which approval shall not be unreasonably withheld. Cardiac Science shall list on Exhibit A all Subcontractors known to Cardiac Science at the time this Agreement is entered. If at any time after this Agreement is entered into Cardiac Science identifies a need for additional Subcontractor Services, Cardiac Science shall give written notice to the City of such need, at least twenty (20) days before entering into a contract for such Subcontractor Services. Cardiac Science's notice shall include a description of the scope of work, and an estimate of all costs for the Subcontractor Services and the reason for hiring such Subcontractor. The City agrees to consider such requests in good faith. 9.3.1 Subcontractor Contract, All contracts entered into between Cardiac Science and a Subcontractor shall contain the information as described in Sections 9.6 and 9.7, and shall provide as follows: 9.3.2 Each Subcontractor shall obtain insurance policies which shall be kept in full force and effect during any and all work performed by such Subcontractor. Each Subcontractor shall obtain, and Cardiac Science shall require the Subcontractor to obtain, all policies described in Section 9.2.1. 9.3.2.1 In the case of a deficiency in the performance of Subcontractor Services, Cardiac Science shall notify the City in writing of any withholding of payment to the Subcontractor, specifying: (a) the amount withheld; (b) the specific cause under the terms of the subcontract for withholding payment; (c) the connection between the cause for withholding payment and the amount withheld; and (d) the remedial action the Subcontractor must take in order to receive the amount withheld. Once the Subcontractor corrects the deficiency, Cardiac Science shall pay the 8 of 18 MarkelingPartnershipContract(PAD w Cardiac Science)072304(rlNAL) Subcontractor the amount withheld within fourteen working days of Cardiac Science's receipt of the City's next payment. 9.3.2.2 In any dispute between Cardiac Science and the Subcontractor, the City shall not be made a party to any judicial or administrative proceedings to resolve the dispute. Cardiac Science agrees to defend and indemnify the City as described in Section I I of this Agreement in any dispute between Cardiac Science and Subcontractor should the City be made a party to any judicial or administrative proceedings to resolve the dispute in violation of this position. 9.3.2.3 The Subcontractor is bound to the City's Equal Opportunity Contracting Program covenants set forth in Section 9.5 and Exhibit B of this Agreement. 9.3.2.4 Each Subcontractor hired by Cardiac Science in connection with this Agreement shall obtain insurance policies which shall be kept in full force and effect during any and all work on the PAD Partnership and for the duration of this Agreement. Each Subcontractor shall obtain, and Cardiac Science shall require the Subcontractor to obtain, all policies described in Section 9.2.1. 9.4 Contract Activity Report Cardiac Science shall submit statistical information to the City Director of the Department of Fire -Rescue as requested in the City's Contract Activity Report Exhibit E (6). The statistical information shall include the amount of subcontracting provided by firms during the period covered by the Contract Activity Report. With the Contract Activity Report, Cardiac Science shall provide an invoice from each Subcontractor listed in the report. Cardiac Science agrees to issue payment to each firm listed in the Report within fourteen working days of receiving payment from the City for Subcontractor Services as described in Section 8.3.1. 9.5 Non -Discrimination Requirements. 9.5.1 Compliance with the City's Equal Opportunity Contracting Program. Cardiac Science and each of its Subcontractors shall comply with the City's Equal Opportunity Contracting Program Requirements which is attached hereto as Exhibit B and incorporated herein by this reference. 9.5.2 Non -Discrimination Ordinance. Cardiac Science shall not discriminate on the basis of race, gender, religion, national origin, ethnicity, sexual orientation, age, or disability in the solicitation, selection, hiring or treatment of Subcontractors, vendors or suppliers. Cardiac Science shall provide equal opportunity for Subcontractors to participate in subcontracting opportunities. Cardiac Science understands and agrees that violation of this clause shall be considered a material breach of the contract and may result in contract termination, debarment, or other sanctions. This language shall be in contracts between Cardiac Science and any Subcontractors, vendors and suppliers. 9.5.3 Compliance Investigations. Upon the City's request, Cardiac Science agrees to provide to the City, within sixty calendar days, a truthful and complete list of the names of all Subcontractors, vendors, and suppliers that Cardiac Science has used in the past five years on any of its contracts that were undertaken within the City of Miami, including the total dollar amount paid by Cardiac Science for each subcontract or supply contract. Cardiac Science further agrees to fully 9 of 18 MarketingPannershipContract(PAD w Cardiac science)072304(FINAL) cooperate in any investigation conducted by the City. Cardiac Science understands and agrees that violation of this clause shall be considered a material breach of the contract and may result in remedies being ordered against Cardiac Science up to and including contract termination, debarment, and other sanctions for violation of the policy. Cardiac Science further understands and agrees that the procedures, remedies and sanctions provided for in the policy apply only to violations of said policy. 9.6 Employment of City Staff. This Agreement may be unilaterally and immediately terminated by the City, at its sole discretion, if Cardiac Science employs an individual who, within twelve months from the date of this Agreement, in the individual's capacity as an officer or employee of the City, participated in, negotiated with, or otherwise influenced the recommendation made to the City Commission or City Manager in connection with entering into this Agreement with Cardiac Science. Section 10. Indemnification 10.1 Indemnification and Hold Harmless Agreement. Cardiac Science agrees to defend, indemnify, protect and hold City and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including payment of all reasonable costs of defense, a reasonable attorney's fee, injury to Cardiac Science's employees, agents or officers, or from any and all claims asserted or liability established or alleged by virtue of the award of this agreement, and/or the Marketing Relationship established under this agreement and/or alleged violation of any contract, law, ordinance, rule or regulation by City arising under this agreement or relating to this agreement regardless of accusation, which arise from or are connected with or are caused or claimed to be caused by the acts or omissions of Cardiac Science and its agents, officers or employees in performing the work or services or supplying the materials or equipment herein, and all expenses of investigating and or services or supplying the materials or equipment herein, and all expenses of investigating and defending against same; provided, however, that Cardiac Science's duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers or employees. This shall not prejudice the right of the City to appear in such suit, participate in the defense and take such actions as may be necessary to protect the interest of the City. Defense counsel selected by Cardiac Science must be acceptable to the City Attorney. Section 11. Mediation 11.1 Mandatory Non -binding Mediation. If a dispute arises out of, or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through normal contract negotiations, the Parties agree to first endeavor to settle the dispute in an amicable manner, using mandatory mediation under the [Commercial Business] Mediation Rules of the American Arbitration Association (the "AAA"). 10 of 18 MarketingPartnershipContract(PAID w Cardiac Science)072304(F[NAL) 11.2 Mandatory Mediation Costs. The expenses of witnesses for either side shall be paid by the Party producing such witnesses. All other expenses of the mediation, including required traveling and other expenses of the mediator, and the cost of any proofs or expert advice produced at the direct request of such mediator, shall be borne equally by the Parties, unless they agree otherwise. The City shall not however, pay the hotel or travel costs of any mediator. 11.3 Selection of Mediator. A single mediator that is mutually acceptable to both Parties shall be used to mediate the dispute (the "Mediator") within 45 days of a Request for Mediation (as defined below). The Mediator will be knowledgeable in public/private partnerships and may be selected from lists furnished by either or both Parties. To initiate mediation in Miami -Dade County, the initiating Party shall serve a "Request for Mediation" on the opposing Party. 11.4 Conduct of Mediation Sessions. Mediation hearings will be conducted in an informal manner and discovery will not be allowed. All discussions, statements, or admissions will be confidential to the extent allowed by Florida law to the Party's legal position. The Parties may agree to exchange any information they deem necessary. 11.4.1 Both Parties must have an authorized representative attend the mediation. Each representative must have the authority to recommend entering into a settlement. Either Party may have attorney(s) or expert(s) present. Upon reasonable demand, either Party may request and receive a list of witnesses and notification whether attorney(s) will be present. 11.4.2 Any agreements resulting from mediation shall be documented in writing. All mediation results and documentation, by themselves, shall be "non -binding" and inadmissible for any purpose in any legal proceeding, unless such admission is otherwise agreed upon, in writing, by both Parties. The Mediator shall not be subject to any subpoena or liability and their actions shall not be subject to discovery. 11.4.3 Mediation shall apply the laws of the State of Florida and shall be conducted solely within Miami -Dade County, Florida. 11.5 Mediation Supplemental. Mediation shall be supplemental to any other right and remedy the Parties have under Florida law, including, the Resolution of Contract Disputes Procedure set forth in §18-105, City of Miami Code, which is deemed as being incorporated by reference herein. Section 12. Miscellaneous 12.1 Termination in the event of Bankruptcy. The City may, at its option and in its sole discretion, terminate this Agreement by written notice, without the consent of Cardiac Science if Cardiac Science files a voluntary petition under the 11 of 18 MarketingPartnershipContract(PAD w Cardiac Science)072304(FINAL) United States Bankruptcy Code or, or if Cardiac Science has filed against it an involuntary petition under the United States Bankruptcy Code, and such petition is not dismissed within ninety (90) days 12.2 Notices In all cases where written notice is required under this Agreement, service shall be deemed sufficient if the notice is deposited in the United States first-class mail, postage paid. Proper notice shall be effective on the date it is mailed, unless provided otherwise in this Agreement. For the purpose of this Agreement, unless otherwise agreed in writing, notice to the City shall be addressed to: The Miami City Manager at 444 SW 2 Ave. 10th Fl., Miami, Fl. 33130 and notice to Cardiac Science shall be addressed to: Michael Gioffredi, Chief Marketing Officer at 1900 Main Street, Suite 700, Irvine, CA 92614. 12.3 Headings. All article headings are for convenience only and shall not affect the interpretation of this Agreement. 12.4 Non -Assignment. This Agreement is unique in nature. Cardiac Science shall not assign the obligations under this Agreement, whether by express assignment or by sale of the company, nor any monies due or to become due, without the City Commission's prior written approval, which approval may be unreasonably withheld. Any assignment in violation of this paragraph shall constitute a default and is grounds for immediate termination of this Agreement, at the sole discretion of the City. In no event shall any putative assignment create a contractual relationship between the City and any putative assignee. 12.5 Independent Contractors. Cardiac Science and any Subcontractors employed by Cardiac Science shall be deemed to be independent contractors and not agents of the City. Any provisions of this Agreement that may appear to give the City any right to direct Cardiac Science concerning the details of operating the Marketing Partnership, or to exercise any control over such performance, shall mean only that Cardiac Science shall follow the direction of the City concerning the end results of the performance. 12.6 Covenants and Conditions. All provisions of this Agreement expressed as either covenants or conditions on the part of the City or Cardiac Science shall be deemed to be both covenants and conditions. 12.7 Compliance with Controlling Law. Cardiac Science shall comply with all laws, ordinances, regulations, and policies of the federal, state, and local governments applicable to this Agreement. In addition, Cardiac Science shall comply immediately with al! directives issued by the City or its authorized representatives under authority of any laws, statutes, ordinances, rules, or regulations. The laws of the State of Florida shall govern and control the terms and conditions of this Agreement. 12 of 18 MarketingPartnershipContract(PAD w Cardiac Science)072304(FINAL) 12.8 Jurisdiction, Venue, and Attorney's Fees. The venue for any suit or proceeding concerning this Agreement, the interpretation or application of any of its terms, or any related disputes shall be in the County of Miami -Dade, State of Florida. Each prevailing Party in any such suit or proceeding shall be responsible for it's own reasonable attorneys' fees. 12.9 Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in force and effect whether or not any Parties to the Agreement have been succeeded by another entity, and all rights and obligations created by this Agreement shall be vested and binding on any Party's successor in interest which may only be a City approved assignee in accordance with §12.4 herein. 12.10 Integration. This Agreement and the exhibits and references incorporated into this Agreement fully express all understandings of the Parties concerning the matters covered in this Agreement. No change, alteration, or modification of the terms or conditions of this Agreement, and no verbal understanding of the Parties, their officers, agents, or employees shall be valid unless made in the form of a written change agreed to in writing by both Parties or an amendment to this Agreement agreed to by both Parties. AU prior negotiations and agreements concerning the subject matter hereof are merged into this Agreement. 12.11 Counterparts. This Agreement may be executed in counterparts, which when taken together shall constitute a single signed original as though all Parties had executed the same page. 12.12 No Waiver. No failure of either the City or Cardiac Science to insist upon the strict performance by the other of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach or of such covenant, term or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect to any existing or subsequent breach. 12.13 Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render any other provision of this Agreement unenforceable, invalid, or illegal. 12.14 Municipal Powers. Nothing contained in this Agreement shall be construed as a limitation upon the powers of the City as a Home Rule chartered city of the State of Florida. 13 of 18 MarketingPartnershipContract(PAD w Cardiac Science)072304(FINAL) 12.15 Drafting Ambiguities. The Parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether or not to seek advice of counsel with respect to this Agreement is a decision which is the sole responsibility of each Party. This Agreement shall not be construed in favor of or against either Party by reason of the extent to which each Party participated in the drafting of the Agreement. 12.16 Signing Authority. The representative for each Party signing on behalf of a corporation, partnership, joint venture or governmental entity hereby declares that authority has been obtained to sign on behalf of the corporation, partnership, joint venture, or entity and agrees to hold the other Party or Parties hereto harmless if it is later determined that such authority does not exist. 12.17 Piggyback. During the term of this contract the City reserves the right to exercise the option to piggyback on any modified, deleted or added terms, conditions, scope of work/program, additions, deletions or changes by the City of San Diego to the existing contract between the City of San Diego and Cardiac Science. 12.18 Other Provisions. Cardiac Science will allow City inspectors, agents or representatives the ability to monitor its compliance with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections the City, its agents, or representatives are not assuming any liability by virtue of these taws, rules, regulations, and ordinances. Cardiac Science shall have no recourse against the City, its agents, or representatives from the occurrence, non-occurrence or result of such inspection(s). Upon issuance of a notice to proceed, Cardiac Science shall contact the Risk Management Department at (305) 416-1700 to schedule the inspection(s). Cardiac Science shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of providing any work, labor or services funded by the City including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards, Additionally, Cardiac Science shall take affirmative steps to ensure nondiscrimination in employment of disabled persons. 14 of 18 MarketingPartnershipContract(PAD w Cardiac Science)072304(FINAL) IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers duly authorized. ATTEST: "City" CITY OF MIAMI, a municipal corporation By: Priscilla A. Thompson, City Clerk Joe Arriola, City Manager ATTEST: Print Name: Title: Corporate Secretary Date: "Cardiac Science" CARDIAC SCIENCE, INC., a a Delaware corporation By: Print Name: Title; (Affix Corporate Seal) Date: APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Maria J. Chiaro Interim City Attorney Dania F. Carrillo Administrator Risk Management Division This agreement is subject to the approval of Miami City Commission and has been authorized by Resolution No. 15of18 MarketingPartnershipContract(PAD w Cardiac Science)072304(FINAL) SCHEDULE I Incremental Marketing Fee $187.50 per AED $25.00 per wall mount case 16 of 18 MarketingPartnershipContract(PAD w Cardiac Science)072304(FINAL) "EXHIBIT A" (All Subcontractors known to Cardiac Science document follows this cover page at the time this Agreement is entered). 17 of 18 MarketingPartnershipContract(PAD w Cardiac Science)072304(F[NAL) "EXHIBIT B" (City's Equal Opportunity Contracting Program document follows this page) 18 of 18 MarketingPartnershipcontract(PAD w Cardiac Science)072304(FINAL)