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PROFESSIONAL SERVICES AGREEMENT
By and Between
The City of Miami, Florida
and
Granieus,_Inc.
This Professional Services Agreement ("Agreement") is entered into this day
, 200 (but effective as of , 200J ("Effective Date")
by and between the City of Miami, a municipal corporation of the State of Florida, whose
address is 444 S.W. 2nd Avenue, 10th Floor, Miami, Florida 33130 ("City") and Granicus,
Inc., a corporation qualified to do business in Florida whose principal
address is 568 Howard Street, Suite 300, San Francisco, California 94105 ("Provider").
RECITALS:
WHEREAS, the City issued Request for Proposals No. 18034 on March 14, 2007
(the "RFP", attached hereto, incorporated hereby, and made a part hereof as Exhibit A)
for the provision of professional services (the "Services", as more fully set forth in
Exhibit B) for a Hosted System to provide Video Streaming and Audio Services
(collectively, the "System", also as more fully set forth in Exhibit B), and Provider was
the only business entity submitting a response proposal (the "Proposal", attached hereto,
incorporated hereby, and made a part hereof as Exhibit C); and
WHEREAS, the Evaluation Committee appointed by the City Manager
determined that the Proposal submitted by Provider was responsive to the RFP
requirements and recommended that the City Manager negotiate with the Provider; and
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WHEREAS, Provider has developed streaming media solutions and media
management software that specializes in Internet Broadcasting and possesses all
necessary qualifications and expertise to perform the Services and to provide the System;
and
WHEREAS, the City wishes to engage the Services of Provider to provide the
System, and Provider wishes to perform the Services for the City and to provide the
System; and
WHEREAS, the Commission of the City of Miami ("Commission") by
Resolution No. 07- adopted on , 2007 (attached hereto,
incorporated hereby, and made a part hereof as Exhibit D), accepted the
recommendations of the City Manager and the Evaluation Committee regarding the RFP
regarding Provider as the sole business entity to submit its Proposal and authorized the
City Manager to negotiate and to execute a Professional Services Agreement with
Provider for an initial three-year term, with the option to renew for up to three (3)
additional one-year periods, in order to provide the Services and for the System to be
provided, implemented and completed in a timely manner and maintained at a high level
in accordance with the RPF; and
WHEREAS, Resolution No. 07- further provides (1) that the total cost
to provide the System for the initial three-year term shall not exceed Ninety -Two
Thousand, Six Hundred Dollars and No Cents (S92,600.00), including the managed
services costs ("MSC") which shall not exceed Nineteen Thousand, Two Hundred
Dollars and No Cents (S 19.200.00) per year during the initial three-year term, and (2) that
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MSC increases after the initial three-year period shall not exceed five percent (5%) per
year for any subsequent yearly renewal period; and
WHEREAS, Provider's Board of Directors has authorized to
enter into this Agreement on behalf of provider pursuant to its corporate
resolution/incumbency certificate, dated (attached hereto and
made a part hereof as Exhibit E); and
WHEREAS, the City and Provider desire to enter into this Agreement under the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, Provider and the City agree as follows:
TERMS:
1. RECITALS AND INCORPORATIONS: The recitals are true and correct and
are hereby incorporated into and made a part of this Agreement. The City's RFQ is
hereby incorporated into and made a part of this Agreement and attached hereto as
Exhibit A. Exhibit B describing the Services and the System is incorporated into and
made a part of this Agreement. Provider's Proposal is hereby incorporated into and made
a part hereof as Exhibit C. The City's Resolution No. 07- is hereby incorporated
into and made a part hereof as Exhibit D. The Provider's corporate
resolution/incumbency certificate is hereby incorporated into and made a part hereof as
Exhibit E. The Insurance Requirements for Provider are hereby incorporated into and
made a part hereof as Exhibit F.
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2. TERM; RENEWAL:
A. The initial term of this Agreement shall commence on the Effective Date and
shall terminate thirty-six (36) months after the Effective Date, being _ W�
20010 (the "Expiration Date"). In the event that Provider is engaged in any Services on
the Expiration Date, then this Agreement shall remain in effect until completion or
termination of said Services for the System. No new work orders for new or additional
services at increased cost to the City shall be issued after the Expiration Date; however,
the thirty -six-month term of the Agreement may be extended or amended by the sole
authority of the City Manager by written agreement of the City and the Provider in order
for Provider to complete the initial three-year term Services and to provide the Managed
Service Costs at the same cost to the City. Any new or additional services (a) that are not
contemplated by the RFP, or (b) that would increase the costs for the City beyond the
amounts approved in Resolution No. 07-
adopted , 200_, shall
require City Commission approval in order to extend or amend this Agreement.
B. Resolution No. 07- provides that the City by determination of the
City Manager shall have the option to renew this Agreement for up to three (3) additional
one-year periods with MSC increases not to exceed five percent (5%) per year for any
yearly renewal period after the initial three-year term. Any new or additional services (a)
that are not contemplated by the RFP, or (b) that would increase the costs for the City
beyond the amounts approved in Resolution No. 07- adopted
200_, shall require City Commission approval in order to renew this Agreement.
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3. SCOPE OF SERVICES:
A. Provider agrees to provide the Services as specifically described, and
subject to the special terms, conditions, budget and schedule set forth in Exhibit B
describing the Services and System, which by this reference is incorporated into and
made a part of this Agreement. All formats for the Services and System are to be as
directed in writing from time to time by the City's Project Administrator.
B. Provider represents to the City that: (i) it possesses all qualifications,
licenses and expertise required for the performance of the Services and the System,
including but not limited to full qualification to do business in Florida and full-time
professional licensed and working in the State of Florida; (ii) it
is not delinquent in the payment of any sums due the City, including payment of
permits, fees, occupational licenses, etc., nor in the performance of any obligations
to the City, (iii) all personnel assigned to perform the Services for the System are
and shall be, at all times during the tern hereof, fully qualified and trained to
perform the tasks assigned to each; (iv) the Services for the System will be
performed in the manner, at such times, and for the budgeted amounts described in
Exhibit "B", and (v) each person executing this Agreement on behalf of Provider
has been duly authorized to so execute the same and fully bind Provider as a party to
this Agreement.
C. Provider's authorized Project Manager ("Project Manager") shall be
. Should the Project Manager deemed acceptable by the
City leave Provider's firm for any reason, the City reserves the right to accept or
reject any change of Project Manager and/or any other proposed Project Manager.
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Provider shall give at least sixty (60) days advance written notice to City of any
intent to change the Project Manager. City shall have the right to receive pertinent
information about the proposed individuals at the time of such notice of intent to
change. In the event that Provider changes the Project Manager, it is the intent of the
parties to this Agreement that the City should not be penalized by such change;
accordingly, Provider agrees to provide any and all such replacement Project
Manager(s) to City free of charge during a three (3) week transition and ramp up
period.
D. Provider shall at all times provide fully qualified, competent and
physically capable employees to perform the Services under this Agreement. City
may require Provider to remove any employee the City deems careless,
incompetent, insubordinate, or otherwise objectionable and whose continued
services under this Agreement is not in the best interest of the City. Each of
Provider's employees shall have and wear proper identification.
E. Provider's subcontractors are set forth in the "Services and Systems"
referenced in Exhibit B hereto. Provider shall provide to City such information as
may be requested from time to time regarding subcontractors providing Services for
the System related to this Agreement in a timely manner. Failure to provide the
required information may disqualify a subcontractor from performing Services for
the System under this Agreement. Provider shall at all times provide fully qualified,
competent and physically capable subcontractors to perform the Services for the
System under this Agreement. The City reserves the right to accept or reject any
change of any subcontractor and/or any other proposed subcontractor. Provider shall
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give at least sixty (60) days advance written notice to City of any intent to change
any subcontractor. City shall have the right to receive pertinent information about
the proposed individuals at the time of such notice of intent to change. In the event
that Provider changes a subcontractor, it is the intent of the parties to this
Agreement that the City should not be penalized by such change; accordingly,
Provider agrees to provide any and all such replacement subcontractor(s) to City
free of charge during a three (3) week transition and ramp up period. City may
require Provider to remove any subcontractor the City deems careless, incompetent,
insubordinate, or otherwise objectionable and whose continued Services for the
System under this Agreement are not in the best interest of the City. Each of
Provider's subcontractors shall have and wear proper identification.
4. COMPENSATION:
A. The amount of compensation payable by the City to Provider for the
initial three-year term for the Services and the System shall not exceed Ninety -Two
Thousand, Six Hundred Dollars ($92,600.00), including the Managed Services Costs for
the first year. The Managed Services Costs for each year of the initial three-year term
shall not exceed Nineteen Thousand, Two Hundred Dollars ($ l 9,200.00) per year. The
compensation and the Managed Services Costs and shall be based on the fees, rates and
schedules described in Exhibit "B" hereto, which by this reference is incorporated into
this Agreement. For any subsequent renewal year after the initial three-year term the
Managed Services Costs shall not exceed a five percent (5%) per year increase per one
year period. Absent an amendment to this Agreement, additional services and expenses
are not included in this compensation and shall only be provided upon a written
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amendment entered into by the City and Provider and approved by the City
Commission. The City shall not be liable for any costs, fees, expenses or charges
beyond the total amount of compensation and approved expenses, if any, specified in
this subsection for the Services for the System and the Managed Services Costs
referenced in Exhibit "B." The City shall not be liable for any cost, fee, reimbursement
expense or other liability beyond (1) the stated maximum amount of Ninety -Two
Thousand, Six Hundred Dollars and No Cents ($92,600) for the initial year of the three-
year term Services, and System and Managed Services Costs, and (2) the stated
maximum amount of Nineteen Thousand, Two Hundred Dollars ($19,200) for the
Managed Services Costs for the second and third year of the initial three-year term, and
(3) a five percent (5%) per year increase per one year period for any renewal year(s)
thereafter. The (1) stated maximum amount of Ninety -Two Thousand, Six Hundred
Dollars and No Cents ($92,600) for the initial three-year term Services and System and
Managed Services Costs, and (2) the stated maximum amount of Nineteen Thousand,
Two Hundred Dollars ($ 1 9,200) for the Managed Services Costs for the second and
third years of the initial three-year tern, and (3) a five percent (5%) per year increase
per one year period for any renewal year(s) will be the upper Limits per year of liability
of the City for all fees of the Provider, its subcontractors, agents, or representatives, and
inclusive of costs, reimbursable expenses, if any, and any other approved expenditure
relating to Provider's perfonnance of the Services for the System and Managed Services
Costs for the particular year.
B. Payment shall be made in arrears based upon work performed to the
satisfaction of the City within forty-five (45) days after receipt of Provider's invoice for
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Services performed, which shall be accompanied by sufficient supporting documentation
and contain sufficient detail, to allow a proper audit of expenditures, should the City
require one to be perfonned. Invoices shall be sufficiently detailed so as to comply with
the "Florida Prompt Payment Act", §218.70. - 218.79, Florida Statutes, and other
applicable laws. No advance payments shall be made at any time.
C. If Provider is entitled to reimbursement of expenses (if set forth in the
Scope of Services with travel and other expenses delineated as a specific item of
compensation), then all bills for travel and other expenses shall be submitted in
accordance with Section 112.061, Florida Statutes, and shall be accompanied by
sufficient supporting documentation and contain sufficient details, as may be reasonably
required by the City, to allow a proper audit of Provider's travel and other expenses,
should City require one to be performed.
D. Provider agrees and understands that (i) any and all subcontractors
providing Services for the System related to this Agreement shall be paid through
Provider and not paid directly by the City, and (ii) any and all liabilities regarding
payment to or use of subcontractors for any of the Services related to this Agreement
shall be borne solely by Provider.
E. Neither Provider nor any of its employees nor its subcontractors shall
perform any work unless duly authorized by the Project Administrator or his/her
designated representative. Provider shall not be paid (i) for any work performed outside
the Services for the System for this Agreement, or (ii) for any work perfonned by any of
Provider's employees or subcontractors not otherwise previously authorized.
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5. OWNERSHIP OF DOCUMENTS;CONTENT PROVIDED TO
GRANICUS,,._INC; INELLECTUAL PROPOERTY RIGHTS & SECURITY:
A. Provider understands and agrees that any information, document, report or
any other material whatsoever ("Information") which is given by the City to Provider, its
employees, or any subcontractor, or which is otherwise obtained or prepared by Provider
pursuant to or under the terms of this Agreement, is and shall at all times remain the
property of the City. Provider agrees not to use any such information, document, report
or material for any other purpose whatsoever without the written consent of the City
Manager, which may be withheld or conditioned by the City Manger in his sole
discretion. Provider is permitted to make and to maintain duplicate copies of the files,
records, documents, etc. if Provider is determines copies of such records are necessary
subsequent to the termination of this Agreement; however, in no way shall the
confidentiality as pennitted by applicable law be breached. The City shall maintain and
retain ownership of any and all documents which result upon the completion of the work
and Services under this Agreement.
B. Responsibility for Content: The City shall have sole control and
responsibility over the determination of which data and information shall be included in
the Content that is to be transmitted, including, if applicable, the determination of which
cameras and microphones shall be operational at any particular time and at any particular
location. The City shall not provide to Provider or permit to be provided to Provider, any
Content that (a) infringes or violates any third -parties' Intellectual Property Rights, rights
of publicity or rights of privacy, (b) contains any defamatory material, or (c) violates any
federal, state, local, or foreign laws, regulations, or statues.
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C. Content Ownership: The City shall own all rights, titles, and interests in
and to all content on a worldwide basis, including, without limitations, all Intellectual
Property Rights relating thereto, (i) with respect to Content captured by cameras or
microphones at any venue, at the time such Content is so captured and prior to the time it
is transmitted to the computer at any venue, and (ii) with respect to all other Content, at
the time such Content is transmitted or otherwise provided to Provider pursuant to this
Agreement. Top the Extent that any such Content is protectable by copyright, such
Content shall be deemed to be "works made for hire" under the copyright laws of the
United States.
D. Use of Media Management Software. Granicus, Inc. agrees to provide the
City with a revocable, non -transferable and non-exclusive account to access the Media
Management Software; and grants to City a revocable, non-sublicensable,
nontransferable, and non-exclusive right to use the Media Management Software. The
Media management Software is proprietary to Granicus, Inc. and protected by intellectual
property laws and international intellectual property treaties. City's access to, and use of ,
the Media Management Software is licensed and not sold. The City will be responsible
for any applicable costs and taxes, if applicable to the City as a municipal government,
associated with the City's use of the Services, or use of the Services through the City's
account.
E. Trademark Ownership and License.
(1) The city shall retain all rights, title, and interest, in and to its Tracernarks,
including any goodwill associated therewith, subject to the limited license granted to
Granicus, Inc. pursuant to this subsection 5(E).
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(2) Granicus, Inc. shall retain all rights, title, and interests in and to the
Granicus, -Inc. Trademarks, including any goodwill associated therewith, subject to the
limited license granted to the City. pursuant to this subsection 5(E).
(3)
Each party grants to the other a non-exclusive, non -transferable (other as
provided in Section below), limited license to use the other party's Trademarks as is
reasonably necessary to perform its obligations under this Agreement, provided that any
promotional materials containing the other party's trademarks shall be subject to the prior
written approval of such other party, which approval shall not be unreasonably withheld.
(4) Neither party shall use the other party's Trademarks in a manner that
disparages the other party or its products or services, or portrays the other party or its
products or services in a false, competitively adverse, or poor light. Eac party shall
comply with the other party's requests as to the use of the other party's Trademarks and
shall avoid any action that diminishes the value of such Trademarks.
F. Security of Data: Granicus, Inc. wil take commercially reasonable efforts
to protect and to control access to City's Content. However, Granicus, Inc. makes no
Guarantee and assumes no liability for the security of any of the City's Content or other
data provided Provider, including any of the City's Content or data placed on any servers
including "secure servers". City will be responsible for the creation and protection of
username and password. In no event shall Provider be liable for any indirect or
consequential damages arising out of any breach of security not caused by Provider or not
due to Provider's own actions.
G. Confidential Information Disclosure, Use, and Ownership. (To be further
updated).
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6. AUDIT AND INSPECTION RIGHTS AND RECORDS RETENTION:
Provider agrees to provide access to the City or to any of its duly authorized
representatives, to any books, documents, papers, and records of Provider which are
directly pertinent to this Agreement, for the purpose of audit, examination, excerpts, and
transcripts. The City may, at reasonable times, and for a period of up to three (3) years
following the date of final payment by the City to Provider under this Agreement, audit
and inspect, or cause to be audited and inspected, those books, documents, papers, and
records of Provider which are related to Provider's performance under this Agreement.
Provider agrees to maintain any and all such books, documents, papers, and records at its
principal place of business for a period of three (3) years after final payment is made
under this Agreement and all other pending matters are closed. Provider's failure to
adhere to, or refuse to comply with, this condition shall result in the immediate
cancellation of this Agreement by the City.
7. AWARD OF AGREEMENT: Provider represents to the City that it has not
employed or retained any person or company employed by the City to solicit or secure
this Agreement and that it has not offered to pay, paid, or agreed to pay any person any
fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in
connection with, the receipt of an award of this Agreement.
8. PUBLIC RECORDS USE OF MEDIA MANAGEMENT SOFTWARE:
A. Provider understands that the public shall have access, at all reasonable
times, to all documents and information pertaining to City Agreements, subject to the
provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and
the public to all documents subject to disclosure under applicable laws. Provider's failure
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1)
or refusal to comply with the provisions of this section shall result in the immediate
cancellation of this Agreement by the City.
B.
9. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS:
Provider understands that agreements with local governments are subject to
certain laws and regulations, including laws pertaining to public records, conflict of
interest, record keeping, etc. City and Provider agree to comply with and observe all
such applicable federal, state and local laws, rules, regulations, codes and ordinances, as
they may be amended from time to time.
Provider further agrees to include in all of Provider's agreements with
subcontractors for any Services related to this Agreement this provision requiring
subcontractors to comply with and observe all applicable federal, state, and local laws
rules, regulations, codes and ordinances, as they may be amended from time to time.
10. INDEMNIFICATION: Provider shall indemnify, defend and hold harmless
the City and its officials, employees, and its designated third -party administrator for
claims (collectively referred to as "Indemnitees") and each of them from and against all
loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or
liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of
any person or damage to or destruction or loss of any property arising out of, resulting
from, or in connection with (i) the negligent performance or non-performance of the
Services contemplated by this Agreement (whether active or passive) of Provider or its
employees or subcontractors (collectively referred to as "Provider") which is directly
caused, in whole or in part, by any act, omission, default or negligence (whether active or
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passive or in strict liability) of the Indemnities, or any of them, or (ii) the failure of the
Provider to comply materially with any of the requirements herein, or the failure of the
Provider to conforni to statutes, ordinances, or other regulations or requirements of any
governmental authority, local, federal or state, in connection with the performance of this
Agreement. Provider expressly agrees to indemnify, defend and hold harmless the
Indemnitees, or any of them, from and against all liabilities which may be asserted by an
employee or former employee of Provider, or any of its subcontractors, as provided
above, for which the Provider's liability to such employee or former employee would
otherwise be limited to payments under state Workers' Compensation or similar laws.
Provider further agrees to indemnify, defend and hold harmless the Indemnitees form and
against (i) any and all Liabilities imposed on account of the violation of any law,
ordinance, order, rule, regulation, condition, or requirement, related directly to Provider's
negligent performance under this Agreement, compliance with which is left by this
Agreement to Provider, and (ii) any and all claims, and/or suits for labor and materials
furnished by Provider or utilized in the performance of this Agreement or otherwise.
In the event that any third party asserts claims against the Provider and/or the
Indemnitees for which Provider is defending the Indemnitees relating to the Services,
Provider shall have the right to select its legal counsel for such defense, subject to the
approval of the City, which approval shall not be unreasonably withheld. It is understood
and agreed that in the event that counsel selected by Provider charges rates greater than
those customarily paid by the City at the time that such claim is asserted, but in no event
less than S250.00 per hour, the parties shall, in good faith, attempt to agree upon such
rates or upon an allocation of payment of such rates. In the event that the third party
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claim for which Provider has provided or paid Indemnitees defense results in a finding of
fault on the part of the Indemnitees, then the City shall reimburse Provider the cost of the
Indemnitees defense to the extent of such finding of fault.
This section shall be interpreted to comply with Sections 725.06 and/or 725.08,
Florida Statutes. Provider's obligations to indemnify, defend and hold harmless the
Indemnitees shall survive the termination of this Agreement.
Provider understands and agrees that any and all liabilities regarding the use of
any subcontractor for Services related to this Agreement shall be borne solely by
Provider throughout the duration of this Agreement and that this provision shall survive
the termination of this Agreement.
11. DEFAULT: If Provider fails to comply materially with any term or condition of
this Agreement, or fails to perform in any material way any of its obligations hereunder,
and fails to cure such failure after reasonable notice from the City, then Provider shall be
in default. Provider understands and agrees that termination of this Agreement under this
section shall not release Provider from any obligation accruing prior to the effective date
of termination.
12. RESOLUTION OF AGREEMENT DISPUTES: Provider understands and
agrees that all disputes between Provider and the City based upon an alleged violation of
the terms of this Agreement by the City shall be submitted to the City Manager for
his/her resolution, prior to Provider being entitled to seek judicial relief in connection
therewith. In the event that the amount of compensation hereunder exceeds Twenty -Five
Thousand Dollars and No/Cents (S25,000), the City Manager's decision shall be
approved or disapproved by the City Commission. Provider shall not be entitled to seek
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judicial relief unless: (i) it has first received City Manager's written decision, approved
by the City Commission if the amount of compensation hereunder exceeds Twenty -Five
Thousand Dollars and No/Cents (S25,000), or (ii) a period of sixty (60) days has expired,
after submitting to the City Manager a detailed statement of the dispute, accompanied by
all supporting documentation ninety (90) days if City Manager's decision is subject to
City Commission approval); or (iii) City has waived compliance with the procedure set
forth in this section by written instruments, signed by the City Manager.
13. TERMINATION;OBLIGATIONS UPON TERMINATION:
A. The City, acting by and through its City Manager, shall have the right to
terminate this Agreement, in its sole discretion, at any time, by giving written notice to
Provider at least five (5) business days prior to the effective date of such termination. In
such event, the City shall pay to Provider compensation for Services rendered and
approved expenses incurred prior to the effective date of termination. In no event shall
the City be liable to Provider for any additional compensation and expenses incurred,
other than that provided herein, and in no event shall the City be liable for any
consequential or incidental damages.
B. The City Manager shall have the right to terminate this Agreement,
without notice or liability to Provider, upon the occurrence of an event of a material
default hereunder. In such event, the City shall not be obligated to pay any amounts to
Provider for Services rendered by Provider after the date of termination, but the parties
shall remain responsible for any payments that have become due and owing as of the
effective date of termination. In no event shall the City be liable to Provider for any
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additional compensation and expenses incurred, other than that provided herein, and in no
event shall the City be liable for any consequential or incidental damages.
C. - This Agreement may be terminated, in whole or in part, at any time by
mutual written consent of the parties hereto. In such event, the City shall not be obligated
to pay any amounts to Provider for Services rendered by Provider after the date of
termination, but the parties shall remain responsible for any payments that have become
due and owing as of the effective date of termination. In no event shall the City be liable
to Provider for any additional compensation and expenses incurred, other than that
provided herein, and in no event shall the City be liable for any consequential or
incidental damages.
D. This Agreement may be terminated, in whole or in part, by either party if
there has been a material default or breach on the part of the other party in any of its
representations, warranties, covenants, or obligations contained in this Agreement and
such default or breach is not cured within ninety (90) days following written notice from
the non -breaching party. In such event, the City shall not be obligated to pay any amounts
to Provider for Services rendered by Provider after the date of termination, but the parties
shall remain responsible for any payments that have become due and owing as of the
effective date of termination. In no event shall the City be liable to Provider for any
additional compensation and expenses incurred, other than that provided herein, and in no
event shall the City be liable for any consequential or incidental damages.
E. Upon termination of this Agreement, the provisions of Sections 9,10, 14
and (together with all other provisions that reasonably may be interpreted as
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surviving termination of this Agreement) shall survive termination of this Agreement and
continue in full force and effect
14. INSURANCE:
A. Provider shall, at all times during the term hereof, maintain such insurance
coverage(s) as may be required by the City. The insurance coverage(s) required as of the
Effective Date of this Agreement are attached hereto as Exhibit D and incorporated
herein by this reference... The City RFP number and title of the RFP must appear on
each certificate of insurance. The Provider shall add the City of Miami as an additional
named insured to its commercial general liability and auto policies and as a named
certificate holder on all policies. Provider shall correct any insurance certificates as
requested by the City's Risk Management Administrator. All such insurance, including
renewals, shall be subject to the approval of the City for adequacy of protection and
evidence of such coverage(s) and shall be furnished to the City Risk Management
Administrator on Certificates of Insurance indicating such insurance to be in force and
effect and providing that it will not be canceled, modified, or changed during the
performance of the Services under this Agreement without thirty (30) calendar days prior
written notice to the City Risk Management Administrator. Completed Certificates of
Insurance shall be filed with the City prior to the performance of Services hereunder,
provided, however, that Provider shall at any time upon request file duplicate copies of
the policies of such insurance with the City.
B. If, in the reasonable judgment of the City, prevailing conditions in the
insurance marketplace warrant the provision by Provider of additional One Million
Dollars (S1,000,000) of professional liability insurance coverage, the City reserves the
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right to require the provision by Provider of up to such additional amount of professional
liability coverage, and shall afford written notice of such change in requirements thirty
(30) days prior to the date on which the requirements shall take effect. Should the
Provider fail or refuse to satisfy the requirement of additional coverage within thirty (30)
days following the City's written notice, this Agreement shall be considered terminated
on the date the required change in policy coverage would otherwise take effect.
C. Provider understands and agrees that any and all liabilities regarding the
use of any of Provider's employees or any of Provider's subcontractors for Services
related to this Agreement shall be borne solely by Provider throughout the term of this
Agreement and that this provision shall survive the termination of this Agreement.
Provider further understands and agrees that insurance for each employee of Provider and
each subcontractor providing Services related to this Agreement shall be maintained in
good standing and approved by the City Risk Management Administrator throughout the
duration of this Agreement.
D. Provider shall be responsible for assuring that the insurance certificates
required under this Agreement remain in full force and effect for the duration of this
Agreement, including any extensions hereof. If insurance certificates are scheduled to
expire during the term of this Agreement and any extension hereof, Provider shall be
responsible for submitting new or renewed insurance certificates to the City's Risk
Management Administrator at a minimum of ten (10) calendar days in advance of such
expiration. In the event that expired certificates are not replaced, with new or renewed
certificates which cover the term of this Agreement and any extension thereof:
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(i) the City shall suspend this Agreement until such time as the new or
renewed certificate(s) are received in acceptable form by the City's Risk
Management Administrator; or
(ii) the City may, at its sole discretion, tenrinate the Agreement for cause and
seek re -procurement damages from Provider in conjunction with the violation of
the terms and conditions of this Agreement.
E. Compliance with the foregoing requirements shall not relieve Provider of
its liabilities and obligations under this Agreement.
15. NONDISCRIMINATION: Provider represents to the City that Provider does
not and will not engage in discriminatory practices and that there shall be no
discrimination in connection with Provider's performance under this Agreement on
account of race, color, sex, religion, age, handicap, marital status or national origin.
Provider further covenants that no otherwise qualified individual shall, solely by reason
of his/her race, color, sex, religion, age,,handicap, marital status or national origin, be
excluded from participation in, be denied services, or be subject to discrimination under
any provision of this Agreement.
16. MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT
PROGRAM: The City has established a Minority and Women Business Affairs and
Procurement Program (the "M/WBE Program") designed to increase the volume of City
procurement and Agreements with Blacks, Hispanic and Women -owned businesses. The
M/WBE Program is found in Ordinance No. 10062, a copy of which has been delivered
to, and receipt of which is hereby acknowledged by, Provider. Provider understands and
agrees that the City shall have the right to terminate and cancel this Agreement, without
Dra 07-1697
notice or penalty to the City, and to eliminate Provider from consideration and
participation in future City Agreements if Provider, in the preparation and/or submission
of the Proposal, submitted false of misleading information as to its status as Black,
Hispanic and/or Women owned business and/or the quality and/or type of minority or
women owned business participation.
17. ASSIGNMENT: This Agreement shall not be assigned by Provider, in whole
or in part, and Provider shall not assign any part of its operations, without the prior
written consent of the City, which may be withheld or conditioned, in the City's sole
discretion through the City Manager. Provider may not change or replace sub -contractors
performing work under the Scope of Services identified in Exhibit "B" without the prior
written consent from the City Manager.
18. NOTICES: All notices or other communications required under this
Agreement shall be in writing and shall be given by hand -delivery or by registered or
certified U.S. Mail, return receipt requested, addressed to the other party at the address
indicated herein or to such other address as a party may designate by notice given as
herein provided. Notice shall be deemed given on the day on which personally delivered;
or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever
is earlier.
TO PROVIDER:
Granicus, Inc.
568 Howard Street, Suite 300
San Francisco
California 94105
Attention:
With Copies to:
TO THE CITY:
Pedro G. Hemandez, City
Manager
City Manager's Office
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
305 416-1025
Drab O7-1697
Peter Korinis, Chief
Information Officer,
Department of Information
Technology
444 SW 2' Avenue, 10th F1.
Miami, F1 33130
305 416-1470
Jorge L. Fernandez
City Attomey
Office of the City Attorney
444 SW 2'ld Avenue, 9`h Fl.
Miami, Fl 33130
305 416-1800
LeeAnn Brehm
Risk Management Director
444 SW 2" Avenue, 9th Floor
Miami, Florida 33130
305 416-1700
19. MISCELLANEOUS PROVISIONS:
A. This Agreement shall be construed and enforced according to the laws of
the State of Florida. Venue in any proceedings between the parties shall be in Miarni-
Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives
any defense, whether asserted by motion or pleading, that the aforementioned courts are
an improper or inconvenient venue. Moreover, the parties consent to the personal
jurisdiction of the aforementioned courts and irrevocably waive any objections to said
jurisdiction. The parties irrevocably waive any rights to a jury trial.
B. Title and paragraph headings are for convenient reference and are not a
part of this Agreement.
C. No waiver or breach of any provision of this Agreement. shall constitute a
waiver of any subsequent breach of the same or any other provision hereof, and no
waiver shall be effective unless made in writing.
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23
D. Should any provision, paragraph, sentence, word or phrase contained in
this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or
otherwise unenforceable under the laws of the State of Florida or the City of Miami, such
provision, paragraph, sentence, word or phrase shall be deemed modified to the extent
necessary in order to conform with such laws, or if not modifiable, then the same shall be
deemed severable, and in either event, the remaining terrns and provisions of this
Agreement shall remain unmodified and in full force and effect or limitation of its use.
E. Provider shall comply with all applicable laws, rules and regulations in the
performance of this Agreement, including but not limited to licensure, and certifications
required by law for professional service providers.
F. This Agreement constitutes the sole and entire agreement between the
parties hereto. No modification or amendment hereto shall be valid unless in writing and
executed by properly authorized representatives of the parties hereto. Except as otherwise
set forth in Section 2 above, the City Manager shall have the sole authority to extend, to
amend or to modify this Agreement on behalf of the City.
20. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the
parties hereto, their heirs, executors, legal representatives, successors, or assigns.
21. INDEPENDENT CONTRACTORS: Provider has been procured and is
being engaged to provide Services to the City as an independent contractor, and not as an
agent or employee of the City. Accordingly, neither Provider, nor its employees, nor any
subcontractor hired by Provider to provide any Services under this Agreement shall
attain, nor be entitled to, any rights or benefits under the Civil Service or Pension
Ordinances of the City, nor any rights generally afforded classified or unclassified
I:)raf'i 07-1697
24
employees. Provider further understands that Florida Workers' Compensation benefits
available to employees of the City are not available to Provider, its employees, or any
subcontractor hired by Provider to provide any Services hereunder, and Provider agrees
to provide or to require subcontractor(s) to provide, as applicable, workers' compensation
insurance for any employee or agent of Provider rendering Services to the City under this
Agreement. Provider further understands and agrees that Provider's or subcontractors'
use or a,,..k _ v way change its or their status as an
independent contractor.
22. CONTINGENCY CLAUSE: Funding for this Agreement is contii!,: a on
the availability of funds and continued authorization for program activities and the
Agreement is subject to amendment or termination due to lack of funds, reduction of
funds and/or change in regulations, upon thirty (30) days written notice.
23. FORCE MAJEURE. A "Force Majeure Event" shall mean an act of
God, act of govemmental body or military authority, fire, explosion, power failure,
flood, storm, hurricane, sink hole, other natural disasters, epidemic, riot or civil
disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the
event that either party is delayed in the performance of any act or obligation pursuant
to or required by the Agreement by reason of a Force Majeure Event, the time for
required completion of such act or obligation shall be extended by the number of days
equal to the total number of days, if any, that such party is actually delayed by such
Force Majeure Event. The party seeking delay in performance shall give notice to the
other party specifying the anticipated duration of the delay, and if such delay shall
extend beyond the duration specified in such notice, additional notice shall be repeated
Di afi 07-1697
25
no less than monthly so long as such delay due to a Force Majeure Event continues.
Any party seeking delay in performance due to a Force Majeure Event shall use its
best efforts to rectify any condition causing such delay and shall cooperate with the
other party to overcome any delay that has resulted.
24. CITY NOT LIABLE FOR DELAYS: Provider hereby understands and
agrees that in no event shall the City be liable for, or responsible to Provider or any
subcontractor, or to any other person, firm, or entity for or on account of, any
stoppages or delay(s) in work herein provided for, or any damages whatsoever related
thereto, because of any injunction or other legal or equitable proceedings or on
account of any delay(s) for any cause over which the City has no control.
25. USE OF NAME: Provider understands and agrees that the City is not
engaged in research for advertising, sales promotion, or other publicity purposes.
Provider is allowed, within the limited scope of normal and customary marketing and
promotion of its work, to use the general results of this project and the name of the City.
The Provider agrees to protect any confidential information provided by the City and will
not release information of a specific nature without prior written consent of the City
Manager or the City Commission.
26. NO CONFLICT OF INTEREST: Pursuant to City of Miami Code Section 2-
61 1, as amended ("City Code"), regarding conflicts of interest, Provider hereby certifies
to City that individual member of Provider, no employee, and no subcontractor under this
Agreement nor any immediate family member of any of the same is also a member of any
board, commission, or agency of the City. Provider hereby represents and warrants to the
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26
City that throughout the tern of this Agreement, Provider, its employees and its
subcontractors will abide by this prohibition of the City Code.
27. NO THIRD -PARTY BENEFICIARY: No persons other than the Provider and
the City (and their successors and assigns) shall have any rights whatsoever under this
Agreement.
28. SURVIVAL: All obligations (including but not limited to indemnity and
obligations to defend and hold harmless) and rights of any party arising during or
attributable to the period prior to expiration or earlier termination of this Agreement shall
survive such expiration or earlier termination.
29. TRUTH -IN -NEGOTIATION CERTIFICATION, REPRESENTATION
AND WARRANTY: Provider hereby certifies, represents and warrants to City that on
the date of Provider's execution of this Agreement and so long as this Agreement shall
remain in full force and effect, the wage rates and other factual unit costs supporting the
compensation to Provider under this. Agreement are and will continue to be accurate,
complete, and current. Provider understands, agrees and acknowledges that the City shall
adjust the amount of the compensation and any additions thereto to exclude any
significant sums by which the City determines the contract price of compensation
hereunder was increased due to inaccurate, incomplete, or non -current wage rates and
other factual unit costs. All such contract adjustments shall be made within one (1) year
of the end of this Agreement, whether naturally expiring or earlier terminated pursuant to
the provisions hereof.
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30. COUNTERPARTS: This Agreement may be executed in three or more
counterparts, each of which shall constitute an original but all of which, when taken
together, shall constitute one and the same agreement.
31. SPECIAL INSURANCE AND INDEMNIFICATION RIDER:
Attached as Exhibit D hereto and incorporated herein.
32. ENTIRE AGREEMENT: This instrument and its attachments constitute the
sole and only agreement of the parties relating to the subject matter hereof and correctly
set forth the rights, duties, and obligations of each to the other as of its date. Any prior
agreements, promises, negotiations, or representations not expressly set forth in this
Agreement are of no force or effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their respective officials thereunto duly authorized, this the day and year
above written.
"City"
CITY OF MIAMI, a municipal
ATTEST: corporation
__._._..__.._..___......_..w...,._ ._ By
Priscilla A. Thompson, City Clerk Pedro G. Hernandez, City Manager
ATTEST:
"Provider"
Granicus, Inc.
a • corporation, qualified to
do business in Florida
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By
Print Name: Print Name:
Title: Title:
(Corporate Seal) (Authorized Corporate Officer)
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
CORRECTNESS:
REQUIREMENTS:
Jorge L. Fernandez LeeAnn Brehm
City Attorney Risk Management Director
111.1fi07-I6)7