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HomeMy WebLinkAboutExhibitDRAFT PROFESSIONAL SERVICES AGREEMENT Between The City of Miami, Florida and Open, Inc. This Professional Services Agreement ("Agreement") is entered into as of this day of , 2008 and Effective Date of , , 2008 between the City of Miami, a municipal corporation of the State of Florida, whose address is 3500 Pan American Drive Miami, Florida 33133 ("City") and Open, Inc., a Minnesota Corporation, qualified to do business in Florida, whose principal address is ("Provider"). RECITALS: WHEREAS, the City issued a Request for Proposals No. 55025,1 on October 29, 2007 ("RFP"), which is attached hereto as Exhibit "A" and incorporated herein by reference for the provision of professional services ("Services") as more fully set forth in the Statement of Work ("SOW"), which is attached hereto and incorporated herein by reference as Exhibit `B" for the implementation of an electronic patient care reporting system known as "SafetyPad ePCR System" (collectively, the "System"), also as more fully set forth in Exhibit `B" and the Provider submitted a response to the RFP (the "Response"), which is attached hereto as Exhibit "C" and incorporated herein by reference; and WHEREAS, the Evaluation Committee appointed by the City Manager determined that the Proposal submitted by the Provider was responsive to the RFP Page 1 of 36 requirements and in the best interest of the City and recommended that the City Manager negotiate with the Provider; and WHEREAS, the City wishes to engage the Services of the Provider to provide the System, and the Provider wishes to perform the Services for the City and to provide the System; and; WHEREAS, the City and the 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, the Provider and the City agree as follows: 1. RECITALS AND INCORPORATIONS; DEFINITIONS: A. The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. The City's RFP is hereby incorporated into and made a part of this Agreement as attached Exhibit "A." The Services and the System are hereby incorporated into and made a part of this Agreement as attached Exhibit "B." The Provider's Response dated , 200, is hereby incorporated into and made a part of this Agreement as attached Exhibit "C." The Provider's Insurance Certificate is hereby incorporated into and made a part of this Agreement as Exhibit "D." The order of precedence whenever there is conflicting or inconsistent language between documents is as follows: (1) Professional Services Agreement with the Statement of Work and all other relevant agreements; (2) Addenda/Addendum to the Request for Proposals; (3) Request for Proposals; and (4) Open, Inc. response to the Request for Proposals. Page 2 of 36 B. The Provider and the City have further negotiated and agreed to the following additional terms: (i) Any contractor, government agency, quasi -government agency, non-profit or any other type of entity shall not utilize (piggyback) this contract unless it receives prior written consent by the City; and (ii) Unit prices offered to the City shall be offered as a Tier Two price and not a Tier Three price as defined in Exhibit "F" Pricing Schedule dated April 9, 2008, which is attached hereto and incorporated herein by reference. In the event that a Tier Two price is offered to another entity outlined in § 1.B(ii), the City shall receive a Maintenance Agreement credit for the difference between the Tier Two and Tier Three pricing and in effect throughout the life of the maintenance plan between the Provider and the City. The Maintenance Agreement is attached hereto as Exhibit "G" and incorporated herein by reference. (iii) The Village of Key Biscayne will be included in this Agreement and offered all prices for software, licenses, maintenance, hourly rates, etc. The Pricing Schedule (Exhibit "F") shall indicate any additional units to be purchased at the sole option of the City, if the Village of Key Biscayne elects to utilize this Agreement. The purchase of two (2) to four (4) units and associated System licenses will be included in the City's Maintenance Agreement as specified in the Maintenance Agreement, Response and Pricing Schedule. (iv) After full implementation, final acceptance, and expiration of the free maintenance year, the commencement of the four (4) year period for possible discounted sliding rate range/scale will be applied based on the agency/agencies Page 3 of 36 that elect to utilize this Agreement and the quantity of mobile devices using the System. Applied discount will be a one-time occurrence after agency executes their separate contract Rate Plan and in effect throughout the life of the maintenance plan between the Provider and the City. The City will go live with a minimum of twenty-five (25) units, upon compliance with a mutually agreed upon Acceptance Test Plan ("ATP"). If the City has twenty-five (25) Units, collecting live production field data, then the System would be considered Accepted and immediately begins the 90 day System Reliability Period. Example: • 30 Units go live on July 1 • July 1 + 90 days = September 30 • October 1 through September 30 = 1 year free warranty (no cost to the City) • Maintenance Agreement starts October 1 of the next year The Provider warrants to the City that for a period of ninety (90) days from the date of the twenty five (25) Units go -live and/or initial collection of production data, the System will substantially comply with the functionality described in § V of Exhibit "C." During this warranty period, the Provider shall also provide the support and maintenance services as set forth in the Maintenance Agreement attached hereto as Exhibit "F." After expiration of the warranty period, the Provider shall, upon execution of such Maintenance Agreement, provide support and maintenance for the System pursuant to the terms of such Maintenance Agreement. Page 4 of 36 2. TERM; RENEWAL: A. The initial term of this Agreement shall commence on the Effective Date and shall continue in effect for an initial term of fifty two (52) weeks as outlined in the Scope of Work The City may extend the term of this Agreement as deemed necessary at its sole discretion until it is determined by the City that the System has been successfully implemented by the Provider. 3. SCOPE OF SERVICES: A. The 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 are attached hereto and incorporated herein by this reference. All formats for the Services and System are to be as directed in writing, from time to time, by the City's Project Manager. If the City requires any additional work beyond those titled in the Statement of Work, the Provider will perform said work at the request of the City at the fixed labor rates contained Exhibits "C" and "F." B. The 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 (as referenced in Exhibit E); (ii) it is not delinquent in the payment of any sums due to 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 term hereof, fully qualified and trained to perform Page 5 of 36 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 the Provider has been duly authorized to so execute the same and fully bind the Provider as a party to this Agreement. C. The Provider's authorized Project Manager shall be Scott Streicher. Should the Project Manager deemed acceptable by the City leave the Provider's firm for any reason, the City reserves the right to accept or reject any change to the Project Manager and/or any other proposed Project Manager. The Provider shall give at least sixty (60) days advance written notice to the City of any intent to change the Project Manager. The 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 the 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, the Provider agrees to provide any and all such replacement Project Manager(s) to the City free of charge during a three (3) week transition and completion period. D. The Provider shall at all times provide fully qualified, competent and physically capable employees to perform the Services under this Agreement. The City may require the Provider to remove any employee the City deems careless, incompetent, insubordinate, or otherwise objectionable and whose continued services under this Agreement are not in the best interest of the City. Each of the Provider's employees shall have and wear proper identification. 4. COMPENSATION: Page 6 of 36 A. The Provider will invoice the City pursuant to the fee scheduled defined in Exhibit "F." 1. The Provider will invoice the City for 100% of the software licensing costs as defined by § B. Enterprise-Backend Software and § C. Mobile Software after Pre -Deployment installation in accordance with Exhibit "F." 2. Integration Fee Schedule as defined in § D. and the Integration & Professional Services Section of Exhibit "F." i. 20% payment after Training the Trainer Phase completed ii. 20% payment after deploying evaluator units (3 units) in which collection of data is live by field users iii. 20% payment after installation and test of final of 30 mobile unit software images for field deployment. iv. 40% payment after go -live day one in which 25 or more units are collecting and reporting live data. B. Payment shall be made in arrears based upon work performed to the satisfaction of the City within 30 days after receipt of the Provider's invoice for Services performed for the initial software license fee invoice described in provision four (4) above. This 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 performed. 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 the Provider is entitled to reimbursement of expenses, then all bills for travel and other expenses shall be submitted in accordance with § 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 the Provider's travel and other expenses, should the City require one to be performed. Page 7 of 36 D. The Provider agrees and understands that (i) any and all subcontractors providing Services for the System related to this Agreement shall be paid through the 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 the Provider. 4.1 MAINTENANCE FEES The City will pay the Provider in accordance with the fee schedule set forth in Exhibit "F." The Provider shall not be entitled to any other compensation for services that are not expressly set forth in Exhibits "F" and "G." The maintenance fee will be adjusted based on any additional licenses purchased during the contract period, which is based on the percentage (%) of the overall software purchase cost. 5. OWNERSHIP OF DOCUMENTS; CONTENT PROVIDED TO PROVIDER; INTELLECTUAL PROPERTY RIGHTS & SECURITY: A. The Provider understands and agrees that any information, document, report or any other material whatsoever ("Information") which is given by the City to the Provider, its employees, or any subcontractor or which is otherwise obtained or prepared by the Provider pursuant to or under the terms of this Agreement, is and shall at all times remain the property of the City. The 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 Manager in his sole discretion. The Provider is permitted to make and to maintain duplicate copies of the files, records, documents, etc., if the Provider determines copies of such records Page 8 of 36 are necessary subsequent to the termination of this Agreement; however, in no way shall the confidentiality as permitted by the 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. 6. AUDIT AND INSPECTION RIGHTS AND RECORDS RETENTION: The Provider agrees to provide access to the City or to any of its duly authorized representatives, to any books, documents, papers, and records of the 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 the Provider under this Agreement, audit and inspect or cause to be audited and inspected, those books, documents, papers and records of the Provider which are related to the Provider's performance under this Agreement. The 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. The 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: The 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. Page 9 of 36 8. PUBLIC RECORDS: A. The Provider understands that the public shall have access, at all reasonable times, to all documents and information pertaining to the 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. The Provider's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. B. Should the Provider determine to dispute any public access provision required by Florida Statutes, then the Provider shall do so at its own expense and at no cost to the City. 9. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: The 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. The City and the 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. The Provider further agrees to include in all of the 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: Page 10 of 36 The Provider shall indemnify, defend and hold harmless the City and its officials, employees, 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 the Provider or its employees or subcontractors (collectively referred to as the "Provider") which is directly caused, in whole or in part, by any act, omission, default or negligence (whether active or 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 conform to statutes, ordinances or other regulations or requirements of any governmental authority, local, federal or state, in connection with the performance of this Agreement. The 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 the 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. The Provider further agrees to indemnify, defend and hold harmless the Indemnitees from 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 the Provider's negligent performance under this Agreement, compliance with which is left by this Agreement to the Provider and (ii) Page 11 of 36 any and all claims, and/or suits for labor and materials furnished by the 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 the Provider is defending the Indemnitees relating to the Services, the 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 the 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 $250.00 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 claim for which the Provider has provided or paid Indemnitees defense results in a finding of fault on the part of the Indemnitees, then the City shall reimburse the Provider the cost of the Indemnitees defense to the extent of such finding of fault. The 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 the Provider throughout the duration of this Agreement and that this provision shall survive the termination of this Agreement. 11. DEFAULT: If the Provider fails to comply with any term or condition of this Agreement or fails to perform any of its obligations hereunder, then the Provider shall be in default. Upon the occurrence of a default hereunder, the City, in addition to all remedies available to it by law, may immediately, upon written notice to the Provider terminate this Agreement whereupon all payments or other compensation paid by the City to the Page 12 of 36 Provider while the Provider was in default shall be immediately returned to the City. The Provider understands and agrees that termination of this Agreement under this section shall not release the Provider from any obligation accruing prior to the effective date of termination. 12. RESOLUTION OF AGREEMENT DISPUTES: The Provider understands and agrees that all disputes between the 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 the 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 ($25,000), the City Manager's decision shall be approved or disapproved by the City Commission. The Provider shall not be entitled to seek judicial relief unless: (i) it has first received the City Manager's written decision, approved by the City Commission, if the amount of compensation hereunder exceeds Twenty -Five Thousand Dollars and No/Cents ($25,000), (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 the City Commission approval) or (iii) the City has waived compliance with the procedure set forth in this section by written instruments, signed by the City Manager. 13. TERMINATION; OBLIGATIONS UPON 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 the Provider at least sixty (60) calendar days prior to the effective date of such Page 13 of 36 termination. In such event, the City shall pay to the Provider compensation for Services rendered and approved and expenses incurred prior to the effective date of termination. In no event shall the City be liable to the 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 the 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 the Provider for Services rendered by the 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 the 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. 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 the Provider for Services rendered by the 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 the 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 Page 14 of 36 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 the Provider for Services rendered by the 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 the 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. 14. INSURANCE: A. The 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 as an additional named insured to its commercial general liability and auto policies and as a named certificate holder on all policies. The 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 Page 15 of 36 Insurance shall be filed with the City prior to the performance of Services hereunder, provided, however, that the 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 the Provider of additional One Million Dollars ($1,000,000) of professional liability insurance coverage, the City reserves the right to require the provision by the 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. The Provider understands and agrees that any and all liabilities regarding the use of any of the Provider's employees or any of the Provider's subcontractors for Services related to this Agreement shall be borne solely by the Provider throughout the term of this Agreement and that this provision shall survive the termination of this Agreement. The Provider further understands and agrees that insurance for each employee of the 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. The Provider shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the duration Page 16 of 36 of this Agreement, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this Agreement and any extension hereof, the 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: (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, terminate the Agreement for cause and seek re -procurement damages from the Provider in conjunction with the violation of the terms and conditions of this Agreement. E. Compliance with the foregoing requirements shall not relieve the Provider of its liabilities and obligations under this Agreement. 15. NONDISCRIMINATION: The Provider represents to the City that the Provider does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with the Provider's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. The 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. Page 17 of 36 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 the Provider. The Provider understands and agrees that the City shall have the right to terminate and cancel this Agreement, without notice or penalty to the City and to eliminate the Provider from consideration and participation in future City Agreements if the Provider, in the preparation and/or submission of the Proposal, submitted false or 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 the Provider, in whole or in part and the 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. The Provider may not change or replace sub -contractors performing work under the Statement of Work 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 Page 18 of 36 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: Open, Inc. Attention: Mike Vukovich, President 11283 Eagle View Blvd. Woodbury, MN 55129 With Copies to: Allen Joyce, Assistant Chief, Department of Fire -Rescue 1151 NW 7th Street Miami, FI 33136 Julie O. Bru, City Attorney Office of the City Attorney 444 SW 2"d Ave., 9th Floor Miami, Florida 33130 TO THE CITY: Pedro G. Hernandez, City Manager City Manager's Office 444 SW 2"d Avenue, 10th Floor Miami, Florida 33130 LeeAnn Brehm, Director Risk Management Director 444 SW 2" Ave., 9th Floor Miami, Florida 33130 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 Miami - 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. Page 19 of 36 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. 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 terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. The 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 § 19(D) 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. Page 20 of 36 21. INDEPENDENT CONTRACTORS: The 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 the Provider, nor its employees, nor any subcontractor hired by the 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 employees. The Provider further understands that Florida Workers' Compensation benefits available to employees of the City are not available to the Provider, its employees or any subcontractor hired by the Provider to provide any Services hereunder and the Provider agrees to provide or to require subcontractor(s) to provide, as applicable, workers' compensation insurance for any employee or agent of the Provider rendering Services to the City under this Agreement. The Provider further understands and agrees that the Provider's or subcontractors' use or entry upon the City properties shall not in any way change its or their status as an independent contractor. 22. CONTINGENCY CLAUSE: Funding for this Agreement is contingent 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 governmental body or military authority, fire, explosion, power failure, flood, storm, hurricane, sinkhole, other Page 21 of 36 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 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: The Provider hereby understands and agrees that in no event shall the City be liable for or responsible to the 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: The Provider understands and agrees that the City is not engaged in research for advertising, sales promotion or other publicity purposes. The Provider is allowed, within the limited scope of normal and customary marketing and promotion of its work, to use Page 22 of 36 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 the City Code, § 2-611, as amended ("City Code"), regarding conflicts of interest, the Provider hereby certifies to the City that no individual member of the 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. The Provider hereby represents and warrants to the City that throughout the term of this Agreement, the 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: The Provider hereby certifies, represents and warrants to the City that on the date of the Provider's execution of this Agreement and so long as this Agreement shall remain Page 23 of 36 in full force and effect, the wage rates and other factual unit costs supporting the compensation to the Provider under this Agreement are and will continue to be accurate, complete and current. The 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. 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. 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. Page 24 of 36 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this day and year above written. ATTEST: "Provider" Open, Inc. a Privately Held Corporation, qualified to do business in Florida By: Print Name: Print Name: Title: Title: (Corporate Seal) (Authorized Corporate Officer) "City" CITY OF MIAMI, a municipal ATTEST: corporation By: Priscilla A. Thompson, City Clerk Pedro G. Hernandez, City Manager APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Julie O. Bru City Attorney LeeAnn Brehm Risk Management Director Page 25 of 35 EXHIBIT "A" Request for Proposal No. 55025,1 and All Addenda thereto Page 26 of 35