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HomeMy WebLinkAboutPre - Professional Srvcs. Agrmt. #14217PROFESSIONAL SERVICES AGREEMENT , /7 This Agreement is entered into this 28 day of Sept , 2005 (but effective as of September 28, 2005 ) by and between the City of Miami, a municipal corporation of the State of Florida ("City") and Wonderware, Inc., a corporation organized and existing under the laws of the State of Rhode Island, authorized to transact business in Florida d/b/a CORE Business Technologies ("Provider"). _ RECITAL A. The City desires to "piggyback" on the terms and conditions of the Clark County Washington RFP #365 ("RFP") for the provision and installation of a Point of Sales Application ("Services"), Provider's proposal ("Proposal") and the Provider's Software License Agreement (SWLA), in response thereto, has been selected as the most qualified proposal for the provision of the Services. The Agreement, RFP, SWLA and the Proposal are sometimes referred to herein, collectively, as the Solicitation Documents, and are by this reference incorporated into and made a part of this Agreement providing, however, that in the event of any conflict between this Agreement and the Solicitation Documents this Agreement will prevail. 0457 B. The Commission of the City of Miami, by. Resolution No. R-05-, adopted on July 28 . 2005, approved the selection of Provider and authorized the City Manager to execute a contract, under the terms and conditions setforth herein. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, Provider and the City agree as follows: TERMS 1. RECITALS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement, Agreement No. • - 7471771'5E 5'-"'-f:-741:.7:77-•,-,1=7:- . 2. TERM: A, This Agreement shall be effective for an initial term commencing on the Effective Date. The Effective Date shall commence with the execution of this Agreement. B. This agreement shall . expire at the end of the Maintenance Period, unless otherwise amended. The end of the Maintenance period shall be 5 years from the Go -Live Date. C. Passage of the Agreement expiration date shall not extinguish or prejudice the City's right to enforce this Agreement with respect to any default or defect in performance that has not been cured. Further, Provider's obligations regarding indemnification, confidcntialit„. and dispute resolution shall survive the expiration or termination of this Agreement. 3. SCOPE OF SERVICE: A. Provider agrees to provide the Services as specifically described and set forth in .Attachment "A" hereto, which by this reference is incorporated into and made a part of this Agreement; B, Provider represents and warrants to the City that: (i) it possesses all qualifications, licenses and expertise required under the Solicitation Documents for the performance of the Services; (ii) it is not delinquent in the payment of any sums due the City, including payment of permit fees, occupational licenses, etc,, nor in the performance of any obligations to the City; (iii) all personnel assigned to perform the Services are and shall be, at all times during the term hereof, fully qualified and trained to perform the tasks assigned to each; and (iv) the Serviees will be performed in the manner described in Attachment "A". 4. COMPENSATION: The amount of compensation payable by the City to Provider shall be based on the rates and schedules described in Attachment "A" hereto, which by Agreement No. 2 this reference is incorporated into this Agreement; provided, however, that in no event shall the amount of compensation exceed $150,000. Compensation includes fees, costs, reimbursable expenses and charges made pursuant to this Agreement. A. Subject to the provisions of this Agreement relating to amendment, if City requests Provider to provide any Services that are different from, or in addition to, the Services being provided under an approved Statement of Work ("Additional Services"), the parties (i) will cooperate with each other in good faith in negotiating and agreeing to the scope and nature of the request, the Additional Services so requested, the time period in which Provider will provide such Additional Services and the basis upon which Provider will be compensated and reimbursed therefore, and (ii) shall set forth agreed -upon Additional Services, any related obligations of the parties and City's payment or reimbursement obligations in a written authorization to proceed, which authorization to proceed will be signed by duly authorized representatives of City and Provider, shall be attached to this Agreement and shall become a part hereof. E. In the event that the City requests that Provider provide additional work through this contract, either through the Change Order process, or through amendments or extensions of the contract to provide additional out of scope work, the following rate structure will be followed by Provider in preparing cost estimates and firm fixed price quotes for presentation to the City. For work to be performed beyond the scope of the contract Providers rates of $155.00/hr or $1,200.00/day will apply. 5. OWNERSHIP OF DOCUMENTS: Provider understands and agrees that any information, document, report or any other material whatsoever which is given by the City to. Provider or which is otherwise obtained by Provider pursuant to or under the .terms of this Agreement No. 0 Agreement is and shall at all times remain the property of the City. Providr agrees no( to use any such information, document, report or material for any other purpose whatsoever without the written consent of City, which may be withheld 'or conditioned by the City in its sole discretion. Failure to submit any document previously provided by the City to Provider and requested by the City within thirty (30) calendar days will, at the option of the City, constitute a default of the Contract and shall be cause for the City to withhold payments until documents arc delivered. 6. AUDIT AND INSPECTION RIGHTS: A. 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, or cause to be audited, those books and records of Provider which are related to Provider's performance under this Agreement. Provider agrees to maintain all such books and records at its principal place of business for a period of three (3) years after final payment is made under this Agreement. B. The. City may, at reasonable times during the term hereof, inspect Provider's facilities and perform such tests, as the City deems reasonably necessary, to determine whether the goods or services required to be provided by Provider under this Agreement confonn to the terms hereof and/or the terms of the Solicitation Documents, if applicable. Provider shall make available to the City all reasonable facilities and assistance to facilitate the performance of tests or inspections by City representatives, All tests and inspections shall be subject to, and made in accordance • with, the provisions of Section 18-102 of the Code of the. City of Miami, Florida, as same may be amended or supplemented, from time to time. Under no circumstance will the Provider be responsible for any expenses related to the inspection process. 7. AWARD OF AGREEMENT:- Provider represents and warrants to the City that it has not empl,oyed or retained any person or company employed by the City to solicit or secure Agreement No. 4 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 award of this Agreement. 8. PUBLIC RECORDS: Provider understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, 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 law. 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, 9. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Provider ,understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keening, disclosures, etc. City and Provider agree to comply with and observe all applicable laws. codes and ordinances as the may be amended from time to time. 10. INDEMNIFICATION: Provider, its employees, sub -Provider, or agents, shall indemnify, hold harmless and defend (including reasonable attorney's fees) the City, its officers, employees and agents (hereinafter "Indemnified Party") from and against all claims, and Liability to, third parties (other than Liability solely and entirely the fault of the Indemnified Party) for personal or property damage arising from or in connection with the acts, errors, or omissions of Provider or its officers, employees, sub -Provider, or agents in performing the work required by this Agreement. In no event shall Provider be liable to the City for loss of profit, indirect, special, or consequential damages arising out of any breach of this agreement or of obligations under this agreement or the license granted or for any claim made against the City by any other party, even if Provider has been advised of the possibility of such a claim It is specifically agreed Agreement No. 5 t0 that the City maintains the responsibility for the auditing of transaction data. The action or lack of action taken by the City as a result of transaction processing is the sole responsibility of the City. These indemnities have been mutually negotiated by the parties. 10a. Indemnification against claims of infringement of patent or copyright Provider, at its own expense, will defend and indemnify the City against claims that Provider developed software pursuant to this Agreement (hereinafter "Provider software") furnished under this Agreement infringe a patent or copyright, misappropriate trade secrets, or otherwise violate an intellectual property right protected by any law, provided the City (a) gives Provider prompt written notice of such claims pursuant to Section, (b) permits Provider to defend or settle the claims, and (c) provides all reasonable assistance to Provider in defending or settling the claims. As to any Provider software which is or, in the opinion of Provider, may become subject to a claim of infringement or misappropriation, Provider may elect to (a) obtain the right of continued use of such Provider software for the City or (b) replace or modify such Provider software to avoid such claim. Such replacement or modification shall not relieve or modify Provider's obligation to meet the requirements of this Agreement. Provider will not defend or indemnify the City if any claim of infringement or misappropriation (a) results solely from the City's design or alteration of any Provider software or (b) results solely from use of any Provider software in combination with any non -Provider supplied Provider software. Agreement No, Except as specifically provided in this agreement, there are no other warranties, express or implied, including, but not limited to any implied warranties of merchantability or fitness for a particular purpose. The Indemnitor shall conduct the defense in any such third party action arising as described herein and the Indemnitee shall cooperate fully with such defense. In the event that a judgment, in whole or in part, is entered against any lndemnitec, Indemnitor shall promptly satisfy and pay such judgment, Under no circumstances shall the Provider's liability exceed the full value of this contract. 11. DEFAULT: If Provider fails to comply with any term or condition of this Agreement, or fails to perfomt an of its obligations hereunder, and is given notification of such failure and is given reasonable time to cure said failure, not less than 30 days, then 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 Provider, terminate this Agreement whereupon all payments, advances, or other compensation paid by the City to Provider while Provider was in default shall be immediately returned to the City. Provider understands and agrees that termination of this Agreementunder this section shall not release Provider from any obligation accruing prior to the effective date of termination, 12. RESOLUTION OF CONTRACT 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 Agreement No. amount of' compensation hereunder exceeds $50,000, the City Manager's decision shall be approved or disapproved by the City Commission. Provider shall not be entitled to seek 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 $50,000.00, 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 (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. CITY'S TERMINATION RIGHTS: A. r The City 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 expenses incurred prior to the effective date of termination. In no event shall the City be liable to Provider for any additional compensation, other than that provided herein, or for any consequential or incidental damages. B. The City shall have the right to terminate this Agreement, without notice to Provider, upon the occurrence of an event of default hereunder. In such event, the City shall not be obligated to pay any amounts to Provider and Provider shall reimburse to the City all amounts received while Provider was in default under this Agreement. 14. INSURANCE: Provider shall, at all times during the term hereof, maintain such insurance coverage as may be required by the City's Risk Management Administrator. The minimum amounts and types of Insurance required are reflected in Attachment "B", which is deemed as being incorporated by reference herein. All such insurance, including renewals, shall be subject to the approval of the City's Risk Management Administrator for adequacy of Agreement No. 8 0 protection and evidence of such coverage shall be furnished to the City on Certificates of' Insurance indicating such insurance to be in force and effect and providing that it will not be canceled during the performance of the services under this contract without thirty (30) calendar days prior written notice to the City. 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. If, in the judgment of the City's Risk Management Administrator, prevailing conditions warrant the provision by Provider of additional liability insurance coverage or coverage which is different in kind, the City reserves the right to require the provision by Provider of an amount of coverage different from the amounts or kind previously required and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. City shall compensate the Provider for costs of additional liability insurance that satisfy the city's requirement. Should the Provider fail or refuse to satisfy the requirement of changed coverage within thirty (30) days following the City's written notice, this Contract shall be considered terminated on the date that the required change in policy coverage would otherwise take effect. 15. NONDISCRIMINATION: Provider represents and warrants 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. Agreement No. • 9 i • (`) �I 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 procure en and contracts with Blacks, Hispanic and Women -owned business. 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 notice or penalty to the City, and to eliminate Provider from consideration and participation in future City contracts if Provider, In the preparation and/or submission of the Proposal, submitted materially 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, without the prior written consent of the City Commission, which may be withheld or conditioned, in the City Commission's sole discretion. 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, an the fifth day after being posted or the date of actual receipt, whichever is earlier. TO PROVIDER: Wonderware, Inc. d/b/a CORE Business Teeh.nologies Attn: George Forte, Software Engineering Manager 2224 Pawtucket Avenue East Providence, RI (12914 Agreement No. 10 TO THE CITY: City of Miami Department of Information Technology 444 SW2nd Avenue, 5th Floor Miami, FL 33130 And City of Miami City Attorney 444 SW 2" Avenue, Suite #945 Miami, FL 33130 19. MISCELLANEOUS PROVISIONS: A. This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue in any legal proceedings shall be Miami -Dade County, Florida. In order to expedite the conclusion of any litigation between them involving this agreement the parties mutually waive their right to demand a jury trial and/or Ale permissive counterclaims in such civil actions B. Title and paragraph headings are for convenient reference and arc 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, Miami -Dade County, or the City of Miami, Agreement No. 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 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. 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. 20. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, theirheirs, executors, legal representatives, successors, or assigns. 21. INDEPENDENT CONTRACTOR: 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, Provider shall not 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. Provider further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Provider, and agrees to provide workers' compensation insurance for any employee or agent of Provider rendering services to the City under this Agreement. 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 notice, 23. REAFIRMATION OF 'REPRESENTATIONS: Provider hereby reaffirms all of the • representations contained in the Solicitation Documents, Agreement No. 12 24, 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. 25. COUNTERPARTS: This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together; shall constitute one and the same agreement, 26. SPECIAL INSURANCE AND INDEMNIFICATION RIDER: Please initial if applicable: E Yes® No IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the dayandyear above written. AT I EST: "City" CITY OF MIAMI, a municipal corporn By: Priscilla A. Thompson, City Clerk Joe iola, City anager ovider" Wonderware, Inc., d/b/a CORE Business Technologies ATL'.EST: Print Name: p , t ci L l c,rr ✓ Print Name: !(4.-/k-i Title: Corporate Secretary Title: President (Affix Corporate Seal) APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: 5 io ge L. eriYauEtez� Dania F. Carrillo City Attorney Risk Management Administrator 13 Agreement No.