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HomeMy WebLinkAboutExhibit - Professional Service AgreementCity of Miami, Florida RFP681390 PROFESSIONAL SERVICES AGREEMENT By and Between The City of Miami, Florida And Marsh ClearSight, LLC This Professional Services Agreement ("Agreement") is entered into this — day of , 2018 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, a , qualified to do business in the State of Florida whose principal address is , hereinafter referred to as the ("Contractor"). RECITAL WHEREAS, the City of Miami issued a Request for Proposals No. 681390 on, 2017 (the "RFP" attached hereto, incorporated hereby, and made a part of as Exhibit A) for the provision of a Risk Management Information System ("System" as more fully set forth in the scope of work "Scope" attached hereto as Exhibit B), for The City of Miami Department of Risk Management and Contractor's proposal ("Proposal", attached hereto, incorporated hereby, and made part of hereof as Exhibit C), in response thereto, has been selected as the most qualified proposal for the provision of the System. Whereas, the Contractor is the owner of, or has acquired the right to, the System and grants the City a non-exclusive, non -transferable, license to use the System that shall meet the requirements as stated in the Scope of Work of the RFP, in accordance with the terms and on the conditions set forth in this Agreement; WHEREAS, the Evaluation/Selection Committee appointed by the City Manager determined that the Proposal submitted by the Contractor was responsive to the RFP requirements and recommended that the City Manager negotiate with the Contractor; and WHEREAS, the City wishes to engage the Services of Contractor, and Contractor wishes to perform the Services for the City; and WHEREAS, the City and the Contractor 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, Contractor and the City agree as follows: City of Miami, Florida RFP681390 A. The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. TERMS RECITALS AND INCORPORATIONS: 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 and attached hereto as Exhibit "A". The Services and Scope of Work are hereby incorporated into and made a part of this Agreement and attached as Exhibit "B". The Contractor's Response and Pricing Proposal dated, , 2017, in response to RFP 681390, is hereby incorporated into and made a part of this Agreement as attached Exhibit "C". The Contractor's Insurance Certificate is hereby incorporated into and made a part of this Agreement as attached Exhibit "D". The order of precedence whenever there is conflicting or inconsistent language between documents is as follows in descending order of priority: (1) Professional Services Agreement ("PSA") (2) Addenda/Addendum to the RFP; (3) RFP; and (4) Contractor's response and price proposal dated , 2017, acknowledging scope of services and pricing component of services and, response to the Request for Proposals. 1. DEFINITIONS: A. "Applicable Laws" means all applicable Federal, State, County, and City Laws, the latter including without limitation, the City Charter and City Code. B. "City Manages ' is the City Manager for the City of Miami. C. "License Fee" shall mean the fee associated to granting the City use of the Software as outlined in Exhibit D. "Maintenance and Technical Support" shall mean the technical support and maintenance required for the City to achieve optimal performance of the licensed Software as further described in Exhibit E. "Notice to Proceed" shall mean a letter from the City to the Contractor after the Contractor has provided all necessary insurance and/or bond certificates and the City has approved same, to advise Contractor to begin work. City of Miami, Florida RFP681390 F. "Services" shall mean the duties of the licensed Software and/or duties provided by the Contractor in training, support, and maintenance. G. "Software" shall mean the computer programs in machine readable object code form listed in Exhibit attached hereto and any subsequent error corrections or updates supplied to the City by the Contractor pursuant to this Agreement. Exhibit may be amended from time to time by the parties in writing. H. "System" is the collective reference to the Software, Documentation, Contractor Server (if the City options to have the Contractor host the System), and other technology that together comprises the product offered to the City under this Agreement. 2. TERM: The Agreement shall become effective on the date on the first page, and shall be for the duration of three (3) years. The City, acting by and through its City Manager, shall have the option to extend or terminate the Agreement for convenience, that is, for any or no cause. 3. SCOPE OF SERVICES: A. Contractor agrees to provide the Services as specifically described, and under the special terms and conditions as set forth in Exhibit A hereto, which by this reference is incorporated into and made a part of this Agreement. B. Contractor represents and warrants to the City that: (i) it possesses all qualifications, and expertise required under the Solicitation Documents for the performance of the Services, including but not limited to full qualification to do business in Florida per their registration with the State of Florida's Division of Corporation as stated in Section 2.8, Execution of Agreement in the RFP; (ii) it is not delinquent in the payment of any sums due to the City, including payment of permit fees, occupational licenses, etc., nor in the performance of any obligations or payment of any monies 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; (iv) the Services will be performed in the manner described in Exhibit "A"; and (v) each person executing this Agreement on behalf of Contractor shall be duly authorized to so execute the same and fully bind Contractor as a party to this Agreement. City of Miami, Florida RFP681390 C. Contractor shall at all times provide fully qualified and competent employees to perform the Services under this Agreement. Contractor shall possess and maintain any required licenses, permits and certifications to perform the Services under this Agreement. City may require Contractor 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. 4. COMPENSATION: A. The amount of compensation payable by the City to Contractor shall be based on the rates and schedules described in Exhibit "C" hereto, which by this reference is incorporated into this Agreement. B. Payment shall be made in arrears based upon work performed to the satisfaction of the City within thirty (30) days after receipt of Contractor's invoice for 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 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 or future payments shall be made at any time. C. Contractor agrees and understands that (i) any and all subcontractors providing Services related to this Agreement shall be paid through Contractor 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 Contractor. 5. OWNERSHIP OF DOCUMENTS: Contractor understands and agrees that any information, document, report or any other material whatsoever which is given by the City to Contractor, its employees, or any subcontractor, or which is otherwise obtained or prepared by Contractor solely and exclusively for the City pursuant to or under the terms of this Agreement, is and shall at all times remain the property of the City. Contractor 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 City of Miami, Florida RFP681390 or conditioned by the City Manager in his/her sole discretion. Contractor is permitted to make and to maintain duplicate copies of the files, records, documents, etc. if Contractor determines copies of such records are necessary subsequent to the termination of this Agreement; however, in no way shall the confidentiality as permitted by applicable laws 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 as per the terms of this Section 5. 6. AUDIT AND INSPECTION RIGHTS: A. Contractor agrees to provide access to the City or to any of its duly authorized representatives, to any books, documents, papers, and records of Contractor 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 Contractor under this Agreement, audit and inspect, or cause to be audited and inspected, those books, documents, papers, and records of Contractor which are related to Contractor's performance under this Agreement. Contractor 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. Contractor's failure to adhere to, or refusal to comply with, this condition shall result in the immediate cancellation of this Agreement by the City. B. The City may, at reasonable times during the term hereof, inspect the Contractor's facilities and perform such tests, as the City deems reasonably necessary, to determine whether the services required to be provided by Contractor under this Agreement conform to the terms hereof. Contractor shall make available to the City all reasonable facilities and assistance to facilitate the performance of tests or inspections by City representatives as it relates to City data by virtue of this PSA. All audits, tests and inspections shall be subject to, and made in accordance with, the provisions of Sections 18-100, 18-101, and 18-102 of the Code of the City of Miami, Florida, which apply to this Agreement, as same may be amended or supplemented, from time to time. Additionally, Contractor shall provide the City with its most recent SSAE 16 SOC 1 Type II Report. City of Miami, Florida RFP681390 7. AWARD OF AGREEMENT; Contractor represents and warrants 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 fees, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with the award of this Agreement. 8. PUBLIC RECORDS: A. Contractor 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. Contractor'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. Contractor shall additionally comply with Section 119.0701, Florida Statutes, including without limitation: (1) keep and maintain public records that ordinarily and necessarily would be required by the City to perform this service; (2) provide the public with access to public records on the same terms and conditions as the City would at the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that public records that are exempt or confidential and exempt from disclosure are not disclosed except as authorized by law; (4) meet all requirements for retaining public records and transfer, at no cost, to the City all public records in its possession upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements; and, (5) provide all electronically stored public records that must be provided to the City in a format compatible with the City's information technology systems. Notwithstanding the foregoing, Contractor shall be permitted to retain any public records that make up part of its work product solely as required for archival purposes, as required by law, or to evidence compliance with the terms of the Agreement. C. Should Contractor determine to dispute any public access provision required by Florida Statutes, then Contractor shall do so at its own expense and at no cost to the City. D. If the Contractor has questions regarding the application of Chapter 119, Florida Statutes, to the Contractor's duty to provide public records relating to this contract, contact the Division of Public Records at (305) 416-1800, via email at PublicRecords(a�miamigov.com, or regular mail at City of Miami Office of the City Attorney, City of Miami, Florida RFP681390 444 SW 2nd Avenue, 9th FL, Miami, FL 33130. The Contractor may also contact the record custodian at the City of Miami department who is administering this Contract. E. All records stored electronically shall be provided to the City in a format that is compatible with the information technology systems of the City. 9. COMPLIANCE WITH FEDERAL, STATE, AND LOCAL LAWS: Contractor understands that agreement between private entities and local governments are subject to certain laws, code, rules and regulations, including, without limitation, laws pertaining to public records, conflict of interest, record keeping, etc. City and Contractor agree to comply with and observe all applicable laws, codes, and ordinances as they may be amended from time to time. Contractor further agrees to include in all of Contractor'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: Contractor shall indemnify, defend and hold/save harmless, and defend at its own cost and expense, the City and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all Toss, costs, penalties, fines, damages, claims, expenses (including attorney fees) or liabilities (collectively referred to as "Liabilities") arising out of, resulting from, or in connection with (i) the performance of the services contemplated by this Agreement when the services provided contain professional errors, omission, or negligence on the part of the Contractor or its employees, agents, or subcontractors (collectively referred to as Contractor) or (ii) the failure of the Contractor to conform to statutes, ordinances, legal codes, contract requirements, other regulation of any governmental authority, federal, municipal or state, in connection with the performance of this Agreement. The Contractor shall be responsible for defending the City in legal actions within the scope of (i) or (ii) above, and shall indemnify the City in the situation where: (a) any services or materials furnished by the Contractor under this Agreement are determined to be defective; or (b) the Contractor is found to have committed professional errors, omissions, or negligence when the claims are adjudicated, City of Miami, Florida RFP681390 and not just alleged. The Contractor agrees to pay the City's cost of such defense, inclusive of attorney's fees, if the circumstances in (a) or (b) above are determined to exist by a court of competent jurisdiction. Contractor's obligations to indemnify, and hold/save harmless and defend at its own cost the Indemnitees shall survive the termination/expiration of this Agreement. Contractor 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 Contractor throughout the duration of this Agreement and that this provision shall survive the termination or expiration of this Agreement, as applicable. 11. DEFAULT: If Contractor 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 thirty (30) days written notice from the City, then Contractor shall be in default. Contractor understands and agrees that termination of this Agreement under this section shall not release Contractor from any obligation accruing prior to the effective date of termination. Should Contractor be unable or unwilling to commence to perform the Services within the time provided or contemplated herein, then, in addition to the foregoing, Contractor shall be liable to the City for all expenses incurred by the City in preparation and negotiation of this Agreement, as well as all direct damages. 12. RESOLUTION OF AGREEMENT DISPUTES: Pursuant to Section 18-105 of the Code of the City of Miami, Florida, Contractor understands and agrees that all disputes between Contractor 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 ultimate resolution, prior to Contractor being entitled to seek judicial relief, in connection therewith. In the case of any dispute, the following three (3) tier system shall be adhered with for resolution of the same: Tier 1: Project Manager Review of Dispute City of Miami, Florida RFP681390 The Contractor's Project Manager and the City's Project Manager shall meet in person or by telephone to review the issue that is subject of the dispute and attempt resolution of the same. Tier 2: Procurement Manager Review of Dispute If the dispute remains unresolved thereafter the Project Manager review, within ten (10) business days of said review, a member of the Contractor's management team shall meet in person or by telephone with a member of the Procurement Department's management team to review and attempt resolution of the dispute. Tier 3: City Manager Review of Dispute Contractor understands and agrees that all disputes between Contractor and the City based upon an alleged violation of the terms of this Agreement shall be submitted to the City Manager for his/her resolution, prior to either party being entitled to seek judicial relief, in connection therewith per City Code Section 18-105. In the event that the amount of compensation hereunder exceeds $25,000, the City Manager's decision shall be approved or disapproved by the City Commission. Contractor shall not be entitled to seek judicial or arbitration relief unless: (i) it has first received City Manager's written decision, approved by the City Commission if the amount of compensation hereunder exceeds $25,000, 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, one hundred twenty (120) 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. In no event may the amount of compensation under this Section exceed the total compensation set forth in Section 4 (A) of this Agreement. Thereafter the City Manager's review, if the designated representatives of the parties cannot resolve the dispute within thirty (30) days of the initial request to negotiate, then the parties shall attempt to settle the dispute by submitting the dispute to the Judicial Arbitration and Mediation Services, Inc. ("JAMS") for non -binding mediation. Either party may commence mediation by providing to JAMS and to the other party a written request for mediation, setting forth the substance of the dispute and the relief requested. The parties will cooperate with JAMS and with each other in selecting a mediator from the JAMS panel of neutral mediators and in scheduling the mediation proceedings. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by or on behalf of any of the parties and by the mediator and any JAMS personnel are confidential, privileged and inadmissible for any purpose City of Miami, Florida RFP681390 in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non -discoverable as a result of its use in the mediation. Either party may seek equitable relief prior to the mediation to preserve the status quo pending completion of the process. Except for an action to obtain such equitable relief, neither party may commence a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or forty-five (45) days after the date of filing the written request for mediation, or thirty (30) days before the statute of limitations governing any cause of action relating to such dispute expires, whichever occurs first. 13. TERMINATION: OBLIGATIONS UPON TERMINATION: A. The City, by and acting through its City Manager, shall have the right to terminate this Agreement, in its sole discretion, and without penalty, at any time, by giving written notice to Contractor at least one hundred twenty (120) calendar days prior to the effective date of such termination. In such event, the City shall pay to Contractor compensation for Services rendered and approved expenses incurred prior to the effective date of termination, including the full amount of any fees related to implementation or migration services performed by Contractor, regardless of any payment schedule set forth in the applicable Statement of Work. In no event shall the City be liable to Contractor 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. The Contractor shall have no recourse or remedy against the City for a termination under this subsection except for payment of fees due prior to the effective date of termination. B. The City, by and acting through its City Manager, shall have the right to terminate this Agreement, in its sole discretion, and without penalty, upon the occurrence of an event of a material breach hereunder, and failure to cure the same within thirty (30) days after written notice of default. In such event, the City shall not be obligated to pay any amounts to Contractor for Services rendered by Contractor 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 Contractor for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the City be liable for any direct, indirect, consequential or incidental damages. City of Miami, Florida RFP681390 14. INSURANCE: A. Contractor shall, always during the term hereof, maintain insurance coverage(s) and limits of insurance 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 REP must appear on each certificate of insurance. The Contractor shall add the City of Miami as an additional insured to its commercial general liability, and auto liability policies, and as a named certificate holder on all policies. Contractor shall correct any insurance certificates as requested by the City's Risk Management Administrator. As requested in the RFP and pursuant with the same, all such insurance, including renewals, must match or exceed the requirements in the RFP. In order to verify appropriate coverages, evidence of such coverage(s) shall be furnished to the City Risk Management Administrator on Certificates of Insurance indicating such insurance to be in force and effect and any cancelled or non -renewed policy will be replaced with no coverage gap and a current Certificate of Insurance will be provided. Completed Certificates of Insurance shall be filed with the City prior to the performance of Services hereunder. B. Contractor understands and agrees that all liabilities regarding the use of any of Contractor's employees or any of Contractors subcontractors for Services related to this Agreement shall be borne solely by Contractor throughout the term of this Agreement and that this provision shall survive the termination of this Agreement. Contractor further understands and agrees that insurance for each employee of the Contractor and each subcontractor providing Services related to this Agreement shall be maintained in good standing and approved by the City's Risk Management Administrator throughout the duration of this Agreement. C. Contractor 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, Contractor shall be responsible for submitting new or renewed insurance certificates to the City's Risk Management Administrator as soon as coverages are bound with the insurers. 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. City of Miami, Florida RFP681390 D. Compliance with the foregoing requirements shall not relieve Contractor of its liabilities and obligations under this Agreement. Furthermore, the failure to timely provide certificates of insurance as required by this Section 14 shall not be deemed to be a material breach of the Agreement and shall not be grounds for contract termination by the City. 15. NONDISCRIMINATION: Contractor represents and warrants to the City that Contractor does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Contractor's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Contractor 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. ASSIGNMENT: The Contractor's services are considered specialized and unique. This Agreement shall not be assigned, sold, transferred, pledged, or otherwise conveyed by Contractor, in whole or in part, and Contractor shall not assign or otherwise subcontract any part of its operations performing these services under this Agreement, without prior written consent of the City Manager, which may not be unreasonably withheld or conditioned, in the City Manager's sole discretion. 17. 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. City of Miami, Florida RFP681390 TO CONTRACTOR: Marsh ClearSight LLC Attn.: Chief Executive Officer 540 W. Madison Street, Suite 1200 Chicago, IL 60661 Marsh ClearSight LLC Attn.: Sales Director 540 W. Madison Street, Suite 1200 Chicago, IL 60661 Marsh ClearSight LLC Attn.: Corporate Counsel 540 W. Madison Street, Suite 1200 Chicago, IL 60661 18. MISCELLANEOUS PROVISIONS: TO THE CITY: Emilio T. Gonzalez City Manager 444 SW 2nd Avenue, 10th Floor Miami, FL 33130-1910 WITH COPIES TO: Victoria Mendez City Attorney 444 SW 2nd Ave, 9th Floor Miami, FL 33130-1910 Annie Perez, CPPO Procurement Director 444 SW 2nd Avenue, 6th Floor Miami, FL 33130-1910 Ann -Marie Sharpe Risk Management Director 444 SW 2nd Avenue, 6th Floor Miami, FL 33130-1910 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, knowingly and voluntarily waive any rights to a jury trial in any action or proceeding between them arising out of this Agreement. City of Miami, Florida RFP681390 S. 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. C. 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 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. D. Contractor 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. 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. Except as otherwise set forth in Section 2 above, the City Manager shall have the sole authority to extend, amend, or modify this Agreement on behalf of the City. G. City will make reasonable effort to obtain and transfer, in electronic form, to Contractor that available information, data and documents needed for Contractor's Services. The City agrees that all information, documents and data Contractors requests for the requested services will be made available and transmitted in electronic form, that all such information, documents and data provided will be complete and accurate, that Contractor will have the full cooperation of the City personnel, vendors and retirement systems, that the City will issue a representation letter from management concerning these matters, and that Contractor may rely upon such information. H. Any Governmental, not -for -profit or quasi -governmental entity in the State of Florida, with the acquiescence of the Contractor, may avail itself of this contract and purchase any and all identical goods/services, specified herein from the Contractor at the Contract price(s) and timeframe established herein, when permissible by federal, state and local laws, rules, and regulations. City of Miami, Florida RFP681390 19. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 20. INDEPENDENT CONTRACTOR: Contractor 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 Contractor, nor its employees, nor any subcontractor hired by Contractor to provide any Services under this Agreement shall attain, nor be entitled to, any rights, emoluments, or benefits under the Civil Service or Pension Ordinances of the City, nor any rights afforded classified or unclassified employees of the City. Contractor further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Contractor, its employees, or any subcontractor hired by Contractor to provide any Services hereunder, and Contractor agrees to provide or to require subcontractor (s) to provide, as applicable, workers' compensation insurance for any employee or agent of Contractor rendering services to the City under this Agreement, or to require subcontractor(s) to provide, as applicable, workers' compensation insurance for any employee or agent of Contractor rendering Services to the City under this Agreement. Contractor further understands and agrees that Contractor's or subcontractors' use or entry upon City properties shall not in any way change its or their status as an independent contractor. 21. 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, failure to allocate or appropriate funds, and/or change in applicable laws or regulations, upon thirty (30) days written notice. City of Miami, Florida RFP681390 22. 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, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo not within the control of the Contractor. In the event that either party is delayed in the performance of any act or obligation pursuant to or required by the Agreement because of a Force Majeure Event as herein defined, 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 Force Majeure Event actually delayed such party. The party seeking a 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 Tess 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. 23, CITY NOT LIABLE FOR DELAYS: Contractor hereby understands and agrees that in no event shall the City be liable for, or responsible to Contractor 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. 24. USE OF NAME: Contractor understands and agrees that the City is not engaged in research for advertising, sales promotion, or other publicity purposes. Contractor 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 Contractor 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. City of Miami, Florida RFP681390 25. NO CONFLICT OF INTEREST: Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of interest, Contractor hereby certifies to the City that no individual member of Contractor, no employee, and no subcontractor under this Agreement or any immediate family member of any of the same is also a member of any board, commission, or agency of the City. Contractor hereby represents and warrants to the City that throughout the term of this Agreement, Contractor, its employees, and its subcontractors will abide by this prohibition of the City Code. 26. NO THIRD -PARTY BENEFICIARY: No persons other than the Contractor and the City (and their successors and assigns) shall have any rights as an express or implied third -party beneficiary whatsoever under this Agreement. 27. 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. 28. TRUTH IN NEGOTIATION CERTIFICATION: Contractor hereby certifies, represents and warrants to the City that on the date of Contractor'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 Contractor under this Agreement are and will continue to be accurate, complete, and current. Contractor 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. City of Miami, Florida RFP681390 29. CHANGES AND ADDITIONS: A. City Requested Changes: The City may request changes in or additions to the Work or in the time or place of performance of the Work under this Agreement. If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the Work under this Agreement, Contractor shall be entitled to an equitable adjustment, by Change Order, in the Total Agreement Price, the Project Schedule, or both. Any such adjustment in the Total Agreement Price resulting in an increase to the Total Agreement Price will require an amendment to the Agreement, or Project Schedule shall be mutually satisfactory to the City and Contractor. Price increases and/or extensions of time shall not be binding upon either Party unless and until evidenced by a Change Order, and executed Amendment, if applicable, signed by the parties hereto. B. Product Discontinuance: Subject to its obligation to fulfil its obligations set forth in the Agreement, Contractor reserves the right to change or to discontinue any product covered by the Agreement provided that Contractor agrees to make available to the City a functionally equivalent replacement product equal to or better than the product discontinued. 30. WARRANTY: A. Contractor represents and warrants to the City that the Software, when properly installed and used with City equipment, will perform substantially as described in Contractor's proposal for such Software for a period of one year from the date of acceptance by the City. If Contractor receives notice that the System is not performing as warranted, Contractor will, at its option and at no charge to the City, make all efforts to correct errors, or shall replace such portions of the System free of charge with software that performs as warranted hereunder. Contractor may upgrade or enhance any or all aspects of the System, in its sole discretion upon five (5) business days of prior written notice, except for emergency patches or emergency maintenance; provided that in no such event will the System's functionality be downgraded or modified in any manner that adversely affects City's rights hereunder. Contractor also agrees to provide sufficient training material concerning major upgrades and enhancements. Contractor warrants and represents that Contractor and Contractor's personnel possess such expertise, experience, and resources to provide the equipment and services required under the City of Miami, Florida RFP681390 Agreement in a diligent, timely, and professional manner consistent with the highest standards of the industry. Contractor further warrants that all software and services provided will be in conformance with the Agreement. Contractor further warrants that Contractor will assign the manufacturer's warranties for software to the City or provide comparable warranties. Contractor warrants and represents to the City that software systems developed, distributed, installed or programmed by Contractor pursuant to this Agreement (a) will operate consistently, predictably and accurately, without interruption or manual intervention, and in accordance with all requirements of the Agreement, including without limitation all specifications and/or functionality and performance requirements; (b) that all date recognition and processing by the software system will include the four digit format and will correctly recognize and process the date of February 29, and any related date during Leap Years; and (c) that all date sorting by the software system that includes a "year category" will be done based on the four -digit -year format. Upon being notified in writing by the City of the failure of any software systems to comply with the Agreement, Contractor will, within sixty (60) days and at no cost to the City, replace or correct the software system that does not comply with the Agreement. Except for the disclaimer language set for in Section 7. Limited Warranties and Disclaimer. of the Contractor's Software as a Service Agreement ("SaaS Agreement"), the warranties set forth above will not be subject to any additional disclaimer or exclusion of warranties under the Agreement. Contractor will provide a contact person available and authorized to remedy any non- conformity with these warranties. The software publisher and its authorized distributor shall guarantee that all software provided shall perform as specified, otherwise the software will be replaced. B. Notwithstanding the warranty provisions set forth above, all of Contractor's obligations with respect to such warranties shall be contingent on the City's use of the Software in accordance with this Agreement and in accordance with the Contractor's instructions as provided to the City. For Contractor's warranties and disclaimers please refer to Section 7. Limited Warranties and Disclaimer. of the Contractor's Software as a Service Agreement ("SaaS Agreement"), 31. REMEDIES: A. In the event of a material breach of this Agreement by Contractor which shall continue for thirty (30) or more days after written notice of such breach (including a reasonably detailed statement of the nature of such breach) shall have been given to Contractor by the City, the City City of Miami, Florida RFP681390 will be entitled to avail itself cumulatively of any and all remedies available at law or in equity (provided such remedies are not otherwise limited under the terms of this Agreement) and either: (1) suspend performance of its payment obligations under the Agreement for as long as the breach continues uncorrected; or (2) terminate this Agreement by written notice to Contractor if the breach remains uncorrected. The following shall constitute material breaches of this Agreement (1) violation by Contractor of any State, Federal or local law, or failure by Contractor to comply with any applicable States and Federal service standards, as expressed by applicable statutes, rules and regulations; (2) failure by Contractor to carry applicable licenses or certifications as required by law; (3) failure of Contractor to comply with reporting requirements contained herein; and (4) inability of Contractor to perform the Work provided for herein. B. In the event of: (1) any failure by City for forty-five (45) or more days to make any payment when due, or (2) any other material breach of this Agreement by City which shall continue for forty-five (45) or more days after written notice of such breach (including a reasonably detailed statement of the nature of such breach) shall have been given to City by Contractor, Contractor shall be entitled to avail itself cumulatively of any and all remedies available at law or in equity (provided such remedies are not otherwise limited under the terms of this Agreement) and either: (1) suspend performance of its obligations under this Agreement for as long as the breach remains uncorrected; or (2) terminate this Agreement by written notice to City if the breach remains uncorrected. C. In the event the City terminates this Agreement as provided herein, copies of all applicable Documentation made available by Contractor to the City under this Agreement shall become the property of the City for record retention and compliance purposes. Notwithstanding the above, Contractor shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of this Agreement by Contractor described in subsection A above and, after providing Contractor with written notice of breach as set forth in subsection A, the City may withhold any payments to Contractor for the purpose of set-off of any damages, as agreed upon or finally adjudicated, against such payment. The City reserves all rights and remedies under applicable laws. 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 City of Miami, Florida RFP681390 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. City of Miami, Florida RFP681390 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" ATTEST: CITY OF MIAMI, a municipal corporation Todd B. Hannon, City Clerk Emilio T. Gonzalez, City Manager ATTEST: q,AA„ Aida, PHYLLIS ZAVALA OFFICIAL SEAL Notary Public, State of Illinois My Commission Expires October 16, 2018 Print Name:/)l lit IS ZakCia Title: Afpirlass 3paidJa "Marsh ClearSight, LLC" A Delaware, Limited Liability Company Print Name: GAAJ-t. S a C$40 7. Title: C. APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez Ann -Marie Sharpe, Director City Attorney Risk Management