Agreement for Services with BIG Wireless, LLC 0 16 - 9`fa8
AGREEMENT FOR SERVICES CUSTOMER NO.
JOB NO.
CONTRACT NO.
THIS AGREEMENT ("Agreement") is made as of the 18 day ofG3 2016,
by and between BIG Wireless, LLC, a Pennsylvania corporation, with an address of 156 North
George Street, York Pennsylvania, 17401 ("Big Wireless"), and the City of Miami Beach, with an
address of 1700 Convention Center Drive, Miami Beach, FL 33139 ("City" or"Client").
Big Wireless has a background and experience in computer consulting, service and
integration and is willing to provide quality services to the City based on this background and
experience. Client desires to have services provided by Big Wireless.
Therefore, the parties agree as follows:
1. SERVICES.
a. Services. Big Wireless will provide the services (collectively, the "Services") as set forth
on the Services and Fees Addendum, a copy of which is attached hereto and made a part
hereof.
b. Withdrawal of Service. Big Wireless may cancel all or part of the Services if : (a) the
Services become the subject of a claim, either in a formal legal forum, or otherwise, that
such Services infringe the rights of any third person or that Big Wireless otherwise does
not have the right to permit others to use it; (b) the Services become illegal or contrary to
any applicable municipal, state or federal law or regulation; (c) there is a material breach of
this agreement by Client or; (d) Big Wireless, for any reason, discontinues the Services
(or part thereof) as a product offering. If Big Wireless cancels all or part of the Services,
Big Wireless's only obligation to Client will be to notify Client reasonably promptly and to
refund, pro rata, any fees paid in advance for affected Services.
2. DUTIES OF THE CITY.
a. Assigned Representative. The City agrees to designate in writing a person to act as
City's representative with respect to the Services to be rendered under this Agreement.
Such person shall have complete authority to transmit instructions, receive information,
interpret and define Client's policies and make decisions with respect to the Services to be
provided by Big Wireless, including without limitation the decision to request and/or
authorize additional services. Client also agrees to provide all criteria and full information
as to Client's requirements for the Services to be performed including but not limited to
design objectives and constraints, performance requirements, and any budgetary
limitations.
Client's representative, emergency phone number and email address is:
Contact Name: Steven Feldman
Phone Number: 305-673-7776 x5694
Email Address: Feldman, Steven
StevenFeldman&..miamibeachfl.gov
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Additional Contact:
Contact Name: Aragunde, Roland
Phone Number: 305-673-7776 x3749
Email Address: Aragunde, Roland
RolandAraqunde(a�miamibeachfl.gov
b. Facility preparation. If Big Wireless arrives at facility to begin Services and is delayed
due to City's failure to properly prepare facility as set forth on the Services and Fees
Addendum, Client shall be liable for the costs incurred by Big Wireless due to any delays
or remobilization required due to said failure.
c. Insurance. Throughout the Term, Big Wireless agrees to maintain in force at its own
expense insurance as follows:
c.1.1. Commercial General Liability insurance to cover liability bodily injury and property
damage and professional liability for the training of third parties in the use of Big
Wireless Products or Services. Exposures to be covered are premises,
operations, products\completed operations, and contractual liability. Coverage
must be written on claims made basis, with the following limits of liability.
A. Bodily Injury/Property Damage $1,000,000
1. Each Occurrence
2. Annual Aggregate $1,000,000
B. Personal Injury $1,000,000
1. Annual Aggregate
c.1.2. Worker's Compensation Insurance to comply with Florida statutory limits for all
employees residing in Florida. The following limits must be maintained:
A. Worker's Compensation Statutory
B. Employer's Liability $100,000 each accident $500,000
Disease-policy limit $100,000 Disease-employee
If Big Wireless claims to be exempt from this requirement, Big Wireless
must provide the City proof of the exemption along with a written request for
City to exempt Big Wireless, written on Big Wireless letterhead.
c.1.3. Business Auto Liability coverage to include owned, hired and non-owned
vehicles.
A. Bodily Injury and Property Damage combined single limit
1. Each Occurrence $1,000,000
c.2. Big Wireless must name the City of Miami Beach as an additional insured and
Certificate Holder on each of the policies required by this Section, with the
exception of the Worker's Compensation policy.
c.3. Certificates of Insurance, reflecting evidence of the required insurance, must be
filed with the City's Risk Manager prior to the commencement of this Agreement.
These Certificates must contain a provision that coverage's afforded under these
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policies will not be canceled until at least thirty (30) days prior written notice has
been given to the City. Policies must be issued by companies authorized to do
business under the laws of the State of Florida. Financial Ratings must not be
less than "B+ - VI" or better, per Best's rating guide, latest edition. Insurance
must be in force until the obligations required to be fulfilled under the terms of this
Agreement are satisfied. In the event the insurance certificate provided indicates
that the insurance will terminate and lapse during the period of this Agreement,
then in that event, the Big Wireless will furnish, a renewed certificate of insurance
as proof that equal and like coverage for the balance of the period of the
Agreement. Big Wireless will not utilize or access City's facility pursuant to this
Agreement unless all required insurance remains in full force and effect.
c.4. Any insurance required of Big Wireless pursuant to this Agreement must also be
required by any sub-contractor of Big Wireless who conducts work directly for the
City under this Agreement in the same limits and with all requirements as
provided herein, including naming the City and Big Wireless as an additional
insured and Certificate Holder, in any work is subcontracted. Big Wireless and
any sub-contractor of Big Wireless shall maintain such policies during the Term.
d. Waiver of Subrogation. Big Wireless and Client waive all rights against each other, and
any of their respective employees, agents, consultants and subcontractors for damages
caused by risks covered by insurance (or self-insurance), provided in this Agreement to
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the extent they are covered by that insurance (or self-insurance), except such rights as
they may have to the proceeds of such insurance.
3. FEES. The City agrees to pay Big Wireless all fees and charges ("Fees") as set forth in the
Services and Fees Addendum to this agreement.
4. PAYMENT.
a. Late Payments. Payment for Big Wireless's Services and expenses is due upon
presentation of an invoice and is past due after thirty (30) days from the date of invoice.
Past due payments will be assessed a service charge of one and one-half percent per
month (18% per annum) or fraction thereof.
b. Taxes. In addition to the Fees set forth above, the City will pay to Big Wireless or to the
relevant taxing authority, as appropriate, any sales, use, goods and services, value added
or other taxes payable under this Agreement (other than taxes levied or imposed on Big
Wireless's net income).
c. TERM. The "Term" of this Agreement shall be the length of time its provisions shall bind
the parties. The Agreement will take effect upon execution, and unless terminated earlier
as permitted hereunder, will terminate as indicated in the Services and Fees Addendum
(the "Initial Term").
5. EMPLOYEES. Big Wireless's employees, who perform Services for the City under this
Agreement shall also be bound by the provisions of this Agreement. At the request of Client,
Big Wireless shall provide adequate evidence that such persons are Big Wireless's
employees. Client recognizes that employees of Big Wireless are valuable assets of Big
Wireless and agrees not to offer employment to employees of Big Wireless without the prior
written consent of an authorized officer of Big Wireless.
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6. INTELLECTUAL PROPERTY. Big Wireless's Services and Big Wireless's name and
trademarks are the valuable intellectual property of Big Wireless. All rights with respect to Big
Wireless's Services and Big Wireless's name and trademarks, whether now existing or which
may hereafter come into existence, which are not expressly granted to the City herein are
reserved to Big Wireless. Any goodwill generated through Client's use of Big Wireless's name
and trademarks shall inure solely to the benefit of Big Wireless.
7. REFERENCES. In the event that Services provided for the City make use of technologies
from vendors with whom Big Wireless maintains a partner relationship, Big Wireless reserves
the right to use Client as a reference and thereby continue certification under the partner
program. Big Wireless also reserves the right to use Client as a referral, for business
purposes only, to other companies and organizations. At no time will Big Wireless disclose to
a third party information that Client indicates is confidential.
8. CHANGES IN SERVICES. After the execution of this Agreement, changes in Services may be
accomplished by Change Order. A Change Order shall be a written order to Big Wireless
signed by the City, and counter-signed by Big Wireless, to change the Services, Agreement
sum, or Agreement time. If concealed, unknown, or unsafe conditions are encountered at the
facility during the completion of Services, the Agreement sum or Agreement time shall be
subject to equitable adjustment thru the change order process.
9. GENERAL.
a. Similar Agreements. Nothing in this Agreement will be deemed to limit or restrict Big
Wireless from entering into similar agreements with any other persons.
b. Applicable Law. This Agreement shall be governed by the laws of Florida.
c. Representations and Warranties. Each party hereto represents and warrants that: (1) it
has the full right and power to enter into and fully perform this Agreement in accordance
with its terms; (2) it has had the right, opportunity and time to consult with legal counsel of
the party's choice; and (3) the execution, delivery and performance of this Agreement will
not violate the provisions of any agreement to which it is a party or violate any applicable
law or regulation.
d. Means and Methods. Big Wireless shall be solely responsible for and have control over
means, methods, techniques, sequences, and procedures required to complete all
Services under this Agreement.
e. Notices. Except as otherwise provided herein, whenever any notice, request, consent,
approval or other communication shall be given by one party hereto to the other, such
communication shall be in writing and shall be delivered by registered or certified mail,
return receipt requested, addressed as follows or by facsimile with receipt confirmation:
To Big Wireless: To Client:
Big Wireless, LLC the City of Miami Beach
156 North George Street City of Miami Beach
York, PA 17401 1700 Convention Center Drive,
Fax: 717-854-1313 Miami Beach, FL 33139
Attention: CEO Fax: 305-673-7795
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f. Grant Compliance. As this is a State of Florida administered federal grant funded project,
Big Wireless shall comply with all grant requirements and reporting as contained in DCA
Contract No. 11 DS-37-11-23-02-198.
10. Support. Big Wireless must make available throughout the Term of the Agreement e-mail
and telephone support to the Project Manager, and any other support contacts designated
by the Project Manager.
11. Termination.
11.1. Either party has the right to terminate this Agreement at any time during the Term,
upon thirty (30) written notice to the other, if: (a) State or federal statutes are
amended to prohibit or materially change the operation of Big Wireless's Equipment
or Services so as to make it reasonably impractical to operate the Equipment or
Services as contemplated by the parties under this Agreement including, without
limitation, changes that would prohibit the use of the Equipment or Services, or which
would impose restrictions on the City and uses that are contrary to the terms of this
Agreement; (b) a determination by a court of competent jurisdiction or other
applicable dispute resolution forum that Big Wireless has infringed upon a third
party's patent, trademark, copyright, trade secret or other intellectual property; or (c)
the other party commits any material breach of any of the provisions of this
Agreement.
Notwithstanding, the preceding paragraph, either party will first have the right to
remedy the default(s) within thirty (30) calendar days (or within such other time
period as the City and Big Wireless may mutually agree upon, which agreement will
not be unreasonably withheld or delayed) after written notice from the non-defaulting
party setting forth in reasonable detail the events of the cause for termination. In the
event of a termination under this Section 13, the City will be relieved of any further
obligations to Big Wireless other than as specified in this Agreement.
11.2. City's Right to Terminate for Convenience. The City may terminate this Agreement,
for any or no cause, upon thirty (30) days written notice to Big Wireless. In the event
of such termination, the City will have no further liability or obligation to Big Wireless,
other than to pay for Equipment accepted by the City (but payment has not been
remitted), and will not be liable to Big Wireless for any costs or expenses incurred by
Big Wireless after the date of termination.
11.3. Procedures upon Termination. Except as set forth in this Section, and except for any
provisions of this Agreement which are expressly intended to survive termination (or
expiration) of the Agreement, upon the termination of this Agreement, all of the
provisions of this Agreement will terminate and:
11.3.1. Big Wireless will: (a) immediately cease to provide Services in connection with
the installation of Equipment; (b) promptly deliver to the City any and all
Proprietary Property of the City provided to Big Wireless pursuant to this
Agreement; (c) provide City all data pertaining to outstanding payments due to
Big Wireless; and (d) provide assistance as the City may reasonably request
from time to time in connection with the termination of this Agreement.
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11.3.2. The City will: (a) immediately cease using the Services and using any other
Intellectual Property of Big Wireless, except as provided for in this Agreement;
and (b) promptly deliver to Big Wireless any and all Proprietary Property of Big
Wireless provided to the City pursuant to this Agreement.
11.3.3. Big Wireless is entitled to payment for accepted Equipment and completed work,
if any, incurred by the Big Wireless up to the date of termination set forth in the
written notice of termination. In no event will the City be liable to Wireless for any
indirect, incidental, special, lost profits or consequential damages.
12. Confidentiality. During the Term and for a period of three (3) years thereafter, neither party
will disclose to any third person, or use for itself in any way for pecuniary gain, any
Confidential Information learned from the other party during the course of the negotiations
for this Agreement or during the Term. Upon termination of this Agreement, the receiving
party must return to the disclosing party all tangible Confidential Information of the disclosing
party. The receiving party must retain in confidence and not disclose to any third party any
Confidential Information of the disclosing party without the disclosing party's express written
consent, except (a) to its employees who are reasonably required to have the Confidential
Information; and (b) to its agents, representatives, attorneys and other professional advisors
that have a need to know the Confidential Information, provided that these parties undertake
in writing (or are otherwise bound by rules of professional conduct) to keep such information
strictly confidential.
13. Indemnification and Liability.
13.1. Indemnification Consideration and Survival. The parties recognize that various
provisions of this Agreement including, without limitation, this Section, provide for
indemnification by Big Wireless and requires a specific consideration be given
therefore. The parties therefore agree that the sum of Ten Dollars and 00/100
($10.00) to Big Wireless, receipt of which is acknowledged, is the specific
consideration for the indemnities, and the providing of indemnities is deemed to be
part of the specifications with respect to the Equipment and Services to be provided
by Big Wireless. This Section states Big Wireless's sole liability to, and the City's
exclusive remedy against Big Wireless for any type of claim specified in this Section.
Furthermore, the parties understand and agree that the covenants and
representations relating to these indemnification provisions survive the Term and or
other termination or expiration of this Agreement and continue in full force and effect.
13.2. Indemnification - Negligence. Big Wireless shall indemnify and hold harmless the
City, its elected and appointed officials, officers, employees, agents, and servants,
from and against any and all claims, demands, or causes of action, of whatsoever
kind or nature (for purposes of this Section, hereinafter "Claims"), and the resulting
losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders,
judgments, or decrees (for purposes of this Section, hereinafter "Losses"),
sustained by the City arising out of, or by reason of, or resulting from Big Wireless's
negligent acts, errors, or omissions, except to the extent such Losses arise from the
negligence or willful misconduct of the City or its employees or agents.
13.3. Indemnification - Infringements. Big Wireless represents to City that Big Wireless is
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unaware that the Equipment and Services to be furnished to the City pursuant to this
Agreement infringe on any valid patent, trademark, copyright, trade secret or other
proprietary right. Notwithstanding the preceding sentence, Big Wireless shall
indemnify and hold harmless the City, its elected and appointed officials, officers,
employees, agents, and servants, from and against any and all Claims, and the
resulting Losses, sustained by the City by reason of any infringement or claim of
infringement of any patent, trademark, copyright, trade secret or other
proprietary right relating to Equipment and Services furnished pursuant to this
Agreement. Big Wireless will defend, at its sole cost and expense, with legal counsel
reasonably acceptable to the City, any Claim brought against the City, to the extent
that it is based on a claim that all or any Equipment and Services furnished to City by
Big Wireless pursuant to this Agreement, become unusable as a result of any such
infringement or claim. If Big Wireless receives notice of an alleged infringement, or if
City's use of the Services will be prevented by permanent injunction, Big Wireless
may, at its sole option and expense, procure for the City the right to continue using
the Equipment or Services as provided in this Agreement, modify the Equipment or
Services so that it no longer infringes, replace the Equipment or Services with other
services of equal or superior functional capability, refund to City all amounts paid by
City to Big Wireless under this Agreement for the Equipment or Services in the 2.5
year period immediately preceding the first event giving rise to the claim of
infringement, or in the case of trademark infringement, instruct City to use an
alternative trademark. Big Wireless has no liability to City if any alleged infringement
or claim of infringement is to any extent based upon: (a) any modification of the
Equipment or Services by City or any third party not approved by Big Wireless; (b)
use of the Equipment or Services in connection or in combination with equipment,
devices, or services not approved or recommended by Big Wireless; or (c) the use of
other than the most current release or version of any software provided by Big
Wireless, which the City has failed to utilize within 7 days of its release by Big
Wireless as part of or in connection with the Equipment or Services.
13.4. Legal Challenges. In the event of a legal challenge in a civil lawsuit pertaining to
Services and the manner, mechanism, method or system of collecting, storing or
operating, Big Wireless will defend this type of Claim brought against the City. In the
defense of any such Claim, Big Wireless shall use reasonable efforts to first utilize
Big Wireless's legal counsel. In the event that the defense of a Claim requires the
parties to retain legal counsel, the City and Big Wireless will mutually select and
agree upon said counsel, and the cost of the defense (including appeals) shall be the
sole responsibility of Big Wireless. Notwithstanding the preceding sentences, the
parties will mutually control the defense of any Claims including, without limitation,
any negotiations to settle a Claim; provided, however, that in the event that the City
determines not to oppose or defend a particular Claim, the City must notify Big
Wireless in writing, and Big Wireless may take over and assume sole control of the
defense or settlement of such Claim, at Big Wireless's sole cost and expense.
Subject to all available appeals, in the event that, pursuant to Claim under this
Section, a court of competent jurisdiction or the State of Florida (including any of its
agencies) orders or requires the City to make any monetary payments, Big Wireless
must pay all such monetary claims on behalf of the City and, further, assist the City
to perform all relevant (i.e. non-monetary) portions of any such order, decree,
judgment, etc., required to be performed by the City. Big Wireless must pay the cost
of any court ordered or court awarded attorney's fees and court costs incurred by the
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plaintiff(or plaintiffs) in connection with the defense of a Claim(s).
13.5. Other Claims. The City will provide written notice to Big Wireless of,other types of
claims involving the functionality of the Equipment or Services that the City
reasonably believes Big Wireless has the legal obligation indemnify, Hold Harmless
and defend the City. After receiving the notice, Big Wireless will determine whether it
will indemnify, Hold Harmless and defend the City regarding the claim, join with the
City and share the defense of the claim, or if it will decline to indemnify the City. This
Section does not create a separate obligation for Big Wireless to indemnify the City,
and does not prohibit the City from seeking its legal remedies pursuant to the
Agreement.
13.6. Settlement of Claims. The City and Big Wireless will cooperate in the settlement of
any Claim. The City has the right to settle any Claim, without the prior consent or
agreement of Big Wireless, unless it: (a) would materially affect Big Wireless's
material rights or material interests under the terms of this Agreement; (b) would not
result in Big Wireless's full and complete release from all liability to the plaintiffs or
claimants who are parties to or otherwise bound by the settlement; or (c) would
require Big Wireless to make a monetary payment. The City's right to settle a Claim
without the consent or agreement of Big Wireless does not apply in the event the City
determines not to defend or oppose a Claim.
Big Wireless does not have the right to settle any Claim without the prior written
consent of the City, which consent will not be unreasonably withheld, conditioned, or
delayed. The City's failure to consent to any settlement to which its consent is
required has no effect on Big Wireless's indemnification and defense obligations
under the Agreement.
13.7. Notice of Claims. If the City or Big Wireless receives notice of any claim or other
circumstances which could give rise to losses under this Section or the Agreement,
the receiving party must give written notice to the other party within ten (10) days of
receipt. The notice must include the following: (a) a description of the claim in
reasonable detail; (b) the basis on which indemnification may be due; and (c) the
anticipated amount of the losses. This notice will not stop or prevent the City from
later asserting a different basis for indemnification or a different amount of losses
than that indicated in the initial notice. If the City does not provide this notice within
the ten (10) day period, it does not waive any right to indemnification except to the
extent that Big Wireless is materially: (i) prejudiced; (ii) suffers loss; or (iii) incurs
expense because of the delay. Within thirty (30) days after receiving the City's
notice, Big Wireless must advise the City as to whether or not it will defend the claim.
If Big Wireless does not assume the defense, and it is a claim entitled to
indemnification, the City may assume and control its defense, without further notice
to Big Wireless required, and all City defense will constitute an indemnified loss for
which Big Wireless will be obligated for under this Section.
14. Independent Contractor. This Agreement does not create an employee/employer
relationship between the parties. It is the intent of the parties that Big Wireless is an
independent contractor under this Agreement and not the City's employee for all purposes,
including but not limited to, the application of the Fair Labor Standards Act minimum wage
and overtime payments, Federal Insurance Contribution Act, the Social Security Act, the
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Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the State
Workers Compensation Act, and the State unemployment insurance law. Big Wireless
retains sole and absolute discretion in the judgment of the manner and means of carrying
out Big Wireless's activities and responsibilities in accordance with federal, state and local
law. Big Wireless agrees that it is a separate and independent enterprise from the City, that
it has full opportunity to find other business, that it has made its own investment in its
business, and that it will utilize a high level of skill necessary to perform the work. This
Agreement must not be construed as creating any joint employment relationship between
the Big Wireless and the City, and the City will not be liable for any obligation incurred by Big
Wireless including but not limited to unpaid minimum wages and/or overtime premiums.
15.Assignments; Amendments. Neither party may assign or otherwise transfer this
Agreement or any of its rights and obligations under this Agreement without the prior written
approval of the other party; except that Big Wireless may assign or otherwise transfer this
Agreement or any of Big Wireless's rights or obligations under this Agreement without the
City's consent, provided the City receives written notification pursuant to Section 19.2, (a) for
financing purposes, (b) in connection with a merger, acquisition or sale of all or substantially
all of Big Wireless's assets, (c) to as part of a corporate reorganization, or (d) to a subsidiary
corporation. Subject to the foregoing, this Agreement will be binding upon, and inure to the
benefit of the parties and their respective successors and assigns. It is further agreed that
no modification, amendment or alteration in the terms or conditions contained in this
Agreement are effective unless contained in a written document executed by both parties.
20.Audit Rights. Each of parties has the right to audit the books and records of the other party
(the "Audited Party") solely for the purpose of verifying the payments, if any, payable
pursuant to this Agreement. Any audit must be conducted upon not less than forty-eight (48)
hours' prior notice to the Audited Party, at mutually convenient times and during the Audited
Party's normal business hours. Except as otherwise provided in this Agreement, the cost of
any audit will be borne by the non-Audited Party. In the event any the audit establishes any
underpayment of any payment payable by the Audited Party to the non-Audited Party
pursuant to this Agreement, the Audited Party must promptly pay the amount of the
shortfall, and in the event that any audit establishes that the Audited Party has underpaid
any payment by more than ten percent (10%) of the amount of actually owing, the cost of
the audit will be borne by the Audited Party. In the event any audit establishes any
overpayment by the Audited Party of any payment made pursuant to this Agreement, the
non-Audited Party must promptly refund to the Audited Party the amount of the excess.
e. Dispute Resolution. Upon the occurrence of any dispute or disagreement between the
parties arising out of or in connection with any term or provision of this Agreement, the
subject matter of this Agreement, or the interpretation or enforcement of this Agreement
(the "Dispute"), the parties will engage in informal, good faith discussions and attempt to
resolve the Dispute. Upon written notice of either party, each of the parties will appoint a
designated officer who will meet with the other party's designated officer for the purpose
of discussing and attempting to resolve the Dispute. The designated officers will meet as
often as the parties deem reasonably necessary. If the parties are unable to resolve the
Dispute in accordance with this Section, and in the event that either of the parties
concludes in good faith that amicable resolution through continued negotiation with
respect to the Dispute is not reasonably likely, then the parties may mutually agree to
submit to nonbinding mediation.
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f. Binding Authority. Each person signing this Agreement on behalf of either party
individually warrants that he or she has full legal power to execute this Agreement on
behalf of the party for whom he or she is signing, and to bind and obligate that party with
respect to all provisions contained in this Agreement.
g. Headings. Headings are for the convenience of reference only, and will not be
considered on any interpretation of this Agreement.
h. Waiver. The failure by either party to strictly enforce any provision or right of this
Agreement will not constitute a present or future waiver of the provision nor limit the
party's right to enforce the provision at a later time. All waivers by a party must be in
writing, and sent in accordance with this Agreement to be effective.
i. Legal Representation. Each party to this Agreement had the opportunity to be
represented by counsel in the preparation of this Agreement and, accordingly, the rule
that a contract will be interpreted strictly against the party preparing the contract will not
apply due to the joint contributions of both parties.
j. Severability. This Agreement is contractual and not a mere recital. If any portion of this
Agreement is held to be invalid or unenforceable, the remaining portions of this
Agreement will remain in full force and effect. Any invalid or unenforceable provisions will
be interpreted, by a Court of competent jurisdiction, to effect the intent of the original
provision. If such construction is not possible, the invalid or unenforceable provision will
be severed from this Agreement and the rest of the Agreement will remain in full force
and effect, except that this provision must not be deemed to deprive any party of any
legal remedy, including termination pursuant to the Agreement.
k. Governing Law and Exclusive Venue. This Agreement is governed by, and construed
in accordance with, the laws of the State of Florida, both substantive and remedial,
without regard to principles of conflict of laws. The exclusive venue for any litigation
arising out of this Agreement is Miami-Dade County, Florida, if in state court, and the
U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO
THIS AGREEMENT, CITY AND BIG WIRELESS EXPRESSLY WAIVE ANY RIGHTS
EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
I. Entire Agreement. This Agreement is the entire agreement between the City and Big
Wireless regarding the Equipment and Services to be provided by BIG WIRELESS. This
Agreement supersedes all prior or contemporaneous representations, understandings,
agreements, or communications between the City and Big Wireless, whether written or
verbal, regarding the Equipment and Services delineated in this Agreement. The City
acknowledges that it is entering into this Agreement is based solely on the provisions in
this Agreement, and is not contingent on the delivery of any future functionality or
features nor dependent on any oral or written public comments made by BIG WIRELESS
regarding future functionality or features of the Equipment or Services.
m. Attorney Fees. In the event that either party brings suit for enforcement of this
Agreement, the prevailing party will not be entitled to attorneys' fees or court costs.
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n. Most Favored Customer. BIG WIRELESS represents that the fees, charges, and/or
costs paid to BIG WIRELESS under this Agreement do not exceed the current fees,
charges or costs paid to BIG WIRELESS by other Florida cities, counties and/or
municipalities for the same (or substantially similar) products and services in a quantity
that is within 25% of the Equipment and Services purchased by the City and specifically
described in this Agreement. In the event the stated fees, charges and/or costs charged
to the City under this Agreement are determined to be higher, then the fees, charges
and/or costs will be reduced accordingly for future purchases under this Agreement. In
such an event, BIG WIRELESS agrees to offer the same (or lower) fees, charges and/or
costs to the City as those charged to other Florida cities, counties and/or municipalities
for the same (or substantially similar) services described in this Section.
o. Force Majeure. Neither party will be liable to the other or be deemed to be in breach of
this Agreement for any failure or delay in rendering performance arising out of causes
beyond its reasonable control and without its fault or negligence. Such causes may
include but are not limited to, acts of God or the public enemy, terrorism, hurricanes,
folds, earthquakes, epidemics, quarantine restrictions, strikes, freight embargoes, or
Governmental Authorities approval delays which are not caused by any act or omission
by Big Wireless. The party whose performance is affected agrees to notify the other
promptly of the existence and nature of any delay.
p. No Third-Party Beneficiaries. This Agreement does not create any third-party
beneficiary rights in any individual or entity that is not a party to this Agreement.
q. Compliance with Florida Public Records Law. Pursuant to Section 119.0701 of
the Florida Statutes, if Big Wireless meets the definition of "Contractor" as defined
in Section 119.0701(1)(a), Big Wireless shall:
a) Keep and maintain public records that ordinarily and necessarily would be
required by the public agency in order to perform the service;
b) Provide the public with access to public records on the same terms and
conditions that the public agency would provide the records and at a cost that
does not exceed the cost provided in this chapter or as otherwise provided by
law;
c) Ensure that public records that are exempt or confidential and exempt
from public records disclosure requirements are not disclosed except as
authorized by law; and
d) Meet all requirements for retaining public records and transfer to the City, at no
City cost, all public records created, received, maintained and/or directly related
to the performance of this Agreement that are in possession of Big Wireless
upon termination of this Agreement. Upon termination of this Agreement, Big
Wireless shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. All
records stored electronically must be provided to the City in a format that is
compatible with the information technology systems of the City.
For purposes of this Article, the term "public records" means all documents, papers,
letters, maps, books, tapes, photographs, films, sound recordings, data processing
software, or other material, regardless of the physical form, characteristics, or means of
transmission, made or received pursuant to law or ordinance or in connection with the
transaction of official business of the City.
Page 11
Big Wireless's failure to comply with the public records disclosure requirement set
forth in Section 119.0701 of the Florida Statutes is a breach of this Agreement.
In the event Big Wireless does not comply with the public records disclosure requirement set
forth in Section 119.0701 of the Florida Statutes, the City may, at the City's sole
discretion, avail itself of the remedies set forth under this Agreement and available at
law.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, being duly authorized,
have executed this Agreement for Services, as of the day and year first above written.
BIG WIRELESS, LL- THE CI • MIAMI BEACH
By: �, �' By: .
Name: John Dolmetsch Print Name: fC 0i4-14- Ceti
Title: Presid nt a d CTO Title: Vc-e7 Mayor
Date: g /?j 70/(� Date: /7; ' (./
By:
Print Name: 2,4-PAAvt. G R.Arrho
�►`��g i te: City Clerk
sv,. '� D,,ate', /1-\,f 6.,-.51-. 2_8) Za I\
�>
* : OB1'.\ . ::
�;,, .IN�ORP 1. _
`„ APPROVED AS TO
FORM &LANGUAGE•
�/ 8 FOR EXECUTION
3 • c 5 (..0
Page 12