Master Customer Agreement with Exigis, LLC ) 101Y -30J r/t/
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12 East 46th Street. SEI New York. NY 10017
MASTER CUSTOMER AGREEMENT
This Master Customer Agreement ("Agreement") is entered into effective 2018 ("Effective Date) by
Exigis, LLC., a New York Limited Liability Company of 12 East 46th Street, 6E, New York, NY 10017 ("Exigis") and
the City of Miami Beach, FL ("the City") 1700 Convention Center Drive Miami Beach, FL 33139 ("The City' or and
together with Exigis,the"Parties").
1. Definitions
1.1. Agreement. Agreement("Agreement")shall mean this Agreement between the City and Consultant,
including any exhibits and amendments thereto.
1.2. City Manager. City Manager('City Manager")shall mean the chief administrative officer of the City.
1.3. City Manager's Designee. City Manager's Designee ("City Manager's Designee") shall mean the City
staff member who is designated by the City Manager to administer this Agreement on behalf of the City. The City
Manager's designee shall be the Risk Manager.
1.4. Consultant. Consultant ("Consultant") shall mean an independent contractor, and not an agent or
employee of the City.
1.5. Services. Services ("Services") shall mean all services, work and actions by Exigis performed or
undertaken pursuant to the Agreement.
1.6. Fee. Fee("Fee")shall mean the Amount paid to Exigis as compensation for Services.
1.7. Proposal Documents. Proposal Documents ("Proposal Documents") shall mean City of Miami Beach
ITN No. 2018-003-1C for Insurance Tracking Services,together with all amendments thereto, issued by the City in
contemplation of this Agreement ("ITN") and Exigis's proposal in response thereto ("Proposal"), all of which are
hereby incorporated and made a part hereof; provided, however, that in the event of an express conflict between
the Proposal Documents and this Agreement, the following order of precedent shall prevail: this Agreement; the
ITN and the Proposal.
1.8. Risk Manager. Risk Manager("Risk Manager") shall mean the Risk Manager of the City, with offices at
1700 Convention Center Drive, Third Floor, Miami Beach, Florida 33139; telephone number (305) 673-7000, Ext.
6435;and fax number(305)673-7023.
1.9. Statement of Services. Statement of Services("SOS")shall mean the project-specific document which
details fees, resource and technology allocations, and project deliverables related to the Services and Software to
be provided by Exigis to The City. Unless otherwise stated, the SOS,once executed by the Parties, shall be subject
to the terms and conditions of this Agreement.
1.10. Services. Services ("Services") shall mean any and all work performed by Exigis for The City
pursuant to the SOS and subject to the terms and conditions of this Agreement.
1.11. Software. Software("Software")as used in this Agreement, and in the SOS,shall collectively mean:
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1.11.1. RiskWorks. Exigis RiskWorks ("RiskWorks") is a proprietary web-based Risk Management
Operating System comprising a suite of configurable web-enabled risk, insurance, and treasury 'Application
Modules'. RiskWorks contains core system functionalities, including, but not limited to, data security, access
controls and permissions, process workflows, business rules, operating and reporting hierarchies, messaging,
and information reporting;and
1.11.2. Application Modules. RiskWorks Application Modules("Applications")are configurable web-
enabled risk, insurance, and treasury business process automation software modules which integrate with
RiskWorks to perform specific functions and operations including, but not limited to: contingent liability
tracking, bank account management, certificate of insurance issuance, insurance compliance tracking,
exposure data collection, contract management, and risk control.
1.12. User. Authorized Users(the"Users")shall mean those employees, representatives, agents, service
providers, vendors, consultants, or other third parties of The City granted license by Exigis to access and use
Services and Software pursuant to this Agreement and subject to the allocations defined in the SOS.
2. Services
2.1. General. Exigis shall perform Services and deliver Software to The City pursuant to the terms and
conditions detailed herein and as set forth in the SOS.
2.2. Grant of Use. Exigis owns all Services and Software. Exigis grants The City and Users a non-exclusive,
non-assignable, worldwide, and non-transferable license for access to, and defined limited use of, Services and
Software. Exigis shall retain all right (other than those rights granted to Users in the SOS and pursuant to this
Agreement),title and ownership in Services and Software.
The City agrees and covenants that the Services and Software shall be used only as permitted by this
Agreement and in accordance with the parameters set forth in the SOS and shall not make Services or Software
available for access or use by any persons or entities other than those permitted by Section 1.4 or as permitted in
Section 4.1.
2.3. Service and Access. Services include, those stated in the SOS and otherwise agreed upon by the
Parties. Services to be performed by Exigis for The City as set forth in the SOS require access to and use of
Software which is hosted on third party servers and made available to The City by means of the internet.
2.4. Acceptance. Exigis will deliver Services and Software to The City per the scope and resource
allocations set forth in the SOS and pursuant to this Agreement. Software will be configured according to the
parameters and specifications as defined in the Business Requirements Document(the "Requirements Document")
to be formalized and mutually agreed upon by the Parties under separate cover following execution of the SOS.
Upon receipt of notice from Exigis of completion of configuration work,The City will have fifteen (15) business days
or within a period mutually agreed upon by the Parties (such period, in either case; the "Acceptance Period") to
review the configuration and test the functionalities of Software. If Software does not materially comply with the
agreed upon Requirements for Software,The City may reject Software by written notice to Exigis. Such notice shall
provide Exigis a detailed description of the grounds for rejection and how the Software failed to meet the stated
and agreed upon Requirements. Upon receipt of notice, Exigis will assess stated objections and use commercially
reasonable efforts to correct the deficiencies and provide The City with a revised Software release no later than
thirty(30)days after receipt of written notice or within a period mutually agreed upon by the Parties(such period,
in either case;the"Cure Period"). The City will have the option to acceptor reject the revised Software release in
accordance with this Section 2.4. If Exigis fails to correct the identified material deficiency(or deficiencies) within
the Cure Period, The City may elect to terminate the SOS at its sole discretion and The City shall be entitled to a
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refund of all related fees already paid by The City to Exigis under the SOS containing the unresolved material
deficiency. Acceptance by The City shall not be unreasonably withheld.
2.5. Onsite Service. If Services necessitate Exigis personnel visiting The City's place of business, The City
shall,to the extent necessary for such visit, provide directly,or coordinate the provision of,at no expense to Exigis,
temporary use of: (i) office space; (ii) telephone; (iii) internet connectivity; or(iv) copy facilities as required in the
provision of Services. Exigis personnel visiting The City's premises shall comply with The City's standard visitor
safety, security and related policies to the extent that The City makes Exigis aware of such policies not less than
forty-eight(48)hours in advance of the visit.
2.6. The City Response. The City acknowledges that Exigis' ability to meet project milestones, deliverables,
and guarantees is, in part contingent upon The City's active involvement in the project and satisfaction of agreed
upon tasks and responsibilities, responsiveness to inquiries, and timely decision making. The City and Exigis each
agree to designate a single point of contact that each party may consult and rely upon for project related decisions
and approvals.
2.7. Maintenance. Exigis shall provide bug fixes, corrections, modifications, enhancements, upgrades, and
new releases to the Software to ensure: (a) the functionality of the Software, as described in the related
specifications and documentation, is available to authorized users; (b) the functionality of the Software in
accordance with the representations and warranties set forth herein, including but not limited to, the Services
conforming in all material respects to the related specifications and documentation.
3. Invoices and Payment
3.1. Payment of Fees. The City agrees to pay Exigis project fees for Services and Software pursuant to the
fee schedule and conditions as set forth in the SOS and in accordance with this Agreement.
3.2. Payment Terms. The full balance of the Onetime Configuration and Implementation fee is due upon
execution of the SOS. Exigis will bill the City on a monthly basis for the Base Annual Software and Services Fee
beginning on the effective date of the SOS. Invoices received from Exigis pursuant to the Agreement will be
reviewed and approved by the City's representative, indicating that services have been rendered in conformity
with this Agreement. Approved invoices will be normally paid within thirty (30) days following the City
representative's approval. Exigis agrees that any incurred out-of-pocket expenses in excess of One Thousand and
No/100 Dollars ($ 1,000.00) shall require prior written approval by The City. Exigis shall submit to The City all
documentation related to the out-of-pocket expenses and payment for such expenses shall be subject to this
Section 3.
Unless otherwise stated in the SOS, and except for any amounts disputed in good faith, any invoice amounts
remaining delinquent after sixty(60) days following receipt of notice of the past-due invoice shall be subject to a
surcharge equal to the lesser of:(i)interest accrued monthly at a rate equal to PRIME plus one percent(1.00%); or
(ii) the highest rate permissible by state law. The City may dispute the accuracy of an invoice by written notice to
Exigis within forty-five (45) days after receipt of the invoice. Such notice shall specify the disputed invoiced
amounts and the grounds for dispute.
4. Confidential Information
4.1. Confidentiality of Information. During the performance of Services and the provision of Software,
Exigis and The City acknowledge that they each may obtain or gain access to non-public information that is
confidential and proprietary to the other. As to Exigis, the term 'Confidential Information' ("Confidential
Information') shall mean confidential and proprietary information relating to the internal structure and workings
of Software, as well as non-public business plans for, and potential modifications to, Services or Software. As to
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The City, the term 'Confidential Information' shall mean The City's and its affiliates' organization structures,
business plans, personnel data, payroll, risk management structure, and risk management costs and needs. Each
party agrees that it shall not disclose or permit the disclosure of any Confidential Information acquired in
connection with this Agreement or the SOS or disclosed through the provision of Services to any persons, entities
or third parties (other than an employee, subcontractor, consultant or agent of the other party who must have
access to such Confidential Information for the performance of such party's obligations under this Agreement or
the SOS and who have been advised of the confidential nature of such Confidential Information and the obligations
contained herein), unless such disclosure is specifically authorized in writing by the disclosing party. The Parties
agree that any and all such disclosures and access to Confidential Information shall be permitted only on a need to
know basis.
For purposes of this Section 4, Confidential Information includes but is not limited to:(i)information belonging
to either party, or to either party's clients, the Citys, suppliers, contractors and other third parties doing business
with such party;and (ii)the intellectual property of either party. Each party shall protect the confidentiality of the
other party's Confidential Information with the same degree of care it exercises to protect its own Confidential
Information, but in no event less than a reasonable degree of care.
Nothing in this Agreement shall restrict either party's use of information that is: (i) currently or becomes
during the term of Services and Software publicly available through no breach of this Agreement; (ii) previously
known to it without the obligation of confidentiality; or (iii) required to be disclosed pursuant to applicable law
(including, without limitation, Chapter 119, Florida Statutes), regulation, judicial order or other governmental
authority. In the event either party receives a subpoena or other validly issued administrative or judicial process
requesting Confidential Information, the receiving party shall, if legally allowed, promptly notify the disclosing
party of the existence, terms and circumstances surrounding such subpoena or other validly issued administrative
or judicial process to permit the disclosing party to seek a protective order and,absent the entry of such order,the
receiving party shall disclose only such Confidential Information that the receiving party is advised by counsel must
be disclosed by law. Subject to the parties' obligations under Florida public records law, including without
limitation, Chapter 119, Florida Statutes, both Exigis and The City agree that Confidential Information, including
both hardcopy and electronic formats, shall, to the extent possible, be returned or destroyed upon: 0) the
completion of Services and Software(whether by expiration of the SOS or termination of this Agreement pursuant
to the terms hereof); and (ii) at the disclosing party's request. The receiving party is not required to destroy
backup copies of computer or other electronic records are automatically retained by receiving party in the ordinary
course of business.
Exigis' and The City's obligations to the other party's Confidential Information shall terminate five (5) years
after the termination of this Agreement.
5. Intellectual Property
5.1. Exigis. Exigis is the sole owner of and shall retain all right, title, and interest in and to Services and
Software and all other related technologies provided, configured or deployed by Exigis under this Agreement or
the SOS, including, without limitation, any inventions, designs, processes, workflows techniques, service models,
know-how (whether or not patentable) made or conceived by Exigis with respect to all Services or Software, and
any patent applications and issued patents related thereto, copyright and trademark rights (whether or not
registered) in the United States or any other country(including all goodwill associated therewith). The City hereby
agrees not to disclose such information to competing entities and to treat such information as Confidential
Information hereunder. Notwithstanding anything in this Agreement or the SOS, nothing in this Agreement shall
act to transferor assign any of Exigis'intellectual property rights to The City.
5.2. The City. Any work product arising out of this Agreement, including information specifications,
processes, data and findings, are intended to be the property of the City and shall not otherwise be made public
and/or disseminated by Consultant, without the prior written consent of the City Manager, excepting any
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information, records etc.which are required to be disclosed pursuant to Court Order and/or Florida Public Records
Law.
All reports, documents, articles, devices, and/or work produced in whole or in part under this Agreement are
intended to be the sole and exclusive property of the City, and shall not be subject to any application for copyright
or patent by or on behalf of Exigis or its employees or sub-consultants, without the prior written consent of the
City Manager.
The City's operations contain component intellectual property and proprietary information, and Exigis hereby
agrees not to disclose such information to any third parties and to treat such information as Confidential
Information hereunder. The City is the sole owner of and shall retain all right, title and interest in all The City data
and information, The City specific workflows, trade secrets and internal know-how ('The City Data"). Nothing
herein shall act to transfer or assign any of The City's intellectual property rights to Exigis. Notwithstanding
anything to the contrary in this Agreement, Exigis shall immediately deliver the City data to the City, in the
Standard Exigis Data format mutually agreed upon by Exigis and the City, within fifteen (15) days following Exigis'
receipt of written notice from the City requesting the City data.A Onetime Services Fee shall apply to all requests
for Full Data Download not related to termination of this agreement in accordance with Section 9, in the amount
of$900.00 per Download.
5.3. Data Security. Exigis will implement commercially reasonable administrative, physical, and technical
measures, including disaster recovery procedures, designed to secure the The City Data against accidental or
unlawful loss,access or disclosure.
5.4. Data Breach. Upon becoming aware of any unlawful access to any The City Data stored on the Exigis
hosted environment, or a subcontractor's, facilities, or unauthorized access to such equipment or facilities
resulting in loss, disclosure, or alteration of The City Data (each a "Security Incident"), Exigis will: (i) promptly
notify The City of the Security Incident; (ii) investigate the Security Incident and provide The City with detailed
information about the Security Incident; and (iii)take reasonable steps to mitigate the effects and to minimize any
damage resulting from the Security Incident.
5.5. Data Recovery. Exigis will within thirty (30) days of termination of this Agreement for any reason
provide to The City, at no additional cost, a machine-readable copy of the The City Data (including Vendor contact
and insurance data and electronic copies of all Insurance Documents). Upon confirmation of The City's receipt,
Exigis will purge all The City Data from the hosted environment.
6. Warranties
6.1. Exigis. Exigis represents and warrants that: (A)Services: (i) shall be performed in a professional manner
in accordance with applicable industry standards and recognized best practices, (ii)shall comply with all applicable
laws, rules, or regulations, and (iii) shall not violate or infringe any patent, copyright, trademark, trade secret or
other intellectual property, contractual, employment, or confidentiality right of a third party; (B) Services and
Software will meet or exceed the performance levels set out in the Performance Level Agreement; (C) no Software
provided as part of, or in connection with Services shall contain any virus, Trojan horse, worm, time-bomb, back
door or other software routine designed to automatically disable a computer program or permit unauthorized
access; and (D) it shall maintain all necessary permits, licenses and regulatory approvals required to perform
Services.
Exigis warrants that Software shall be free from defects in workmanship for a period of ninety(90)days after
Acceptance by The City(the"Software Warranty Period"). Exigis'sole obligation and The City's sole and exclusive
remedy for a breach of the foregoing warranty shall be limited to the repair of Software, at Exigis' expense
provided, however,that if Exigis is unable to repair the defect(s)within fifteen (15)days after receipt of the written
notice identifying the defect(s), or otherwise reestablish proper function of Software, Exigis shall refund to The City
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all fees already paid by The City to Exigis under the SOS and the SOS shall be terminated with no party having any
remaining obligations.
The foregoing warranties of Exigis shall only apply provided: (i) Services and Software and any other
materials provided by Exigis have not been modified by The City, unless The City receives prior written consent by
Exigis; (ii) the computer equipment (including network connectivity and internet browser) on which Services and
Software are accessed and utilized has sufficient capacity, is in good operating order, is of the proper type, and is
installed in a suitable operating environment; and (iii) the nonconformity or defect was not caused by The City or
related Users.
6.2. The City.
(a) The City represents and warrants to Exigis that it will not use Services and Software for the distribution,
storage, processing, linking, and/or handling of: (i) illegal material or illicit content, including, without limitation,
copyrighted works, commercial audio, video, or music files of third parties without appropriate rights thereto; or
(ii) pirated software, ROMS, emulators, warez, hacking or password cracking software, IP spoofing software,
and/or software for encrypting any of the foregoing.
(b) The City shall not modify or attempt to modify Software in any manner without Exigis' prior written
consent, which shall be provided to The City at Exigis' sole discretion. The City shall: (i) ensure that Users comply
with the terms and conditions of this Agreement and the SOS; (li) not permit any persons entities or other third
parties, other than those approved by Exigis and identified in an SOS as the recipient of Services and Software, to
use or gain access to Confidential Information or Services or Software and shall take measures to protect against
unauthorized use or access thereto; (iii) not rent, lease,sublicense,distribute, bundle,give away,transfer, copy or
modify Software and/or any component thereof; (iv) only use Services and Software for the intended business
purposes as agreed upon by the Parties in the SOS; (v) not translate, copy, decompile, reverse engineer or
otherwise attempt to access the source code of Software; (vi) not adapt Software in any way to create a derivate
work; (vii) not remove or obscure any images, logos, notices, trademarks, copyrights or other proprietary right
notices of Exigis; and (viii) except as and to the extent permitted or authorized by this Agreement, the SOS, or any
other written agreement between the Parties, not employ Software in any manner or in connection with any
content, data, hardware, software, or other materials that infringes on a third party right, or constitutes
defamation,libel,slander,or violation or any right of privacy or publicity, or violates any applicable law.
6.3 Exigis and The City. Each party represents and warrants to the other that: 0) it is duly organized, validly
existing and in good standing under the laws of the United States of America and the jurisdiction of its
organization; (ii) it has all requisite power and authority to enter into and perform its obligations under this
Agreement and the SOS; and (iii) this Agreement and the SOS are the legal, valid and binding obligations of such
party enforceable in accordance with their terms except to the extent such enforceability may be limited by
bankruptcy,insolvency or similar laws respecting creditors' rights generally and general principles of equity.
7. Indemnification
7.1. Exigis. Exigis agrees to indemnify and hold harmless the City and its officers, employees, agents, and
contractors, from and against any and all actions (whether at law or in equity), claims, liabilities, losses, and
expenses, including, but not limited to,attorneys' fees and costs,for personal, economic or bodily injury,wrongful
death, loss of or damage to property,which may arise or be alleged to have arisen from the negligent acts, errors,
omissions or other wrongful conduct of Exigis, its officers, employees, agents, contractors, or any other person or
entity acting under Consultant's control or supervision, in connection with, related to, or as a result of Exigis's
performance of the Services pursuant to this Agreement. To that extent, Exigis shall pay all such claims and losses
and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses
and shall pay all costs and attorneys' fees expended by the City in the defense of such claims and losses, including
appeals. Exigis expressly understands and agrees that any insurance protection required by this Agreement or
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otherwise provided by Exigis shall in no way limit Exigis's responsibility to indemnify, keep and save harmless and
defend the City or its officers, employees,agents and instrumentalities as herein provided.
The parties agree that one percent (1%) of the total compensation to Consultant for performance of the
Services under this Agreement is the specific consideration from the City to Exigis for Exigis's indemnity
agreement. The provisions of this Section 7.1 and of this indemnification shall survive termination or expiration of
this Agreement.
Exigis shall have no obligation to indemnify The City to the extent that a claim is based on or related to: (I)any
use of Services or Software by The City or Users in violation of this Agreement or the SOS;(ii)any use of Services or
Software in conjunction with any product, data, hardware, or software other than those provided by Exigis, or
expressly authorized by Exigis in writing, or with which Services or Software are designed or intended to be used;
or (iii) any of The City's own materials, or any User materials, which are not authorized by Exigis for use with
Services or Software.
In addition to the above indemnification obligations, if The City's use of Services or Software is enjoined by
reason of any claims against Exigis arising out of its use on intellectual property, Exigis shall either: (i) procure the
right for The City to continue using Services or Software; (li) replace or modify the components of Services or
Software subject to the injunction so that the functionality remains substantially the same; or (iii) if neither (i) nor
(ii)are available on a reasonable basis, refund to The City a pro-rata portion of the fees paid by The City to Exigis to
access Services or Software, at which time this Agreement and any remaining SOS shall terminate. The foregoing
states Exigis' entire liability with respect to any claims against Exigis arising out of allegations of theft or
infringement of any rights to intellectual property.
7.2. The City. The City shall defend, indemnify, and hold Exigis harmless from any and all liability,damage,
loss, and expense (including without limitation reasonable attorney's fees and court costs) arising from claims
against Exigis to the extent such claims are directly resulting from the willful misconduct or gross negligence of the
City due to: (i) breach by The City of its warranties and representations in Section 6;and (ii) the unauthorized use
of Services or unauthorized modification of Software by The City or Users that gives rise, at least in part, to the
alleged infringement on intellectual property rights of a third party by such modifications. The City's obligations in
7.2 shall be limited to the extent set forth in 8.2.
7.3. Conditions of Indemnification. The indemnities set forth in this Section 7 are subject to the following
conditions: 0) prompt written notice by the indemnified party to the indemnifying party of any claims, but failure
to provide such notice shall not relieve the indemnifying party of its obligations under this Section 7 except to the
extent the failure has prejudiced the indemnifying party's defense of the claim; (ii) sole control of the defense
and/or settlement of claims by the indemnifying party;and (iii)reasonable cooperation by the indemnified party at
the indemnifying party's sale expense.
Nothing herein shall permit the indemnifying party to settle a claim that requires any action or inaction,
including the payment of monies, by the indemnified party without the indemnified party's prior written consent,
which shall not be unreasonably withheld. The indemnified party, at its expense, may retain its own counsel to
represent its own interests and participate in the defense and any settlement negotiations.
7.4. Except as provided in Section 6 and this Section 7, Exigis hereby disclaims all other warranties and
representations, whether express, implied, statutory, or otherwise, including without limitation the implied
warranties of merchantability and fitness for a particular purpose. Other than as set forth herein, Exigis does not
warrant that Software or Services provided under the SOS will meet The City's requirements or that the operation
of Software will be uninterrupted or error free or those defects in Services or Software will/can be reasonably
corrected.
8. Limitation of Liability
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8.1. Except for: (i)claims for bodily injury, death or damage to tangible, real and/or personal property caused
by a Exigis' negligence or willful misconduct; (ii) Exigis' indemnification obligations; and (iii) breach of Exigis'
confidentiality obligations, the maximum liability of Exigis to the City for damages for any and all causes
whatsoever, regardless of the form of action, whether in contract, tort or otherwise shall be limited to an amount
equal to the total fees payable by The City to Exigis under the SOS.
8.2. The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's
liability for any cause of action,for money damages due to an alleged breach by the City of this Agreement, so that
its liability for any such breach never exceeds the sum of$10,000. Consultant hereby expresses its willingness to
enter into this Agreement with Exigis' recovery from the City for any damage action for breach of contract to be
limited to a maximum amount of$10,000.
Accordingly,and notwithstanding any other term or condition of this Agreement,Exigis hereby agrees that the
City shall not be liable to the Exigis for damages in an amount in excess of $10000 for any action or claim for
breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by
this Agreement.
Nothing contained in this section or elsewhere in this Agreement is in any way intended to be a waiver of the
limitation placed upon the City's liability,as set forth in Section 768.28, Florida Statutes.
8.2. In no event shall either party be liable for any lost data or content, lost profits, business interruption or for
any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the
Services or Software provided under this Agreement or any SOS, even if that party has been advised of the
possibility of such damages,and notwithstanding the failure of essential purpose of any limited remedy.
9. Term and Termination
9.1. Term of Agreement. This Agreement will commence on its stated Effective Date and shall remain in
effect unless otherwise terminated as set forth in this Section 9.
9.2. Termination for Cause. If Exigis fails to fulfill in a timely manner, or otherwise violates, any of the
covenants, agreements, or stipulations material to this Agreement, the City, through its City Manager, shall
thereupon have the right to terminate this Agreement for cause. Prior to exercising its option to terminate for
cause, the City shall notify Exigis of its violation of the particular term(s) of this Agreement, and shall grant Exigis
ten (10)days to cure such default. If such default remains uncured after ten (10)days,the City may terminate this
Agreement without further notice to Exigis. Upon termination, the City shall be fully discharged from any and all
liabilities, duties,and terms arising out of,or by virtue of,this Agreement and Exigis shall immediately turn over all
of the City data to the City,in a format acceptable to the City,within fifteen(15)days.
Notwithstanding the above, Exigis shall not be relieved of liability to the City for damages sustained by the City
by any breach of the Agreement by Exigis. The City, at its sole option and discretion, shall be entitled to bring any
and all legal/equitable actions that it deems to be in its best interest in order to enforce the City's right and
remedies against Consultant. The City shall be entitled to recover all costs of such actions, including reasonable
attorneys'fees.
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Exigis may terminate this Agreement and the SOS for an uncured material breach (other than nonpayment of
fees and breach of confidentiality which are provided for below)of this Agreement or the SOS if the City does not
remedy such breach within fifteen (15) days after receipt of written notice from the other party detailing the
alleged breach.
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Exigis may terminate an SOS for nonpayment of fees due under the SOS if The City fails to remedy such
nonpayment within thirty(30)days after its receipt of written notice detailing the nonpayment. For the avoidance
of doubt,an invoice showing a prior unpaid amount shall not constitute such notice.
Exigis or The City may terminate this Agreement immediately upon written notice to the other for a breach of
Section 4 or Section 5. Both Exigis and The City acknowledge that any breach of Section 4 or Section 5 may result
in irreparable harm to the other party for which money damages cannot adequately compensate. In the event of
any such breach or any threatened breach, Exigis and The City shall be deemed to have agreed that remedies
available at law may not be adequate to protect the interests of the non-breaching party, who shall be entitled to
seek an injunction,specific performance or other equitable relief.
9.3. Termination for Convenience. The City may also, through its City Manager, and for its convenience
and without cause,terminate the agreement at any time during the term by giving written notice to Exigis of such
termination; which shall become effective within thirty (30) days following receipt by Exigis of such notice.
Additionally, in the event of a public health, welfare or safety concern, as determined by the City Manager, in the
City Manager's sole discretion, the City Manager, pursuant to a verbal or written notification to Exigis, may
immediately suspend the services under this agreement for a time certain, or in the alternative, terminate this
agreement on a given date. If the agreement is terminated for convenience by the City, Exigis shall be paid for any
services satisfactorily performed up to the date of termination;following which the City shall be discharged from
any and all liabilities,duties, and terms arising out of,or by virtue of,this agreement.
In the event that the City terminates this Agreement in accordance with this Section 9.3 Termination for
Convenience, the City shall pay to Exigis a Termination Fee equal to thirty-five (35) percent of the Base Annual
Provisioning and Services Fees in this Agreement.
9.4. Termination for Insolvency. Exigis or The City may terminate the Agreement in the event the either
party is placed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit of creditors. In
such event,the right and obligations for the parties shall be the same as provided for in Section 9.2.
9.5. Effects of Termination. The termination of this Agreement shall also terminate every SOS referencing
this Agreement, except as the Parties may otherwise agree at the time. Upon termination of an SOS under this
Section 9, except for any amounts disputed in good faith, The City shall pay to Exigis any outstanding fees and
approved expenses owed to or incurred by Exigis through the termination date of such SOS.
10. Non-Solicitation
10.1. The Parties agree that during the term of this Agreement and for a period of six(6) months thereafter, to
the extent permitted by Florida Law, Miami-Dade County, and the City of Miami Beach Code, neither party will
knowingly and directly recruit, or attempt to recruit, any employee of the other devoting a significant amount of
their time to the project and whose identity the person responsible for the solicitation or inducement learned of as
a result of the Services. This Section 10 does not apply to individuals responding to the general media advertising
of either party nor does it apply to individuals who have left the employ of either party on their own accord
without coercion or encouragement from the other party, or who have since been employed in similar capacities
with other,third party employers.
11. Assignment
11.1. Neither Exigis nor The City shall have the right to assign this Agreement or an SOS referencing this
Agreement without the other party's prior written consent, and any attempt to do so shall be void; provided,
Ts. LLC Master Customer Agreement("MCA")
City of Miami Beach,FL
,. ;Lc.. L'.:;15 Page 10 of 17
however,that either party shall have the right to assign this Agreement upon written notice to the other party to
any person or entity that acquires or succeeds to all or substantially all of such party's business or assets.
12. Litigation Jurisdiction
12.1. This Agreement shall be construed in accordance with the laws of the State of Florida. This Agreement
shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to
the enforcement of any or all of the terms or conditions herein, exclusive venue for the enforcement of same shall
lie in Miami-Dade County, Florida. By entering into this Agreement, Exigis and the City 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.
13. General Provisions
13.1. Audit and Inspections. Upon reasonable verbal or written notice to Consultant,and at any time during
normal business hours(i.e.9AM—SPM, Monday through Fridays,excluding nationally recognized holidays),and as
often as the City Manager may, in his/her reasonable discretion and judgment, deem necessary, there shall be
made available to the City Manager, and/or such representatives as the City Manager may deem to act on the
City's behalf,to audit,examine,and/or inspect, any and all other documents and/or records relating to all matters
covered by this Agreement. Consultant shall maintain any and all such records at its place of business at the
address set forth in the"Notices"section of this Agreement.
13.2. Assignment,Transfer or Subconsulting.Consultant shall not subcontract, assign, or transfer all or any
portion of any work and/or service under this Agreement without the prior written consent of the City Manager,
which consent, if given at all, shall be in the Manager's sole judgment and discretion. Neither this Agreement, nor
any term or provision hereof, or right hereunder, shall be assignable unless as approved pursuant to this Section,
and any attempt to make such assignment(unless approved)shall be void.
13.3 No Discrimination. In connection with the performance of the Services, Exigis shall not exclude from
participation in, deny the benefits of, or subject to discrimination anyone on the grounds of race, color, national
origin,sex, age,disability, religion, income or family status.
Additionally, Consultant shall comply fully with the City of Miami Beach Human Rights Ordinance, codified in
Chapter 62 of the City Code, as may be amended from time to time, prohibiting discrimination in employment,
housing, public accommodations, and public services on account of actual or perceived race,color, national origin,
religion,sex, intersexuality,gender identity,sexual orientation, marital and familial status, age,disability,ancestry,
height,weight,domestic partner status, labor organization membership,familial situation,or political affiliation.
13.4 Conflict of Interest. Consultant herein agrees to adhere to and be governed by all applicable Miami-
Dade County Conflict of Interest Ordinances and Ethics provisions, as set forth in the Miami-Dade County Code, as
may be amended from time to time;and by the City of Miami Beach Charter and Code, as may be amended from
time to time;both of which are incorporated by reference as if fully set forth herein.
Consultant covenants that it presently has no interest and shall not acquire any interest, directly or indirectly,
which could conflict in any manner or degree with the performance of the Services. Consultant further covenants
that in the performance of this Agreement, Consultant shall not employ any person having any such interest. No
member of or delegate to the Congress of the United States shall be admitted to any share or part of this
Agreement or to any benefits arising therefrom.
13.5 Consultant's Compliance with Florida Public Records Law.
Fxgis. '_LC. Master Customer Agreement l"MCA"f
City of Miami Beach,FL
110' 17
(A) Consultant shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may be
amended from time to time.
(B) The term "public records" shall have the meaning set forth in Section 119.011(12), which 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.
(C) Pursuant to Section 119.0701 of the Florida Statutes, if Exigis meets the definition of "Contractor" as
defined In Section 119.0701(1)(a),Exigis shall:
(1) Keep and maintain public records required by the City to perform the service;
(2) Upon request from the City's custodian of public records, provide the City with a copy of the requested
records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed
the cost provided in Chapter 119, Florida Statutes or as otherwise provided by law;
(3) Ensure that public records that are exempt or confidential and exempt from public records disclosure
requirements are not disclosed, except as authorized by law, for the duration of the contract term and
following completion of the Agreement if Exigis does not transfer the records to the City;
(4) Upon completion of the Agreement, transfer, at no cost to the City, all public records in possession of
Consultant or keep and maintain public records required by the City to perform the service. If the Consultant
transfers all public records to the City upon completion of the Agreement, the Consultant shall destroy any
duplicate public records that are exempt or confidential and exempt from public records disclosure
requirements. If Exigis keeps and maintains public records upon completion of the Agreement, Exigis shall
meet all applicable requirements for retaining public records. All records stored electronically must be
provided to the City, upon request from the City's custodian of public records, in a format that is compatible
with the information technology systems of the City.
(D) Request for Records; Noncompliance.
(1) A request to inspect or copy public records relating to the City's contract for services must be made
directly to the City. If the City does not possess the requested records, the City shall immediately notify Exigis
of the request,and Exigis must provide the records to the City or allow the records to be inspected or copied
within a reasonable time.
(2) Consultant's failure to comply with the City's request for records shall constitute a breach of this
Agreement, and the City, at its sole discretion, may:(1) unilaterally terminate the Agreement;(2)avail itself of
the remedies set forth under the Agreement; and/or (3) avail itself of any available remedies at law or in
equity.
(3) A Consultant who fails to provide the public records to the City within a reasonable time may be subject
to penalties under s. 119.10.
(E) Civil Action.
(1) If a civil action is filed against a Consultant to compel production of public records relating to the City's
contract for services, the court shall assess and award against Exigis the reasonable costs of enforcement,
including reasonable attorney fees, if:
a. The court determines that Exigis unlawfully refused to comply with the public records request
within a reasonable time;and
b. At least 8 business days before filing the action, the plaintiff provided written notice of the public
records request, including a statement that Exigis has not complied with the request, to the City and to
Exigis.
(2) A notice complies with subparagraph (1)(6) if it is sent to the City's custodian of public records and to
Exigis at Exigis's address listed on its contract with the City or to Exigis's registered agent.Such notices must be
Ex'ols. LLC. Master Cmtom_'!+g'een'ent("MFA")
City of Miami Beach,FL
13 ie ldi 12 a'17
sent by common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with
postage or shipping paid by the sender and with evidence of delivery,which may be in an electronic format.
(3) A Consultant who complies with a public records request within 8 business days after the notice is sent is
not liable for the reasonable costs of enforcement.
(F) If Exigis has questions regarding the application of Chapter 119, Florida statutes,to Exigis's duty to provide
• public records relating to this agreement,contact the Custodian of Public Records at
City of Miami Beach
Attention:Rafael E.Granado,city clerk
1700 Convention Center Drive
Miami Beach, Florida 33139
E-mail: rafaelgranado@miamibeachfl.gov
Phone: 305-673-7411
14. Compliance with Applicable Laws
14.1. In its performance of the work and/or services, Consultant shall comply with all applicable laws,
ordinances, and regulations of the City, Miami-Dade County, the State of Florida, and the federal government, as
applicable.
15. Severability
-15.1. If any term or provision of this Agreement is found by a court of competent jurisdiction to be illegal,
invalid, void, or otherwise unenforceable, the remaining provisions shall remain in full force and effect and the
rights and obligations of the Parties shall be construed and enforced accordingly.
16. No Waiver
16.1. Waiver of any breach or failure to enforce any term of this Agreement will not be deemed a waiver of any
breach or right to enforce which may thereafter occur. No waiver may be valid against any party hereto unless
made in writing and signed by the party against whom enforcement of such waiver is sought and then only to the
extent expressly specified therein.
17. Notices
17.1. Any notice or other communication under this Agreement or an SOS shall be in writing and given by
United States Postal Service (certified mail) or a nationally recognized overnight courier service in each case with
any delivery fees pre-paid and addressed to the party at the address set forth below or such other address as that
party may notify the other from time to time in accordance with this Section 17 and shall be deemed effective
upon receipt.
Any notices or other communications under this Agreement or the SOS shall be sent to:
The City: City of Miami Beach,FL
1700 Convention Center Drive
Miami Beach,FL 33139
LLC. Mester CustoTe'A=,reemert i"MCA")
City of Miami Beach, FL
133, ,21:1 bg_13or 17
Attention: Sonia Bridges
Exigis: Exigis, LLC.
12 East 46th Street 6E
New York, NY 10017
Attention: Armand Alvarez
18. Duty of Care
18.1. With respect to the performance of the work and/or service contemplated herein, Consultant shall
exercise that degree of skill, care, efficiency and diligence normally exercised by reasonable persons and/or
recognized professionals with respect to the performance of comparable work and/or services.
19. Force Majeure
19.1. Neither party shall be liable for any failure or delay in performance caused by reasons beyond its
reasonable control, including, but not limited, restrictions of law, regulations, orders or other governmental
directives, strikes, acts of God, fiber optic cable cuts, interruption or failure of telecommunication or digital
transmission links or lines, internet failures or delays, storms or other similar events (each, a "Force Majeure
Event").
20. Insurance Coverage
20.1. Exigis shall secure and maintain for the term of this Agreement, and at no cost to The City, insurance
coverage as set forth below in this Section 20. Unless otherwise agreed to in writing by the Parties, all such
insurance coverage shall be written with insurers possessing a current A.M. Best financial strength rating of at least
"A VIII".
20.2. The minimum insurance coverage required of Exigis shall be the greater of: (i)insurance as required by New
York law or applicable regulation;or(ii)as set forth below.
20.2.1. Commercial General Liability Insurance covering Exigis' performance of Services in conjunction with
this Agreement and the SOS. Such insurance shall be written on an 'occurrence' basis and shall contain
coverage for at least: (i) Premises/Operations Liability; (ii) Personal Injury Liability; (iii) Contractual Liability;
and (iv) Property Damage. Such insurance shall be written with a combined single limit for bodily injury,
personal injury,and property damage of not less than$3,000,000 per occurrence.
20.2.2. Automobile Liability Insurance covering all owned, non-owned, and hired vehicles. Such insurance
shall have a combined single limit for bodily injury and property damage of not less than $ 1,000,000 per
occurrence.
20.2.3. Workers'Compensation/Employers Liability Insurance covering all Exigis employees.Such insurance
shall provide statutory coverage as required by any applicable state or federal statute, law or regulation; and
Employers Liability coverage of not less than$ 1,000,000 per occurrence/disease.
20.2.4. Professional Liability Insurance covering wrongful acts including errors or omissions in rendering
professional services. Such insurance shall have a retroactive date not later than the Effective Date of this
Agreement and limit of not less than$2,000,000 per claim.
Ex'gls,L'C. h rCJtoner newt!'MCA"I
City of Miami Beach,FL
13 ./17`,:H Pas• to D' V
20.2.5. Cyber Liability Insurance covering data breaches. Such insurance shall have a limit of not less than
$ 1,000,000 per claim.
Exigis shall provide The City with the following policy endorsements: (I) Waiver of Subrogation; and (ii)
Additional Insured (where applicable). Upon execution of this Agreement or upon The City's request, Exigis shall
provide The City with certificates of insurance evidencing compliance with the minimum insurance requirements
set forth in this Section 20.
The maintenance or non-maintenance of the insurance required herein shall not limit Exigis'obligations under
this Agreement or the SOS.
21. Miscellaneous
21.1. The City acknowledges and agrees that Exigis is an independent contractor, and no party shall have the
authority to bind, represent or commit the other.
21.2. Both The City and Exigis acknowledge and agree that nothing in this Agreement shall be deemed or
construed to create a joint venture, partnership,or agency relationship between the Parties for any purpose.
21.3. Subject to the limitations of this Agreement, it is agreed that in the performance of this Agreement all
matters shall be conducted in full compliance with any and all applicable federal, state, provincial and local laws,
rules and regulations in the area(s) in which the matters are being conducted. Any performance obligation arising
under this Agreement is contingent on the prior receipt of all necessary government authorizations, and The City
shall not be liable for any breach, non-performance, or delay in performance related to the failure to obtain any
such authorization.
If either party is required to pay any fine or penalty or is subject to a claim from the other party's failure to
comply with applicable laws, rules or regulations, the party failing to comply shall defend, indemnify and hold
harmless the other party for all damages, fees and/or fines for such failure to comply to the extent of the
indemnifying party's allocable share of the failure to comply.
Notwithstanding anything to the contrary, neither party shall be required to take or refrain from taking any
action prohibited or penalized under the laws of the United States, including the United States antiboycott laws.
21.4. Economic Sanctions and Export Controls. Exigis agrees to fully comply with all economic sanctions and
export control laws and regulations, including those regulations maintained by the U.S. Commerce Department's
Bureau of Industry and Security and the U.S.Treasury Department's Office of Foreign Assets Control.
21.5. The terms of Section 2, Section 3, Section 4, Section 5, Section 6 Section 7 Section 8, Section 9 Section
10, Section 12 and other sections of this Agreement which by their nature are intended to extend beyond
termination shall survive termination of this Agreement for any reason.
21.6. This Agreement shall become valid and binding upon the Parties only upon execution by each party's duly
authorized representative.
21.7. This Agreement is the result of arm's length negotiations between the Parties and shall be construed to
have been drafted by both Parties such that any ambiguities in this Agreement shall not be construed against
either party.
22. Entire Agreement
s. LLC Master Cue.[c"er Agreement I"M1'CA"I
City of Miami Beach, FL
F77,2 15:'17
22.1. This Agreement, the Exhibits attached hereto, and any SOS referencing this Agreement shall constitute
the entire understanding between Exigis and The City, and supersede all prior agreements, arrangements,
representations and communications (whether oral or written) pertaining to the subject matter addressed in this
Agreement.
Er'gi: VC Mast=_,Cusc,rer Agreement l"MCA')
City of Miami Beach, FL
11
[Signature page to follow]
Exige. LLC. Muer canner Agreement("MCA"
Qty of Miami Beach,FL
..., .. .,.o ie 17:1 17
23. Signatures
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date
first above written and represent that the persons whose signatures appear below are duly authorized to
execute this Agreement.
City of iami Beach L
By: 1
'ramie per re.SDIUtin A10. 2a 18-3031
Name Jymini. M II Id • S
Title `J
],IUN Q ana3€f
AuQusi IL 2018
Exigis, LLC.
Robert Rodriguez
Rodriguez
Chief Operating Officer
27_ 2018
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
iR
ATTER 5 ` cityAaorm Data
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Rafael B,Granada,City Clerk _ij° B�l�
1
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ll* ':INCORP ORATED;
Eel RIs, LLC.Master Cgtorrer Agreement("MCA')
City of Miami Beach,FL