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Internet Connectivity Services Agreement with Hotwire Communications, LTD. (2) ,Lo/ 3o3 INTERNET CONNECTIVITY SERVICES AGREEMENT MIAMIBEACH f • BY AND BETWEEN THE CITY OF MIAMI BEACH AND HOTWIRE COMMUNICATIONS, LTD. This Agreement is entered into this i 001g day of ,ua.,l , 2Q*8'by and between the City of Miami Beach, a municipal corporation of the State of Florida ("City") whose address is 1700 Convention Center Drive, Miami Beach, Florida 33139, and Hotwire Communications, Ltd, a Pennsylvania corporation, qualified to do business in the State of Florida whose principal address is 2100 Cypress Creek Road, Fort Lauderdale, FL ("Contractor") (each a "Party" and collectively, the "Parti s")33309, hereinafter referred to as the RECITAL WHEREAS, on June 8, 2018, the City issued Request for Proposals (RFP) No. 2018- 153-JC, for Wide Area Network (WAN) and Internet Connectivity Services (the "RFP"); and WHEREAS, on July 3, 2018, the City received ' a proposal from Hotwire Communications, Ltd in response to the RFP; and WHEREAS, on July 25, 2018, the Mayor and City Commission of the City of Miami Beach, Florida, approved Resolution No. 201-30392, accepting the recommendation of the City Manager, pursuant to Request for Proposals (RFP) No. 2018-153-JC, Group 1, for internet connectivity services; and authorizing the Mayor and City Clerk to enter into an agreement with Hotwire Communications, Ltd upon conclusion of successful negotiations by the Administration; and NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, Contractor and the City agree as follows: TERMS 1. RECITALS AND INCORPORATIONS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. The City's RFP, as well as Addendum 1 to the RFP, is hereby incorporated into and made a part of this Agreement and attached hereto as Exhibit "B." The Scope of Work is hereby incorporated into and made a part of this Agreement and attached as Exhibit"A." The Contractor's Pricing Proposal dated, July 2, 2018, is hereby incorporated into and made a part of this Agreement as attached Exhibit "C." The Contractor's Commercial Service Terms is hereby incorporated into and made a part of this Agreement as attached Exhibit "D." 1.1 ORDER OF PRECEDENCE: In the event of a conflict among or between the Contract Documents, the terms of this Agreement shall govern and control and the remaining documents comprising the Contract Documents shall otherwise control in the order of priority set forth in this subsection, in the following order: 4 1St—the Agreement; then MIAMIBEACH 2nd— RFP 2018-153-JC; then. 3rd-Commercial Service Order(Exhibit A); then ( 4th—Commercial Service Terms (Exhibit B); then 5tr,— Hotwire Proposal to the RFP. 2. DEFINITIONS: 1,) "Agreement" or "Contract Documents" means this Agreement and exhibits attached hereto, including the Addenda to the RFP; the RFP; the Contractor's Response to the RFP; and the Commercial Service Terms. 2) "Attachments" means any supplemental material or documentation to this Agreement which are expressly incorporated by reference and made a part of this Agreement as if set forth in full. 3) "Change Order" or "Amendment" means a written document ordering a change in the Contract Price or Contract Time or a change in the Work. Any Change Order(or Amendment) must be duly executed by the City Manager, and any Change Order(or Amendment) in excess of$50,000 shall be subject to the prior approval of the City Commission. 4) "City"means the City.of Miami Beach, Florida, a Florida municipal corporation. In all respects hereunder, City's performance is pursuant to the City's capacity as Owner. In the event the Cit exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, codes, laws, and ordinances shall be deemed to have occurred pursuant to City's authority as a governmental C. bodyand shall attributable in any manner to the City as a party to this Agreement. not be 5) "City Commission" means the legislative body of the City. 6) "City Manager" means the duly appointed Chief Administrative Officer of the City. The City Manager shall be construed to include any duly authorized representatives of the City designated in writing with respect to any specific matter(s) concerning the Contract Documents (exclusive of those authorizations reserved to the City Commission or regulatory or administrative bodies having jurisdiction over any matter(s) related to the Project and/or the Contract Documents). 7) "Effective Date"shall be the date this Agreement is signed by the last Party to sign it(as such date is indicated in the Agreement). No Work or Services will commence prior to the Effective Date of the Agreement or thereafter, until a Notice to Proceed or Service Order has been issued by the City. 8) "Project Manager" shall mean each respective Party's (City and Contractor) duly authorized representative designated to manage the Agreement. 9) "Services" or"Work"shall mean the services and work to be provided by Contractor pursuant to the Service Order and in accordance with the Agreement's terms. 3. TERM: ( 5 The term of this Agreement shall commence on the Effective Date, and MIA IBonttiinue thereafter for a period of three .(3) Agreement. The City may, through the City Manager'srsoleer toption andd in accordance with this (2), one (1) year renewal options, by providing Contractor with written discretion,of exercise lesss than thirty(30) days prior to the expiration of the initial term. notice same no 4. SCOPE OF SERVICES: A. Contractor agrees to provide the Services as specifically described in the RFP and proposal, and under the terms and conditions as set forth herein and including any other Attachments or Appendices hereto, which by this reference are incorporated into and made a part of this Agreement. Contractor and City shall perform their respective obligations as specified in accordance with the Contract Documents. B. Contractor represents and warrants to the City that: (i) it possesses all qualifications, licenses, authorizations, and expertise required under the Solicitation Documents for the performance of the Services, including but not limited to full qualification to do business in Florida; (ii) it is not delinquent in the payment of any sums due the City, including payment of permit fees, business tax receipts, occupational licenses , accounts or invoices , etc., nor in the performance of any obligations or payment of any monies to the City; (iii)all personnel assigned to perform the Services are and shall be, at all times during the term hereof, fullyg trained to perform the tasks assigned to each; (iv) the person executing this Agreement od behalf of Contractor has been duly authorized to execute the same and fully bind Contractor asn a party to this Agreement. C. Contractor understands and agrees that any and all liabilities regarding the use of any of Contractor's employees or any of Contractor's subcontractors toAgreement shall be borne solely by Contractor throughout the term of hiss g eted nt thisd that this provision shall survive the termination of this Agreement. Agreement and D. The City may add additional service sites to the Agreement when authorized in writingb the City Manager. Any additional site shall be added at the same pricing as outlined y Commercial Service Order (Exhibit A), unless otherwise approved by the City Manager iin n writing. g 5. COMPENSATION: The amounts payable by the City to the Contractor shall be based on the price schedule outlined in the Commercial Service Order(Exhibit A) attached hereto, which is incorporated by reference as if fully set forth herein. 6. PAYMENT TERMS; A. Upon receipt of an acceptable and approved invoice, payment(s) shall be made within thirty (30 days for that portion (or those portions) of the Services satisfactorily rendered (and referenced in the particular invoice). Invoices shall include a detailed description of the Services (orortions t provided, and shall be submitted to Payables©MiamiBeachFL.gov, p hereof) B. City may withhold, in hold or in part, payment to such extent as may be necessary to protect itself from loss on account of(a) defective Work not remedied; and (b) Failure of Contractor to 6 provide any and all documents required by the Contract. MIAMIBEACH C. Contractor agrees andunderstands that (i) any and all subcontractors providing Services related to this Agreement shall be paid through Contractor and not paid directly by the City, and (ii) any and all liabilities regarding payment to or use of subcontractors for any of the Services related to this Agreement.shall be borne solely by Contractor. 7. AUDIT AND INSPECTION RIGHTS AND RECORDS RETENTION: A. Contractor agrees to provide access to the City or to any of its duly authorized representatives, to any books, documents, papers, and/or records of Contractor which are pertinent to this Agreement, for the purpose of audit or examination by the City. The City may, at reasonable times, and for a period of up to three (3) nal payment by the City to Contractor under this Agreement, audit and inspleoct,'orr cause to beng the date of 'audited and inspected, those books, documents, papers, and records of Contractor which are related to Contractor's performance under this Agreement. Contractor agrees to maintain all such books, documents, papers, and records at its principal place of business for a period of three (3)years after final payment is made under this Agreement, and all other pending matters are closed. Contractor's failure to adhere to, or refusal to comply with, this condition shall result in the immediate cancellation of this Agreement by the City. B. The City may, at reasonable times during the term hereof, inspect Contractor's facilities and perform such tests, as the City deems reasonably necessary, to determine whether the goods or services required to be provided by Contractor under this Agreement conform to the terms of the Contract Documents. Contractor shall make available to the City all reasonable facilities and assistance to facilitate the performance of tests or inspections by City representatives. 8. PUBLIC RECORDS: (A)Contractor 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, characteristics, or means of transmission, regardless of the physical form, connection with the transaction of official business of the Employerpursuant to law or ordinance or in (C)Pursuant to Section 119.0701 of the Florida Statutes, if the Contractor meets the definition of"Contractor" as defined in Section 119.0701(1)(a), the Contractor 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 the Contractor does not transfer the records to the City; MIAMIBEACH (4) Upon completion of the Agreement, transfer, at no cost to the City, all public records in possession of the Contractor or keep and maintain public records required by the City to perform the service. If the Contractor transfers all public records to the City upon completion of the Agreement, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the Agreement, the Contractor 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 product and services must be made directly to the City. If the City does not possess the requested records, the City shall immediately notify the Contractor of the request, and the Contractor must provide the records to the City or allow the records to be inspected or copied within a reasonable time. (2) Contractor'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, in accordance with the provisions of Section 15 of this Agreement: (1) 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. (E) CIVIL ACTION. (1) If a civil action is filed against a Contractor to compel production of public records relating to the City's contract for services, the court shall assess and award against the Contractor the reasonable costs of enforcement, including reasonable attorney fees, if: a. The court determines that the Contractor 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 the Contractor has not complied with the request, to the City and to the Contractor. (2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of public records and to the Contractor at the Contractor's address listed on its contract with the City or to the Contractor's registered agent. Such notices must be 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 Contractor 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 THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'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: RAFAELGRANADOAMIAMIBEACHFL.GOV 8 MIAMIBEACH PHONE: 305-673-7411 9. COMPLIANCE WITH FEDERAL. STATE AND LOCAL LAWS: Contractor agrees to comply. with and observe all applicable Federal, State, and local laws, codes and ordinances, including, without limitation, the Code of Ordinances of the City of Miami Beach, as they may be amended from time to time. Contractor further agrees to include in all of Contractor's agreements with subcontractors for any Services related to this Agreement this provision requiring subcontractors to comply with and observe all applicable federal, state, and local laws, rules, regulations, codes, and ordinances, as they may be amended from time to time. 10. NOT USED. 11. TERMINATION FOR CAUSE If the Contractor shall fail 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 the Contractor of its violation of the particular term(s) of this Agreement, and shall grant Contractor ten (10) days to cure such default. If such default remains uncured after ten (10) days, the City may avail itself of any of the remedies set forth in Section 33 of this Agreement, including, without limitation, termination of this Agreement without further notice to Contractor. Notwithstanding the above, the Contractor shall not be relieved of liability to the City for damages sustained by the City by any breach of the Agreement by the Contractor. 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 Contractor. The City shall be entitled to recover all costs of such actions, including reasonable attorneys' fees. 12.TERMINATION FOR CONVENIENCE OF THE CITY 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 CONTRACTOR OF SUCH TERMINATION; WHICH SHALL BECOME EFFECTIVE WITHIN THIRTY (30) DAYS FOLLOWING RECEIPT BY THE CONTRACTOR OF SUCH NOTICE.IF THE AGREEMENT IS TERMINATED FOR CONVENIENCE BY THE CITY,CONTRACTOR SHALL BE PAID FOR ANY PRODUCT AND SERVICES SATISFACTORILY PERFORMED UP TO THE DATE OF TERMINATION. 13.TERMINATION FOR INSOLVENCY The City also reserves the right to terminate the Agreement in the event the Contractor 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 5.2. 14.INDEMNIFICATION: Contractor agrees to indemnify, defend and hold harmless the City of Miami Beach and 9 MIAMI EACH its officers, employees, agents, and contractors, from and against any and all actions (w he her at. law orr 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 the Contractor, its officers, employees, agents, contractors, or any other person or entity acting under Contractor's control or supervision, in connection with, related to, or as a result of the Contractor's performance of the Services pursuant to this Agreement. To that extent, the Contractor 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. The Contractor expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the Contractor shall in no way limit the Contractor'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 Contractor for performance of the Services under this Agreement is the specific consideration from the City to the Contractor for the Contractor's indemnity agreement. The provisions of this section and of this indemnification shall survive termination or expiration of this Agreement. 15.INSURANCE: • The Contractor shall maintain and carry in full force during the Term, the following insurance: ( 1. Comprehensive General Liability—$2,000,000 (per occurrence); 2. Professional Liability— $1,000,000 (per occurrence); 2. Automobile Liability— $2,000,000 (per occurrence); and 3. Workers Compensation & Employers Liability, as required pursuant to Florida Statutes. The insurance must be furnished by insurance companies authorized to do business in the State of Florida. All insurance policies must be issued by companies rated no less than "B+" as to management and not less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All of Contractor's certificates shall evidence endorsements providing that written notice shall be given to the City at least thirty (30) days prior to, cancellation in the policy. The insurance certificates for General Liability shall evidence the City as an additional insured and evidence a waiver of subrogation endorsement. Electronic certificates of insurance must be submitted to the City's Risk Manager for approval (prior to any work and/or services commencing) and will be kept on file in the Office of the Risk Manager. The City shall have the right to obtain from the Contractor a specimen copy of the insurance policies, in the event that the certificates of insurance are inadequate to ascertain compliance with the required coverage. The Contractor is also solely responsible for obtaining and submitting all insurance certificates for any sub-Contractors. 10 'MIAMI BEACH ...Compliance with the foregoing requirements shall not relieve-the Contractor of the liabilities and obligations under this Section or under any other portion of this Agreement. The Contractor shall not commence any work and or services pursuant to this Agreement until all insurance required under this Section has been obtained and such insurance has been approved by the City's Risk Manager. If, in the judgment of the City, prevailing conditions warrant the provision by Contractor of additional liability insurance coverage or coverage which is different in kind, the City reserves the right to require the provision by Contractor of an amount of coverage different from the amounts or kind previously required and shall afford written notice of such change in requirements thirty(30)days prior to the date on which the requirements shall take effect. Should the Contractor fail or refuse to satisfy the requirement of changed coverage within thirty(30)days following the City's written notice, this Contract shall be considered terminated on the date that the required change in policy coverage would otherwise take effect. Contractor shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the duration of this Agreement, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this Agreement and any extension hereof, Contractor shall be responsible for submitting new or renewed insurance certificates to the City's Risk Management Administrator as soon as coverages are bound with the insurers. In the event that expired certificates are not replaced, with new or renewed certificates which cover the term of this Agreement and any extension thereof: ( (i) the City shall suspend this Agreement until such time as the new or renewed certificate(s) are received. in acceptable form by the City's Risk Management Administrator; or (ii) the City may, at its sole discretion, terminate the Agreement for cause and seek re- procurement damages from Contractor in conjunction with the violation of the terms and conditions of this Agreement. Compliance with the foregoing requirements shall not relieve Contractor of its liabilities and obligations under this Agreement. 16.LIMITATION OF LIABILITY: 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. Contractor hereby expresses its willingness to enter into this Agreement with Contractor's 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, Contractor hereby agrees that the City shall not be liable to the Contractor for damages in an amount in excess of$10,000 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 11 IAMIBEACH waiver of the limitation placed upon the City's liability, as set forth in Section M 28, Florida Statutes. 17.NONDISCRIMINATION: In connection with the performance of the Services, the Contractor 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, Contractor 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. 18.ASSIGNMENT: This Agreement shall not be assigned, sold, conveyed, pledged, encumbered or otherwise transferred by Contractor, in whole or in part, and Contractor shall not assign any part of its operations, without the prior written consent of the City Manager, which may be withheld or conditioned, in the City Manager's sole discretion. 19.NOTICES: All notices or other communications required under this Agreement shall be in writing and shall ( be given by hand-delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. TO CONTRACTOR: TO THE CITY: Alex Bravo Jimmy L. Morales Director, Media & Institutional Sales City Manager 2100 West Cypress Creek Road 1700 Convention Center Drive Fort Lauderdale, FL 33309 Miami Beach, Florida 33139 (561) 410-0577 305-673-7010 Alex.bravo(c�hotwirecommunication.com iimmVmoralesCa,miamibeachfl.gov Ariel Sosa IT Director 1755 Meridian Avenue Miami Beach, Florida 33139 305-673-7000, extension 5710 frankquintanamiamibeachfi.gov 12 20.MISCELLANEOUS PROVISIONS: MIAMIBEACH A. _ 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, Contractor 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. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City, such provision, paragraph, sentence,word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. City will make reasonable effort to obtain and transfer, in electronic form, to Contractor that available information, data and documents needed for Contractor's Services. The City agrees that all information, documents and data Contractors requests for the requested services will be made available and transmitted in electronic form, that all such information, documents and data provided will be complete and accurate, that Contractor will have the ( full cooperation of the City personnel, vendors and retirement systems, that the City will issue a representation letter from management concerning these matters, and that Contractor may rely upon such information. F. Any Governmental, not-for-profit or quasi-governmental entity in the State of Florida, with the acquiescence of the Contractor, may avail itself of this contract and purchase any and all identical goods/services, specified herein from the Contractor at the Contract price(s) and timeframe established herein, when permissible by federal, state and local laws, rules, and regulations. 21.SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 22.INDEPENDENT CONTRACTOR: Contractor has been procured and is being engaged to provide services to the City as an independent contractor, and not as an agent or employee of the City. Contractor further • understands and agrees that Contractor's or subcontractors' use or entry upon City properties shall not in any way change its or their status as an independent contractor. 23.CONTINGENCY CLAUSE: Funding for this Agreement is contingent on the availability of funds and an annual appropriation by the City Commission, at its sole discretion, and continued authorization for ( program activities and the Agreement is subject to amendment or termination due to lack of 13 IAM EACH allocated and available funds, reduction or discontinuance of funds or changer in las,Bcods, rules, policies, program requirements, or-regulations, upon thirty(30) days written notice to the Contractor. 24.FORCE MAJEURE: A "Force Majeure Event" shall mean an act of God, act of governmental body or military authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the event that either party is delayed in the performance of any act or obligation pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use its best efforts to rectify any condition causing such delay and shall cooperate with the other party to overcome any delay that has resulted. 25.NOT USED: 26.USE OF NAME: Contractor understands and agrees that the City is not engaged in research for advertising, sales promotion, or other publicity purposes. Contractor is allowed, within the limited scope of C normal and customary marketing and promotion of its work, to use the general results of this project and the name of the City. The Contractor agrees to protect any confidential information provided by the City and will not release information of a specific nature without prior written consent of the City Manager or the City Commission. 27.NO CONFLICT OF INTEREST: Contractor hereby certifies to the City that no individual member of Contractor, no employee, and no subcontractor under this Agreement or any immediate family member of any of the same is also a member of any board, commission, or agency of the City. Contractor hereby represents and warrants to the City that throughout the term of this Agreement, Contractor, its employees, and its subcontractors will abide by this prohibition of the City Code. 28.NO THIRD-PARTY BENEFICIARY: There are no express or implied third party beneficiaries to this Agreement. No persons other than the Contractor and the City (and their authorized and approved successors and assigns, if any) shall have any rights whatsoever under this Agreement. 29.SURVIVAL: All obligations (including but not limited to indemnity and obligations to defend and hold harmless) and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement shall survive such expiration or earlier termination. (, 14 30.NOT USED. MIAMI BEACH 31.CHANGES AND ADDITIONS: ( A. City Requested Changes: Any change that amends the contract price by an amount less than or equal to $50,000, may be approved by the City Manager, and set forth in a duly execute Service Order. Any change that amends the contract price by more than $50,000, must be approved by the City Commission. 32.PATENTS: A. Contractor warrants that the Services furnished hereunder, or any component thereof, shall be delivered free of any rightful claim of any third party for infringement of any United States patent or copyright. If the City notifies Contractor promptly of the receipt of any claim of infringement a United States patent or copyright and gives Contractor information, assistance and exclusive authority to settle and defend such claim, Contractor at its own expense shall defend, or may settle, any suit or proceeding against the City so far as based on a claimed infringement which breaches this warranty. If, in any such suit arising from such claim, the continued use of the Services for the purpose intended is enjoined by any court of competent jurisdiction, Contractor shall, at its expense and option, either: (1) procure for the City the right to continue using the Services, or any component thereof, or(2) modify the Services so that it becomes non-infringing, or (3) replace the Services or components thereof so that it becomes non-infringing, or (4) refund the purchase price (less reasonable depreciation for use). 33.REMEDIES: A. In the event of a material breach of this Agreement by Contractor which shall continue for ten (10) or more days after written notice of such breach (including a reasonably detailed statement of the nature of such breach) shall have been given to Contractor by the City,,the City will be entitled to avail itself cumulatively of any and all remedies available at law or in equity(provided such remedies are not otherwise limited under the terms of this Agreement) and either: (1) suspend performance of its payment obligations under the Agreement for as long as the breach continues uncorrected; or (2) terminate this Agreement by written notice to Contractor if the breach remains uncorrected. The following shall constitute a "material breach" of this Agreement: (1)violation by Contractor of any State, Federal or local law, or failure by Contractor to comply with any applicable States and Federal service standards, as expressed by applicable statutes, rules and regulations; (2) failure by Contractor to carry applicable licenses or certifications as required by law; (3) failure of Contractor to comply with reporting requirements contained herein; (4) inability of Contractor to perform the Work provided for herein; and (5) failure to perform any of the work or Services required by the Contract Documents, or otherwise failing to comply with any of the material terms of this Agreement or the Contract Documents. B. In the event of: (1) any failure by City for forty-five (45) or more days to make any payment when due (for reasons other than a material breach on the part of the Contractor, as provided in this Agreement, or(2)any other material breach of this Agreement by City which shall continue for forty-five (45) or more days after written notice of such breach (including a reasonably detailed statement of the nature of such breach) shall have been given to City by Contractor, Contractor shall be entitled to avail itself cumulatively of any and all remedies available at law or in equity (provided such remedies are not otherwise limited under the terms of this Agreement) and either: (1) suspend performance of its obligations under this Agreement for as long as the 15 EACH breach remains uncorrected; or (2) terminate this Agreement by written noti eMIAMIto City if the breach remains uncorrected.. ( C. In the event the City terminates this Agreement as provided herein, all finished and unfinished Hardware and Documentation Deliverables produced or made by Contractor for the City under • this Agreement shall become the property of the City and Contractor shall be entitled to receive compensation in accordance with the terms of this Agreement for any such Hardware and Documentation Deliverables. Notwithstanding the above, Contractor shall not be relieved of liability to'the City for damages sustained by the City by virtue of any breach of this Agreement by Contractor described in subsection A above and, after providing Contractor with written notice of breach as set forth in subsection A, the City may withhold any payments to Contractor for the purpose of set-off of any damages, as agreed upon or finally adjudicated, against such payment. The City reserves all rights and remedies under applicable laws. 34. ENTIRE AGREEMENT. This instrument and its attachments constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 35. DUTY OF CARE. With respect to the performance of the work and/or service contemplated herein, Contractor 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. 36. PUBLIC ENTITY CRIMES Prior to commencement of the Services, the Contractor shall file a State of Florida Form PUR 7068, Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes with the City's Procurement Division. 37. SEVERABILITY If any term or provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall not be affected and every other term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 38. ENTIRETY OF AGREEMENT The City and Contractor agree that this is the entire Agreement between the parties. This Agreement supersedes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein, and there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this document. Title and paragraph headings are for convenient reference and are not intended to confer any rights or obligations upon the parties to this Agreement. 16 MIAMIBEACH IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. CITY OF MIAMI BEACH, FLORIDA ATTEST: / • (4j I' By: Ale City ' lerk Mayor HOTWIRE .MMUNICATIONS, LTD. ATTEST: I /2.-r I @ 9f By: Print Name: lkg>,--l=P-i=l C_.rurx, Print Na Vii'' Title: (.."t"D Title: - --N2 z C4 (Authorized Signatory) (Corporate Seal) . ' P,.•t `;�: ' ' "`4', APPROVED AS TO r� fit' OR'I �I -'. ' I FORM&LANGUAGE /., I I, RA'ED' , &FORE EXECUTION �, ... ,• c,-, ''<( :').e-1.'"-..--*:', A 2! ‘.(;JLOk.,.(--- i 7.1;1 - i '`� :--;•---: City Attorney Date h 17