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HomeMy WebLinkAboutArista Information Systems, Inc - Master Services Agreement - 2015 06 Arista Master Services Agreement This Master Services Agreement ("MSA"), dated as of the 5th day of June, 2015, by and between Arista Information Systems, Inc. ("Arista"), a Georgia corporation, whose address is 100 Ashford Center North, Suite 500, Atlanta, Georgia 30338-4865 and the City of Winter Springs ("City"), a Florida municipal corporation, whose address is 1126 E. State Road 434, Winter Springs, Florida 32708 . Arista and City, each a "Party" and jointly the "Parties". WHEREAS, Arista wishes to provide, and City wishes to acquire, products and services as described herein; NOW THEREFORE, in consideration of these mutual premises and benefits and for good and valuable consideration, the sufficiency of which is herein acknowledged, the Parties hereto agree as follows: 1. Services to be Provided. This MSA sets forth the terms and conditions upon which Arista agrees to provide and City agrees to purchase such services as shall be specified in one or more Service Schedules that Arista and City shall choose to enter into from time to time. Each such Service Schedule is hereby incorporated into and made a part of this MSA by reference as fully as if set forth herein. 2. Term and Termination. (a) The term of this MSA shall commence upon the last date on which either Arista or City executes this MSA. (b) This MSA shall terminate upon the termination of all Service Schedules executed by Arista and City subject to this MSA. (c) Arista may terminate this MSA and any related Service Schedule upon five (5) days' prior written notice to City in case of the occurrence of any of the following events (each an "Event of Default"): (i) A material adverse change in the business, financial condition, business procedures, products or services of City; or (ii) A sale of all or a substantial portion of City's assets; or (iii) City commences a voluntary case under the Bankruptcy Code (Title 11 of the United States Code); files a petition seeking to take advantage of any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or entry into an arrangement for adjustment of debts; consents to or fails to contest in a timely and appropriate manner any petition filed against it in an involuntary case under such bankruptcy laws or other laws; generally becomes unable to pay its debts or trade obligations as they become due; makes a general assignment for the benefit of creditors; or takes any corporate action for the purpose of authorizing any of the foregoing; or (iv) Commencement of a case or other proceeding against City in any court of competent Arista Master Services Agreement jurisdiction seeking relief under the Bankruptcy Code or under any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts, or the appointment of a trustee, receiver, custodian, liquidator or the like of City; or (v) City defaults in any material respect in the performance or observance of any term, covenant, condition or agreement contained in this MSA or any related Service Schedule. Upon the occurrence of any such Event of Default, all amounts payable hereunder by City to Arista shall be due and payable on demand. (d) After termination or expiration of this MSA or any related Service Schedule for any reason whatsoever, City shall continue to bear total responsibility for all fees, credits and adjustments resulting from transactions processed pursuant to this MSA and any related Service Schedule and all other amounts then due or which thereafter may become due to Arista under this MSA and related Service Schedules. (e) This Agreement may be terminated by mutual written agreement between the parties. Further, the City may terminate this Agreement for convenience, at any time, without penalty, by providing written notice of termination to Arista. Upon notice of termination, Arista shall cease all performance hereunder unless otherwise directed by City in writing.3. Pricing/Invoicing. (a) The prices for any products and services are set forth in the applicable Service Schedule. (b) Any sales and use taxes, and any other similar taxes applicable to any production, sale, use, storage, delivery or transportation of products and services provided by Arista shall be calculated by Arista and included in City's monthly statement to be paid by City. (c) Arista will send a statement of the compensation due it under this MSA and any related Service Schedule by the fifteenth (15th) day of each month, and City shall make payment within thirty (30) days after receipt of the statement. (d) A late payment charge of 1.5% per month, compounded monthly, shall apply to any payment or reimbursement due from City that is in arrears for a period of thirty(30) days or more from the date such payment first became due. 4. Parties' Data/Proprietary Rights. (a) All data furnished to Arista or its agent by City pursuant to this MSA and any related Service Schedule shall at all times remain the property of the City. Arista shall not be responsible for loss or destruction of City's data or materials, unless due to the negligence or willful misconduct of Arista. Arista's liability under this Section for any loss or destruction of data is limited to restoring the data without charge to the City, provided such restoration can be reasonably performed by Arista, and 2 Arista Master Services Agreement further provided that City provides Arista all source data and materials in readable format for such restoration; it being presumed conclusively that any data delivered to Arista has been backed up by duplicate material retained by the City. Arista shall have the right to copy and retain all such data and materials for its files as it deems necessary for emergency backup and internal processing use. (b) City shall use its best efforts to assure the accuracy and adequacy of all data and other items provided to Arista, and for all results obtained therefrom. Arista shall not be responsible for errors or omissions resulting from any inaccuracy or defect in any data or materials supplied by its agents or by third parties. City shall pay Arista, at rates specified in the applicable Service Schedule, or at Arista's then prevailing rates if not specified in such Service Schedule, for any processing reruns or other additional work performed by Arista due to City data or materials which are incorrect or incomplete. (c) Arista agrees to deny unauthorized access to and take reasonable steps to protect the confidentiality of City's data and materials and any resultant output that is designated as confidential by City. Notwithstanding the foregoing, Arista may provide such information as Arista deems reasonably necessary to any third parties, including its affiliates, who may provide any of the products or services under this MSA and any related Service Schedule, provided such third party agrees to keep such confidential data and material confidential. (d) All information, programs, software, artwork, films, molds, plates, dyes, negatives, positives and all other items, machinery or materials furnished, developed or created by Arista, its contractors, subcontractors, affiliates or agents in providing the products and services under this MSA and any related Service Schedule, and all operating manuals related thereto shall remain Arista's exclusive property. (e) City agrees that Arista has a proprietary interest in the services and that establishing services may require information which is or should reasonably be understood to be confidential or proprietary to Arista to be exchanged between City and Arista relating to computer hardware systems, software systems, communications systems, data security systems, passwords, data formats, or other technological or procedural information. As a condition for Arista to provide such information to City relating to a service, City agrees that it shall: (1) keep such confidential information confidential; (2) implement commercially reasonable procedures to maintain its confidentiality; (3) use it only for the purposes for which it was disclosed; and (4) not disclose such information to any party other than those for whom the receipt of the Confidential Information is necessary for the establishment and ongoing provision of the service. City shall ensure that its affiliates, employees, directors, officers agents or representatives maintain the confidentiality of the such confidential information. If City ceases to use any service, City shall return to Arista all related confidential information it has received. (f) Neither Party shall be required to keep confidential any information or data which is or becomes publicly available, is already known or is independently developed by such Party outside the scope of this MSA and any related Service Schedule, is rightfully obtained by third parties, or is a public record pursuant to Chapter 119, Florida Statutes. (g) It is hereby specifically agreed that any record, document, computerized, information 3 Arista Master Services Agreement and program, audio or video tape, photograph, or other writing of the parties related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or Arista. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the parties is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City, Arista shall promptly supply copies of said public records of the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours of Arista be open and freely exhibited to the City for the purpose of examination and/or audit. Arista hereby agrees to keep and maintain public records that ordinarily and necessarily would be required by the City in order to perform the service; provide the public with access to public records on the same terms and conditions that the City would provide the records and at a cost that does not exceed the cost provided by law; to ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law, and to meet all requirements for retaining public records and transfer, at no cost, to the City all public records in possession of Arista upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the City in a format that is compatible with the information technology systems of the public agency. The City hereby agrees that in the event a public records request is made related to this Agreement, the City will produce all responsive public records in its possession and will require that Arista supply only those responsive public records that the City does not have in its possession at the time of the request. (h) The Parties agree that if any of the provisions of this Section 4 are breached, or threatened to be breached, a remedy at law may be inadequate and, therefore, without limiting any other remedy available at law or in equity, an injunction, specific performance or other forms of equitable relief or any combination thereof shall be available to the non-breaching Party. The non- breaching Party also shall be entitled to recover damages (including attorneys' fees) resulting from the breach and the reasonable cost (including attorneys' fees) of enforcing the obligations reflected in this Section. 5. Warranties. (a) Upon written request of City, Arista shall pursue with reasonable diligence a claim for breach of, or at Arista's option shall assign and transfer to City, any warranty available to Arista from manufacturers or third-party vendors for products supplied to Citys under the terms of this MSA or any related Service Schedule. (b) Arista shall use reasonable care in processing all data and materials submitted to it and in performing and providing the services set forth in this MSA and any related Service Schedule. Data and materials shall be processed in accordance with commercially reasonable data processing procedures. If computer services are interrupted or delayed for any reason, Arista will resume the computer services as soon as reasonably practical. Arista shall not be liable for any damages arising from delays in processing or in the delivery of the processed work. 4 Arista Master Services Agreement (c) THE FOREGOING COMPRISES CITY'S SOLE AND ENTIRE WARRANTY. THIS MSA AND ANY RELATED SERVICE SCHEDULE ARE SERVICE AGREEMENTS AND TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, ARISTA DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, MADE TO CITY OR ANY PERSON, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS MSA AND ANY RELATED SERVICE SCHEDULE. (d) CITY AGREES THAT NO ORAL OR WRITTEN ADVICE OR REPRESENTATION OBTAINED FROM ANY EMPLOYEE OR REPRESENTATIVE OF ARISTA OR ITS AFFILIATES SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THIS MSA OR ANY SERVICES TO BE PERFORMED PURSUANT TO ANY RELATED SERVICE SCHEDULE. 6. Limitation of Liabilities. (a) Arista undertakes to perform only such duties as are expressly set forth in this MSA and any related Service Schedule, and Arista shall not be bound by any agreement or document between City and any other parties to which Arista is not a signatory, whether or not Arista has knowledge thereof Notwithstanding any other provision of this MSA and any related Service Schedule, it is agreed by the Parties hereto that Arista shall not be liable for any action taken by it or any of its directors, officers, affiliates, agents or employees substantially in accordance with this MSA and any related Service Schedule, including, without limitation, any action so taken at the request of City, except for Arista's or such person's own negligence or willful misconduct. Accordingly, Arista shall not incur any such liability with respect to any action taken or omitted to be taken in reliance upon any documents, including any written notice or instructions provided for in this MSA or any related Service Schedule, not only as to its due execution and to the validity and effectiveness of its provision, but also as to the truth and accuracy of any information contained therein, which Arista shall in good faith believe to be genuine, to have been signed or presented by the proper person or persons, and to conform with the provisions of this MSA and any related Service Schedule. (b) In the event errors or deficiencies in completed work result from Arista's performance under this MSA or any related Service Schedule, Arista will correct such errors or deficiencies for which Arista receives timely notice from City, but Arista's obligations shall be limited to correcting such errors or deficiencies. Where correction is impossible or impractical, City shall be entitled to a refund for that portion of the computer services or products which contain such errors or deficiencies caused by Arista's performance. (c) IN NO EVENT SHALL ARISTA BE LIABLE TO CITY FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR MARGINS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PRODUCTS OR SERVICES PROVIDED UNDER THIS MSA AND ANY RELATED SERVICE SCHEDULE, OR THE PERFORMANCE OR BREACH OF SAME, EVEN IF ARISTA HAS BEEN ADVISED OF THE POSSIBILITY 5 • Arista Master Services Agreement THEREOF. ARISTA'S LIABILITY HEREUNDER TO CITY, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL OF THE FEES PAID TO ARISTA BY CITY FOR THE PRODUCT OR SERVICE FOUND OR ALLEGED TO HAVE CAUSED CITY'S LOSS, DAMAGE OR LIABILITY. 7. Indemnification. Except in case of negligence or intentional wrongdoing by Arista or such person(s), City agrees to indemnify, hold harmless and defend Arista, its affiliates, and their respective members, directors, officers, employees, agents and consultants from and against any and all liability, claims, actions causes of action, losses damages, demands, suits, judgments, costs and expenses (including attorney's fees and expenses) of every nature and description, presented or brought for any injuries (including death) to persons and for any damages to property arising out of or relating to any performance, attempted performance or nonperformance of any service to be provided under this MSA or any related Service Schedule, any breach of any covenant or agreement or any misrepresentation by City under same, or arising out of any negligent or willful misconduct of City or its employees in connection with City's transactions with its Citys or otherwise arising from City's provision of services to its Citys, including, but not limited to, any and all costs, expenses, legal fees and liabilities incurred in connection with the investigation, defense or settlement thereof For all services performed pursuant to this Agreement, Arista agrees to the fullest extent permitted by law, to indemnify and hold harmless the City, its employees, attorneys and officers, from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorney=s fees), directly or indirectly arising from, or out of the following: (a) the acts, errors, omissions, intentional or otherwise, arising out of or resulting from Arista and its officers, employees, partners, volunteers, and agents performance of the services being performed under this Agreement; (b) Arista's, and its officers, employees, partners, volunteers, and agents' failure to comply with the provisions of any federal, state, or local laws, ordinance, or regulations applicable to Arista and its officers, employees, partners, volunteers, and agents performance under this Agreement; and (c) any fraud and misrepresentation conducted by Arista and its officers, employees, partners, volunteers, and agents against the City or any person participating in any program, function, and service conducted pursuant to this Agreement. The indemnification provided above shall obligate Arista to defend at its own expense or to provide for such defense, at the option of the City, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City or its employees and officers which may result from the performance under this Agreement whether the performance by Arista, its officers, employees, partners, volunteers, and agents or anyone directly or indirectly employed by Arista. In all event the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and included with the indemnification provided herein. 8. Change of Procedures Due to Third Parties. City recognizes that in order for Arista to provide certain services to and for City, Arista must obtain services from third parties, including Arista's affiliates, related to such services, and in doing so must comply with the procedures imposed on Arista by such parties, including any entity formed to administer and promote credit or debit cards, including without limitation MasterCard International, Incorporated, Visa U.S.A., Inc. and Visa 6 Arista Master Services Agreement International and with all policies, procedures, operating rules, agreements or federal or state laws and regulations applicable to e-check Transactions, including the rules and operating guidelines of the National Automated Clearing House Association. City acknowledges and agrees that Arista, as a result of revisions to such third party procedures, from time to time will be required to change those procedures applicable to City or to impose new procedures, including but not limited to procedures related to security, processing of transactions, and features and use of the services. In addition, Arista may be required to modify, amend or terminate procedures, conditions, features or requirements regarding the services or the processing of transactions in order to comply with the requirements of applicable laws, regulations, or government policies. Arista will endeavor to provide City with thirty (30) days' prior written notice of such changes in procedures, and those changes will be deemed incorporated into this MSA or applicable Service Schedule at the end of such period. In the event such prior notice cannot be given, Arista will endeavor to give City notice of such changes in procedures as soon as reasonably practicable. 9. Force Majeure. Neither Party shall be deemed in breach of this MSA or any related Service Schedule to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such Party ("Force Majeure"), provided that such Party gives the other Party written notice of such Force Majeure promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of three (3)months. 10. Equal Opportunity Clause. This MSA and any related Service Schedule hereby incorporates the equal opportunity clause, Section 60-1.4, and the affirmative action clause for handicapped workers, Section 60-741.4, pursuant to Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans Readjustment Assistance Act of 1974, 38 U.S.C. 4212, and implementing regulations. 11. 12. General Contract Provisions. (a) Authority. Each Party warrants and represents to the other that: (i) it has the power and authority to execute, deliver and perform this MSA and (ii) the person executing this MSA on behalf of it is an officer or authorized individual authorized to bind the Party with respect to its obligations hereunder. (b) Construction. This MSA and any related Service Schedule is an agreement between Parties who are experienced in sophisticated and complex matters similar to the transactions contemplated by this MSA and related Service Schedule, is entered into by both Parties in reliance upon the economic and legal bargains contained herein, and shall be interpreted and construed in a fair and impartial manner without regard to such factors as the Party which prepared the instrument or drafted any portion thereof, the relative bargaining powers of the Parties, or the domicile of any Party. 7 Arista Master Services Agreement (c) Publicity. City consents to the public use of its name as a City of Arista. (d) Governing Law: Venue. The Agreement shall be governed by the law of the State of Florida. Venue of all disputes shall be properly placed in Seminole County, Florida. The parties agree that the Agreement was consummated in Seminole County, and the site of the performance is Seminole County. If any dispute concerning this Agreement arises under Federal law, the venue will be Orlando, Florida. (e) Waiver. No consent or waiver, express or implied, by either Party to or of any breach or default by the other shall be deemed or construed to be a consent to or waiver of any other breach or default under this MSA or any related Service Schedule. Failure on the part of any Party hereto to complain of any act or failure to act of the other Party or to declare the other Party in default, irrespective of how long such failure continues, shall not constitute a waiver of the rights of such Party under this MSA or any related Service Schedule. (f) Captions. The captions used for the paragraphs in this MSA and any related Service Schedule are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope of the intent of this MSA or any related Service Schedule or any section hereof. (g) Entire Agreement. This MSA and any related Service Schedule constitutes the entire agreement between the Parties hereto with respect to the matters covered thereby. All prior negotiations, representations and agreements with respect thereto not incorporated in this MSA and any related Service Schedule are hereby canceled. (h) Appendices. Each and every Appendix attached to any related Service Schedule is hereby incorporated into and made a part of this MSA and such applicable Service Schedule by reference as fully as if set forth herein. (i) Amendments. This MSA and any related Service Schedule may be amended only by written agreement executed by all Parties hereto. (j) Counterparts. This MSA and any related Service Schedule may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument. (k) Notice. Unless otherwise provided herein, communications provided for hereunder shall be in writing and shall be mailed, telecopied or delivered as follows: If to Arista: Arista Attention: RB Sloan 100 Ashford Center North Suite 500 Atlanta, Georgia 30338-4865 8 Arista Master Services Agreement Telephone Number: (770) 414-8400 If to City: City of Winter Springs Attention: Shawn Boyle 1126 East State Road 434 Winter Springs, Florida 32708 Telephone Number: (407) 327-5951 or as to either Party, at such address as shall be designated by such Party in a written notice to the other Party. All such notices and other communications shall be effective (i) if mailed, when received as evidenced by return receipt; (ii) if telecopied, when successfully transmitted; or (iii) if hand delivered, when delivered. (1) Assignment. Neither this MSA nor any related Service Schedule may be assigned, in whole or in part, by either party without the other party's express, written consent. Any purported assignment by City or Arista without such consent shall be without legal effect. (m) Severability. If any one or more provisions in this MSA or any related Service Schedule shall be held to be invalid, illegal, void or unenforceable in any respect (i) such provision or provisions shall be given force to the fullest possible extent that can be valid, legal and enforceable, (ii) such invalidity, illegality, or unenforceability shall not affect any other provision of this MSA and any related Service Schedule, and (iii) to the extent that the intent, rights, and obligations of the Parties hereto are not materially altered, either a legal and enforceable provision shall be substituted for the one that most clearly carries into effect the intention of the original invalid or unenforceable provision or this MSA and any related Service Schedule shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. (n) Relationship of the Parties. Nothing in this MSA or any related Service Schedule shall be construed as creating a partnership or joint venture of any kind between the Parties or as constituting either Party as the agent of the other Party. Neither Party has the authority or power to bind the other Party or to contract in the name of or create a liability against the other Party in any way or for any purpose (o) Performance by Arista's Affiliate. Any request, obligation or action which Arista may be required or permitted to perform pursuant to this MSA and any related Service Schedule may be performed by one of Arista's affiliates on Arista's behalf, in which case such request, obligation or action performed by Arista's affiliate shall have the full effect under this MSA and any related Service Schedule as if it had been performed by Arista. (p) Survival. All obligations arising before this Agreement or any related Service Schedule is terminated and all provisions allocating responsibility or liability between Arista and City shall survive such termination and not be prejudiced by the termination of this Agreement or related Service Schedule. 9 Arista Master Services Agreement (q) Further Assurances. The Parties covenant and agree to execute such additional commercially reasonable agreements as may be reasonably necessary to effect the rights and obligations provided in this MSA and any related Service Schedule. Additionally, Arista certifies that: (1) No principal (which includes officers, directors, or executive) or individual holding a professional license and performing under this Agreement is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any performance required by this Agreement by any Federal, State, or local governmental commission, department, corporation, subdivision, or agency; (2) No principal (which includes officers, directors, or executive), individual holding a professional license and performing under this Agreement, employee, or agent has employed or otherwise provided compensation to, any employee or officer of the City; and (3) No principal (which includes officers, directors, or executive), individual holding a professional license and performing under this Agreement, employee or agent has willfully offered an employee or officer of the City any pecuniary or other benefit with the intent to influence the employee or officer's official action or judgment. (r) Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than two hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of three hundred thousand dollars ($300,000.00). This paragraph shall survive termination of this Agreement. (s) Attorney's Fees. Should any litigation arise concerning this Agreement between the parties hereto, the parties agree to bear their own costs and attorney's fees. (t) Standard of Care. In performing hereunder, Arista will use that degree of care and skill ordinarily exercised, under similar circumstances by other reasonable members of its community acting in the same or similar locality. [Remainder of page intentionally left blank.] 10 Arista Master Services Agreement IN WITNESS WHEREOF, the Parties hereto have executed under seal this Master Services Agreement by and through their daily authorized representatives. 4))4.,‘P ARISTA: By: Title: n Attest: 410-4 g/A'"e v Title: A/id—et/Cy (Corporate Seal) CITY: By: / - Kevin Smith, I' y Manager Attest: ,f ' Andrea Lorenzo-Luaces, City Clerk 11