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(RLI No. R0961807R1}
This is an Agreement ("Agreement") made and entered into by and between Broward County ("County"), a political subdivision of the state of Florida, and Echo Consulting Services, Inc. d/b/a The Echo Group ("Contractor"), an active New Hampshire corporation authorized and registered to do business in the state of Florida (County and Contractor are collectively referred to herein as the "Parties").
WHEREAS, this Agreement is the result of the procurement selection process begun by County's Request for Letters of Interest for Enterprise Business Application for Human Services Department, RLI No. R0961807R1 ("RLI"); and
WHEREAS, Contractor submitted a response to the RLI and represented that it has the technology, equipment, and expertise to provide County with the requested system and the experience necessary to adequately and competently perform the services; and
WHEREAS, the County wishes to engage Contractor to provide services under this Agreement containing mutually satisfactory terms and covenants; and
WHEREAS, negotiations pertaining to the services to be performed and the compensation therefor were undertaken between the County and Contractor, and this Agreement incorporates the results of such negotiations; and
WHEREAS, the Board hereby determines that the services and expenditure of public funds will serve a public purpose; NOW, THEREFORE,
IN CONSIDERATION of the mutual terms, conditions, promises, covenants and payments hereinafter set forth, County and Contractor agree as follows:
ARTICLE 1
DEFINITIONS AND IDENTIFICATIONS
1.1 Agreement means this document, Articles 1-16, inclusive, and any Work Authorizations, Statement of Work(s), and/or amendments thereto. Other terms and conditions are included in the Exhibits which are expressly incorporated by reference. This Agreement includes and incorporates the following Exhibits:
Exhibit A Statement of Work ("SOW")
Exhibit B Maintenance Support Services and Service Level Agreement Exhibit C Work Authorization form
ExhibitD Exhibit E Exhibit F
Certificate of Insurance Business Associate Agreement The Echo Group Response to RLI
the governing body of the Broward County government created by the Broward County Charter.
1.3 Business Day means Monday through Friday.
1.4 County Business Enterprise or "CBE" is a small business located in Broward County, Florida, which meets the criteria and eligibility requirements of Broward County's CBE Program and must be certified by Broward County's Office of Economic and Small Business Development.
1.5 Contract Administrator means the County Administrator or the Director of Broward County's Human Services Department. The primary responsibilities of the Contract Administrator are to coordinate and communicate with Contractor and to manage and supervise execution and completion of the Statement of Work and the other terms and conditions of the Agreement. In the administration of the Agreement, as contrasted with matters of policy, all parties may rely on the instructions or determinations made by the Contract Administrator.
1.6 County Attorney means the chief legal counsel for County who directs and supervises the Office of the County Attorney pursuant to Section 2.10 of the Broward County Charter. 1. 7 Defect(s) mean incorrect implementation or failure to conform to the Documentation or the Final Acceptance Criteria resulting in inadequacy, malfunction, or imperfection. In the event of a conflict between the Final Acceptance Criteria and the Documentation, the Final Acceptance Criteria shall prevail.
1.8 Deliverables mean all Software Goods, Software Licenses, and Documentation to be delivered by Contractor and all items of Services to be performed for, and provided to, County by Contractor under the Agreement.
1.9 Documentation means such documentation as delivered by Contractor to County and accepted by County at Final Acceptance of the System relating to the use, function and Support ofthe System, as may be amended from time to time. Such Documentation shall be provided in hardcopy and softcopy and shall include, but not be limited to, the Statement of Work, the Preliminary and Final Acceptance Criteria as set forth in the Agreement and the changes, modifications, alterations and configurations made by Contractor or its subcontractors to the Software hereunder to provide County the System. For purposes hereof, Documentation also includes the User and/or System Administrators' Guides and other written or electronic material as made generally available by Contractor to its customers relating to the use, function and Support of the Software, as may be amended from time to time by Contractor, including any Derivative Works thereto. County may modify, add to, or customize the Documentation for
1.10 Enterprise License means an unlimited number of copies of the Licensed Software running in County with an unlimited number of server copies and an unlimited number of concurrent end user licenses, excluding Third Party User Licenses, for on and off-site, wired, and wireless access ofthe Licensed Software.
1.11 Event means an incident whereby the System is either not working or its operation is . inconsistent with the Documentation. Events are divided into categories. The categories are
Priority 1, 2, 3, or 4 as further defined below.
PRIORITY 1 - CRITICAL BUSINESS IMPACT EVENT means the impact of the reported Defect is such that the County is unable to either use the System or reasonably continue work using the System.
PRIORITY 2 - SIGNIFICANT BUSINESS IMPACT EVENT means important features of the System are not working properly. While other areas of the System may not be impacted, the reported Defect has created a significant, negative impact on County's productivity and/or service level.
PRIORITY 3 - MINOR BUSINESS IMPACT EVENT means important features of the System are not working properly. County impact is minimal loss of operational functionality. PRIORITY 4 - MINIMAL BUSINESS IMPACT EVENT means the County submits an Event, information request, software enhancement or Documentation clarification which has no operational impact. The implementation or use of the System by the County is continuing and there is no negative impact on productivity.
1.12 Final Acceptance means the acceptance ofthe System by County as required by Section 22.148 of the Broward County Administrative Code which has a requirement for inspection and testing of all computer application software purchased or developed for County by third parties costing over Twenty Thousand Dollars {$20,000.00)
1.13 Good(s) means all tangible property to be provided by Contractor, if any, pursuant to this Agreement including, but not limited to, the items as set forth, described and designated "to be provided by Contractor."
1.14 Hardware means the physical components or equipment which make up a computer system including the programs that control the operations of the computer and support the Software.
1.15 Licensed Software means Contractor's System Software and any other Software delivered to County by Contractor under this Agreement, including each computer program or
delivered to the County by, and capable of running on the Hardware configuration recommended by Contractor, together with any materials related thereto, such as, any human readable program listings, flow charts, logic diagrams, output forms, manuals, specifications, instructions, Documentation, and other materials, and any copies of the foregoing, in any medium, related to the Licensed Software and normally provided by Contractor to any other licensee of the Licensed Software and all released modifications, enhancements, upgrades, or new versions acquired by County.
1.16 Maintenance means any activity intended to eliminate faults, to improve or to keep the System in satisfactory working condition, including tests, measurements, adjustments, and changes, modifications, enhancements or repairs, and updates as set out in Exhibit B, Maintenance Support Services.
1.17 Phase means a subset of the work to be performed as defined in the SOW.
1.18 Preliminary Review means twenty (20) business days' time period, subsequent to County's receipt of a Phase for County to perform a review of the submitted Phase. Preliminary Review and/or Preliminary Acceptance shall have no bearing on County's Final Acceptance determination.
1.19 Release(s) means those versions of the Licensed Software which add functionality to the Software, including any Updates and Upgrades.
1.20 Services means the work, duties, and obligations to be carried out and performed by Contractor under the Agreement and pursuant to Exhibit A, Statement of Work, attached hereto and made a part of this Agreement. Without limiting the foregoing, the Services to be performed by Contractor may fall into the following general categories: (i) consulting, (ii) installation of Software, (iii) Software programming or modification/configuration of the Licensed Software, (iv) project management, (v) programming agreed upon interfaces, (vi) conversion of County's current data, (vii) training of County staff, and (viii) maintenance support.
1.21 Software means programs which (i) tell a computer what to do, and (ii) are required to perform the tasks specified in the Agreement, whether or not the programs are to be supplied by Contractor.
1.22 Sublicense means a County license to County for Third Party Software that Contractor provides to County as part of the System under its original license.
1.23 Support means the type of services, including, but not limited to, those identified in the "Maintenance Support Services" per Exhibit B.
Software, custom Software, and other items, tangible and intangible, which together will (i) allow County's Human Services Department to have and maintain an automated and integrated patient tracking system, and (ii) provide the Documentation and Services required by the Agreement(s). As applicable, System shall also mean Contractor's fully integrated, web based suite of Software with on and off-site, wired and wireless, intra net or Internet access capability, as updated and upgraded pursuant to the Agreements, that tracks patient records, as more fully described in Exhibit A.
1.25 Third Party Users means those individuals or entities authorized by County to perform services on behalf of County and/or to access the System, or those individuals or entities otherwise authorized to use the System by County.
1.26 Third Party Software means non-Contractor software that is necessary for the System to perform its functions and is independently acquired by County or is sublicensed by Contractor to County under the Agreement.
1.27 Update(s) means periodic release(s) of the Licensed Software, Software, and Third Party Software that may contain fixes or incremental enhancements to the Licensed Software, Software, and Third Party Software and are included in Maintenance Support Services.
1.28 Upgrade(s) means periodic releases of the Licensed Software, Software, and Third Party Software that contain significant enhancements that may include changes of hardware platform, database platform, operating system, or major change in capability and functionality and are usually identified by a new whole number revision number that is, Revision 4.0 compared to Revision 3.8.
ARTICLE 2
PERFORMANCE AND TESTING
2.1 System Performance. The Parties understand that the Agreement is the result of County's procurement process and negotiations. Contractor understands that County, after entering into this Agreement, has no need for Contractor's Deliverables nor for the products or Services of third parties, both goods and intangible products, unless the System performs as represented and County accepts the System in accordance with the acceptance criteria described and set forth in the Agreement. Contractor acknowledges that County's acquisitions made as a part of this Agreement are subject to the acceptance criteria described and set forth in the Agreement being met and such is an essential element and condition of this Agreement. 2.2 Inspection, Testing and Acceptance. Broward County Administrative Code, Section 22.148, relating to County's Computer Software Policy, established a requirement for inspection of all computer application software systems purchased or developed for Broward County by others costing over Twenty Thousand Dollars ($20,000.00) prior to its acceptance by
acquired under the Agreement, shall be inspected and tested by the County's Enterprise Technology Services Division ("ETS") prior to acceptance of the System. Also, all contracts for the purchase of computer application software costing more than Twenty Thousand Dollars ($20,000.00) shall include clauses providing (i) for inspection and testing by the Enterprise Technology Services Division of such computer application Software prior to formal acceptance of that software by Broward County, and (ii) that final payment shall not be made prior to formal acceptance of the System by County. The County's Enterprise Technology Services Division will coordinate its acceptance responsibilities with those of other County entities utilizing the standards for acceptance set forth and described in the Agreement. The Enterprise Technology Services Division's failure to accept the System shall constitute non-acceptance by County. In the
event
of such non-acceptance, Contractor shall repay to County any and all monies paid by County to Contractor for the Phase(s) that were not accepted pursuant to the Agreement within thirty (30) business days after written notice of non-acceptance. The Parties also recognize and agree that County's obligations under the Agreement are specifically conditioned upon its accepting the System as set forth and described in the Agreement.ARTICLE 3 SCOPE OF SERVICES
3.1 Contractor shall perform all work identified in this Agreement and Exhibit A, Statement of Work, attached and made a part of this Agreement. The Parties agree that this Agreement and the Statement of Work describe Contractor's obligations and are deemed to include preliminary considerations and prerequisites, labor, materials, equipment, and tasks which are such an inseparable part of the work described that exclusion would render performance by . Contractor impractical, illogical, or unconscionable.
3.2 For a period of three (3) years from the Final Acceptance of the System by County, Contractor agrees to provide consulting and programming services as requested by County for customization and/or enhancements to the System. County shall pay Contractor for the services, object code related to any programming, and documentation related to the development work at the rate for the service categories as set forth and described in Exhibit A, Statement of Work, attached and made a part of this Agreement. Where the programming to be provided by Contractor is for Custom Software, Contractor will also provide the source Code for such programming.
4.1 License to County
ARTICLE 4 LICENSE
4.1.1 Contractor hereby grants to County a royalty free, perpetual, non-exclusive Enterprise License for the Licensed Software, with no geographical limitations, limited to use by Broward County staff and Broward County contracted providers, with an
intranet or Internet access and use of the Licensed Software. Contractor also sublicenses to County to the full extent otherwise provided herein, the Contractor provided Third Party Software identified in Exhibit A to this Agreement as well as any embedded third party Software within the Licensed Software. Contractor grants to County a nonexclusive, nontransferable perpetual license to use the Licensed Software subject to the terms and conditions set forth in this Agreement.
4.1.2 County's license shall not be dependent upon or require County to purchase any other product or service, including Maintenance Services, from Contractor or any third party, and such License shall continue in perpetuity irrespective of the termination of this Agreement or any other agreement between the Parties.
4.1.3 Platform Compatibility and Portability. Contractor agrees to maintain, support, and improve its Licensed Software and the custom Software so as to ensure continuing compatibility with updates and upgrades to the hardware and operating systems with which the Licensed Software and custom Software operate, so as to ensure that the Licensed Software and custom Software operates on platforms defined by Echo in the RLI response and upgraded under active software maintenance agreement or as the parties may otherwise agree. At all times during the term of this Agreement, County shall not only receive the enhancements, Updates, and Upgrades set forth in this Agreement, but also shall be entitled to receive upon request and under the licensing terms of this Agreement, at no additional charge, any version, release, renamed product, or platform of the Licensed Software or commercial version of the custom Software, to the extent licensed to Contractor, which is then supported by Contractor, so long as County maintains active software support and maintenance per Exhibit B, in exchange for County's version of the Licensed Software.
4.2 Warranted Functions
4.2.1 The Licensed Software is warranted by Contractor to provide the functions, features, and capabilities specified and described in the Agreements and the Documentation. Contractor further warrants and represents that:
All items shall be installed as described in the Agreements, the Statement of Work attached thereto, and the Documentation, on Hardware identified in the Statement of Work to this Agreement as part of the configuration of the Contractor System, and along with the Licensed Software, shall operate together as a whole to perform the functions in the manner specified and delineated in the Agreements, Statement of Work and Documentation. Except as expressly set forth herein: Contractor makes no other warranties of fitness; Contractor makes no warranty or representation that the use of the software or product documentation will ensure the County's receipt of state or federal funds; and Contractor makes no
4.2.2 Contractor expressly warrants that each module of the Licensed Software will be free from reproducible Defects that cause the Licensed Software to fail to conform to the operational and performance specifications as set forth in the Agreements, Statement of Work, and Documentation.
4.2.3 This express warranty for the Licensed Software for each Phase shall be for a period of one (1) year from the date of County's Preliminary Acceptance, and for the System for a period of one (1) year from the date of the County's Final Acceptance as set forth in the Agreements between County and Contractor of even date herewith. Contractor's warranty shall not apply where the Defect in the Licensed Software is the result of:
(i) Use of the Licensed Software in other than the manner for which it was installed.
(ii) Damage to the Licensed Software caused by County or its employees or agents.
(iii) Modification of the installed Licensed Software by County not authorized by Contractor.
4.2.4 During the warranty period and upon notification in writing by County of any Defect and/or Priority Event, Contractor, at its option, will promptly commence making any needed repair to the Licensed Software and continue to proceed to a solution within a reasonable time (as defined in Exhibit B) or promptly replace the Licensed Software. In the event Contractor is unable to remedy any material Defect within twenty (20) business days after such notification by County that a material Defect exists, then County, at its sole option, may terminate this Agreement and Contractor shall immediately repay County any and all monies paid by it for the System pursuant to the Agreements. In the event of such termination by County and after full repayment by Contractor, subject to third party claims against Contractor, County shall return the Licensed Software, Documentation and other material received from Contractor and will promptly remove the Licensed Software from any and all hardware upon which the Licensed Software may reside.
4.2.5 Contractor also warrants that the input media upon which the Licensed Software are contained, and the Licensed Software itself, are free from Defects, viruses, and/or malicious software which would prevent the Licensed Software from being operated as described and set forth in the Documentation. Contractor warrants that the Licensed Software has been run through a virus detection system and is free from currently known viruses and/or malicious software.
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error and/or Defect in the Licensed Software reported to Contractor by providing to County either (a) a new version of the Licensed Software in which the error and/or Defect has been corrected, or (b) additional software code that, when installed in accordance with Contractor's instructions, will correct the error and/or Defect. In addition, Contractor will immediately provide to County any known methods of operating the Licensed Software in a manner that eliminates the practical adverse effects of the error and/or Defect. If Contractor is unable to correct the error and/or Defect as provided above within a reasonable period of time not to exceed twenty (20) Business Days, Contractor will refund to County all fees paid for the applicable Phase or System (in addition to any other rights and remedies County may have).
4.3 Use of Licensed Software: The Licensed Software is licensed to the County solely for County's governmental and business purposes which shall include on and off-site access and use of the Licensed Software by authorized Third Party Users, including, but not limited to, any persons or entities which County may contract to operate the System, and for the benefit of and by all governmental entities within Broward County, including the offices of the County's Constitutional Officers. County may use the Licensed Software on computer systems not described in Exhibit A at no additional fee, although for purposes of continued Maintenance, County shall request Contractor to approve a configuration other than as provided in Exhibit A, which approval shall not be unreasonably withheld.
4.4 County has a disaster recovery plan and uses the recovery resources provided by a third party contractor to County at the contractor facility ("Center-Based"} and/or delivered by contractor to County designated locations (i.e., "Mobile"). County may, if required by reason of an emergency, disaster or operational need, and also for testing of the recovery resources, temporarily use the Licensed Software on any such recovery resources, at no additional fee, whether presently contracted for or that may be contracted for in the future and which recovery resources Contractor understands may not be owned by County.
4.5 County may install and operate the Licensed Software in separate servers used in any and all development, test, production, failover, and backup configurations, at no additional fee. County may also install the Licensed Software in its Emergency Operations Center in replication of its production environment for use in any emergency event which results in County operations from the Emergency Operations Center, at no additional fee.
4.6 County may, because of operational needs, and at no additional fee, request Contractor to approve a Hardware configuration not recommended by Contractor in Exhibit A, which approval shall not be unreasonably withheld.
4. 7 Except as otherwise provided for in this Agreement:
into Random Access Memory for the purposes of support and/or maintenance by County or others hired by County to provide such support and/or maintenance.
4.7.3 Except as allowed by law, County shall not modify, adapt, translate, reverse engineer, decompile, disassemble or create derivative works based on the Licensed Software without the prior written consent of Contractor.
4.7.4 County shall not modify, adapt, translate, or create derivative works based on the Documentation without the prior written consent of Contractor.
4.7.5 All licenses to Third Party Software provided to County by Contractor shall be sublicensed to County by Contractor.
4.8 Contractor will notify County's Human Services Department of any intended Update(s), Upgrades and/or Releases prior to the deployment thereof. If an Update, Upgrade, and/or Release occurs during the Initial Term, or any subsequent Maintenance term, Maintenance Service will be provided at no additional cost to County, inclusive of any Updates, Upgrades and/or Releases.
4.9 Contractor also agrees to maintain a level of version currency with Third Party Software required to operate the System equal to currently supported releases of Third Party Software.
ARTICLE 5
COMPENSATION OF AND METHOD OF PAYMENT
5.1 County agrees to pay Contractor, in the manner specified in Article 5 herein, for Exhibit A (Statement of Work), for Deliverable(s) and Services actually performed and completed for the System as follows:
5.1.1 The County's Director of the Purchasing Division or any individual acting in such capacity is hereby granted authority to approve, award, and execute all Work Authorizations, agreements, documents, or other instruments required to acquire enhancements to the System under this Agreement. The parties agree that the maximum amount payable by the County to the Contractor during the term of this Agreement, including any renewal or term, shall not exceed Two Million Six Hundred Eighteen Thousand Three Hundred Eighty-Five and 00/100 Dollars ($2,618,385.00} plus any remaining, unpledged funds allocated for the goods or services under the System and Services Agreement between Broward County and the Echo Group, dated September 24, 2002, as amended, or the Software License Agreement between Broward County and the Echo Group, dated September 24, 2002, as amended ("BARC Funds"). A copy of the Work Authorization form is attached hereto as Exhibit C.
of Work, Deliverable(s) and Services including Reimbursables actually performed and completed pursuant to this Agreement. In addition, the amount of Five Hundred Fifty-Four Thousand Six Hundred Thirty-Five Dollars ($554,635.00), plus any applicable BARC Funds, is hereby set aside for Optional Services which may become necessary or which may not have been previously anticipated in the attached Statement of Work. Therefore, as stated above, the potential allowable spending funds for this Agreement shall not exceed the amount of Two Million Six Hundred Eighteen Thousand Three Hundred Eighty-Five and 00/100 Dollars ($2,618,385.00), plus any applicable BARC Funds. It is acknowledged and agreed to by Contractor that this amount is the maximum payable and constitutes a limitation upon County's obligation to compensate Contractor for Deliverables and Services related to this Agreement. This maximum amount, however, does not constitute a limitation, of any sort, upon Contractor's obligation to perform all items of work required by, or which can be reasonably inferred from this Agreement.
5.1.3 The amount set forth in this Agreement above includes any and all of Contractor's overhead, operating costs, outlays, profit, and other out-of-pocket costs, associated out-of-pocket costs including, but not limited to, photocopying, long distance telephone, special mailings and the like. Contractor shall also bear all of its own expenses arising from its performance of the obligations under this Agreement and the Statement of Work including (without limitation) expenses for facilities, work spaces, utilities, management, clerical and reproduction services, supplies, and the like. The prices and costs stated for Deliverables include all taxes. It is understood that County is a tax-exempt entity in the State of Florida and shall only be responsible for the payment of applicable taxes, if any, if and when it loses tax-exempt status.
5.1.4 To the extent Contractor is entitled to reimbursement for travel expenses as stated in the attached Statement of Work; all such travel shall be as approved in advance in writing by the Contract Administrator. Reimbursables directly attributable to the services provided will be charged at actual cost, and shall be limited to the following:
a) Identifiable transportation expenses in connection with the services, subject to the limitations of Section 112.061, Florida Statutes, as amended. Transportation expenses to locations outside the Miami-Dade-Broward-Palm Beach County area or from locations outside the Miami-Dade-Broward-Palm Beach County area will not be reimbursed unless specifically pre-authorized in writing by the Contract Administrator. Transportation expenses to and from locations within the Miami-Dade/Broward/Palm Beach County area will not be reimbursed.
Section 112.061 Florida Statutes, as amended. Meals for class C travel inside Broward County will not be reimbursed. Meals and lodging expenses will not be reimbursed for temporarily relocating Contractor's employees from one of Contractor's offices to another office if the employee is relocated for more than ten (10) consecutive County working days. Lodging will be reimbursed, subject to Section 112.061, Florida Statutes, as amended.
c) A detailed statement of expenses shall accompany any request for reimbursement. Expenses other than automobile travel must be documented by copies of paid receipts, checks, or other evidence of payment.
5.2 METHOD OF BILLING AND PAYMENT
5.2.1 Payment for the Licensed Software shall be Four Hundred Fifty Six Thousand and 00/100 Dollars ($456,000.00} payable in accordance with the Payment Schedule stated in the SOW for Licensed Software, and all Software Deliverables hereunder are included in such Licensed Software. Contractor will perform the configuration and installation of the Licensed Software, Contractor will also furnish County with sufficient instructions, Documentation or other written materials as may be necessary to install the configured Licensed Software in an efficient and expeditious manner. Contractor will instruct County personnel in the installation process in the event County is required to reinstall the Licensed Software at a subsequent date.
5.2.2 Maintenance and support services shall be provided at no cost from the effective date of the Agreement for a period of six (6) months (the "Initial Term"). Thereafter, the cost for Maintenance for each one {1) year term after the Initial Term ("Annual Maintenance Charge") will be One Hundred and One Thousand Two Hundred Fifty and 00/100 Dollars ($101,250.00), which shall be paid quarterly in advance, if renewed at the sole discretion of County's Human Services Department on an annual basis. Hosting fees shall be invoiced and paid in accordance with the Payment Schedule set forth in Exhibit A.
5.2.3 Following the Initial Term, County agrees to pay the Annual Maintenance Charge in advance quarterly payments for those years it elects to purchase Maintenance. Contractor shall provide an invoice to County for such Maintenance no later than forty-five (45) calendar days prior to the quarterly payment due date.
5.2.4 In the event County decides to resume Maintenance Support Services for a terminated or non-renewed portion of the Licensed Software, Maintenance Support Services shall be reinstated upon County's paying the prorated amount of prior outstanding maintenance fees defined above and may incur a reinstatement fee not to exceed fifty percent (50%} of the then-current Annual Maintenance Charge.
Support Services any time for any portion or module of the Licensed Software. Maintenance Support Services terminated prior to the end of the quarter will not incur a refund of associated quarterly maintenance fees.
5.2.6 Contractor may submit invoices for compensation no more often than on a monthly basis, but only in accordance with the Payment Schedule as stated in the SOW. An original invoice is due within thirty (30} calendar days after Preliminary Acceptance of each Phase or completion of the relevant travel or training course(s) as outlined in the SOW at Exhibit A except the final invoice which must be received no later than sixty (60) calendar days after Final Acceptance. Invoices shall designate the nature of the Services performed and/or the expenses incurred. Invoices shall comply with the requirements of County's Prompt Payment Ordinance set forth below.
5.2.7 County shall pay Contractor within thirty (30) calendar days of receipt of Contractor's proper statement, as required by the "Broward County Prompt Payment Ordinance" (Broward County Ordinance No. 89-49, as may be amended from time to time). To be deemed proper, all invoices must comply with the requirements set forth in this Agreement and must be submitted on the form and pursuant to instructions prescribed by Contract Administrator. Payment may be withheld for failure of Contractor to comply with a term, condition, or requirement of this Agreement.
5.2.8 Periodic payments shall be made for the Services set forth in the Statement of Work in Phases.
5.2.8.1 County shall pay Contractor Eighty Five Percent (85%) of the total shown to be due on each invoice for each Phase as detailed above and in the Statement of Work and/or the Deliverables and Payment Schedule and the remaining Fifteen Percent (15%) retainage shall be remitted as each Phase is accepted as provided for in Article 5 herein below and Article 12 below.
5.2.8.2 Contractor shall notify County in writing when Contractor contends that a Phase is completed and ready for Preliminary Review by County. Within twenty (20} Business Days following receipt of Contractor's written notice, County's Contract Administrator shall issue its written statement of Preliminary Acceptance or its written notice that the Work comprising the Phase Milestone(s) is not Preliminarily Accepted. Preliminary Review shall include, at a minimum, a scheduled meeting between County's Contract Administrator and Contractor to review all Deliverables to this point, discuss outstanding or known issues, and determine whether to proceed with the next Phase. County's Contract Administrator will not unreasonably withhold Preliminary Acceptance of a Phase if Contractor has provided the required Deliverables for that Phase to County within the established timeframes to be established in the project work
invoice for payment for a Phase until County has agreed to Preliminary Acceptance of the particular Phase. Preliminary Review and/or Preliminary Acceptance shall have no bearing on County's ETS's Final Acceptance determination as set out in Article 2 and Article 12.
5.2.9 Contractor agrees that all Software that is part of the System shall be inspected and tested by County together with the licensed Software and the System as a whole as set forth herein and final payment shall not be made until County has completed the "Final System Acceptance" as set forth in Exhibit A, Article 2, and Article 12 below. 5.2.10 The Parties acknowledge that Exhibit A may not delineate every detail and minor work task required to be performed by Contractor to complete its Services and provide the Deliverables and the System. If, during the course of the performance of the Services, Contractor determines that work should be performed to complete the System which, in Contractor's opinion, is outside the level of effort originally anticipated in Exhibit A, whether or not Exhibit A identifies the work items, Contractor shall notify the Contract Administrator in writing in a timely manner. If Contractor proceeds with said work without notifying the Contract Administrator, said work shall be deemed to be within the original level of effort of Exhibit A, whether or not specifically addressed in Exhibit "A." The provision of prior written notice to the Contract Administrator by Contractor does not constitute authorization or approval by County to perform the work. Performance of work by Contractor outside the originally anticipated level of effort without prior written County's Contract Administrator approval is at Contractor's sole risk and at no cost to County.
5.2.11 County or Contractor may also request changes that would increase, decrease, or otherwise modify Exhibit "A." Such changes must be made in accordance with the provisions ofthe Broward County Procurement Code and must be contained in a written amendment executed by the Parties hereto prior to any deviation from the terms of this Agreement including the initiation of any additional services. County shall compensate Contractor for such additional services as provided in Article 5 herein above. Subject to the not-to-exceed amounts set forth in Section 5.1.2, Optional Services as provided on the attached Statement of Work may be done through a Work Authorization in the form attached as Exhibit C.
5.2.12 In the event a dispute between the Contract Administrator and Contractor arises over whether requested services constitute additional work or services or is outside the level of effort originally anticipated in Exhibit A and such dispute cannot be resolved by the Contract Administrator and Contractor, such dispute shall be promptly presented to County's Chief Information Officer at ETS for resolution pursuant to the procedures set out in Article 13 of this Agreement. During the pendency of any dispute, if requested in
5.2.13 County's Purchasing Director or any individual acting in such capacity shall have the authority to approve, award and execute all documents or other instruments required to effectuate changes, modifications or additional service contemplated by Article 5 herein above, so long as the then cumulative financial obligation of County for such additional items does not exceed the Purchasing Director's authority under the Procurement Code. Any change, modification or additional service that causes the cumulative financial obligation of County for such additional items to exceed the Purchasing Director's authority under the Procurement Code shall be presented to the Board for its approval.
5.3 Any payment to Contractor shall be payable to "The Echo Group" at: Echo Consulting Services, Inc. d/b/a The Echo Group
Attn: Debbie Angelico, Chief Financial Officer 15 Washington Street
Conway, NH 03818
County is already in receipt of Contractor's federal identification number; however, Contractor agrees to complete additional forms relating to same if requested by Contract Administrator.
5.4 Contractor acknowledges and agrees that the Contract Administrator has no authority to make changes that would increase, decrease, or otherwise modify the Scope of Services to be provided under this Agreement except as expressly authorized by the Broward County Procurement Code (Chapter 21 of the Broward County Administrative Code), as may be amended from time to time. Any material change in scope shall require a prior written amendment.
5.5 County agrees to pay Contractor, in the manner specified in the Payment Schedule in the SOW and this Article 5, the total amount of Two Million Sixty-Three Thousand Seven Hundred Fifty and 00/100 Dollars ($2,063,750.00) for work actually performed and completed pursuant to the SOW attached to this Agreement including Thirty Eight Thousand Four Hundred Dollars ($38,400.00) for all reimbursables agreed to in Section 5.1.4, which amounts shall be accepted by Contractor as full compensation for all such work and expenses under the SOW (excluding Optional Services). It is acknowledged and agreed by Contractor that this amount is the maximum payable and constitutes a limitation upon County's obligation to compensate Contractor for its services and expenses related to this Agreement. This maximum amount, however, does not constitute a limitation, of any sort, upon Contractor's obligation to perform all items of work required by or which can be reasonably inferred from the Scope of Services.
In accordance with and pursuant to the Broward County Procurement Code and subject to the limitations set forth below, expenses, reasonable in amount and nature, which are directly attributable to the Project may be charged at no more than actual cost. The maximum sum which may be charged for expenses shall not exceed Thirty-Eight Thousand Four Hundred Dollars ($38,400), and shall be limited to the following:
a) Identifiable transportation expenses in connection with the Project, subject to the limitations of Section 112.061, Florida Statutes, as may be amended from time to time. Transportation expenses to locations outside the Miami-Dade/Broward/Palm Beach County area or from locations outside the Miami-Dade/Broward/Palm Beach County area will not be reimbursed unless specifically authorized in advance and in writing by the Contract Administrator. Transportation expenses to and from locations within the Miami-Dade/Broward/Palm Beach County area will not be reimbursed.
b) Cost of printing drawings and specifications which are required by or of Contractor to deliver services set forth in this Agreement.
A detailed statement of expenses must accompany any request for reimbursement. Expenses other than auto travel must be documented by copies of paid receipts, checks, or other evidence of payment.
It is acknowledged and agreed to by Contractor that the dollar limitation set forth in Section 5.5 is a limitation upon, and describes the maximum extent of, County's obligation to reimburse Contractor for expenses, but does not constitute a limitation, of any sort, upon Contractor's obligation to incur such expenses or perform the services identified in Article 2.
Notwithstanding any provision of this Agreement to the contrary, County may withhold, in whole or in part, payment to the extent necessary to protect itself from loss on account of inadequate or defective work which has not been remedied pursuant to Sections 4.2 or Article 12 herein or from loss due to fraud or reasonable evidence indicating fraud by Contractor or failure to comply with this Agreement. When the above reasons for withholding payment are removed or resolved in a manner satisfactory to the Contract Administrator, payment may be made. The amount withheld shall not be subject to payment of interest by County.
6.1 Term of Agreement. The term of this Agreement shall begin on the date it is fully executed by both parties and shall end five (5) year(s) after County's ETS's written Final Acceptance. In the event this Agreement extends beyond a single fiscal year of County, the continuation of this Agreement beyond any such fiscal year shall be subject to the availability of County funds in accordance with Chapter 129, Florida Statutes, as amended. The County's represents that its fiscal year currently commences on October 1 of each year and ends on September 30 of each year. The term of the System services component of this Agreement shall not affect any perpetual Software license to County or any Maintenance term and such terms shall be independent ofthe System services term.
6.2 Notice to Proceed. "Notice to Proceed" means written notice issued by the Contract Administrator authorizing Contractor to proceed with providing the Goods and Services pursuant to this Agreement. Prior to beginning the performance of any Services, Contractor must first receive a written Notice to Proceed from the Contract Administrator. Prior to the execution of this Agreement, Contractor shall provide County with a properly completed Insurance Certificate, the completion of, and submittal of, which is considered a condition precedent to the County's execution of this Agreement.
6.3 Completion of System Timetable. Contractor shall complete the System, through Final Acceptance, within eighteen (18) months from the date of the issuance of the Notice to Proceed. If Contractor is unable to complete the System, including Final Acceptance, within twenty four (24) months from date of the issuance of the Notice to Proceed, County shall have the option to terminate the Agreement by written notice from its Contract Administrator, and Contractor shall then refund to County all funds paid by County for the incomplete or unaccepted Phase(s) of the System as outlined in the SOW at Exhibit A. In addition, all Professional Services Fee and Training fees for Phase #2 shall be discounted by fifty percent (50%) if (a) Contractor fails to submit Phase #2 to County for Preliminary Acceptance on or before the latter of 60 days after the Effective Date or December 1, 2013, or (b) if Phase #2 fails to receive Preliminary Acceptance on or before the latter of 90 days after the Effective Date or January 1, 2014, provided that County completes Preliminary Acceptance testing within twenty (20) business days of submission for testing. The Contract Administrator shall have the option to extend in writing the completion time period prior to the deadlines stated herein for good cause shown. Any delays caused by County shall extend the time of completion in accordance with the extent of the County's delay.
6.4 Contractor acknowledges that County, through its Contract Administrator, retains the sole discretion of whether to exercise the remedy of termination or retain age for the specific default conditions mentioned herein. The Parties further stipulate that the refund, discount, and retain age amounts provided for in this Agreement are not intended to be a penalty and are purely intended to reasonably compensate County for unknown and unascertainable damages. The Parties agree that if County allows Contractor to continue completion of the work to be
Contract Administrator, that County's action shall in no way act as a waiver on the part of County of the discount or retainage due under this Agreement, unless otherwise agreed in writing by the parties.
ARTICLE 7
INDEMNIFICATION, WARRANTIES AND LIMITATION OF LIABILITY
7.1 INDEMNIFICATION. Contractor shall at all times hereafter indemnify, hold harmless and, at the County Attorney's option, defend or pay for an attorney selected by the County Attorney to defend County, its officers, agents, servants, and employees from and against any and all causes of action, demands, claims, losses, liabilities and expenditures of any kind, including attorney fees, court costs, and expenses, caused or alleged to be caused by intentional or negligent act of, or omission of, Contractor, its employees, agents, servants, or officers, or accruing, resulting from, or related to the subject matter of this Agreement including, without limitation, any and all claims, losses, liabilities, expenditures, demands or causes of action of any nature whatsoever resulting from injuries or damages sustained by any person or property. In the event any lawsuit or other proceeding is brought against County by reason of any such claim, cause of action or demand, Contractor shall, upon written notice from County, resist and defend such lawsuit or proceeding by counsel satisfactory to County or, at County's option, pay for an attorney selected by County Attorney to defend County. The provisions and obligations of this section shall survive the expiration or earlier termination of this Agreement. To the extent considered necessary by the Contract Administrator and the County Attorney, any sums due Contractor under this Agreement may be retained by County until all of County's claims for indemnification pursuant to this Agreement have been settled or otherwise resolved; and any amount withheld shall not be subject to payment of interest by County.
7.2 GENERAL WARRANTY. Contractor warrants and represents that any Services and Licensed Software or custom Software provided and/or to be provided to County are original with or owned by Contractor and that no portion of such Services or Licensed Software or custom Software, or its use by County pursuant to the terms of this Agreement, violates or is protected by the right, title, interest or similar right of any third person or entity, however organized, except as may be set forth in this Agreement. County shall have the quiet and peaceful enjoyment of the use of the Licensed Software to be supplied by Contractor for the duration of its license or until its proper and lawful termination, free from interference by any and all Parties, including Contractor. Contractor is not aware of any products, processes, Software or practices of Contractor relating to the Deliverables and Services provided hereunder, which have or could reasonably be expected to form the basis of any claim, action, suit, proceeding, hearing, or investigation of, against or relating to Contractor which may constitute an infringement of a third party's copyright, patent, trade secret, or other intellectual property.
laws.
7.4 WARRANTY AS TO INTELLECTUAL PROPERTY INFRINGEMENT. Contractor represents and warrants that it owns the Licensed Software and has all rights necessary to license the Licensed Software to County, and at the time of entering into this Agreement no claims have been asserted or action or proceeding brought against Contractor which alleges that all or any part of the Licensed Software to be supplied by Contractor or the operation or use thereof by County, infringes or misappropriates any patent, copyright, mask copyright or any trade secret or other intellectual or proprietary right of a third party, nor is Contractor aware of any such potential claim. Contractor also represents and warrants that its Services to be provided pursuant to this Agreement to modify the Licensed Software will not infringe or misappropriate any patent, copyright, mask copyright or any trade secret or other intellectual or proprietary right of a third party. In the event of a breach of this representation and warranty, Contractor shall be responsible for and pay County for any and all actual harm, injury, damages, costs and expenses incurred by County by reason of the breach including as provided in the General Indemnification provisions in Section 7.1 above. County will use reasonable efforts to notify Contractor promptly of any third party claim, suit, or action (a "Claim") for which County believes it is entitled to indemnification under this Section and which County desires Contractor to defend. However, County's failure to provide such notice or delay in providing such notice will relieve Contractor of its obligations under this Section only if and to the extent that such delay or failure materially prejudices Contractor's ability to defend such Claim. If County tenders the defense of a Claim to Contractor, Contractor will have the right and the obligation to defend such Claim with counsel of its choice; however, County may participate in the defense of the Claim with its own counsel and at its own expense. Once Contractor assumes defense of a Claim, it will be conclusively presumed that Contractor is obligated to indemnify County for such Claim, and County will cooperate with Contractor, except if such cooperation requires disclosure of information exempted from disclosure by reason of any Federal or State law or would require County to violate any Federal or State law, at Contractor's reasonable request and at Contractor's expense, in the defense of the Claim. No settlement of a Claim will be binding on County without County's prior written consent. This intellectual property infringement indemnification obligation shall survive the expiration or earlier termination of this Agreement. Nothing in Section 7.3 herein as to intellectual property indemnification shall be deemed to place any limitations on the Contractor's obligation to indemnify County under the General Indemnification provisions in Section 7.1 above.
7.5 WARRANTY REGARDING VIRUSES. The term "Virus" means any computer code that could (a) disrupt, disable, harm, or otherwise impede in any manner the proper operation of a computer program or computer system, or (b) damage or destroy any data or files residing on a computer system without the user's consent, including (without limitation) any "back door," "time bomb," "Trojan Horse," "worm," "drop dead device", spyware, and "virus" (as these terms are commonly used in the computer software field). Contractor warrants that the Licensed Software does not and will not contain any Virus. Contractor warrants that it will use
County for any and all losses, damages, liabilities, costs, and expenses caused by any such Virus. Contractor further warrants that it will not perform any action that will hinder County's freedom to use or physically and electronically transport the Licensed Software within County's facilities, and that it has not included in the Licensed Software any software, hardware, electronic, or other security mechanism (including password, CPU serial number validation or dependency, electronic initialization protection, and time dependent execution) or any other disablement, de-installation, deactivation, or deletion mechanism.
7.6 GOVERNMENTAL IMMUNITY. Nothing herein is intended to serve as a waiver of sovereign immunity by any party nor shall anything included herein be construed as consent to be sued by third parties in any matter arising out of this Agreement or any other contract. County is a state agency or political subdivision as defined in Chapter 768.28, Florida Statutes (as amended), and agrees to be fully responsible for the acts and omissions of its agents or employees to the extent permitted by law.
7.7 LIMITATION OF LIABILITY. Neither Contractor nor County shall be liable to the other party for any damages under this Agreement that exceed the largest of the following amounts: (a) $100,000; (b) twice the maximum compensation amount payable to Contractor under the Agreement for license fees and professional services; or (c) the amount of insurance Contractor is required to provide under Article 8 below. Neither party shall be liable for the other party's special, indirect, punitive, or consequential damages (including damages resulting from lost data or records other than costs incurred in the recovery thereof), even if the party has been advised that such damages are possible, or for the other party's lost profits, lost revenue, or lost institutional operating savings. These limitations of liability shall not apply to (i) any claim resulting from Contractor's actual or alleged disclosure of County Confidential Information, (ii) any claim resulting from an actual or alleged infringement of any interest in any Licensed Software or other intellectual property, or (iii) any indemnification obligation under this Agreement.
7.8 NO LIABILITY FOR CERTAIN DAMAGES. In no event will Contractor be liable for any consequential, special, incidental, indirect, exemplary or punitive damages, even if Contractor has been advised of the possibility of such damages.
7.9 FORCE MAJEURE. Neither Party shall be responsible to the other for non-performance, default or delay in performance of the terms and conditions herein due to, but not limited to, acts of God, act of government, wars, riots, strikes, fire, theft, accidents in transportation, material shortages or other causes beyond the control of Contractor (as determined and approved in writing by Contract Administrator) or County (as determined and approved in writing by Contractor's Chief Financial Officer). Either Party desiring to rely upon such a cause shall, when the cause arises, give prompt oral notice thereof to the other Party and, when the cause ceases to exist, shall give prompt written notice thereof to the other Party. Such notice for County shall be given by its Contract Administrator.
8.1 Provider shall, at a minimum, provide, pay for, and maintain in force at all times during the term of this Agreement (unless a different time period is otherwise stated herein) all insurance coverage as stated in this Article.
8.1.1 Professional Liability Insurance with mm1mum limits of One Million Dollars ($1,000,000.00) per claim. Policy shall contain an extended reporting period of One year after the completion of services under this Agreement.
8.1.2 Commercial General Liability Insurance with minimum limits of One Million Dollars ($1,000,000} per occurrence combined single limit for bodily injury and property damage and Two Million Dollars ($2,000,000.00} per aggregate.
8.1.3 Business Automobile Liability Insurance, if driving is necessary in performance of duties under this Agreement, with minimum limits of One Million dollars ($1,000,000.00) per occurrence combined single limit for bodily injury and property damage.
8.1.4 Workers' Compensation Insurance for all employees in compliance with applicable state and federal laws. Policy shall include Employers' Liability coverage with minimum limits of One Million Dollars ($1,000,000.00} each accident.
8.2 Such policies shall be issued by companies authorized and licensed to transact business in Provider's home state and rated at least "A-" by A.M. Best Co., unless otherwise approved in writing by County. If any deductible amounts are permitted, Provider shall be responsible for the payment of all such deductible amounts.
8.3 Provider agrees to list County as an additional insured under Provider's commercial liability insurance policy and excess liability insurance policy. The listed certificate holder on these policies shall be "Broward County."
8.4 Coverage must be provided on forms no more restrictive than the latest edition of the applicable forms filed by the Insurance Services Office.
8.5 Provider shall notify County in writing within thirty (30} days after Provider learns of any claim exceeding $250,000 (inclusive of defense costs) against Provider's professional liability insurance policy.
8.6 Within fifteen (15) days of execution of this Agreement, Provider shall provide County with proof of insurance in the form of Certificate(s) of Insurance and applicable endorsements, Declarations pages, or insurance policies. Failure to timely provide acceptable proof of
8.7 All insurance policies required under this Article must expressly provide County with at least thirty (30) days' prior written notice of expiration, cancellation, or restriction of coverage. Providershall provide certified copies of any policy to County upon County's request.
8.8 If Provider subcontracts any work under this Agreement, Provider shall ensure that each subcontractor names County as an additional insured under the subcontractor's general liability and excess coverage policies (if any).
ARTICLE 9
GOODS TO BE SUPPLIED BY CONTRACTOR
9.1 Contractor will sell and County will purchase from Contractor the following Goods: None
For purposes of this Agreement, and unless otherwise stated herein, the term "Goods" includes any associated firmware and operating software licensed as an integral part of the Goods. Contractor (or the applicable third party owner, as the case may be) retains all right, title and interest in all firmware and associated software, whether operating or application software, delivered under this Agreement subject only to the following license rights. Any firmware delivered as a component of Goods shall be deemed licensed to County on a nonexclusive basis strictly for use as an integral part of the Goods. Any associated software delivered with the Goods shall be deemed licensed to County according to the terms and conditions of the software license agreement included with the Documentation or, if not so included, then County shall be deemed granted a nonexclusive license in object code form to install, store, load, execute and display (collectively, "Use") the software as part of using the Goods for the purposes contemplated herein. All Goods will be new and unused except normal manufacturers' testing for product control and verification of quality. County shall have the right to sell the Goods and, in such event, it is understood and agreed that County may transfer the licenses to all Software, including any elements of the Licensed Software, that are an integral part of the Goods to the purchaser(s) of the Goods, but only if the purchaser agrees to accept and be bound by the terms and conditions of the licenses being assigned with the Goods.
9.2 Contractor represents and warrants that it will convey to County good and marketable title to the Goods free and clear of all liens and encumbrances or a proper license to use the Software. Risk of Loss shall pass to County when the items are duly tendered to a County Representative at a facility designated by County, so as to allow County to inspect the items and accept delivery of same. Title to the Goods shall pass to County when the items are duly tendered to a County Representative at a facility designated by County's Contract Administrator in advance in writing, so as to allow County to inspect the items and accept delivery of same. Contractor will install those elements of the Licensed Software to be
the software associated with the Goods retains title to such software. Subject to applicable federal and Florida laws, as amended from time to time, all patent, copyright, trade secret, trademark, and other intellectual property rights remain solely with Contractor or the owner of the software.
ARTICLE 10 TERMINATION
10.1 This Agreement may be terminated for cause by the aggrieved party if the party in breach has not corrected the breach within ten (10) days after written notice from the aggrieved party identifying the breach. This Agreement may also be terminated for convenience by the Board or the County Administrator. Termination for convenience by the Board or the County Administrator shall be effective on the termination date stated in written notice provided by County, which termination date shall be not less than thirty (30) days after the date of such written notice. This Agreement may also be terminated by the County Administrator upon such notice as the County Administrator deems appropriate under the circumstances in the event the County Administrator determines that termination is necessary to protect the public health or safety. The parties agree that if County erroneously, improperly or unjustifiably terminates for cause, such termination shall be deemed a termination for convenience, which shall be effective thirty (30) days after such notice oftermination for cause is provided.
10.2 This Agreement may be terminated for cause for reasons including, b.ut not limited to, Contractor's repeated (whether negligent or intentional) submission for payment of false or incorrect bills or invoices, failure to suitably perform the work; or failure to continuously perform the work in a manner calculated to meet or accomplish the objectives as set forth in this Agreement. The Agreement may also be terminated for cause if the Contractor is placed on the Scrutinized Companies with Activities in Sudan list or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector list created pursuant to Section 215.473, Florida Statutes, as amended or if the Contractor provides a false certification submitted pursuant to Section 287.135, Florida Statutes, as amended.
10.3 Notice oftermination shall be provided in accordance with the "NOTICES" section ofthis Agreement except that notice of termination by the County Administrator, which the County Administrator deems necessary to protect the public health, safety, or welfare may be verbal notice that shall be promptly confirmed in writing in accordance with the "NOTICES" section of this Agreement.
10.4 In the event this Agreement is terminated for convenience by County, Contractor shall be paid for any services properly performed under the Agreement through the termination date specified in the written notice of termination. Contractor acknowledges and agrees that it has received good, valuable and sufficient consideration from County, the receipt and adequacy
10.5 In the event this Agreement is terminated for any reason, any amounts due Contractor shall be withheld by County until all documents are provided to County pursuant to the Rights in Documents and Works provisions in Section 16.29 of Article 16.
ARTICLE 11
CONFIDENTIAL INFORMATION
11.1 Subject to applicable Florida and federal laws, as amended from time to time, both Parties recognize that, during the performance of Services under this Agreement, a Party may be involved in analyzing automated systems, computer software applications and programs. During the performance of such work and Services, a Party may be required to review and/or use software programs and applications licensed to, or by, the other Party or by third parties which may be subject to confidentiality agreements and disclosure restrictions. Also, a Party may have access to the other Party's or third parties' data, information, memoranda, documents, trade secrets and ideas which also may be subject to confidentiality agreements and disclosure restrictions, including requirements imposed by law, as amended from time to time.
11.2 Subject to applicable Florida and federal laws, as amended from time to time, both Parties hereby acknowledge that each Party may be exposed to confidential and proprietary information of the other Party and providers of software and confidential and proprietary information, business information, and information that may be exempted from disclosure or prevented from being disclosed by reason of law. "Confidential Information" must be expressly identified in writing by the Party claiming such confidentiality (prior to allowing access by the other Party if so required by applicable laws), and such Party must provide the other Party with a written statement of the nature of such claim. Confidential Information does not include the following:
11.2.1 information already known or independently developed by Contractor or County;
11.2.2 information in the public domain through no wrongful act of Contractor or County;
11.2.3 information received by Contractor or County from a third Party who was free to disclose it, or
11.2.4 information required to be disclosed by law or an order of court.
11.3 Subject to applicable Florida and federal laws, as amended from time to time, with respect to the Confidential Information, both Parties hereby agree that during the term of this
