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| SOFTWARE LICENSE AND PROFESSIONAL SERVICES AGREEMENT THIS SOFTWARE LICENSE AND pror es Orta te cERVICES AGREEMENT ("Agreement") is hereby entered into between PALM BEACH COUNTY, a Political Subdivision of the State of Florida, by and through its BOARD OF COUNTY COMMISSIONERS ("Contractor"), and the Government of the U.S. Virgin Islands, by and through its Department of Property and Procurement, on behalf of its Department of Licensing & Consumer Affairs ("Government") on the following terms and conditions: WITNESSETH: WHEREAS the Government is in need of the continued services of the Contractor to upgrade and enhance its website and web-based business license application, which duties and responsibilities are more particularly described in Addendum I (Statement of Work) attached hereto (the “Services”); and WHEREAS, Contractor represents that it is willing and capable of providing such Services; and WHEREAS, the Government and Contractor are governmental entities; and WHEREAS, the Government's authority to enter into this Agreement is codified at Chapter 23 of Title 31, Virgin Islands Code; and WHEREAS, the Contractor's authority to enter into this Agreement is codified at Section 125.01 of the Florida Statutes; and WHEREAS, the Contractor may enter into agreements that serve a local public purpose; and WHEREAS, the Contractor’s provision of the services herein serve a local public purpose in that it will raise revenues for the Contractor, directly benefiting the citizens of Contractor through services rendered with said revenues; and WHEREAS, the Government, by executing this Agreement, hereby certifies and attests that all applicable laws and regulations necessary to make this Agreement valid and fully enforceable have been complied with, including but not limited to, the requirements of Chapter 23 of Title 31, Virgin Islands Code §§ 233, 234, 235, 236, 239, 245, 248, 249 and the rules and regulations promulgated for its enforcement; and WHEREAS, the Government further certifies that, in accordance with applicable law, it has made a sufficient unencumbered apportionment of its appropriation balance, in excess of all unpaid obligations, to defray the full costs of this Agreement; and NOW THEREFORE, in consideration of the mutual covenants herein contained, and intending to be legally bound by this written instrument, the parties hereto do covenant and agree as follows: POOILCAT2ZO ‘1. Regitals:. The foregoing recitals. are. true and correct: and incorporated herein by reference: 2. Licensed Product, ‘The. parties are énlering into this Agreement to establish an arrangement whereby Contractor is licensing certain application software programs (“Licensed Product”) and providing professional services, «as more fully: described in Addendum I to this: Agreement, (the “Statement of Work") on.the terms and conditions sét forth herein. a. ” Delivery & Installation. The Contractor shall be responsible for providing access to the Licensed Product. b. Operating License. The Government is. granted a nonexclusive license to: use the Licensed Product for the Government's internal use only, c, Transfer.of License, Neither this: Agreement, nor any rights or obligations hereunder; may. be. ‘transferred, assigned, delegated, sublicensed, relocated or moved without Contractor's. prior written consent. 4, Term. Upon execution of this Agreement by the Governor of the U.S. Virgin Islands, the Agreement shall be effective for a Teitti beginning from October 1, 2018 and shall terminate-on September 30, 2020. The Contract-can be extended for two additional one- year terms by executing an Exercise of Renewal Option Form. Notice of option to renew must be provided at least ninety (90) days priorto the termination date of the Agreement. 5. Compensation, The Government; in consideration of the satisfactory performance of the: setvices described in Addendum I (Statement of Work), agiées to pay Contractor compensation ‘not to exceed THREE HUNDRED TWENTY-EIGHT THOUSAND DOLLARS ($328,000.00) in accordance with the provisions set forth in Addendum I (the “Pricing Document for Professional’ Services”) of this Agreement:as follows:. a. Professional Services. fee, which shall cover maintenance. and. support: services, not to’exceed $216,400, which Shall be invoiced an a monthly basis. b. Monthly Software Lease. Fee of $1,650 per month with the monthly installment: -due and. payable. by the first day of the month. Contractor retains. the ‘option to review the Software Lease Fee on an annual basis and reserves the right to adjust said fee based upon actual costs; provided, however, that no: adjustment shall -be greater than 10% of the fee for the previous year: c. Monthly Application, Hosting Service. Fee! not to exceed $3,000 with monthly: installment due and payable ‘by the first day of the month, Contractor shall invoice the Government monthly in argears for Software: Lease -and Application’ Hosting Services. The Government shall use its best.efforts to pay the subject invoices within THIRTY (3 0) days. of receipt. of the invoices. Failure of the Government, despite its best efforts, to. pay. an invoice within THIRTY (30) days of receipt of the POOS CAT 29 Rea jnveice shall not be ‘interpreted as an indication that the Government no lenger desires: Cortractor's services. Contractor shall separately invoice the Government on. a monthly basis for-Professional Services. The ‘invoices shall specify the hours worked and the sérvices ptovided.. The invoices shall: bé subject to review and approval by the Government, The Government shall use its best efforts 10, within THIRTY (30) days of receipt an invoice,. pay the subject invoice-in full or give. a written explanation for non-payment of any contested portions of the invoice. Failure of the‘Govéernment, despite its best efforts, to respond to a Professional Services invoice within THIRTY (30) days. of receipt of the invoice shall not be interpreted as an indication that, the Goverament ‘no longer desirés: Contractor's professional scivices, 6. Acceptance and Training. The Licensed Product shall be deemed accepted by. the ‘Government upon installation and.demonstration of its-fitness for the:particular purpose it was purchased by the-Govérnment. The Contractor shall, at no additional cost, provide iraining ta Government personnel who will be utilizing the Licensed Product. 7. Travel. fh addition to the compensation for services. as specified in Paragraph 5 above, the Government agrees to pay documented transportation, subsistence, lodging and other travel expenses, while in travel status, for trips which have been authorized in writing in advance by the Government. These costs shall be advanced or reimbursed on the same basis as is applicable to non-contact émployees of the Government and the total of said: costs. and expenses shall not exceed $10,000.. 8. Program Code & Docuinentation: | : a. Program Code, No source code or technical-level documentation are licensed. under this Agreement, b. Program Documentation. Contractor shall provide an electronic copy. of “Documentation” describing in reasonable detail understandable by a user of general proficiency the use and operation of the Licensed Product at no cost to the Government, Documentation may be. ‘reproduced by the Government. for the exclusive use of the Government. 9. Confidential & Proprietary Information. a Acknowledgment. The Government hereby acknowledges. that the. Licénsed Product:(including any: Documentation, source. code, ‘translations, compilations, pattial copies and. derivative works) contains confidential and proprietary information belonging exclusively to the Contractor or such third party as may be identified on the Licensed Project or applicable: Documentation ("Confidential & Proprietary Information"), Confidential & Proprietary Information. does not include; (i) information already known or. independently developed by the Government outside the. scope of this relationship by personnel not having access to any Confidential & Proprietary. Information, (ii) information in the public POOILCAT20 Ree & as domain, or (iii). information received by the Government: from a third party who was free to disclose it. as cxpressly anthorized herein, the Govertient: agrees ‘that during the ‘tern of this Agreement and at all times thereafter it shall not.use, commercialize-or disclose such Confidentiality & Proprietary Information to any person-or entity; except its own employees. having a "need.to "know" (and who themselves are bound. by similar nondisclosure: restrictions), and’to. such other recipients a8. the. Contractor may approve in writing. Neither the Goyernment.nor any recipient shall: (i) alter or remove from any Licensed Product or associated Documentation any proprietary, copyright, trademiark or trade secret legend, or (ii) decompile, disassemble. or reverse.engiheer the: Licensed. Product or other Confidentiality & Proprietary Information (and any information derived in violation of such covenant shall automatically be deemed. Confidential & Proprietary Information ‘owned exclusively by the Contractor). The Government and its personnel shall use the same degree of care in safeguarding. thé Confidential & Proprietary Information as that used in safeguarding its own confidential information. Upon termination, the Government.shall return or destroy all Confidential & Proprietary Information in its Possession or control. and cease all further use thereof, [njunctive Relief. The Governmeiit acknowledges that violation of this. Section would cause irreparable harm to Contractor not adequately compensable by monetary damiages, In. addition to other relief, the: Government agrees that, to the extent permitted by law, injunctive relief shali be available to preventt-any-actual or threatened violation of such provisions. 10. Warranties. “ae b. oo Noninfringement. Warranty. As of the effective’ date of this Agreement, Contractor, to the extent of its knowledge, represents.-and warrants that the Licensed Product, when properly used as’ contemplated herein, i is not infringing or misappropriating any United States copyright, trademark, patent, or the. trade secrets of-any third persons. To the extent a court of competent jurisdiction holds othetwise, the Government may terminate all of any ‘part. of this Agreement immediately upon notice to Contractor. Limited Performance. Warranty. Contractor represents and: warrants for a peciod af 60 days from acceptance (“Warranty Period") that (i) the Licensed Product operates in accordance -with. the applicable Documentation ptovided; Gi) the Licénsed Product is installed, implemented.and operated in accordance with: all instructions supplied by Contactor; (iii) all: updates relating to any third party software products (including operating: system software) that: materially affect the: performance of the Licensed Product have been properly instalied ot made available to Government; (iii) all associated equipment, software and. environmental conditions. have been properly mairitained in accordance with applicable specifications and industry standards; and {iv) Contractor has not "> Tes. 4 ae] cm introduced other equipment. or software creating an aéiverse impact on the ‘Licensed Product. c. Warranty. Disclaimer, EXCEPT AS ‘SPECIFICALL ¥ PROVIDED: IN. THIS SECTION ("WARRANTIES") THE CONTRACTOR HEREBY DISCLAIMS ‘WITH RESPECT TO ALL LICENSED PRODUCTS, SUPPORT SERVICES OR OTHER DELIVERABLES PROVIDED HEREUNDER, ALL. EXPRESS AND IMPLIED WARRANTIES. 11. Indeminjfication, [Omitted] 12. Litnitation on Liability, By- entering into this Agreement, it is expressly understood that neither the Government, Contractor, not any of their agencies, waive sovereign immunity or any otber immunity defenses that may be ‘extended to then by operation of statute, rule, operation. of law, ‘or otherwise, including, but not limited to, any lithitations on. the amount of damages that may be awarded or paid. 13. Liability of Others, Nothing inthis Agreement shall be. construed to. impose any liability upon the Government to any persons, firms, associations, or corporations engaged by Contractor’ as servants, agents, independent contractors, Or in any other capacity whatsGever, or make the Government’ liable to any such | persons, firms, associations or corporations for the acts, omissions, responsibilities, obligations and taxes of Contactor of whatsoever natute, includiig but not limited, to unemployment i insurance and -sdcial security taxes for Contractor, its servants, agents or independent contractors. 14, No. Third-Part Beneficiary. No provision of this Contraet is intended to, or shall be construed to, create any third-party beneficiary or to provide any rights to any person or entity not a party to this Contract, including but not limited to any citizen or recipient, or official, employee, or volunteer of either party. 15: Indépendent Contractor. The Contractot shall perform this Agreement as an‘ independent contractor and nothing herein contained shallbe construed to’be inconsistent with. this relationship or status. Nothing herein contained is intended nor’shall create an agency relationship:between the parties. 16. Audits and Public Records.. Government acknowledges: that its records relating to this Agreement ate public iecords for the: purposes of Chapter 119, F.S., and that it will. comply ‘and maintain such. records in accordanice with Florida’s public: records laws. Government. shall maintain records, documents and other evidence to sufficiently establish its performance under this Agreement. Such records shall be maintained for at teast three-(3) years after the termination of this Agreement. Ifz any inquiry, investigation, ‘audit or litigation is underway at any time during the three (3) year period, Government Shall continue. to maintain and preserve the records until the resolution of the. inquiry, investigation, audit or litigation. Contractor has the right; upon reasonable request and during normal:business hours, to inspect, examine or- copy said‘records. POOOLCAT2Q 17, t8. 19. 23. 24. Inspector General, Palm Beach County has established the Office of the Inspector General in Palm. Beach County Code, Section 2-421 — 2-440; as: may be amended. The Inspector. General’s authority includes but is not limited to the power to review past, present and proposed County: contracts, transactions, accounts and records, and to audit, investigate, monitor, and inspect ‘the activities of: the Goverment, its officers, agents, employees;. and lobbyists in order to ensure compliance with contract/agreement. requirements and detect. corruption and fraud.. Failure to cooperate with the Inspector General ‘or interference: or inspeding any investigation shall be.in violation of Palm: Beach County Code, Section 2-421 — 2-440, and. punished pursnant to Section 125.69, Florida Statutes, in the same manner as a second-degree misdemeanor. Regulations, Licensing Requirements.. The‘parties shall comply with-all laws, ordifiances and regulations applicable to the ‘Services contemplated herein, to inelnde those applicable to-conflict of intétest and collusion. ‘The parties are presumed to be: familiar with ‘all applicable laws, including federal, state and local laws, ordinancés, codes and regulations that may iu any way be related to this Agieement. Condition. Precedent. This Agreement shail be Subject to the availability and appropriation of funds and to thé approval of the Governor. Termination. Either party will have the.right‘to terminate this contract, without penalty, with or without cause on SIXTY (60) days written notice to the other party specifying the date of termination. . Non-Discrimination. Both. parties warrant and represent. that all of its employees até treated ‘equally. during éinployment without regard to race, color, religion, disability, sex, age, national. origin, ancestry, marital status, familial status, sexual orientation, gender: identity and. expression, or genetic | information. The parties ‘further warrant and agree. that no.peison shall be excluded from the benefits of or be subjected to-any form. of discrimination-under any. activity carried out in the performance of this. Aj greement. Governing Law and: Jurisdiction, This Agreement shall be'governed by the laws of the. State of Flotida. Unless otherwise agreed fo in writing by the parties, any ‘and all Jegal action necessary to enforce the Agreement shall ‘be held in a court of competent. jurisdiction located in-Palin Beach County, Florida.. Enabling, Laws. Nothing in this Agreement is. intended to: cause either party hereto, to waive the legal immunities and defenses provided under their state and federal laws. Dispute Resolution, Mediation. The Government and Contractor agree that in the event of any’ controversy, claim or dispute arising out of or relating to. this Agreement the parties shall first seek resolution of such controversy, claim or dispute through mediation. The mediation shall be conducted in Palm Beach County, Florida by a POO9 LCA 123 mediator mutually acceptable to the parities, who shall conduct. the mediation. pursuant to the rules of the American Mediation Association. The mediator’ $ fee shall be shared equally by both parties: Other than the mediator's fee, the: ‘parties shall bearia full their respective costs all other costs relating to the mediation. 25. Waivers and Amendments. No waiver, modification or amendment of any: term, condition or provision of this Agreement shail be valid ot of any force or effect unless tnade-in writing, signed by thé parties hereto or their duly. authorized representative, and. ‘specifying with particularity the nature and extent of such waiver, modification or amendment. Any such waiver; modification or araéndment in. any instance or instances shall inno event be construed to be a general waiver, modification or amendment of any of the terms, conditions or provisions of this Agreement, but the sate shall be strictly limited and restricted to the extént and occasion spetified in such signed. writing or writings. The Government reserves the right to make changes to the Statement of Work, including alterations, reductions thérein or additions thereto. Upon ‘receipt by the Coritractor of the Government's notification of a contemplated change, the Contractor shall, i writing: (1): provide a detailed estimate for the increase or decrease in cost due ‘to. the contemplated change, (2) notify the Government of any estimated change. in the completion date; and (3) advise the Government if the contemplated change shall affect the Contractor's ability to meet the: compl etion dates-or schedules of this Agreement. If the Government so instructs in writing; the Contractor shall suspend. work.on that portion. of the Statement of Work affected by a contemplated change, pending the Government's decision to proceed with the change, No change to the Statement of Work: shall be valid. or‘of any foree unless made in writing, signed by the patties thereto,.and the writing satisfies the requirements:of Virgin Islands public contract procedures. 26: Assigninent. The Contractor shall not assign or subcontract any part of the services under this Agreement without the prior written consent of the Gevernment. 27, Effective Date. The. Agreement. will become effective upon execution of the Govemor of the United States Virgin Islands. 28. Notices. Any notice required to. be given by the ternis.of this Agreement shall be deemed to have, been given when the samevis sent by certified mail, retum receipt. requested, postage prepaid, personally delivered or by any overnight delivery service requiring signed:acceptance, addressed to the partiés as follows: Goverment Commissioner Department of Property and Procurement: Sub Base, Building No. [ St. Thomas, Virgin Islands 00802 POO9LCAT2Q and Commissioner Department of Licensing and Consumer ‘Affairs 3000. Golden Roek Shopping Center, Christiansted St. Croix, VI. 00820-4311 Contractor Verdenia C. Baker, County Admitistrator 30.8 c/o Aichie Satchell, Information Systems Services CIO Palni Beach County Board of County Commissioners 301 N. Olive Avenue, 8" floor West Palm Beach, FL 33401 (Telephone: 561-355-2823) And. County Attorney’s Office Palm Beach County Board of County Commissioners. 301 N. Olive Avenue, Suite 601 West:-Palm Beach, FL 33401 (Telephone: 561-355-2225) - Entire Agreement. This Agreement constitutes. the entire agreement between the parties hereto, and all other understandings, comihunications, written, or-oral, with respect to the ‘services that ‘are the subject: matter of this. Agreement, are ‘merged herein. None af the: provisions, térins, aid: conditions contained in this Agreement may be added to, modified, ‘superseded or otherwise altered, except by written instrument executed by the parties hereto: Severability. In the event that.any. provision of this Agreement shall be held to:be invalid, the. validity of the remaining ‘provisions of the. Agreement shall not’ in: any way be affected thereby. Authority, The Government and:Contractor acknowledge that they are. each governmental entities. The Government and Contractor each warrant that its. execution and delivery of this. Agreement is. duly authorized by law and that the Agreement: Whien fully executed will constitute the legal,. valid, and binding obligation of each party. Other Provisions. Addendum I and Addendum. I attached hereto are a part of the Agreement. and are incorporated herein by reference. In the event of a conflict between, the terms of any addenda to this Agreement.and the terms of this Agreement, the terms of this Agreement shall prevail. POOSLCAT2Z9 ae 33. Excusable: Delays. The Contractor shall not be considered. in default by: reason of any failure in. performance if such failure arises out of causes reasonably beyond the control of the Conttactor or its subcontractors and without their fault or negligence. Such causes include, but ‘are. not limited to, acts of God, force majeure, natural or public health emetgencies, labor disputes, freight embargos, and abnornially severe and tinusual weather conditions.. 34. Joint Preparation. The preparation of this Agreement has been a joint effort of the parties, and the resulting document shall not be construed more. severely against one of the parties than the other. [REST OF PAGE INTENTIONALLY LEFT BLANK] podoo_CAT2Z0 wi IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to be executed by their duly authorized representatives, 7 r \) | ie | \ rai ATTEST: Palm Beach County, By Its JUL 0 2 2019 Sharon R. Bock, Clerk & Comptroller Board of County Commissioners Deputy|Clerk mio? Mack Bernard, Mayor »> 4 5 | (SEAL) an .3 APPROVED AS TO FORM AND APPROVED AS TO TERMS AND LEGAL SUFFICIENCY CONDITIONS y: By: County Attorney Archie Satchell, CIO, ISS [Palm Beach County Signature Page] ma” WITNESSES: Hance Peli 4 Loca [UV APPROVED: GOVERNMENT OF THE UNITED STATES VIRGIN ISLANDS , a a Mthuy by. Ffenva-— 42/9/2019 Anthony 1. Thomas Date Commissioner Sesssee, Dept. of Property & Procurement Raw Ce del. \di pS; 29 Richard T. Evangelista, Esq. ate Commissioner Nominee, Licensing and Consumer Affairs dis] 5 ee: hos — i Governor, U.S. Virgin Islands APPROVED TO LEGAL SUFFICIENCY DEPARTMENT OF JUSTICE o» Lhe Ed ndd § ATIC 4 [U.S. Virgin Islands Signature Page] pOO09LCAT2ZO Date ' D ate ae