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HomeMy WebLinkAboutR-2009-106 Advanced Data Processing Inc DBA ADPI-Intermedix EMS Reporting RESOLUTION NO. 2009-106 A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT WITH ADVANCED DATA PROCESSING, INC. DB/A ADPI-INTERMEDIX, A SOLE SOURCE PROVIDER, FOR EMS REPORTING AND RELATED PROFESSIONAL SERVICES, WITHOUT COMPETITIVE BIDDING AND WITHOUT ADVERTISEMENT FOR BIDS; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Charter of the City of Dania Beach, Part III, Article 3, Section 4, Subsection 0), provides that during unusual conditions or emergencies, the City Commission may, by resolution, authorize the purchase by the City Manager of designated supplies, services, equipment and materials in amounts in excess of Twenty-Five Thousand Dollars ($25,000.00) without competitive bidding and without advertisement for bids if he is authorized to do so in advance by a resolution adopted by the City Commission; and WHEREAS, the City Manager has determined that it is necessary to enter into an agreement with Advanced Data Processing, Inc., d/b/a ADPI-Intermedix, a sole source provider, for electronic patient care reporting; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the City Manager is authorized to enter into an agreement with Advanced Data Processing, Inc., a sole source provider, 6451 North Federal Highway, Suite 1002, Fort Lauderdale, Florida 33308, at a cost not to exceed 2.5% of net collections as set forth in "Rates of Compensation; Collection Efforts" Schedule 2.01 of "Addendum to Service Agreement', a part of the Service Agreement, attached as Exhibit"A". Section 2. That the Director of Finance is authorized to appropriate funding from the General Fund fund balance for the FY 2009 budget. Section 3. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 4. That this Resolution shall be in force and take effect immediately upon its passage and adoption. PASSED AND ADOPTED on May 26, 2009. 0 ANNE CASTRO MAYOR-COMMISSIONER A TEST: 's uasr�r LOUISE STILSON, CMC , CITY CLERK APPROVED AS TO F RM AND CORRECTNESS: THOM S Ykf,4ABRO CITY ATTORNEY 2 RESOLUTION#2009-106 Addendum to Service Agreement (Triptix Program) Between Dania Beach and Advanced Data Processing, Inc. THIS ADDENDUM TO SERVICE AGREEMENT (the "Addendum") is made and entered this day of April, 2009 by and between Advanced Data Processing, Inc. dba, ADPI-Intermedix ("CONTRACTOR"), whose address is 6451 North Federal Highway suite 1002, Fort Lauderdale, FL 33308, and Dania Beach ("CITY"), whose address is 100 W. Dania Beach Boulevard, Dania Beach, Florida 33004, to amend the Service Agreement entered into by and between the CONTRACTOR and the CITY. WHEREAS, on October 5`", 2007, CITY and CONTRACTOR entered into an Agreement for Emergency Medical Transport Billing and Collection Services as amended from time to time (the "Agreement'); and WHEREAS, the CONTRACTOR has developed the "Triptix" system running on "tablet PCs" to enter medical records and data into and interact with its main billing and medical records system (the "Product' as more particularly defined herein) that the CONTRACTOR is willing to make available under license to the CITY upon the terms herein set forth; and WHEREAS, the CITY acknowledges that, in connection with the provision of the Product and the Triptix devices, the CONTRACTOR is incurring significant costs per unit and, in some cases, per User out-of-pocket expenses; and WHEREAS, the CITY desires to amend the Agreement to allow for its use of the Product; NOW, THEREFORE, IN CONSIDERATION of the mutual promises and covenants hereafter set forth, the Parties agree as follows: ARTICLE I DEFINITIONS 1.01. Definitions. For all purposes of this Addendum, the following definitions shall apply: "Confidential Technical Information" shall mean any and all technical information of the designated Party except: technical information which at the time of disclosure is in the public domain; technical information which after disclosure is published or otherwise becomes a part of the public domain through no fault of the recipient (but only after it is published or otherwise becomes part of the public domain); technical information which the recipient can show was in its possession at the time of disclosure and it was not acquired, directly or indirectly, from the other Party hereto; or technical information which was received by the recipient after the time of disclosure hereunder from a third party who did not acquire it, directly or indirectly, from the disclosure Party under an obligation of confidence. For the purpose of this definition, specific technical information disclosed by one Party to the other pursuant to the provisions of this Addendum shall not be deemed, as to the recipient, to be within any of the above exceptions merely because it is embraced by more general information within one of the said exceptions. In addition, any combination of features disclosed by one Party to the other pursuant to the provisions of this Addendum shall not be deemed, as to the recipient, to be within any of the above exceptions merely because individual features of the combination are within any of said exceptions, but only if the combination itself and its principle of operation are within one of the said exceptions. Regardless of the foregoing, Section 119.01, Florida Statutes, et seq. shall apply to the Parties herein. "Contract Rights" shall mean Intellectual Property and any other rights and interests of CITY or CONTRACTOR in and under this Addendum, including other assets relating to the Product. "Customizations" shall mean any changes to the Licensed Software requested by the CITY and agreed to by the CONTRACTOR for increased or different functionality of the Licensed Software. "Day' or "Days" shall mean a continuous calendar day. "Documentation" shall mean any technical or instructional materials for the Licensed Software that are delivered to the CITY by the CONTRACTOR. "Effective Date" shall mean the date on which the Initial Fee is paid or, if no Initial Fee is required, the date on which the last party to this Addendum executed it. "First Day of Service" shall mean, with respect to each Product Unit, the first day such Product Unit is delivered to the CITY. "Initial Period' shall mean, with respect to each Product Unit, the initial three-year period following the delivery of the Product Unit to the CITY. "Initial Fee" shall mean, with respect to each Product Unit, the Third-Party Intellectual Property Royalty Payments required in connection with such Product Unit. "Initial Term Early Exercise Payment" shall mean, with respect to any Product Unit, the payment required under the terms and provisions of Section 5.03 of this Addendum. "Intellectual Propert✓' shall mean all of the CONTRACTOR's rights in and to the Product including, without limitation, the CONTRACTOR's copyrights, trademarks, trade dress, trade secrets, patents and patent applications (if any), and "know how" and 2 any other proprietary information developed by the CONTRACTOR relevant to the Product. "Licensed Software" means the copies of the CONTRACTOR's software programs as are contained in the Product, including any Documentation included therewith. CONTRACTOR may, at its sole discretion, provide corrections and modifications to the Licensed Software from time to time. "Licensed Territonl' shall mean any geographical area in which the CITY operates its emergency medical service throughout the term of this addendum "Material Monetary Breach" shall have the meaning given to it in Article 6.02 of this Addendum. "Material Non-Monetary Breach" shall have the meaning given to it in Article 6.01 of this Addendum "Product' shall mean, collectively, each Product Unit (a tablet PC, personal digital assistant, or similar device), the Licensed Software, any Customizations with respect to one or more of the Product Units delivered to the CITY, and any Third-Party Intellectual Property, as licensed to the CITY under the terms and conditions of this Addendum. "Product Unit' shall mean a single data-collection device delivered pursuant to the terms and conditions of this Addendum containing one or more elements of the Product but shall not mean any ancillary devices or products provided by persons other than the CONTRACTOR. "Third-Party Interface Devices" shall mean those devices that interface with the Product to transfer information, including medical monitoring devices for which Third- Party Intellectual Property Royalty Payments are made. "Third-Party Intellectual Property Rights" shall mean the intellectual property rights of any third-party used in connection with the Product. "Third-Party Intellectual Property Royalty Payments" shall mean the payments to be made directly by the CITY or indirectly, on the CITY's behalf, as consideration for the licensing of any Third-Party Intellectual Property Rights. "Updates" shall mean any and all revisions to the Licensed Software and the Customizations or any other part of the Product, if any, as shall be delivered by the CONTRACTOR to the CITY from time to time. "Users" shall mean any employees or independent contractors of the CITY, all of whom shall have the right to use the Licensed Software, Customizations, and any Documentation pursuant to the terms of this Addendum. 3 ARTICLE II PRICE AND PAYMENT 2.01. Adjustment to Rates of Compensation under the Original Agreement. The compensation due and owing the CONTRACTOR by the CITY shall be increased, as described on Schedule 2.01, attached hereto and incorporated herein, during the Term of this Addendum only as to the services and products herein. Nothing herein shall change the obligations of the Parties as to the AGREEMENT. 2.02. License Fees. In addition to the payments required pursuant to the provisions of Section 2.01 hereof, the CITY shall make the payments in connection with Third-Party Intellectual Property Royalty Payments as further set out on Schedule 2.02, attached hereto and incorporated herein. 2.03. Payment Terms. All undisputed amounts shall be paid within thirty (30) days of receipt of a valid invoice, subject however to the Florida Prompt Payment Act. 2.04. Taxes. The CITY shall pay all taxes, duties or charges of any kind (including withholding or value added taxes) imposed by any federal, state, or local governmental entity for Licensed Software or Products and supporting training and Documentation and related materials and maintenance provided during the term of this Addendum, excluding only taxes based solely on the CONTRACTOR's income. The Parties hereto acknowledge that the CITY is a tax-exempt organization. ARTICLE III DATA MANAGEMENT: DATA ENTRY; ADDITIONAL RECORDS ON WEB ACCESS SYSTEM 3.01. Web Access System. The CONTRACTOR will grant to the CITY electronic access to all records on file regarding the CITY, including, but not limited to, medical records, billing records, correspondence regarding accounts, and records on personnel including credentials. It shall be the responsibility of the CITY to provide its own necessary computer equipment, computer communication equipment capable of connecting to the Internet, and accessing the CONTRACTOR's Internet server (hereinafter referred to as "Web Access System"). 3.02. Web Access System Training. Upon request of the CITY, the CONTRACTOR will provide an annual, on-site training class on the use of the Web Access System at times and dates proposed by the CITY which are convenient to both parties. Training shall be provided to all personnel as determined by the CITY. 3.03. Limitation of Access to Web Access System. Access to data in the Web Access System regarding the CITY shall be limited to the employees, representatives and agents of the CONTRACTOR and the authorized personnel of the CITY. A complete and signed access form for each of the CITY's personnel authorized to access the Web Access System must be submitted to and approved by the 4 CONTRACTOR. The CONTRACTOR shall use its best efforts to maintain the security of the Web Access System, but shall not be responsible for negligence with respect to password security related to the CITY's personnel or other breaches beyond the CONTRACTOR's reasonable control. Regardless of the foregoing, the CONTRACTOR agrees to comply with all federal, state, and local laws, rules, codes, ordinances, regulations, directives, and guidelines as it relates to the Web Access System and the information therein. 3.04. Data Entry Devices. The CITY and the CONTRACTOR understand and agree that CONTRACTOR may make available data entry devices (hand-held devices, tablet PCs, and/or other data entry devices for the collection and/or transmission of medical information). Also, in connection with the potential provision of such devices, the CITY agrees: (a) The CITY will be responsible for the loss or damage to such devices. The CITY agrees to pay (i) the cost of repairs of any such device provided to it or (ii), if the device is irreparable, lost, or stolen, for the replacement cost of the device. The CONTRACTOR agrees that CITY may obtain insurance for such payments provided that CONTRACTOR is named as a beneficiary under such plan. (b) The CITY may be required to enter into additional agreements with the makers of third-party medical devices (monitors, scanners, EKG machines, etc.) with respect to the transmission of information between the medical device and the data entry device. The CITY understands and agrees that the CONTRACTOR will not be able to provide data entry devices unless and until agreements are entered into with the third-party manufacturers of such medical devices. The CITY understands and agrees that its failure to enter into or reach agreements with such third-parties (and any and all consequences of such failure) shall not be deemed to be a default of the CONTRACTOR under this Addendum or any other arrangement between the CITY and the CONTRACTOR. The CITY further understands and agrees that the failure to enter into such agreements with these third parties may hinder the CITY's use of certain software features that might otherwise be available to it (for instance, a direct data connection between a medical device and the data entry device). (c) The CITY may be required to obtain new or different medical or other equipment capable of communicating with the data entry devices. The CITY understands and agrees that such new or different medical or other equipment must be obtained at the CITY's sole cost and expense. (d) The CITY may request the CONTRACTOR to support additional medical or other devices. The CITY understands and agrees that the costs of developing an interface may be significant and may involve the payment of royalties to the third-party manufacturers of the device. The CITY further understands and agrees that the CONTRACTOR has no obligation to undertake the development of interfaces with additional medical or other devices. 5 3.05. Statistical Reporting. Statistical and financial data reports will be available on the Web Access System at all times that the Web Access System is available. The format and content of the statistical data will be established and defined by the CONTRACTOR and such reports may be added, modified, or deleted without advance notice to the CITY. Notwithstanding the foregoing, the CITY may request specific, custom reports to be available to it at an additional charge to be negotiated between the CONTRACTOR and the CITY. The CONTRACTOR represents that its web site and system shall not be down for more than a 24-hour period. However, in the event that the web site and system is down for more than the 24-hour period, CONTRACTOR agrees to provide required reports via an alternative method (e.g. phone, fax, courier, etc.) until such time as the web site and system are returned to operation.. 3.06. Acknowledgment with Respect to Reports. With respect to each report generated by the Web Access System, the CITY acknowledges and agrees: (a) Each report represents a "snapshot" of a moment in time, and, as such, the snapshot may not be accurate with respect to financial results on the whole. However, the CONTRACTOR shall endeavor to provide accurate information. (b) The underlying data may be subject to correction from time to time, which may change the results of the report or its interpretation. Such correction shall be done in a timely manner. The CONTRACTOR understands that time is of the essence. (c) The data represented in the report represents only a limited portion of all data available regarding the CITY's business. However, the CONTRACTOR shall endeavor to provide accurate and timely information. The CITY thus further acknowledges and agrees that any particular report may not accurately represent the CITY's then-current or future financial condition, subject to the terms herein. ARTICLE IV PROPRIETARY RIGHTS 4.01. The CITY acknowledges that the CONTRACTOR and its suppliers, including, without limitation, the suppliers of licenses of Third-Party Intellectual Property Rights, have, retain, and own all right, title, and interest in and to the Licensed Software, the Customizations, the Updates, any Documentation, and all patent, copyright, trademark and service mark and trade name and the goodwill associated therewith, trade secret, inventions, technology, ideas, know-how, and all other intellectual property rights and all other rights pertaining thereto. All such right, title, and interest shall be and remain the sole property of the CONTRACTOR. The CITY shall not be an owner or holder of any copies of, or have any interest in the Licensed Software or any Updates, Customizations, and Documentation but rather, such Licensed Software, Releases and Updates, and Documentation are solely licensed for use pursuant to this Addendum. Neither CITY nor its Users shall: (i) remove any copyright, patent or other proprietary 6 legends from the Licensed Software or any Product; (ii) sub-license, lease, rent, assign, transfer, or distribute Licensed Software or any Product to any third party; (iii) alter, modify, copy, enhance, or adapt the Licensed Software or any Product; (iv) attempt to reverse engineer, convert, translate, decompile, disassemble, or merge the Licensed Software or any Product with any other software or materials; (v) otherwise create or attempt to create any derivative works from this Licensed Software or any Product, or permit persons who are not Users any access to the Licensed Software or its operations, and any attempt to do any of the above shall void all warranties given the CITY by the CONTRACTOR. ARTICLE V TERM AND TERMINATION 5.01. TERM. The term of this addendum shall be for the Initial Period. The term of this Addendum shall begin on the Effective Date and shall continue until the end of the Initial Period of the last Product Unit delivered pursuant to the terms and provisions of this Addendum ("Initial Term"). CONTRACTOR's Maintenance and Support obligations, as well as its development commitments, shall continue until the end of the Initial Term at the fees set forth by this Addendum. 5.02. Terminations in General. Notwithstanding any other language herein or in the AGREEMENT, a termination of the Addendum shall not operate to terminate the AGREEMENT, but a termination of the AGREEMENT shall operate as a termination of this Addendum. 5.03. Termination of the Addendum. (a) Termination by CITY upon CONTRACTOR Material Breach. CITY may terminate this Addendum without terminating the AGREEMENT and without obligations to pay an Initial Term Early Exercise Payment, if the CONTRACTOR commits a Material Non-Monetary Breach of this Addendum, which breach, if capable of being cured, is not cured within 30 days of a written notice of termination (b) Termination by CITY without CONTRACTOR Material Breach. CITY may terminate this Addendum without terminating the AGREEMENT at any time by providing notice to CONTRACTOR and returning all Product Units to CONTRACTOR. Termination without CONTRACTOR Material Breach will be subject to an Initial Term Early Exercise Payment as outlined in Schedule 5.03 (c) Termination by CONTRACTOR upon CITY Material Breach. CONTRACTOR may terminate this Addendum if CITY commits (i) a Material Monetary Breach - CITY fails to pay any undisputed amount due under this Addendum within 20 days after written notice of such nonpayment or as required by Florida Prompt Payment Laws; (ii) a Material Non-Monetary Breach, which breach, if capable of being cured, is not cured within 30 days of a written notice of termination. 5.04. Any termination of the Addendum shall not: (i) release CITY or CONTRACTOR from any claim of the other accrued hereunder prior to the effective date of such termination; (ii) release CITY or CONTRACTOR from their obligations under Article VIII and Sections 5.05 and 5.06, respectively, unless otherwise released by the further terms hereof; 5.05. Upon termination of this Addendum, CONTRACTOR shall remain the sole owner of the Product and all Intellectual Property and goodwill associated therewith, and CITY shall assert no rights thereto. 5.06. Delivery of Materials. Upon termination of this Addendum for any reason, CITY shall immediately discontinue use of the Product including all Documentation and within ten (10) days return each of the Product Units and certify in writing to CONTRACTOR that all copies, extracts or derivatives of any item comprising the Product, including all Documentation, in whole or in part, in any form, have either been delivered to CONTRACTOR or destroyed in accordance with CONTRACTOR's instructions. All payments made by CITY to CONTRACTOR hereunder are non- refundable. ARTICLE VI BREACH OF ADDENDUM 6.01. Material Non-Monetary Breaches. a) Material Non-Monetary Breach by CITY. For purposes of this Addendum, as respects a breach by the CITY, a "Material Non-Monetary Breach" includes any breach of its or its User's obligations with respect to Proprietary Rights, Confidentiality, or any material breach of a party's representations or warranties under this Addendum. b) Material Non-Monetary Breach by CONTRACTOR. For purposes of this Addendum, as respects a breach by the CONTRACTOR, a "Material Non-Monetary Breach" includes any material breach of its Maintenance and Support obligations or any material breach of its representations or warranties under this Addendum. c) Material Non-Monetary Breach by either CITY or CONTRACTOR. For purposes of this Addendum, as respects a breach by either the CITY or the CONTRACTOR, it shall be a "Material Non-Monetary Breach" if such party (i) terminates or suspends its business or operations, (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar 8 authority, or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes which are not rescinded within forty-five (45) days. 6.02 Material Monetary Breaches. For purposes of this Addendum, as respects a breach by either the CONTRACTOR or the CITY, it shall be a "Material Monetary Breach"with respect to such party if: a) Such party fails to make any Third-Party Intellectual Property Royalty Payment as required under any agreement with such third party; b) Such party fails to make payments due under the terms of this Addendum or the Original Agreement when and as due; or c) Such party fails to reimburse the other party for payments made on its behalf for Third-Party Intellectual Property Royalty Payments. ARTICLE VII LICENSE 7.01. License. Commencing on the Effective Date and subject to the terms and conditions of this Addendum, the CONTRACTOR grants the CITY a non-exclusive, non- transferable license to use the Product in the Licensed Area by the Users. This license does not constitute a sale of the Product or any portion or piece thereof or of any copies of Licensed Software, Customizations, or Documentation. 7.02. Delivery and Acceptance. The CONTRACTOR will deliver to the CITY, the Product at mutually agreeable times, after or simultaneously with the later of date of the execution of this Addendum or Effective Date, or as otherwise provided. All products shall be in good condition, operable, and acceptable to the CITY. 7.03. No Other Rights. Except to exercise the license and its rights specifically granted under this Addendum, the CITY shall have no rights to own, use, or otherwise exercise dominion over the Product. Except as otherwise permitted under this Addendum, the CITY may not rent, lease, loan, sell, or otherwise distribute the Product or any derivative works based upon the Licensed Software in whole or in part, unless mutually agreed to in writing by the Parties hereto.. 7.04. Right of Audit. Either party may audit and inspect the other party's physical and electronic records solely to verify such party's compliance with the terms of this Addendum and the AGREEMENT. The CITY hereby agrees to the remote electronic survey of the Licensed Software licensed hereunder, provided the CITY is provided ten (10) business day's prior written notice of such survey, and provided further that such audit is conducted in a reasonable manner. In addition, upon written request from the other party, each party shall provide or obtain physical access to such records to either the requesting party or an independent auditor chosen by the party for the purposes of audit. All physical audits of the CITY will be conducted at the business 9 premises in which the Licensed Software is installed or accessed during regular business hours during the term of this Addendum. Audits will be conducted no more frequently than once annually. All individuals performing such audits, including independent third-party auditors, must be bound by confidentiality obligations consistent with this Addendum, subject however to Section 119.01, Florida Statutes, et seq. 7.05. Material Change to Product. If there is any material change in any rules, orders, laws or regulations governing the manner in which this Product operates or in the data provided by third parties (such as changes in the manner of operation of global distribution systems or standards in wireless or non-wireless communications protocols), then upon written notice to the CITY, the CONTRACTOR will have the right, retroactive to the date of such material change, to modify the way in which this Product delivers data in order to comport with any change in law or regulations or functionality governing the Product. All data used by the CONTRACTOR for testing and development shall be supplied by the CITY at its expense to the CONTRACTOR promptly upon request by the CONTRACTOR to the CITY. Such cost and expenses herein shall be reasonable, and should the CITY decide that they are not, the CITY reserves the right to terminate this Addendum as provided for in Section 5.03(b). ARTICLE VIII LIMITED WARRANTY AND DISCLAIMER 8.01. Software Media Warranty. The CONTRACTOR warrants that each Product Unit delivered to the CITY will be free from material defects when delivered. CONTRACTOR's entire liability and CITY's exclusive remedy under this warranty will be to replace the media on which such Product was delivered. The CONTRACTOR shall have no obligation to replace any defective media which is not returned to the CONTRACTOR within the warranty period or which has failed because of accident, abuse, or misapplication. 8.02. Software Warranty. The CONTRACTOR warrants that for the term of this Addendum the delivery of a Product Unit identified by the CONTRACTOR as being fully functional for production at the site designated by the CONTRACTOR, the Product, if properly used by the CITY, shall operate in conformity with the Documentation for such Product, if any, and for its intended purposes. The CONTRACTOR does not warrant that any Product will meet all of the CITY's requirements or that the use of any Product will be uninterrupted or error free. 8.03. Grant of Standard Warranties Only. NEITHER THE CONTRACTOR NOR ANY OF ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESSED, IMPLIED, STATUTORY OR IN ANY COMMUNICATION WITH THE CITY WITH RESPECT TO THE PRODUCT OR OTHER ITEMS DELIVERED PURSUANT TO THIS ADDENDUM THAT IS NOT PART OF THE STANDARD WARRANTY OFFERED BY THE CONTRACTOR TO ITS OTHER CUSTOMERS. THE CONTRACTOR's sole and exclusive liability, and The CITY's sole and exclusive remedy, shall be, at THE 10 CONTRACTOR's sole election, to terminate this Addendum, at which time, The CITY shall immediately deliver each Product Unit and any related Documentation to THE CONTRACTOR; provided, however, THE CONTRACTOR may elect, to attempt, through reasonable efforts, to: (a) correct any material nonconformities discovered within the Warranty Period, or (b) replace the nonconforming Product. The above remedies are available only if THE CONTRACTOR is promptly notified in writing, within the warranty period, upon discovery of the nonconformities by The CITY and THE CONTRACTOR's examination of the Product discloses that such nonconformities exist, and that the Product has not been (i) altered or modified; (ii) subjected to negligence, or computer or electrical malfunctions; (iii) used, adjusted, or installed other than in accordance with the instructions furnished by THE CONTRACTOR; or (iv) modified for custom development by THE CONTRACTOR for The CITY as agreed in an Order. ANY REFUND OF FEES PROVIDED HEREUNDER (WHICH MAY BE UNDERTAKEN AT THE CONTRACTOR'S SOLE AND COMPLETE DISCRETION) SHALL BE DEEMED A TERMINATION OF THIS ADDENDUM (AND ANY RELATED MAINTENANCE) AND SHALL BE THE CITY'S SOLE AND EXCLUSIVE REMEDY FOR REJECTION OF THE PRODUCT(S) AND NEITHER PARTY SHALL HAVE ANY FUTURE OBLIGATIONS OR LIABILITY HEREUNDER WITH RESPECT TO SUCH PRODUCT(S). THIRD PARTY INTELLECTUAL PROPERTY PAYMENTS SHALL NOT BE REFUNDABLE IN FULL OR IN PART. 8.04. Information/Disclaimer of Warranties with Respect to Data and Information Provided by Third Parties. (a) Some information transmittable or accessible through any Product Unit may have been obtained through sources believed to be reliable (such as various Internet providers, real-time data provided by GPS systems or medical devices or other third party information sources). The CITY agrees that THE CONTRACTOR shall not have any liability whatsoever for the accuracy, completeness, timeliness or correct sequencing of the information, or for any decision made or action taken by the the CITY in reliance upon such information or the Product. The CITY further agrees that the CONTRACTOR shall have no liability whatsoever for the transmission, non- transmission or partial transmission of data through third-party data systems and that such transmission shall be undertaken at The CITY's sole risk, cost and expense. (b) The CONTRACTOR and its third party suppliers do not warrant that any Product will meet The CITY's requirements or that access to the Product, or the operation of the Product, will be uninterrupted, error-free, that all errors will be timely corrected by third party information, or that the data and/or reports generated by the Product will be accurate in the event that third party information might have provided inaccurate information. 8.05. DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS ADDENDUM AND THEIR OWN WILLFUL MISCONDUCT, THE CONTRACTOR DOES NOT MAKE ANY WARRANTIES EXPRESS, IMPLIED, STATUTORY OR IN ANY COMMUNICATION WITH THE CITY WITH RESPECT TO THE LICENSED SOFTWARE, ANY SERVICES OR ANY PRODUCT, AND THE 11 CONTRACTOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATIVE OF THE CONTRACTOR SHALL HAVE THE RIGHT TO MAKE WARRANTIES ON THE CONTRACTOR'S BEHALF UNLESS THOSE WARRANTIES ARE IN WRITING AND EXECUTED BY A DULY AUTHORIZED OFFICER OF THE CONTRACTOR. EXCEPT WITH RESPECT TO THEIR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, ARISING IN ANY WAY OUT OF THIS ADDENDUM UNDER ANY CAUSE OF ACTION, WHETHER OR NOT THE CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A PERSON. ARTICLE IX FORCE MAJEURE 9.01. If the performance of this Addendum by any Parry, or of any obligation under this Addendum, is prevented, restricted or interfered with by reason of war, revolution, civil commotion, acts of public enemies, blockage, embargo, strikes, any law, order, proclamation, regulation, ordinance, demand, or requirement having a legal effect of any government or any judicial authority or representative of any such government or any other act whatsoever, whether similar or dissimilar to those referred to in this clause which are beyond the reasonable control of the Party affected, then the Party so affected shall, upon giving prior written notice to the other Party, be excused from such performance to the extent of such prevention, restriction, or interference; provided, however, that the Party so affected shall use its best efforts to avoid or remove such causes of nonperformance and shall continue performance hereunder with the utmost dispatch whenever such causes are removed. ARTICLE X ASSIGNABILITY 10.01. This Addendum shall be assignable to (i) any related company of the CONTRACTOR or (ii) any successor of the entire right, title, and interest to that portion of the business of the CONTRACTOR to which this Addendum relates. When assigned in accordance with this Paragraph, this Addendum and all rights, obligations, and duties hereunder will inure to the benefit of and will be binding on the assignees or successors in interest of the CITY. 10.02. This Addendum shall not be assigned by the CITY without the express written consent of the CONTRACTOR, which shall not be unreasonably withheld. 12 ARTICLE XI NOTICES 11.01. Any notice given or required to be given under this Addendum shall be in writing and shall be addressed to the Parties hereto at the addresses set out on the first of this Addendum. 11.02. Any such notices shall be deemed to have been given (i) if mailed, then three (3) days following the date such notice is placed in the United States mail in a postage-paid wrapper, registered or certified with return receipt requested, addressed to the appropriate Party at the address set forth above for such Party, or to the last address provided in writing to the other Party by the addressee, or (ii) if by any other method, when actually received. Either Party may change its address for the purpose of this Addendum by notice in writing to the other Party in accordance herewith. ARTICLE XII GOVERNING LAW 12.01. THE PARTIES HERETO AGREE THAT THE VALIDITY AND INTERPRETATION OF THIS ADDENDUM AND THE LEGAL RELATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF FLORIDA. THE PARTIES FURTHER HEREBY CONSENT TO VENUE IN THE LOCATION CONTEMPLATED BY THE AGREEMENT. 12.02. All disputes shall be governed by the Agreement. 12.03. Except as modified herein, all terms and conditions of the Agreement shall be in full force and legal effect. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates hereinafter written. Executed by the CITY on 2009. DANIA BEACH, FLORIDA ATTEST: Louise Stilson, CMC Anne Castro City Clerk Mayor APPROVED AS TO FORM AND LEGAL SUFFICIENCY Thomas J. Ansbro City Attorney 13 Executed by the Corporation on 2009. ADVANCED DATA PROCESSING, INC. By: Print Name: Title: WITNESS: (CORPORATE SEAL) Signature Printed Name Signature Printed Name 14 Schedule 2.01 Rates of Compensation: Collection Efforts. From and after the Effective Date and during the Term of this Addendum, the CONTRACTOR shall be compensated as follows: In consideration of the CONTRACTOR's services rendered pursuant to the Original Agreement and this Addendum, the CONTRACTOR shall be compensated and paid in accordance with the following schedule (Percentages are expressed as an additional Percentage of Net Collections to the CONTRACTOR's contracted billing fee as defined in the Agreement): Fees(as a percentage of billing revenue collected by ADPI) Total system cost(Hardware&Software, �2.00%of Net Collections includes 4 units,no spare): Additional units,each (TripTix No cost Web): Additional units,each(TripTix Mobile): 0.50% Training Costs: No cost Additional Training(hourly): No cost Additional Options—ADPI is willing to configure docking and mount solutions at additional cost. Additional units may be added to the addendum by mutual agreement of the parties. The above price quote is based on transport volume provided by the CITY as shown below. Should transport volume decrease greater than five percent (5%), the unit fee will be increased proportionately. Annual Transport Volume — 3,500 Schedule 2.02 Third-Party Intellectual Property Royalty Payments In addition to the other compensation required under this Addendum, Third-Party Intellectual Property Payments shall be made as follows: Licensing/Royalty agreement to be executed between CITY and the manufacturer of the CITY's defibrillating equipment when the manufacturer has cleared the Triptix equipment for direct interface between their equipment and the CONTRACTOR-provided data devices. 15 Schedule 2.03 Initial Term Early Termination Payments The Initial Term Early Termination Payments with respect to each Product Unit are as follows: Period Amount (1) For an Early Termination during the first 18 months from the beginning of the Term: Panasonic Toughbooks $4,500 (2) For an Early Termination during the remainder of $---0--- the Term: 16