2024-10-30 Item VI. B. Ex. 8 • • MINUTE FILE
8
Exhibit
09/30/2024
�'1-C61 vI I. B.
AAVENU
Agreement for Information Technology
Products and Services
Avenu Enterprise Solutions, LLC
City of Okeechobee, Florida
This agreement for information technology products and services ("Agreement") is entered into by and
between Avenu Enterprise Solutions, LLC, 5860 Trinity Parkway, Suite 120, Centreville, VA 20120
("Avenu"), and City of Okeechobee, a government entity in the State of Florida, 55 S. Third Avenue,
Okeechobee, FL 34974 ("Client"). Avenu and Client (each individually a "party" and collectively the
"parties")agree as follows:
1. SERVICES Avenu agrees to provide to Client the information technology software maintenance and
support services(the"Services")described in the Statement of Work,which is attached to and incorporated
by reference in this Agreement as Schedule A, in accordance with the terms and conditions set forth in this
Agreement.
2. TERM The term of this Agreement is from October 1,2024("Effective Date")through September
30, 2025, with two (2) additional one-year option periods ("Term")that may be exercised upon Client's
written notice to Avenu at least thirty (30)days before the current period expires. The Parties agree that
upon receipt of the Client's extension notice, Avenu shall issue a unilateral amendment extending the
Term of this Agreement in accordance with the options described herein.
3. PAYMENT Client agrees to pay Avenu for the System and Services in accordance with the payment
provisions set forth in Schedule A. Avenu shall submit an invoice to Client for each payment due, and
Client agrees to pay each invoice within thirty (30)calendar days after receipt of the invoice.
4. EXPENSES Specific types of expenses that will be reimbursed by Client are listed in Schedule A.
Avenu will bear sole responsibility for all other expenses incurred in connection with the delivery of the
System and performance of the Services. Expenses will be listed in each invoice. Upon request, Avenu
will provide receipts or other reasonable documentation.
5. TAXES If Client is by law exempt from property taxes or sales and use taxes,those taxes will not
be included in invoices submitted to the Client under this Agreement. Avenu may be considered a limited
agent of Client for the sole purpose of purchasing goods or services on behalf of Client without payment of
taxes from which Client is exempt. If Avenu is required to pay taxes by determination of a proper taxing
authority having jurisdiction over the products or services provided under this Agreement,Client agrees to
reimburse Avenu for payment of those taxes.
6. DELIVERY AND ACCEPTANCE Avenu will arrange for delivery of appropriate System
components to the Client installation site(s), as set forth in Schedule A. Shipment of hardware shall be
F.O.B. to the receiving point at each installation site. Avenu will pay reasonable transportation and
insurance charges for hardware delivered to the receiving point at each installation site. All requirements
for acceptance and testing of the System or any System components shall be set forth in Schedule A. Client
agrees to provide Avenu with reasonable access to Client facilities for provision of Services, as well as
secure storage areas for materials, equipment, and tools, if required.
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7. CONFIDENTIALITY With respect to information relating to Client's business which is
confidential and clearly designated as confidential or proprietary ("Client Confidential Information"),
Avenu will instruct Avenu personnel to keep that information confidential by using the same degree of care
and discretion that is used with similar Avenu information that Avenu regards as confidential. However,
Avenu shall not be required to keep confidential any information that: (i) is or becomes publicly available;
(ii)is already lawfully possessed by Avenu;(iii)is independently developed by Avenu outside the scope of
this Agreement and without any reliance on Client Confidential Information; or(iv) is rightfully obtained
from third parties. Avenu shall not be required to keep confidential any ideas, concepts, methodologies,
inventions,discoveries,developments,improvements,know-how or techniques developed by Avenu in the
course of providing the Services.
S. AVENU PROPRIETARY INFORMATION Client agrees that Avenu methodologies,tools,ideas,
concepts, know-how, structures, techniques, inventions, developments, processes, discoveries,
improvements,proprietary data and software programs,and any other information identified as proprietary
or confidential by Avenu,which may be disclosed to the Client,are confidential and proprietary information
("Avenu Confidential Information"). With respect to Avenu Confidential Information,the Client shall keep
that information confidential by using the same degree of care and discretion that it uses with similar Client
information that Client regards as confidential, but in any event no less than a reasonable degree of care.
Client shall not be required to keep confidential any information which:(i)is or becomes publicly available;
(ii)is already lawfully possessed by Client;(iii)is independently developed by the Client outside the scope
of this Agreement and without any reliance on Avenu Confidential Information;or(iv)is rightfully obtained
from third parties.
9. USE OF CONFIDENTIAL INFORMATION Avenu and Client shall use confidential information
only for the purposes of this Agreement and on a strictly need-to-know basis and shall not disclose
confidential information to any third party, other than as set forth in this Agreement, or to the employees
of the other party, Avenu subcontractors,or permitted consultants engaged by the Client without the other
party's prior written consent.
10. SYSTEM OWNERSHIP AND USE RIGHTS The System provided under this Agreement includes
technical information, software programs for computers or other apparatus, designs, specifications,
drawings, records, documentation, reports, materials, concepts, plans, inventions, data, discoveries or
adaptations, creative works, trade names or trademarks, and works of authorship or other creative works
(written, oral, or otherwise expressed)that are delivered to Client or developed, conceived,or acquired by
Avenu,Avenu employees,or by the authorized agents or subcontractors of Avenu as a part of the Services,
including derivative works (individually and collectively "Avenu Intellectual Property"). The Services
shall not be considered a"work for hire"under United States copyright laws or other intellectual property
laws, and all rights, title, and interest in Avenu Intellectual Property shall vest solely in Avenu. Client
understands and agrees that all Avenu Intellectual Property(including all software upgrades,modifications,
and customizations) provided under this Agreement shall at all times remain the property of Avenu. The
provisions of this Section shall survive termination of this Agreement.
11. OWNERSHIP,USE,AND RETURN OF DATA All information, records, documents, files,data,
and other items relating to the business of Client(including indexes,film,and other data created or acquired
by use of the System), whether prepared by Client or Avenu or otherwise coming into the
possession of Avenu in connection with performing the Services or otherwise during the Term shall
remain the exclusive property of Client. Client may duplicate on electronic media the data entered into
the System. Client retains ownership of all data created by the use of the System.
12. DATA BACKUP Prior to Avenu providing the System, Client shall prepare and safeguard back-
up copies of all data that will be used in connection with the System. Throughout the Term, Client
will be responsible for backing up all data contained in the System on a regular basis (and in all
cases, immediately prior to the provision by Avenu of any warranty or maintenance Services) in
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accordance with standard industry back-up procedures, as modified by any written instructions for
data back-up provided by Avenu. If Avenu is unable to recover any or all lost or corrupted data, the
responsibility and liability of Avenu for the loss of Client data shall be limited to restoring the data to the
last provided daily back-up. Avenu shall not be liable for monetary damages or set-off for loss of Client
data or software. Except to the extent specifically provided in this Section as part of the Services,Client
will be responsible for the integrity and content of data contained in the System. Under no circumstances
will Avenu be responsible for the loss of Client data or software.
13. SOFTWARE LICENSE Avenu hereby grants to Client a limited, non-exclusive, non-transferable,
revocable license to use the Avenu Intellectual Property included in the System solely for the internal
operations of Client,and only during the Term of the Agreement.Avenu represents and warrants that Avenu
possesses all rights necessary to effectuate the license set forth in this Section. The license granted under
this Section does not include the right to grant sublicenses for the Avenu Intellectual Property to any third
party, including other persons, agencies, or other governmental entities that are not parties to this
Agreement unless specifically set forth in Schedule A. Client and its employees and agents will not cause
or permit reverse engineering of all or any portion of the Avenu Intellectual Property; will not distribute,
disclose, loan, market, rent, lease, or otherwise transfer to any third party any portion of the Avenu
Intellectual Property without prior written authorization by Avenu;and will not export any Avenu software
products in violation of federal export laws or regulations. The provisions of this Section shall survive
termination of this Agreement.
14. THIRD PARTY HARDWARE AND SOFTWARE Any hardware and third-party software
components provided by Avenu as part of the System are listed in Schedule A. Rights to commercial off-
the-shelf software or any other hardware or software provided by third-party software vendors are subject
to the provisions the software licenses provided by those third-party software vendors. Client understands
and agrees that acceptance and use of this third-party hardware and software will be deemed acceptance of
the terms and conditions of the licenses provided by the respective hardware and software vendors. Client
further agrees to use the third-party software in accordance with the terms of those licenses. For "shrink
wrap" or"click-wrap" software, Client authorizes Avenu to accept the terms of each license on behalf of
the Client when the software is installed. To the maximum extent allowable by each of the third-party
commercial hardware and software vendors, Client shall be entitled to all standard manufacturers
warranties, guarantees, or exchange policies for defective items, which are offered by the third-party
hardware and commercial off-the-shelf software manufacturers and vendors for items furnished under this
Agreement. Avenu explicitly disclaims all warranties of merchantability and fitness for a particular
purpose. Avenu makes no other express or implied warranties whatsoever with regard to any items or
components of third-party hardware or commercial off-the-shelf software.
15. INSURANCE If Avenu performs any of the Services on Client premises,Avenu agrees to maintain
standard insurance coverage in accordance with its corporate policy. Upon request, Avenu will provide
evidence of coverage on a standard ACORD form certificate of insurance.
16. RISK OF LOSS OR DAMAGE TO HARDWARE Avenu will bear the risk of loss or damage to
any hardware while in transit to or from Client installation site(s). Client will bear all risk of loss or damage
to hardware after delivery to the installation site(s), unless the loss or damage is due to the negligence or
willful acts of Avenu, its employees, agents, representatives, or subcontractors.
17. PERFORMANCE AND SYSTEM WARRANTIES Avenu warrants that the Services will be
performed in a professional and workmanlike manner in accordance with generally applicable industry
standards and the System delivered by Avenu will not infringe on any copyright, patent, trade secret, or
other intellectual property rights or proprietary rights of any third party.
THE LIMITED WARRANTIES SET FORTH IN THIS SECTION AND THE SOFTWARE
WARRANTY SET FORTH IN SECTION 18 OF THIS AGREEMENT ARE MADE TO CLIENT
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EXCLUSIVELY AND ARE IN LIEU OF ALL OTHER WARRANTIES. AVENU MAKES NO
OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO ANY
HARDWARE OR SOFTWARE OR THE SERVICES PROVIDED UNDER THIS AGREEMENT,
IN WHOLE OR IN PART. AVENU EXPLICITLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AVENU EXPRESSLY
DOES NOT WARRANT THAT THE SYSTEM OR ANY HARDWARE OR SOFTWARE
COMPONENT OF THE SYSTEM WILL BE ERROR-FREE OR WILL OPERATE WITHOUT
INTERRUPTION. CLIENT WAIVES ANY CLAIM THAT ANY OF THESE WARRANTIES OR
THE REMEDIES PROVIDED UNDER THIS AGREEMENT FAIL OF THE ESSENTIAL
PURPOSE FOR WHICH THE WARRANTIES OR REMEDIES ARE PROVIDED. AVENU AND
ITS SUPPLIERS ARE NOT LIABLE FOR ANY TEMPORARY DELAY, OUTAGES, OR
INTERRUPTIONS OF THE SERVICES.
The limited System warranty provided under this Agreement shall not cover, and shall be void as to(i)
any System component on which maintenance has been performed by a third party that has not been
authorized in writing by Avenu;(ii)any System component that has been altered or modified by Client or
any third party that has not been authorized to do so in writing by Avenu;(iii)any System component that
is damaged due to the negligence or misconduct of Client or any third party; (iv) any System component
that has been damaged as a result of failure to operate the System in accordance with documentation or
operating instructions provided by Avenu; or (v) any failure due to a force majeure event or due
to exposure to unusual physical or electrical stress. If any component of the System is believed to be
defective,Client shall give Avenu prompt written notice that identifies each defect with specificity. Avenu
will investigate and verify each reported defect. Upon verification by Avenu of a reported defect, Avenu
shall (as determined by Avenu in the sole discretion of Avenu) repair, replace, or otherwise correct each
verified defect at no cost to Client. The parties understand and agree that the remedy determined and
applied by Avenu shall constitute a complete and satisfactory remedy for each covered defect. The
remedies provided under this Section shall constitute the sole and exclusive remedies available to Client
for any defects in System components. The provisions of this Section shall survive termination of this
Agreement.
18. SOFTWARE WARRANTY Avenu warrants that during the Term any application software
components of the System that are developed and owned by Avenu (including customized software
components)and furnished to Client by Avenu under this Agreement will be free from material errors that
would prevent the documented operational features of the System from functioning when used properly
under normal conditions and in accordance with the documentation and instructions for use provided by
Avenu. The provisions of this Section shall survive termination of this Agreement. The limited warranty
provided for Avenu software under this Section shall not cover, and shall be void as to(a)any third party
hardware or software (including commercial off-the-shelf hardware and software) provided to or used by
Client in connection with the System; (b) any component on which maintenance has been performed by a
third party that has not been authorized in writing by Avenu; (c) any component that has been altered or
modified by Client or any third party that has not been authorized in writing by Avenu;(d)any component
that is damaged due to the negligence or misconduct of Client or any third party; (e) any component that
has been damaged as a result of failure to operate the System in accordance with documentation or operating
instructions provided by Avenu; or(f)any failure due to force majeure or exposure to unusual physical or
electrical stress.
19. FORCE MAJEURE Neither party shall be responsible for delays or failures in performance as a
result of limitations or problems inherent in the use of the Internet and electronic communications; force
majeure events, including but not limited to Acts of God, fire, flood, earthquake, weather, climate change,
elements of nature, war,terrorism, civil disturbance, labor disruptions or strikes, quarantines, pandemics,
endemics, embargoes, or other governmental action, or cause beyond the reasonable control of a party
("Force Majeure Event").
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Upon the occurrence of a Force Majeure Event, the party that has experienced a delay or failure of
performance caused by the Force Majeure Event will be excused from further performance or observance
of the affected obligation(s) for as long as the extenuating circumstances prevail, and that party continues
to attempt to recommence performance or observance whenever and to whatever extent possible without
delay. The party that experienced a delay or failure of performance caused by the Force Majeure Event
will immediately notify the other party and describe in reasonable detail the circumstances causing the
delay or failure of performance. The provisions of this Section shall survive termination of this Agreement.
20. TORT AND PROPERTY DAMAGE CLAIMS Each party shall indemnify and hold harmless
the other party (and its successors, officers, directors, and employees) from any and all liabilities,claims,
and expenses of whatever kind and nature for injury to or death of any person or persons and for loss of or
damage to any tangible personal property occurring in connection with or in any way incident to or arising
under this Agreement,resulting in whole or in part from the negligent acts or omissions of the indemnifying
party. The indemnified party shall promptly notify the indemnifying party, in writing, of any claim and
shall reasonably cooperate with the indemnifying party in the defense and settlement of the claim. The
provisions of this Section shall survive termination of this Agreement.
21. LIMITATIONS OF LIABILITY
NEITHER PARTY SHALL BE LIABLE, UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL,
CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OF
ANY KIND RESULTING FROM THE PERFORMANCE OR NON-PERFORMANCE OF
OBLIGATIONS UNDER THIS AGREEMENT EVEN IF THOSE DAMAGES ARE ATTRIBUTED
TO BREACH OF THIS AGREEMENT, TORT, NEGLIGENCE, OR OTHER CAUSE OF
ACTION. THE PARTIES AGREE THAT THIS LIMITATION SHALL APPLY EVEN IF A
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF NON-DIRECT DAMAGES OR IF,
UNDER APPLICABLE LAW, NON-DIRECT DAMAGES ARE CONSIDERED TO BE DIRECT
DAMAGES.
AVENU SHALL NOT BE LIABLE FOR ANY FAILURE TO REALIZE SAVINGS OR OTHER
BENEFITS FROM THE SYSTEM OR SERVICES PROVIDED UNDER THIS AGREEMENT.
CLIENT ACKNOWLEDGES THAT AVENU HAS SET ITS PRICING AND ENTERED INTO
THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE
DISCLAIMERS OF WARRANTY AND DAMAGES SET FORTH IN THIS AGREEMENT, AND
THAT THESE LIMITATIONS AND DISCLAIMERS FORM AN ESSENTIAL BASIS OF THE
BARGAIN BETWEEN THE PARTIES. CLIENT UNDERSTANDS AND AGREES THAT AVENU
EXERCISES NO CONTROL OVER AND HAS NO RESPONSIBILITY OR LIABILITY FOR THE
CONTENT OF INFORMATION PASSING THROUGH AVENU HOST COMPUTERS,
SERVERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. EXCEPT
FOR AMOUNTS EXPRESSLY DUE AND PAYABLE TO AVENU UNDER THIS AGREEMENT,
IN NO EVENT SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO THE OTHER
PARTY FOR ANY CLAIMS, PENALTIES OR DAMAGES,WHETHER IN CONTRACT,TORT,
OR BY WAY OF INDEMNIFICATION,IN AN AMOUNT EXCEEDING THE FEES OR OTHER
CHARGES PAID BY CLIENT TO AVENU DURING THE THREE (3) MONTHS PRECEDING
THE CLAIM.
22. DISPUTE RESOLUTION It is the intent of the parties that any disputes arising under
this Agreement be resolved expeditiously,amicably, and at the level within each party's organization that
is most knowledgeable about the relevant issues. The parties understand and agree that the procedures
outlined in this Section are not intended to supplant the routine handling of inquiries and complaints
through informal contact of the parties. Accordingly, for purposes of the procedures set forth in this
Section, a "dispute" is a disagreement that the parties have been unable to resolve by the normal and
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routine channels ordinarily used for resolving problems. Pending the final disposition of a dispute other
than a dispute arising out of the termination of this Agreement by either party, the parties shall, at all
times, proceed diligently with the performance of this Agreement.Before either party seeks any remedies
available at law,the parties shall sequentially follow the procedures set forth below:
(a) The complaining party will notify the other party in writing of the reasons for the dispute, and the
parties will work together to resolve the matter as expeditiously as possible. A formal written
response will not be required, but the responding party may put its position in writing in order to
clarify the issues or suggest possible solutions.
(b) If the dispute remains unresolved fifteen (15) calendar days after the delivery of the complaining
party's written notice, a senior representative of Avenu and the Client(or a representative of Client
who has authority to act to resolve the dispute) shall meet or participate in a telephone conference
call within ten (10) business days of a request for the meeting or conference call by either party to
resolve the dispute.
(c) If the parties are unable to reach a resolution of the dispute after following these procedures, or if
either party fails to participate when requested, then the parties may pursue any remedies available
under this Agreement.
23. TERMINATION FOR BREACH OR DEFAULT BY AVENU If Avenu materially breaches
any of the terms and conditions set forth in this Agreement or fails to perform the obligations set forth in
this Agreement and fails to cure the breach or failure within forty-five (45) calendar days (or any longer
period stated in the notice) after receipt of written notice specifying the basis for the breach or failure to
perform, Client may terminate this Agreement. Termination by Client shall be effective upon delivery of
final payment to Avenu of all sums due under this Agreement to the effective date of the termination. Client
agrees to discontinue use of all hardware, software, and other Avenu-owned materials no later than the
effective date of termination and return the hardware,software,and other Avenu-owned materials to Avenu
within thirty(30)calendar days after termination.
24. TERMINATION FOR BREACH OR DEFAULT BY CLIENT If Client materially breaches any
of the terms and conditions set forth in this Agreement or fails to perform the obligations set forth in this
Agreement and fails to cure the breach or failure within forty-five(45) calendar days(or other reasonable
period stated in the notice) after receipt of written notice specifying the basis for the breach or failure to
perform, Avenu may terminate this Agreement for breach. Termination by Avenu shall be effective upon
written notice to Client. Client agrees to discontinue use of all hardware,software,and other Avenu-owned
materials no later than the effective date of termination and return the hardware,software,and other Avenu-
owned materials to Avenu within thirty(30)calendar days after termination.
25. TERMINATION FOR LOSS OF FUNDING This Agreement is subject to termination for
convenience upon not less than thirty(30)days written notice to Avenu if Client has failed to receive funds
for the continued procurement of the Products or Services after every reasonable effort has been made by
Client to secure the necessary funding and if no substitute arrangement is made by Client to obtain the same
or similar System or Services from another source. Client agrees to discontinue use of all hardware,
software, and other Avenu-owned materials no later than the effective date of termination and return the
hardware, software, and other Avenu-owned materials to Avenu within thirty (30) calendar days after
termination.
26. EFFECT OF TERMINATION ON OBLIGATIONS AND LIABILITIES Termination of this
Agreement for any reason will not affect any liabilities or obligations of either party arising before
termination or out of events causing termination and will not affect any damages or other remedies to which
a party may be entitled under this Agreement, at law or in equity, arising from any breach or default. On
and after the date of termination Avenu will discontinue all Services and indexes and images will no longer
be accessible from Avenu. Client agrees to allow Avenu to remove any Avenu-owned hardware,software,
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and other Avenu-owned materials. Avenu will perform post-termination data conversion (to the extent
possible) at the request of Client on a time and materials basis at the then-current applicable rates. If
this Agreement is terminated for any reason during the Term, Client agrees to pay Avenu a termination fee
in the amount of the unamortized cost of initial hardware and other start-up costs incurred by Avenu.
27. INJUNCTIVE RELIEF The parties recognize that a remedy at law for a breach of the provisions
of this Agreement relating to proprietary and confidential information or the unauthorized use of any
trademark,copyright,or other intellectual property of Avenu may not be adequate for protection of Avenu,
and accordingly Avenu shall have the right to seek injunctive relief to enforce the provisions of this
Agreement, in addition to any other relief and remedies available.
28. RELATIONSHIP OF THE PARTIES This Agreement shall not constitute, create, give effect
to, or otherwise imply a joint venture, partnership, or business organization of any kind. Avenu and Client
are independent parties, and neither party shall act as an agent for or partner of the other for any purpose.
Nothing in this Agreement shall grant to either party any right to make any commitments of any kind for
or on behalf of the other party without the prior written consent of the other party. Avenu shall not be
restricted from providing products or performing services for others and shall not be bound to Client except
as provided under this Agreement.
29. NOTICES TO PARTIES Unless otherwise specified in this Agreement, all notices, requests, or
consents required to be given in writing under this Agreement shall be hand delivered,delivered by overnight
delivery service,or mailed(certified mail,postage prepaid),to the party indicated below(with a delivery receipt
requested), unless that party notifies the other, in writing,of a change in the address or contact information:
To Client: To Avenu:
City of Okeechobee Avenu Enterprise Solutions, LLC
55 S.Third Avenue 5860 Trinity Parkway, Suite 120
Okeechobee, FL 34974 Centreville,VA 20120
Attn: India Riedel Attn: Contracts Department
30. SEVERABILITY If all or part of any term or condition of this Agreement,or the application of
any term or condition of this Agreement, is determined by any court of competent jurisdiction to be
invalid or unenforceable to any extent,the remainder of the terms and conditions of this Agreement(other
than those portions determined to be invalid or unenforceable) shall not be affected, and the remaining
terms and conditions (or portions of terms or conditions) shall be valid and enforceable to the fullest
extent permitted by law. If a judicial determination prevents the accomplishment of the purpose of this
Agreement, the invalid term or condition (or portions of terms or conditions) shall be restated to conform
to applicable law and to reflect as nearly as possible the original intent of the parties.
31. ASSIGNMENT AND SUBCONTRACTING This Agreement shall be binding on the parties and
each party's successors and assigns. Avenu may assign or otherwise transfer this Agreement and any rights,
duties, or obligations under this Agreement to a corporate parent, subsidiary, or affiliate of Avenu. Any
other attempt to make an assignment without prior written consent of the Client shall be void. Avenu may
provide for the delivery of all or part of the Services through the use of subcontractors. Avenu shall notify
Client of work being performed by any subcontractor that performs work on the premises of Client and
shall ensure that the insurance requirements that apply to Avenu under this Agreement apply to and are
complied with by each subcontractor.
32. CUMULATIVE REMEDIES All remedies available to either party for breach of this Agreement
by the other party are and shall be deemed cumulative and may be exercised separately or concurrently.
The exercise of a remedy shall not be an election of that remedy to the exclusion of other remedies available
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at law or in equity. If any legal action is necessary to enforce the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney fees in addition to any other relief to which that party may be
entitled.
33. WAIVER OR FOREBEARANCE Any delay or failure of either party to insist upon strict
performance of any obligation under this Agreement or to exercise any right or remedy provided under this
Agreement shall not be a waiver of that parry's right to demand strict compliance, irrespective ofthe number
or duration of any delay(s)or failure(s).No term or condition imposed on either party under this Agreement
shall be waived and no breach by either party shall be excused unless that waiver or excuse of a breach has
been put in writing and signed by both parties. Waiver in any instance of any right or remedy shall not
constitute waiver of any other right or remedy under this Agreement. Consent to or forbearance of any
breach or substandard performance of any obligation under this Agreement shall not constitute consent to
modification or reduction of the other obligations or forbearance of any other breach.
34. HEADINGS The section headings used in this Agreement are merely for reference and have no
independent legal meaning and impose no obligations or conditions on the parties.
35. VENUE; GOVERNING LAW This Agreement shall be governed by, interpreted,construed,and
enforced in accordance with the laws of the State of Florida, without reference to the principles of conflict
of laws. Venue for any action arising out of this Agreement shall be in the state and federal courts having
jurisdiction over Okeechobee County,Florida.
36. NON-SOLICITATION AND NON-HIRE Client shall not, without the prior written consent of
Avenu knowingly solicit, recruit, hire, or otherwise employ or retain any employee of Avenu that is
performing the Services or has performed any of the Services under this Agreement during the Term of this
Agreement. This restriction includes former employees of Avenu who have performed any of the Services
during the tern of this Agreement during a period of one(1)year after that employee is no longer employed
by Avenu. Because actual damages are difficult to determine if Client breaches the non-solicitation
obligations under this Section, the parties agree that in lieu of an award of actual damages and not as a
penalty, Avenu shall be entitled to, and Client shall pay to Avenu as the sole and exclusive remedy for
breach, liquidated damages of two (2) times the salary and bonus target employee at the time his or her
employment with Avenu. Nothing in this Section shall waive the right of Avenu to seek injunctive relief
to compel compliance by a current or former employee with the obligations of a former employee not to
use or disclose that any confidential or proprietary information of the former employer. The non-
solicitation provisions of this Section shall not restrict in any way the right of either party to solicit or recruit
generally in the media and shall not prohibit either party from hiring an employee or former employee of
the other party who responds to any public advertisement or who otherwise voluntarily applies for hire
without having been personally solicited or recruited by the hiring party. The provisions of this Section
shall not prohibit either party from hiring employees of the other party if the status of the other party as a
viable business entity so declines as to make it unlikely the party could retain the services of its employees.
37. ENTIRE AGREEMENT The following documents are attached hereto and are specifically made a
part of this Agreement: Schedule A(Statement of Work)and Addendum No. 1.This Agreement constitutes
the entire understanding and agreement between the parties and supersede any prior agreements,
written or oral, that are not specifically referenced and incorporated in this Agreement.The terms and
conditions of this Agreement shall not be changed or modified except by written agreement signed by both
parties.
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IN WITNESS WHEREOF, the undersigned authorized representatives of Avenu and the Client have
executed this Agreement.
Avenu Enterprise Solutions, LLC City of Okeechobee
Signature Signature
Name Name
Title Title
Date Date
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SCHEDULE A
STATEMENT OF WORK
This Statement of Work is incorporated in the Agreement for Information Technology Products and
Services ("Agreement") by and between Avenu Enterprise Solutions, LLC ("Avenu") and City of
Okeechobee("Client").
A. AVENU SUPPORT SERVICES
Avenu will provide Client with the following Services in connection with the current version of the CASA
-Special Assessment Software(the"System")located at the Client site at 55 S.Third Avenue,Okeechobee,
FL 34974:
1. Avenu employees knowledgeable with respect to the System and its operation will be available during
normal business hours to respond to inquiries by Client to provide assistance in the operation and use
of the System. "Normal business hours"mean the hours of 8:00 AM to 5:00 PM Central Time,Monday
through Friday, excluding Avenu holidays.
2. For components of the System related to property tax, application enhancements due to legislative
action may or may not be included in standard software maintenance, depending on the scope,
complexity and timing of such changes.Avenu reserves the exclusive right to determine if such changes
will be included in enhancements to the System provided under this Agreement.
3. Avenu will provide problem determination, investigation, and program error correction for verified
program errors on the then current release of the System at no additional charge to Client.
4. Avenu will provide data repairs for Client data files and records on a "best efforts" basis for data
problems caused by the System at no additional charge to Client.
5. Avenu will provide data repairs for Client data files and records on a "best effort," time-and-materials
basis for data problems not caused by the System at Avenu's then current hourly professional services
billing rate. Avenu includes in the category "data problems not caused by the System" any data
corruption or integrity problems caused by, but not limited to the following:
a. Equipment malfunction or failure.
b. Failure of Client to follow procedures or instructions contained in the documentation provided
by Avenu.
c. Failure by Client to follow procedures or instructions contained in documentation provided by
applicable hardware vendors or failure to follow accepted operating practices (for example
failing to routinely prepare backup data files, powering off or interrupting equipment while
programs are executing, etc.).
d. Use of programs, including program modifications, other than those provided by Avenu with
the System.
6. Production Services:No Production Services included in this Agreement.
7. Onsite Visit: No Onsite Visit included in this Agreement.
Avenu-City of Okeechobee FL-CASA Agreement v09112024 Page 10 of 12
• •
Agreement for Information Technology Products and Services A AVEN U
8. Hardware Maintenance:No Hardware Maintenance included in this Agreement.
9. Networking Support Plus:No Networking Support Plus included in this Agreement.
B. SUPPORT SERVICE EXCLUSIONS
Avenu will not provide the following services:
1. User training for Microsoft Operating Systems.
2. Training for Microsoft products. It is expected those users on PC's will already be trained, at Client
cost, on normal PC usage. Client personnel who do not have training on PC usage can increase the
problem determination process.
3. Microsoft Office, except those customers with ODBC/Microsoft query/client access data extraction
contract.
4. Spyware, Adware, Data Mining and other infections that may be sustained during Internet usage.The
effects of these elements are also to be removed at Client cost. This includes those computers owned
by Avenu.
5. Daily monitoring of servers or network devices.
6. Preexisting Twinax and Category 5, once a diagnosis has been done wiring issues are passed back to
the Client for investigation.
7. Avenu is not responsible for Client data. Client is responsible for monitoring nightly backups. Avenu
will assist with problem determination if the backups are not successful.
8. Avenu will not restore software package data files.
9. Client is responsible for purchasing, installing, and managing all necessary anti-virus protection
software and anti-virus software updates on Client-owned servers and workstations.
C. PAYMENT AND RATES
l. Avenu will invoice Client on a monthly basis,and Client agrees to pay to Avenu,the following fees for
support Services(the"Support Fees"):
Fixed Annual
Monthly Fee Amount
CASA-Special Assessment Software Support $737.34 $8,848.08
Term Year 10/01/2024—09/30/2025
CASA-Special Assessment Software Support $774.21 $9,290.52
Optional Term Year 10/01/2025—09/30/2026
CASA-Special Assessment Software Support $812.92 $9,755.04
Optional Term Year 10/01/2026—09/30/2027
Avenu-City of Okeechobee FL-CASA Agreement v09I 12024 Page 11 of 12
• •
Agreement for Information Technology Products and Services AAVENU
If time & materials billing is required, Avenu will bill Client at Avenu's then current hourly rate.
Avenu's current hourly rate is two hundred dollars($200.00)per hour; however,Avenu may increase
this amount at its sole discretion.
2. Reinstatement of this Agreement after having not been in force for sixty (60) or fewer days will be
made retroactive to the date that the Agreement expired with no reinstatement charge(with payment of
the applicable fees going forward). Client will be required to execute a new Agreement with Avenu
prior to reinstatement.
3. Reinstatement of this Agreement after having not been in force for more than sixty(60)days will incur
a reinstatement charge, in addition to the normal Support Fees,of an amount equal to 5%of the annual
Support Fee for each month that this Agreement had not been in force, up to a maximum of 50%of the
Support Fee for each year that this Agreement has not been in force. Client will be required to execute
a new Agreement with Avenu prior to reinstatement.
Avenu-City of Okeechobee FL-CASA Agreement v09112024 Page 12 of 12
• •
ADDENDUM NO. 1
NON-EXCLUSIVE Information Technology Products and Services
BETWEEN
THE CITY OF OKEECHOBEE AND Avenu Enterprise Solutions, LLC
FOR Information Technology Products and Services
THIS ADDENDUM Number 01 ("Addendum") is issued pursuant to the Agreement for
Information Technology Products and Services between Avenu Enterprise Solutions,
LLC and City of Okeechobee effective October 01, 2024 (the "Agreement"). The terms
herein are incorporated by reference and made a part of the Agreement.
WHEREAS, the Florida Legislature has amended Chapter 119 Florida Statutes, Section .0701
thereof, to expand the obligation of local government to include into all contracts certain
language that relates to public records, which is made a part of the Agreement;
WHEREAS, the Florida Legislature has set forth Chapter 768 Florida Statutes, Section .28,
limitations on the authority of governmental entities to waive their sovereign immunity,
which provision should be made a part of the Agreement;
WHEREAS, the Florida Legislature has set forth Chapter 760 Florida Statutes, Section .10
thereof, to provide for protection against unlawful employment practices, which provision
should be made a part of the Agreement;
WHEREAS, the Florida Legislature has set forth Chapter 448 Florida Statutes, Section .095
thereof, to provide for employment verification using e-Verify, which provision should be
made a part of the Agreement;
WHEREAS, the Florida Legislature has set forth Chapter 287 Florida Statutes, Section .05701
thereof, to provide for protection against solicitation of certain information in determining
whether a vendor is a responsible vendor, which provision should be made a part of the
Agreement; and
WHEREAS, the Florida Legislature has set forth Chapter 787 Florida Statutes, Section .06
thereof, to require an affidavit of non-coercion for labor and services to be executed by
nongovernmental entities contracting with governmental entities, which provision should
be made a part of the Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
contained in the Agreement, the parties hereto agree as follows:
1. Recitals. THAT the foregoing recitals are true and correct and constitute a material
inducement to the parties to enter into the Agreement.
2. Public Records Law. The contractor shall adhere to Florida public records laws,
including the following:
A. Keep and maintain public records required by the City to perform the services,
and upon request of the custodian of records for the City, provide the City with a
copy of the requested records or allow the records to be copied or inspected
ADDENDUM NO. 1 Page 1 of 5
•
within a reasonable time at a cost that does not exceed the cost allowed in
Chapter 119 or as otherwise provided by law.
B. Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law
for the duration of this contract term and following completion of the contract if
the contractor does not transfer the records to the City.
C. Upon completion of the contract, transfer, at no cost, to the City all public records
in possession of the contractor or thereafter keep and maintain public records
required by the City to perform the service. If the contractor transfers all public
records to the City upon completion of the contract, the contractor shall destroy
any duplicate public records that are exempt or confidential and exempt from
public records disclosure requirements. If the contractor keeps and maintains
public records upon completion of the contract, the contractor shall meet all
applicable requirements for retaining public records. All records stored
electronically must be provided to the City, upon request of the City Clerk, in a
format that is compatible with the information technology systems of the City.
D. Noncompliance:
i. A request to inspect or copy public records relating to the City's contract for
services must be made directly to the City. If the City does not possess the
requested records, the City shall immediately notify the contractor of the
request, and the contractor must provide the records to the City or allow the
records to be inspected or copied within a reasonable time. A reasonable time
is defined as within eight (8) business days.
ii. If the contractor does not comply with the request of the City for the records,
the City shall enforce the contract provisions in accordance with the contract.
iii. If the contractor fails to provide the public records to the City within a
reasonable time, the contractor may be subject to the penalties under
Chapter 119.10.
E. Civil Action.
i. If a civil action is filed against a contractor to compel production of public
records relating to the City's contract for professional services, the court shall
assess and award against the contractor the reasonable costs of
enforcement, including reasonable attorney fees, If:
a) The court determines that the contractor unlawfully refused to comply
with the public records request within a reasonable time; and
b) At least eight (8) business days before filing the action, the plaintiff
provided written notice of the public records request, including a
statement that the contractor has not complied with the request, to the
City and to the contractor.
ADDENDUM NO. 1 Page 2 of 5
• •
ii. A notice complies with the above if it is sent to the custodian of public records for
the City and to the contractor at the contractor's address listed on its contract
with the City, or to the contractor's registered agent. Such notices must be sent
by common carrier delivery service or by registered, Global Express Guaranteed,
or certified mail, with postage or shipping paid by the sender and with evidence
of delivery, which may be in an electronic format.
iii. A contractor who complies with a public records request within eight (8) business
days after the notice is sent is not liable for the reasonable costs of enforcement.
IF AVENU HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S
DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS
CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS
FOR THE CITY OF OKEECHOBEE AT:
CITY CLERK'S OFFICE
55 S.E. 3' Avenue
Okeechobee, FL. 34972
(863) 763-3372 ext. 215
Igam iotea@cityofokeechobee.com
3. Sovereign Immunity. Nothing in the Agreement extends, or will be construed to extend,
the CITY's liability beyond that provided in section 768.28, Florida Statutes. Nothing in the
Agreement is a consent, or will be construed as consent, by the CITY to be sued by third parties
in any matter arising out of the Agreement.
4. Discrimination. Avenu shall not discriminate against any employee employed in the
performance of this Agreement, or against any applicant for employment because of age,
ethnicity, race, religious belief, disability, national origin, or sex. Avenu shall not exclude any
person, on the grounds of age, ethnicity, race, religious belief, disability, national origin, or sex,
from participation in, denied the benefits of, or be otherwise subjected to discrimination in any
activity under, this Agreement. Avenu shall provide a harassment-free workplace, with any
allegation of harassment given priority attention and action by management.
5. E-Verify. Avenu must utilize, and must expressly require all subcontractors to utilize, the
U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of
all new employees hired by Avenu during the Term of this Agreement.
6. Responsible Vendor Determination. Avenu is hereby notified that Section 287.05701,
Florida Statutes, requires that the City of Okeechobee may not request documentation of, or
consider, a vendor's social, political, or ideological interests when determining if the vendor is a
responsible vendor.
7. Non-Coercion for Labor and Services. Avenu, through its authorized representative,
agrees to execute the Affidavit of Non-coercion for Labor and Services, attached hereto as
Addendum Exhibit A.
ADDENDUM NO 1 Page 3 of 5
• •
IN WITNESS WHERE OF, the CITY and Avenu Enterprise Solutions, LLC have made and
executed this Addendum to the Contract:
AS TO THE CITY:
ATTEST: Dowling R. Watford, Jr., Mayor
Date: September 30, 2024
Lane Gamiotea, CMC, City Clerk
REVIEWED FOR LEGAL SUFFICIENCY:
John J. Fumero, City Attorney
AS TO AVENU ENTERPRISE SOUTIONS, LLC:
WITNESSES: (Signature)
(Signature) (Printed Name & Title)
Date:
(Signature)
ADDENDUM NO. 1 Page 4 of 5
• •
Addendum Exhibit A
AFFIDAVIT OF NON-COERCION FOR LABOR AND SERVICES
(FLORIDA STATUTES SECTION 787.06(13))
State of
) ss.
County of
Personally appeared before me, the undersigned authority
("Affiant"), who being first duly sworn, deposes and says on oath and under penalty of perjury as follows:
That I am of legal age, have personal knowledge of the facts herein stated, and am duly authorized to
make this affidavit (the "Affidavit") as Authorized Signer on behalf of ("the Entity").
That to the best of my knowledge, the Entity does not engage in any of the following activities as part of its
employment practices:
1. Using or threatening to use physical force against any person;
2. Restraining, isolating, or confining or threatening to restrain, isolate, or confine any person without lawful
authority and against her or his will;
3. Using lending or other credit methods to establish a debt by any person when labor or services are pledged
as a security for the debt, if the value of the labor or services as reasonably assessed is not applied toward
the liquidation of the debt, the length and nature of the labor or services are not respectively limited and
defined;
4. Destroying, concealing, removing, confiscating, withholding, or possessing any actual or purported
assort, visa, or other immigration document, or anyother actual or purported government identification
passport, 9 P P
document, of any person;
5. Causing or threatening to cause financial harm to any person;
6. Enticing or luring any person by fraud or deceit; or
7, Providing a controlled substance to any person for the purpose of exploitation of that person.
That this Affidavit is being given to evidence compliance with the law.
FURTHER AFFIANT SAYETH NOT
Signature
The foregoing instrument was sworn to and subscribed before me by means of[_] physical presence or[_] online
notarization, this day of 20 , by , as
of , on its behalf, who [_] is personally
known to me or[_] has produced a driver's license as identification.
[Notary Seal]
Notary Public
Printed Name:
My Commission Expires:
ADDENDUM NO. 1 Page 5 of 5