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HomeMy WebLinkAboutExhibitcfitij O fflaM ANNIE PEREZ, CPPO Procurement Director Arthur Noriega V City Manager CITY OF MIAMI'S SUPPLEMENTAL AGREEMENT TO MASTER TERMS AND CONDITIONS OF INTERGRAPH CORPORATION THROUGH ITS SAFETY & INFRASTUCTURE DIVISION ("HEXAGON") The City of Miami ("City") is accessing the contract between Intergraph Corporation by and through its Safety & Infrastructure division, a foreign profit corporation from Delaware ("Hexagon"), and Lee County, Florida, specifically, Request for Proposals ("RFP") No. 18081 KD for the City's Department of Fire -Rescue ("Fire") and Police Department ("Police"). That certain contract, titled "Principle Contracting Document," made and entered effective as of February 11, 2021, is attached hereto and is incorporated by reference herein (the "Contract"). This supplement to the Contract, including its Master Terms and Conditions, includes applicable City of Miami legal requirements. The term of this Contract is as stated in Section 2.2 of the RFP, which is from March 31, 2022, to March 30, 2025, with two (2) one (1) year options to renew. The effective date of access by the City is _, 2022. Master Terms consist of the following (in order of precedence): A. This Supplemental Agreement B. Hexagon Master Terms and Conditions (contained in the Contract) C. End User License Agreement D. Maintenance Terms and Conditions for Software E. Sample Project Deliverable Sign -Off Form F. Cloud Program Conditions G. Subscription License Terms H. COTS Training Program Terms I. Common Terms Glossary With the execution of this Supplemental Agreement, the Parties also agree to and accept the initial Orders reflected in the Statement of Work for the implementation and cloud subscription of the OnCall suite. 1. Section 3.2 Order of Precedence is hereby deleted in its entirety 2. Section 4.2 Payment is changed to within forty-five (45) days. (State of FL Prompt Payment Act) 3. Section 8 Limitation of Liability is deleted and replaced with the following: IN NO EVENT WILL HEXAGON BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE OR PRODUCTION, LOSS OF REVENUE, OR LOSS OF DATA, , EVEN IF HEXAGON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCE WILL HEXAGON'S LIABILITY UNDER THIS MASTER AGREEMENT EXCEED TWO (2) TIMES THE AMOUNT THAT HEXAGON HAS BEEN PAID BY CUSTOMER UNDER THE INDIVIDUAL ORDER UNDER WHICH THE EVENT GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED. 4. Section 9 Indemnification Provisions. 9.3 Paragraph deleted in its entirety and replace with: Contractor shall indemnify, hold and save harmless, and defend (at its own cost and expense), the City, its officers, agents, directors, and/or employees (collectively "Indemnitees"), from all third party: liabilities, damages, losses, judgements, and costs, including, but not limited to, reasonable attorney's fees, for bodily injury, death, or property damage to the extent caused by the negligence, recklessness, negligent act or omission, or intentional wrongful misconduct of Contractor and persons employed or utilized by Contractor in the performance of this Agreement. Contractor shall further, hold the City, its officials and employees, indemnify, save and hold harmless for, and defend (at its own cost), the City its officials and/or employees against any civil actions, statutory or similar claims, injuries or damages made against the City arising or resulting from the Services, or from any alleged failure to comply with applicable federal, state and local laws, rules, regulations, codes, and ordinances (collectively "regulations"), as they may be amended from time to time. In the event that any action or proceeding is brought against the City by reason of any such claim or demand, the Contractor shall, upon written notice from the City, resist and defend such action or proceeding by counsel satisfactory to the City. The Contractor expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the Contractor shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City or its officers, employees, agents, and instrumentalities as herein provided. The indemnification provided above shall obligate the Contractor to defend, at its own expense, to and through trial, administrative, regulatory, appellate, supplemental and bankruptcy proceedings, or to provide for such defense, at the City's option, any and all claims of liability and all suits and actions of every name and description which may be brought against the City, whether performed by the Contractor, or persons employed or utilized by Contractor. These duties will survive the cancellation or expiration of the Agreement. This Section will be interpreted under the laws of the State of Florida. Contractor shall require all sub -Contractor agreements to include a provision that each sub -Contractor will indemnify the City in substantially the same language as this Section. Contractor agrees and recognizes that the City shall not be held liable or responsible for any claims which may result from any actions or omissions of the Contractor in which the City participated either through review or concurrence of the Contractor's actions. In reviewing, approving or rejecting any submissions by the Contractor or other acts of the Contractor, the City, in no way, assumes or shares any responsibility or liability of the Contractor or sub -Contractor under this Contract. Page 2 of 8 4. Ten dollars ($10.00) of the payments made by the City constitute separate, distinct, and independent consideration for the granting of this Indemnification, the receipt and sufficiency of which is voluntarily and knowingly acknowledged by the Contractor. 9.4 Deleted in its entirety. 9.5 Deleted in its entirety. 9.6 Deleted in its entirety Section 10 titled Insurance Requirements is hereby deleted in its entirety and replaced with the following language: A. Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury Endorsements Required City of Miami included as an Additional Insured Contingent and Contractual Liability Premises and Operations Liability Primary and Non -Contributory Insurance Clause Endorsement $1,000,000.00 $2,000,000.00 $1,000,000.00 $1,000,000.00 Additional Insured Endorsement naming the City of Miami as an additional insured must be provided. B. Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident Endorsements Required $1,000,000.00 Page 3 of 8 City of Miami included as an Additional Insured Additional Insured Endorsement naming the City of Miami as an additional insured must be provided. Umbrella/Excess Liability (Excess Follow Form) Limits of Liability Each Occurrence Aggregate $1,000,000.00 $2,000,000.00 Additional Insured Endorsement naming the City of Miami as an additional insured must be provided. C. Workers' Compensation Limits of Liability Statutory - State of Florida Employer's Liability Limits of Liability $100,000.00 for bodily injury caused by an accident, each accident. $100,000.00 for bodily injury caused by disease, each employee $500,000.00 for bodily injury caused by disease, policy limit Professional/Errors and Omissions Combined Single Limit Each Claim $5,000,000.00 General Aggregate Limit $5,000,000.00 Retro Date Included Network Security and Privacy Injury (Cyber Liability) If Applicable Each Claim $5,000,000.00 Policy Aggregate $5,000,000.00 Retro Date Included Page 4 of 8 Consultant agrees to maintain professional liability/Errors & Omission's coverage, along with Network Security and Privacy Injury (Cyber) coverage, if applicable, for at least two (2) years after termination of the Agreement period subject to continued availability of commercially reasonable terms and conditions of such coverage. Hexagon shall provide the City of Miami with prompt written notice of cancellation or material change. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class W as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. NOTE: CITY INVITATION FOR BID ("IFB")/REQUEST FOR PROPOSALS ("RFP") NUMBER AND/OR TITLE MUST APPEAR ON EACH CERTIFICATE. Compliance with the foregoing requirements shall not relieve the Provider of liability and obligation under this section or under any other section of this Agreement. --If insurance certificates are scheduled to expire during the contractual period, the Provider shall provide renewed certificates as soon as possible but in no event more than twenty business days following the expiration of the original certificate. --In the event that expired certificates are not replaced with new or renewed certificates which cover the contractual period, at its discretion, the City shall: Suspend the Agreement until such time as the new or renewed certificates are received by the City in the manner prescribed in the IFB/RFP; or, Terminate this Agreement for cause and seek re -procurement damages from the Provider in conjunction with the General and Special Terms and Conditions of the IFB/RFP. The Provider shall be responsible for assuring that the insurance certificates required in conjunction with this Section remain in force for the duration of the contractual period; including any and all option terms that may be granted to the Provider. 5. Section 13. Notices add the following language: TO THE CITY Arthur Noriega V City Manager 3500 Pan American Drive Miami, Florida 33133 Victoria Mendez City Attorney 444 SW 2nd Avenue, 9th Floor Miami, Florida 33130 Annie Perez, CPPO Director of Procurement/Chief Procurement Officer Page 5 of 8 City of Miami 444 SW 2nd Avenue, 6th Floor Miami, Florida 33130 TO HEXAGON: Victor S. Vasile SIG Legal Department 305 Intergraph Way Madison, AL 35758 USA 6. Section 22.6 Governing Law delete in its entirety and replace with the following: This Agreement will be construed and interpreted in all respects in accordance with the laws of the State of Florida without regard to its conflicts of law's provisions. Venue for any dispute arising under this Agreement shall be exclusively in the federal and state courts located in Miami -Dade County, Florida. Each Party submits to the jurisdiction of such courts and expressly waives any objection as to personal jurisdiction or forum non -convenes. Each party shall be responsible for its own attorneys' fees. 7. Add Section 22.12 PUBLIC RECORDS Pursuant to the provisions of Section 119.0701, Florida Statutes, Contractor must comply with the Florida Public Records Laws, specifically, Contractor must: 1) Keep and maintain public records that ordinarily and necessarily would be required by the public agency to perform the service. 2) Provide the public with access to public records, on the same terms and conditions that the public agency would provide the records, and at a cost that does not exceed the cost provided in this chapter, or as otherwise provided by law. 3) Ensure that public records, that are exempt or confidential and exempt from public records disclosure requirements, are not disclosed except as authorized by law. 4) Meet all requirements for retaining public records and transfer, at no cost, to the City all public records in its possession. Contractor, upon termination of the Agreement, shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. 5) All records stored electronically must be provided to the City in a format compatible with the information technology systems of the public agency. 6) Should Contractor determine to dispute any public access provision required by Florida Statutes, then Contractor shall do so at its own expense and at no cost to the City. IF CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, IT IS CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE DIVISION OF PUBLIC RECORDS AT (305) 416-1800, VIA EMAIL AT PUBLICRECORDS(a)MIAMIGOV.COM, OR REGULAR MAIL AT CITY OF MIAMI OFFICE OF THE CITY ATTORNEY, 444 SW 2ND AVENUE, 9TH FLOOR, MIAMI, FL 33130. CONTRACTOR MAY ALSO CONTACT THE RECORDS CUSTODIAN AT THE CITY OF MIAMI DEPARTMENT WHO IS ADMINISTERING THIS AGREEMENT. 8. Section 22.13 titled Funding is hereby added with the following language: Page 6 of 8 Funding for this Agreement is contingent upon the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds, failure to allocate or appropriate funds, and/or changes in applicable laws, city programs or policies, or regulations, upon thirty (30) days written notice. To the extent the Agreement is terminated pursuant to this provision, the parties shall wind down and address all claims in the manner provided under Section 5.2 (Termination for Convenience). 9. Section 22.14 of the Contract titled "No Conflict of Interest", is hereby added with the following language: Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of interest, Contractor hereby certifies to the City that no individual member of Contractor, no employee, and no subcontractors under this Agreement or any immediate family member of any of the same is also a member of any board, commission, or agency of the City. Contractor hereby represents and warrants to the City that throughout the term of this Agreement, Contractor, its employees, and its subcontractors will abide by this prohibition of the City Code. 10. Section 22.15 of the Contract titled "No Third -Party Beneficiary", is hereby added with the following language: No persons other than Contractor and the City (and their successors and assigns) shall have any rights whatsoever under this Agreement. 11. Section 22.16 of the Contract titled "Survival", is hereby added with the following language: All obligations (including but not limited to indemnity and obligations to defend and hold harmless) and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement shall survive such expiration or earlier termination provided that those rights are intended to survive. For purposes of clarity, those rights that are limited in by time, including, but not limited to, Subscription Licenses, the Cloud Program, Support Contract(s), and Training Program Statements, provide only rights for the term specified in the Order Documents. 12. Section 22.17 of the Contract titled COUNTERPARTS; ELECTRONIC SIGNATURES hereby added with the following language: This Agreement may be executed in counterparts, each of which shall be an original as against either Party whose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. An executed facsimile or electronic scanned copy of this Agreement shall have the same force and effect as an original. The parties shall be entitled to sign and transmit an electronic signature on this Agreement (whether by facsimile, PDF, or other email transmission), which signature shall be binding on the party whose name is contained therein. Any party providing an electronic signature agrees to promptly execute and deliver to the other parties an original signed Agreement upon request. 13. Exhibit B Maintenance Terms and Conditions for Software Page 7 of 8 9. Payment 9.1 Terms of Payment delete sentence "All Charges are due net thirty (30) calendar days from date of the invoice or prior to beginning of the applicable Coverage Period, whichever is earlier'. And replace with "AII Charges are due net forty-five (45) days from date on the invoice". IN WITNESS WHEREOF, the parties have executed this Addendum to the Agreement. ATTEST. By Print Name: aa&f[ Title: l +' �S'ln►J19 - CID unJsFL Y ATSA� ;J By: -- Todd B Hannon, City Clerk APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mdndez City Attorney "Hexagon" INTERGRAPH CORPORATION a Delaware Corporation Print Name: r Title: (Authorized Corporate Officer) ,City° CITY OF MIAMI, a Florida municipal corporation By Arthur Noriega V, City Manager APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe Risk Management Director Page 8 of 8