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HomeMy WebLinkAboutExhibit Supplemental Agreement(City of 43Thxmi AN\ll 171 lRl 1. (IT( hrrf N�, �tiu_m.ni C!'tir:r F,[li.1O F. Ci()ti/.1LEl. 1 [l.D. c ii \1,ina_,1. CITY OF MIAMI'S SUPPLEMENTAL AGREEMENT ZETEKY MASTER SERVICES AGREEMENT IN RESPONSE TO RFP 19-012693-JJX BETWEEN STATE OF NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY AND ZETEKY,INC. The City of Miami ("City") is accessing the above mentioned agreement to procure Zeteky's mobile application call "Torch" to allow the public to submit anonymous tips for the City of Miami Police Department. That contract titled "RFP 19-012693-JJX — Mobile Device Application" between and by North Carolina Department of Public Safety and Zeteky, Inc. (formerly IT People Corporation and ithinqware, Inc.) made and entered effective as of March 16, 2015 is attached hereto and is incorporated herein. This Supplement to the Master Services Agreement between North Carolina Department of Public Safety and Zeteky, Inc. includes legal requirements, and shall become part of the Agreement. The provisions of this Supplemental Agreement shall supersede any and all provisions in any other Agreement or understanding between the parties whether oral or in writing, and in the event a provision of this Supplemental Agreement conflicts with a provision of the Master Services Agreement, the provisions of this Supplemental Agreement shall supersede, control, and apply. The effective date of access by the City shall be , 2018. 1) All references to the Client shall be referenced as City. 2) Section 6, of the Agreement titled "Zeteky Fees, Payment Terms and Taxes." Subsection 6.2, is hereby amended with the following language; 6.2 United States Dollars. Subject to the terms set forth in this Section 6, all payments will be made in full in United States Dollars, at Zeteky's corporate office business address. The City will pay the required amounts within forty-five (45) days, from the date of issuance in accordance with Florida Statues Sections 218.73 and 218.74, Florida Statutes, of the Florida Prompt Payment Act. The Florida Prompt Payment Act Sections 218,70 to 218.80, Florida Statutes, is deemed as being incorporated by reference herein 3) Section 6, of the Agreement titled "Zeteky Fees, Payment Terms and Taxes." Subsection 6.4 is hereby deleted and replaced with the following language; 6.4. Taxes. The City is exempt from any taxes imposed by the State and/or Federal Government. 4) Section 7, of the Agreement titled " Term and Termination" Subsections 7.1 and 7.2 are hereby amended with the following language; 7.1. Term. This Agreement will be effective as of the Effective Date and continue in full force and effect for one year following the Effective Date (the "Initial Term") and will have to be renewed in writing by the City thirty (30) days or less prior to the renewal date, otherwise the agreement shall terminate. Should the City renew for an additional one year (each a "Renewal Term" and collectively the Initial Term and any Renewal Term(s) being referred to as the "Term"), until the earlier of (a) the end of the fifth Renewal Term; or (b) as terminated in connection with the delivery of a Nonrenewal Notice as provided below. Either Party may prevent, for convenience, the automatic renewal by providing the other written notice of its intent not to renew at least thirty (30) days prior to the end of the Initial Term or the then -current Renewal Term (a "Nonrenewal Notice"). The Fees due for any Renewal Terms shall be determined by the mutual agreement of the Parties unless otherwise set forth on Schedule B and shall be in accord with the Master Services Agreement. 7.2. Termination for Cause. in addition to any of its other remedies, either Party may terminate this Agreement in the event that the other Party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non -breaching Party. Other than to pay the fees through the date of termination, Zeteky, Inc. shall have no recourse or remedy against the City except to recover such fees through the date of termination. 5) Section 8 of the Agreement titled "Client Representations and Warranties" subsections 8,4, and 8.5 are hereby deleted; 6) Section 9 of the Agreement titled "Limitations of Liability and Disclaimers" Subsection 9.1 is hereby amended with the following language; 9.1 Neither Party will be liable to the other Party, its agents, affiliates, clients, or any other persons, for any lost profits or indirect, incidental, special, punitive, consequential or similar damages. In no event will either Party's liability for any and all claims, in the aggregate, arising out of, relating to or in connection with this Agreement or the performance of its obligations hereunder $300,000. 7) Section 14 of the Agreement titled Notices is hereby deleted in its entirety and replaced with the following language; All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery of by registered or certified US Mail, return receipt requested, address to the other party at the address indicated herein or to such other address as a party my designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or if by mail on the fifth day after being posted or the date of actual receipt, whichever is earlier. TO THE CITY: Emilio T. Gonzalez, Ph.D. 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 Procurement Director City of Miami 444 SW 2nd Avenue, 6th Floor Miami, Florida 33130 TO Zeteky, Inc. Zeteky, Inc. 4375 Lindberg Drive Addison, TX 75001 Attn.: John W. Dalton 8) Section 15 of this Agreement titled "Force Majeure" first paragraph is hereby deleted in its entirety and replaced with the following language; A "Force Majeure Event" shall mean an act of God, act of governmental body or military authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the event that either party is delayed in the performance of any act or obligation pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use its best efforts to rectify any condition causing such delay and shall cooperate with the other party to overcome any delay that has resulted. 9) Section 16 of this Agreement titled "General Provisions", Subsection 16.9 is hereby deleted in its entirety and replaced the following language; Notwithstanding any other provisions of the Agreement, venue in all proceedings shall be in Miami -Dade County, Florida. The laws of Florida shall apply to interpret the Agreement, or any Addend ums thereto, and the parties agree to the use of this venue and will not object to such venue, In any civil action or other proceedings between the parties, arising out of the Agreement each party shall bear its own attorney's fees. 10) Section 17 has entitled "Audit and Inspection Rights And Retention of Records:" has been added to this Agreement with the following language; Zeteky, Inc. hereby agrees and understands that the public shall have access, at all reasonable times, to all documents and information pertaining to the City, subject to the provisions of Chapter 119, Florida Statutes, and any specific exemptions there from, and Zeteky, Inc.agrees to allow access by the City and the public to all documents subject to disclosure under applicable law unless there is a specific exemption from such access. Zeteky, Inc. failure or refusal to comply with the provisions of this section shall result in immediate termination of Zeteky, Inc. by the City. Pursuant to the provisions of Section 119.0701, Florida Statutes, Zeteky, Inc. must comply with the Florida Public Records Laws, specifically Zeteky, Inc.: 1) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order 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 public agency all public records in possession of Zeteky, Inc. upon termination of the contract and 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 Zeteky, Inc. determine to dispute any public access provision required by Florida Statutes, then Zeteky, Inc. shall do so at its own expense and at no cost to the City. IF Zeteky, Inc. HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE SELLER'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (305) 416-1830, Via email at PublicRecords@miamigov.com, or regular email at City of Miami Office of the City Attorney, 444 SW 2nd Avenue, 9th FL, Miami, FL 33130. The Inspection and Audit provisions set forth in Sections 18-101 and 18-102 of the City Code are deemed as being incorporated by reference herein and additionally apply to this Agreement. 11) Section 18 titled "Laws and Ordinances" has been added to this Agreement with the following language; Zeteky, Inc. shall be responsible to follow and observe all applicable laws, rules, regulations and ordinances of the City, County, State, Federal governments or other public agencies having jurisdiction over the subject matter of this Agreement relating to the activities, undertakings and operations being conducted pursuant to this Agreement. 12) Section 19 titled "Cancelation for Convenience" has been added to this Agreement with the following language; The City, acting by and through its City Manager, shall have the right to terminate this Agreement, in its sole discretion, and without penalty, at any time, by giving written notice to Zeteky, Inc. at least thirty (30) calendar days prior to the effective date of such termination. In such event, the City shall pay to Zeteky, Inc. compensation for Services 4 rendered and approved expenses incurred prior to the effective date of termination. In no event shall the City be liable to Zeteky, Inc. for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the City be liable for any indirect, direct, consequential or incidental damages. Zeteky, Inc. shall have no recourse or remedy against the City for a termination under this subsection except for payment of fees due prior to the effective date of termination. 13) Section 20 titled "Mediation" has been added to this Agreement with the following language; These parties may, at their discretion, agree in writing to resolve any dispute between them arising under this Agreement by submitting such dispute to non —binding mediation by a certified mediator in Miami -Dade County, Florida. The parties shall split the cost of the mediator. The decision of the mediator shall not be binding. Mediation shall be conducted under Florida law. 14) Section 21 titled "Contingency Clause" has been added to this Agreement with the following language; Funding for this Agreement is contingent on 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 change in applicable laws, city programs or policies , or regulations, upon thirty (30) days written notice. 15)Section 22 titled "City Not Liable for Delays" has been added to this Agreement with the following language; Zeteky, Inc. hereby understands and agrees that in no event shall the City be liable for, or responsible to Zeteky, Inc. or any subcontractor, or to any other person, firm, or entity for or on account of, any stoppages or delays) in work herein provided for, or any damages whatsoever related thereto, because of any injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over which the City has no control. 16) Section 23 titled "Use of Name" has been added to this Agreement with the following language; Zeteky, Inc. understands and agrees that the City is not engaged in research for advertising, sales promotion, or other publicity purposes. Zeteky, Inc. is allowed, within the limited scope of normal and customary marketing and promotion of its work, to use the general results of this project and the name of the City. Subject to applicable laws, Zeteky, Inc. agrees to protect any confidential information provided by the City and will not release information of a specific nature without prior written consent of the City Manager or the City Commission. 17)Section 24 titled "No Conflict of Interest" has been added to this Agreement with the following language; Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of interest, Zeteky, Inc. hereby certifies to the City that no individual member of Zeteky, Inc.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. Zeteky, Inc. 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. 18) Section 25 titled Insurance Requirements has been added to this Agreement with the following language; INSURANCE REQUIREMENTS -PROFESSIONAL SERVICES AGREEMENT I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Personal and Adv. Injury Products/Completed Operations B. Endorsements Required City of Miami listed as additional insured Contingent & Contractual Liability Premises and Operations Liability Primary Insurance Clause Endorsement II. Business Automobile Liability $1,000,000 $2,000,000 $1,000,000 $1,000,000 A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Owned/Scheduled Autos Including Hired. Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident $100,000 for bodily injury caused by disease. each employee $500,000 for bodily injury caused by disease, policy limit IV. Professional Liability/Errors and Omissions Coverage Combined Single Limit Each Claim General Aggregate Limit Retro Date Included $1,000,000 $1,000,000 The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer in accordance to policy provisions. 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 V" 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 policies and for certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 19)Section 26 titled "Severability" has been added to this agreement with the following language; If this agreement contains any provisions found to be unlawful, the same shall be deemed to be of no effect, and shall be stricken from this Agreement without affecting the binding force of this Agreement as it shall rein after omitting such provision. 20)Section 27 titled "Counterparts" has been added to this Agreement with the following language; This Agreement may be executed in three or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized. "Zeteky, Inc." "City" Zeteky CITY OF MIAMI, a municipal corporation BY: BY: John VI. Dalton' Emilio T. Gonzalez, Ph.D., City Manager DATE: DATE: ATTEST: ATTEST: Corporate Secretary/Notary Public Todd Hannon, City Clerk Corporate Seal/Notary Sea! APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe, Director Risk Management Department APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez, City Attorney Please attach cl}iupally resolution of Lessor authoriziI 2 signatory to sign these Contracts. 8