HomeMy WebLinkAboutExhibitCITY OF MIAMI'S SUPPLEMENTAL AGREEMENT TO
SERVICES CONTRACT
BETWEEN CITY OF TAMPA AND
VARIOUS VENDORS FOR
PARKS SITE FURNISHINGS AND SERVICES
The City of Miami, Florida ("City") is accessing the contract titled "Parks Site
Furnishings, Playground Equipment and Surfacing, and Installation, Repairs and
Replacement" between the City of Tampa, Florida ("Tampa"), and Various Vendors
(inclusive of both the singular and the plural, "Vendors") for provision of the same
("Services"), made and entered effective as of February 27, 2022, attached hereto and
incorporated by reference herein ("Services Contract"). This supplement to the
Services Contract between Tampa and the Vendors includes City legal requirements
("Agreement"). The term of this Agreement is as stated in Section 2.2 of the Services
Contract. The effective date of access by the City is
1) Vendors Responsibilities:
A. Vendors agreed to furnish the Services as further described in Tampa Invitation
to Bid ("ITB") No. 31041421, as indicated in the Section for General Conditions
for Site Furnishings, Playground Equipment and Surfacing, Installation, Repairs
and Replacement, as attached, and with the following exceptions:
i. All references to "City of Tampa" or "Tampa" shall be deleted and
replaced with the "City" as applicable throughout the Exhibit.
ii. All references to "County Commission" shall be stricken and replaced
with the "City Commission" as applicable throughout the Solicitation.
B. Vendor shall provide the Services to the City delivering the proper quantities
within the time limits specified in the spot market quotes.
C. Vendor's, responsibilities will commence on the effective date of this agreement.
2) Audit and Inspection Rights and Records Retention:
A. Vendors agree to provide access to the City or to any of its duly authorized
representatives, to any books, documents, papers, and records of Vendors which
are directly pertinent to this Agreement, for the purpose of audit, examination,
excerpts, and transcripts. The City may, at reasonable times, and for a period of
up to three (3) years following the date of final payment by the City to Vendors
under this Agreement, audit and inspect, or cause to be audited and inspected,
those books, documents, papers, and records of Vendors which are related to
Vendors' performance under this Agreement. Vendors agree to maintain all such
books, documents, papers, and records at their principal place of business in
Miami -Dade County, or its local office in Miami -Dade County or to otherwise
make them available in Miami -Dade County for a period of three (3) years after
final payment is made under this Agreement and all other pending matters are
closed. Vendors' failure to adhere to, or refusal to comply with, this condition
shall result in the immediate cancellation of this Agreement by the City.
B. The City may, at reasonable times during the term hereof, inspect Vendors'
facilities and perform such tests, as the City deems reasonably necessary, to
determine whether the goods or services required to be provided by Vendors
under this Agreement conform to the terms hereof. Vendors shall make available
to the City all reasonable facilities and assistance to facilitate the performance of
tests or inspections by City representatives. All audits, tests and inspections shall
be subject to, and made in accordance with, the provisions of Sections 18-99,
18-100, 18-101, and 18-102 of the Code of the City of Miami, Florida, as
amended or supplemented from time to time ("City Code").
3) Contract Section 4.30, titled Florida Public Records Law, is hereby deleted in its
entirety and replaced with the following "Public Records" language:
A. Vendors understand that the public shall have access, at all reasonable times, to
all documents and information pertaining to City agreements, subject to the
provisions of Chapter 119, Florida Statutes, and agree to allow access by the
City and the public to all documents subject to disclosure under applicable laws.
Vendors' failure or refusal to comply with the provisions of this section shall result
in the immediate cancellation of this Agreement by the City.
B. Vendors shall additionally comply with Section 119.0701, Florida Statutes,
including without limitation: (1) keep and maintain public records that ordinarily
and necessarily would be required by the City to perform this Service; (2) upon
request from the City's custodian of public records, provide the City with a copy
of the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided in Chapter 119,
Florida Statutes, 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 for the duration of
the Agreement term and, following completion of the Agreement, if Vendors do
not transfer the records to the City; (4) upon completion of the Agreement,
transfer, at no cost, to the City all public records in possession of Vendors or
keep and maintain public records required by the City to perform the Service, if
Vendors transfer all public records to the City upon completion of the Agreement,
Vendors shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements, if Vendors
keep and maintain public records upon completion of the Agreement, Vendors
shall meet all applicable requirements for retaining public records, all records
stored electronically must be provided to the City, upon request from the City's
custodian of public records, in a format that is compatible with the information
technology systems of the City. Notwithstanding the foregoing, Vendors shall be
permitted to retain any public records that make up part of their work product
solely as required for archival purposes, as required by law, or to evidence
compliance with the terms of the Agreement.
C. Should Vendors determine to dispute any public access provision required by
Florida Statutes, then Vendor(s) shall do so at their own expense and at no cost
to the City. IF VENDORS HAVE QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO VENDORS'
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DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THE AGREEMENT,
CONTACT THE DIVISION OF PUBLIC RECORDS AT (305) 416-1800, VIA
EMAIL AT PUBLICRECORDS@MIAMIGOV.COM, OR REGULAR MAIL AT
CITY OF MIAMI OFFICE OF THE CITY ATTORNEY, 444 SW 2ND AVENUE,
9TH FLOOR, MIAMI, FL 33130. VENDORS MAY ALSO CONTACT THE
RECORDS CUSTODIAN AT THE CITY OF MIAMI DEPARTMENT WHO IS
ADMINISTERING THIS AGREEMENT.
4) Contract Section 4.37, titled Minimum Wage Amendment, is hereby deleted in its
entirety and replaced with the following "Florida Minimum Wage and City of
Miami Living Wage Ordinance" language:
A. Florida Minimum Wage. In accordance with the Constitution of the State of
Florida, Article X, Section 24, employers shall pay employee wages no less than
the minimum wage for all hours worked in Florida. Accordingly, it is the
Successful Bidders'/Contractors' and their subcontractors' responsibility to
understand and comply with this Florida minimum wage requirement and pay its
employees the current established hourly minimum wage rate. This minimum
wage rate is subject to change or adjusted by the rate of inflation using the
consumer price index ("CPI") for urban wage earners and clerical workers ("CPI-
W"), or a successor index as calculated by the United States Department of
Labor. Each adjusted minimum wage rate calculated, shall be determined and
published by the Agency Workforce innovation on September 30th of each year
and take effect on the following January 1st.
It is the Bidders' and their subcontractors' (if applicable) full responsibility to
determine whether any of their employees may be impacted by this Florida
Minimum Wage Law, at any given point in time during the term of the
Agreement. If impacted, Bidders must provide, with their bid, employee
name(s), job title(s), job description(s), and current pay rate(s). Failure to submit
this information at the time of bid submittal constitutes Successful
Bidders'/Contractors' acknowledgement and understanding that the Florida
Minimum Wage Law will not impact its prices throughout the term of the
Agreement, and a waiver of any contractual price increase request(s). The City
reserves the right to request, and the Successful Bidders/Contractors must
provide for any, and all information to make a wage and contractual price
increase(s) determination.
B. City of Miami Living Wage Ordinance. The City of Miami adopted a Living
Wage Ordinance for City Service Contracts with a total contract value exceeding
$100,000.00 annually, and that have been competitively solicited and awarded
on, or after January 1, 2017, by the City.
"Service Contract" means a contract to provide services to the City, excluding,
however, professional services as defined by the "Consultants Competitive
Negotiation Act" set forth in F.S. § 287.055, and Section 18-87 of the City Code,
and/or the other exclusions provided by Section 18-557 of the City Code.
If a solicitation requires services, effective on January 1, 2017, Contractors must
pay to all their employees, who provide services, a living wage of no less than
$15.00 per hour without health benefits, or a wage of no less than
$13.19 an hour, with health benefits.
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This language is only a summary of the key provisions of the City of Miami Living
Wage Ordinance.
5) Independent Contractor:
This Agreement does not create an employee/employer relationship between the
parties. It is the express intent of the parties that Vendors are independent Contractors
under this Agreement and not the City's employees for all purposes, including, but not
limited to, the application of the Fair Labor Standards Act minimum wage and overtime
payments, Federal Insurance Contribution Act, the Social Security Act, the Federal
Unemployment Tax Act, the provisions of the Internal Revenue Code, the State
Workers Compensation Act, any benefits under the City Pension Ordinances, and the
State unemployment insurance law. Vendors shall retain sole and absolute discretion
in the judgment of the manner and means of carrying out Vendors' activities and
responsibilities hereunder. Vendors agree that they are a separate and independent
enterprise from the City, that they have full opportunity to find other business, that they
make their own investment in their business, and that they will utilize a high level of
skill necessary to perform the Services.
This Agreement shall not be construed as creating any joint employment relationship,
joint venture partnership or other affiliated entity status between Vendors and the City,
and the City will not be liable for any obligation incurred by Vendors, including, but not
limited to, unpaid minimum wages and/or overtime premiums.
In this regard, the City is not responsible for any debts, defaults, acts or omissions of
Vendors or their officials, agents, servants and employees.
6) Notices:
TO THE CITY:
Arthur Noriega V.
City Manager
City of Miami
3500 Pan American Drive
Miami, Florida 33133
Victoria Mendez
City Attorney
City of Miami
444 S.W. 2nd Avenue, 9th Floor
Miami, Florida 33130
Annie Perez, CPPO
Chief Procurement Officer/Procurement Director
City of Miami
444 S.W. 2nd Avenue, 6th Floor
Miami, Florida 33130
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TO VENDOR:
Advanced Recreational Concepts LLC
7) Contract Section 4.42, titled Governing LawNenue, is hereby deleted in its
entirety and replaced with the following "Applicable Law, Venue and Attorney's
Fees" language:
This Agreement with the City shall be governed by and construed under the laws of
the State of Florida regardless of choice or conflict of laws principles. Venue in any
proceedings between Vendors and the City of Miami shall be in a court of competent
jurisdiction located in Miami -Dade County, Florida. Each party shall bear their own
respective attorneys' fees.
8) Laws and Ordinances
Vendors shall be responsible for following and observing all applicable laws, rules,
regulations and ordinances of the City, County, State, and Federal government or such
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.
9) Contract Section 5, titled Indemnification, is hereby deleted in its entirety and
replaced with the following "Indemnification" language:
A. Vendors shall further indemnify, defend (at their own cost), and hold the City, its
officers, agents, directors, employees, agencies, and instrumentalities harmless
against any civil actions, statutory or similar claims, injuries or damages arising or
resulting from the Services, even if it is alleged that the City, its officers, agents,
directors, employees, agencies, and instrumentalities were negligent. In the event
that any action or proceeding is brought against the City by reason of any such claim
or demand, Vendors shall, upon written notice from the City, resist and defend (at
their own cost) such action or proceeding by counsel satisfactory to the City.
Vendors expressly understand and agree that any insurance protection required by
this Agreement or otherwise provided by Vendors shall in no way limit the
responsibility to indemnify, defend and save the City, its officers, agents, directors,
employees, agencies, and instrumentalities harmless as herein provided.
B. The indemnification provided above shall obligate Vendors to defend, at their own
expense, to and through trial, administrative, appellate, supplemental or bankruptcy
proceeding, 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 Vendors, or persons employed or utilized by
Vendors.
Page 5
C. These duties will survive the cancellation or expiration of the Agreement. This
Section will be interpreted under the laws of the State of Florida, including without
limitation and interpretation, which conforms to the limitations of Sections 725.06
and/or 725.08, Florida Statutes, as applicable and as amended.
D. Vendors shall require all subcontractor agreements to include a provision that each
subcontractor shall indemnify the City in substantially the same language as this
Section. Vendors agree and recognize that the City shall not be held liable or
responsible for any claims which may result from any actions or omissions of
Vendors in which the City participated either through review or concurrence of
Vendors' actions. In reviewing, approving or rejecting any submissions by Vendors
or other acts of Vendors, the City, in no way, assumes or shares any responsibility
or liability of Vendors or subcontractors under this Agreement.
E. 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 Vendors.
10}Contract Section 6 titled Non -Discrimination in Contracting, and Contract
Section 6.1 titled Equal Opportunity is hereby deleted in its entirety and replaced
with the following "Non -Discrimination, Equal Employment Opportunity, and
Americans with Disabilities Act" language:
Vendors shall not unlawfully discriminate against any person in their operations and
activities or in their use or expenditure of funds in fulfilling their obligations under this
Agreement. Vendors shall affirmatively comply with all applicable provisions of the
Americans with Disabilities Act ("ADA") in the course of providing any services funded
by City, including Titles I and II of the ADA (regarding nondiscrimination on the basis
of disability), and all applicable regulations, guidelines, and standards. In addition,
Vendors shall take affirmative steps to ensure nondiscrimination in employment
against disabled persons.
Vendors affirm that they shall not discriminate as to race, age, religion, color, gender,
gender identity, sexual orientation, national origin, marital status, physical or mental
disability, political affiliation, or any other factor which cannot be lawfully used in
connection with their performance under the formal solicitation. Furthermore, Vendors
affirm that no otherwise qualified individual shall solely by reason of their race, age,
religion, color, gender, gender identity, sexual orientation, national origin, marital
status, physical or mental disability, political affiliation, or any other factor which cannot
be lawfully used, be excluded from the participation in, be denied benefits of, or be
subjected to, discrimination under any program or activity. In connection with the
conduct of their business, including performance of services and employment of
personnel, Vendors shall not discriminate against any person on the basis of race, age,
religion, color, gender, gender identity, sexual orientation, national origin, marital
status, physical or mental disability, political affiliation, or any other factor which cannot
be lawfully used. All persons having appropriate qualifications shall be afforded equal
opportunity for employment.
11)ContractSection 7, titled Insurance, is hereby deleted in its entirety and replaced
with the following "Insurance Requirements" language:
Page 6
Vendors shall provide and maintain in force at all times during the Agreement with the
City, such insurance, including Workers' Compensation and Employer's Liability
Insurance, Comprehensive General Liability Insurance, Automobile Liability Insurance
and Errors and Omissions Insurance to assure the protection contained in the
foregoing indemnification undertaken by Vendors.
A. For all Vendors providing equipment or material using third -party freight, shall only
provide Commercial General Liability Insurance based on subsection C. herein,
Commercial General Liability Insurance requirements.
B. Workers' Compensation subject to Statutory limits for the State of Florida with
$100,000.00 Employers Liability.
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
C. Commercial General Liability Insurance with limits of no less than $1,000,000.00 per
occurrence, $2,000,000.00 for policy aggregate, affording coverage for bodily injury,
including death, and property damage. The certificate of insurance shall insure
exposures arising out of premises and operations, products and completed
operations, personal injury and advertising liability, and include coverage for
contingent and contractual exposures. This insurance shall be written with a primary
and non-contributory wording and shall list the City of Miami as an additional
insured.
D. Business Auto Liability protecting against bodily injury and property damage arising
out of operation, maintenance or use of any auto, including owned, non -owned and
hired automobiles exposures, with limits of not Tess than $ 1,000,000.00 per
accident. The City shall appear listed as an additional insured on this coverage.
E. A Certificate of Insurance acceptable to the City shall be provided listing the above
coverages and providing thirty (30) days prior written notice to the City in the case
of cancellation. The City shall be named as an additional insured on all liabilities,
except professional liability and workers' compensation coverage. A copy of the
certificate shall be mailed to the City's Department of Risk Management at the time
Vendors execute this Agreement.
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 Tess
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/or certificates of insurance are subject to review
and verification by Risk Management prior to insurance approval.
Page 7
The City reserves the right to request a certified copy of the insurance policy
including all endorsements.
12)Contract Section 4.24, titled Cancellation, is hereby deleted in its entirety and
replaced with the following "Cancellation for Convenience" 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 Vendors at least thirty (30) calendar days prior to the effective date of such
termination. In such event, the City shall pay to Vendors compensation for Services
rendered and approved expenses incurred prior to the effective date of termination. In
no event shall the City be liable to Vendors for any additional compensation and
expenses incurred, other than that provided herein, and in no event shall the City be
liable for any consequential or incidental damages. Vendors 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)Contract Section 4.22, titled Assignment, is hereby deleted in its entirety and
replaced with the following "Assignment" language:
Vendors were selected for these Services due to their particular and unique experience
in the subject matter of this Agreement which Agreement is not freely assignable or
transferable. This Agreement shall not be assigned, sold, transferred, or otherwise
sold, by Vendors, in whole or in part, and Vendors shall not assign any part of its
operations, without the prior written consent of the City Manager, which may be denied,
withheld, or conditioned, in the City's sole discretion through the City Manager.
Vendors shall have no recourse from the City Manager's refusal to approve this
Assignment, other than to cancel the Agreement in the manner provided by subsection
(I) above.
14)Mediation:
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.
15)Contingency Clause:
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.
16)Contract Section 4.45, titled Force Majeure, is hereby deleted in its entirety and
replaced with the following "Force Majeure" 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
Page 8
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.
17)City Not Liable for Delays:
Vendors hereby understand and agree that in no event shall the City be liable for, or
responsible to Vendors or any subcontractors, 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 delays for any cause over which the City
has no control.
18)Use of Name:
Vendors understand and agree that the City is not engaged in research for advertising,
sales promotion, or other publicity purposes. Vendors are allowed, within the limited
scope of normal and customary marketing and promotion of their work, to use the
general results of this project and the name of the City. Vendors agree 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.
19)No Conflict of Interest:
Pursuant to City Code Section 2-611, regarding conflicts of interest, Vendors hereby
certify to the City that no individual member of Vendors' companies, 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. Vendors
hereby represent and warrant to the City that throughout the term of this Agreement,
Vendors' companies, its employees, and its subcontractors will abide by this prohibition
of the City Code.
20)Invoices:
Invoices shall contain purchase order numbers and details of goods and/or services
delivered (i.e. quantity, unit price, extended price, etc.); and shall be in compliance with
Chapter 218 of the Florida Statutes 218.73, and 218.74, the Florida Prompt Payment
Act.
Page 9
21) No Third -Party Beneficiary:
No persons other than Vendors and the City (and their successors and assigns) shall
have any rights whatsoever under this Agreement.
22)Survival:
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.
23)Truth-in-Negotiation Certification, Representation and Warranty:
Vendors hereby certify, represent and warrant to the City that on the date of Vendors'
execution of this Agreement, and for so long as this Agreement shall remain in full force
and effect, the wage rates and other factual unit costs supporting the compensation to
Vendors under this Agreement are and will continue to be accurate, complete, and
current. Vendors understand, agree and acknowledge that the City shall adjust the
amount of the compensation and any additions thereto to exclude any significant sums
by which the City determines the Agreement price of compensation hereunder was
increased due to inaccurate, incomplete, or non -current wage rates and other factual
unit costs. All such contract adjustments shall be made within one (1) year of the end
of this Agreement, whether naturally expiring or earlier terminated pursuant to the
provisions hereof.
24)Counterparts; Electronic Signatures:
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.
Page 10
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their
respective officials thereunto duly authorized.
Vendor(s): CITY OF MIAMI,
a Florida municipal corporation:
BY:
DATE: r-k \.3
ATTEST:
Corporate Sec
/Notary Public
Corporate Seal/Notary Seal
pu •,, TAMARA L ORTIZ
Notary Public - State of Florida
Commission # HN 271047
•,; My Comm. Expires Sep 25, 2026
Bonded through National Notary Assn.
BY:
Arthur Noriega V, City Manager
DATE:
ATTEST:
Todd Hannon, City Clerk
APPROVED AS TO INSURANCE
REQUIREMENTS:
Ann -Marie Sharpe, Director
Risk Management
APPROVED AS TO LEGAL FORM AND
CORRECTNESS:
Victoria Mendez, City Attorney