HomeMy WebLinkAboutExhibit.-%-Nti1E PEREZ, CPPD
Chief Procurone i 00—wer
Cnttg 0 f ffl 1 -ami
E.MILIO T. GONZALEZ. PH.D.
01% Millauer
CITY OF MIAMI'S SUPPLEMENTAL AGREEMENT TO BID CONTRACT
BETWEEN CITY OF HOMESTEAD, FL AND
ASPLUNDH TREE EXPERT, LLC F/K/A ASPLUNDH TREE EXPERT CO.
The City of Miami ("City") is accessing the above mentioned Contract of the City of Homestead, FL, to
procure tree trimming and line clearing services forthe Public Works Department ("Public Works"). That
certain Contract titled "Tree Trimming and Line Clearing" between the City of Homestead, FL
("Homestead"), and Asplundh Tree Expert, LLC formerly known as Asplundh Tree Expert Co.
("ASPLUNDH"), made and entered effective as of November 20, 2013 is attached hereto and is
incorporated by reference herein. This supplement to the Contract between Homestead and
ASPLUNDH and includes applicable City of Miami legal requirements. The term of this Contract is as
stated in Section 2.8 of the Homestead Invitation to Bid ("ITB"), which is from November 1, 2013 to
September 30, 2015 with two (2) one-year renewals, extending the contract to September 30, 2017,
The Contract was subsequently extended through ,lune 30, 2018. The Homestead ITB is attached
hereto as Exhibit A and made a part hereof. The effective date of access by the City of Miami is
, 2018.
a) All references to "the City of Homestead" or "Homestead", shall be deleted and replaced with
"the City of Miami", or "the City", as applicable.
b) ASPLUNDH's Responsibilities:
A. ASPLUNDH has agreed to provide the services as further described in Homestead Contract
Bid #201308 ("the Contract"), as indicated in Exhibit A, Invitation to Bid as attached.
B. ASPLUNDH will provide services to the City in an amount equal to the costs identified in the
Contract.
C. ASPLUNDH's responsibilities will commence on the effective date of this agreement.
c) Section 1.21 of the Contract, titled "Indemnification" is hereby deleted in its entirety and
replaced with the following language:
ASPLUNDH shall indemnify, hold and save harmless„ and defend (at its own cost and expense),
the City, its officers, agents, directors, and/or employees, from all liabilities, damages, losses,
judgements, and costs„ including, but not limited to, reasonable attorney's fees, to the extent
caused by the negligence, recklessness, negligent act or omission, or intentional wrongful
misconduct of ASPLUNDH and persons employed or utilized by ASPLUNDH in the performance
of this Contract. ASPLUNDH shall further, hold the City, its officials and employees harmless ,
indemnify, save, covenant not to sue , , and defend (at its own cost), the City its officials and/or
employees against any civil actions, statutory or similar claims, injuries or damages arising or
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resulting from the permitted Work, even if it is alleged that the City, its officials, and/or employees
were negligent. In the event that any action or proceeding is brought against the City by reason
of any such claim or demand, ASPLUNDH shall, upon written notice from the City, resist and
defend such action or proceeding by counsel satisfactory to the City. ASPLUNDH expressly
understands and agrees that any insurance protection required by this Contract or otherwise
provided by ASPLUNDH 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 ASPLUNDH to defend, at its own expense, to
and through trial, administrative, appellate, supplemental or bankruptcy proceeding, orto 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
ASPLUNDH, or persons employed or utilized by ASPLUNDH,
These duties will survive the cancellation or expiration of the Contract. 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 may be
applicable and as amended.
ASPLUNDH 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.
ASPLUNDH 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 ASPLUNDH in which the City
participated either through review or concurrence of Consultant's actions. In reviewing,
approving or rejecting any submissions by the Consultant or other acts of Consultant, the City,
in no way, assumes or shares any responsibility or liability of Consultant or any sub -contractor
under this Contract.
Ten dollars (S10) 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 ASPLUNDH.
d) Section 1.61 of the Contract, titled "Force Majeure" 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.
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e) Section 1.70 of the Contract, titled "Attorney's Fees" is hereby -deleted in its entirety and
replaced with the following language:
In the event of a dispute, proceeding or action , each party shall be responsible for payment of
its own attorney's fees.
f) Section 1.79 of the Contract, titled "Public Records Law" is hereby deleted in its entirety
and replaced with the following language:
ASPLUNDH 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 ASPLUNDH 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. ASPLUNDH's failure or refusal to
comply with the provisions of this section shall result in immediate termination of ASPLUNDH by
the City.
Pursuant to the provisions of Section 119.0701, Florida Statutes, ASPLUNDH must comply with
the Florida Public Records Laws, specifically ASPLUNDH:
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 ASPLUNDH 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.
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.
Should ASPLUNDH determine to dispute any public access provision required by Florida
Statutes, then ASPLUNDH shall do so at its own expense and at no cost to the City. IF
ASPLUNDH HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119,
FLORIDA STATUTES, TO ASPLUNDH'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THE CONTRACT, CONTACT THE DIVISION OF PUBLIC RECORDS AT (305)
416-1800, VIA EMAIL AT PUBLICRECORDS c7 MIAMIGOV.COM, OR REGULAR MAIL AT
CITY OF MIAMI OFFICE OF THE CITY ATTORNEY, 444 SW 2"D AVENUE, 9TH FLOOR,
MIAMI, FL 33130. ASPLUNDH MAY ALSO CONTACT THE RECORDS CUSTODIAN AT THE
CITY OF MIAMI DEPARTMENT WHO IS ADMINISTERING THIS CONTRACT.
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g) Section 3.5 of the Contract, titled "Insurance" is� hereby deleted in its entirety and
replaced with the following language:
ASPLUNDH 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 ASPLUNDH.
A. Commercial General Liability Insurance with limits of no less than $1,000,000.00 per
occurrence, $2,000,000 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. This insurance shall list the City of Miami as an additional insured.
B. 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 less than $1,000,000 per accident. The City shall
appear listed as an additional insured on this coverage.
C. Workers' Compensation subject to Statutory limits for the State of Florida.
D. Employers' Liability with limits of no less than $100,000 for bodily injury caused by accident,
for each accident; $100,000 for bodily injury caused by disease for each employee; $500,000
for bodily injury caused by disease, policy limit.
E. Umbrella Liability with limits of no less than $1,000,000 each occurrence; $1,000,000 policy
aggregate.
F. A Certificate of Insurance acceptable to the City shall be provided listing the above coverages
and providing 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 Risk
Management Department at the time ASPLUNDH executes this Agreement.
h) Section 2.15 of the Contract, titled "Payment" is hereby deleted in its entirety and
replaced with the following language:
All invoices issued by ASPLUNDH will be processed within forty-five (45) days, from the date of
issuance in accordance with Florida Statutes Sections 218.73 and 218.74 of the Florida Prompt
Payment Act.
i) Section 3.8 of the Contract titled "Notices" is hereby added with the following language:
All notices or other communications required under this Contract 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
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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. Gonz6lez, Ph.D.
City Manager
3500 Pan American Drive
Miami, Florida 33133
Victoria M6ndez
City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
Annie Perez, CPPD
Procurement Director
City of Miami
444 SW 2nd Avenue, 6th Floor
Miami, Florida 33130
TO ASPLUNDH:
ASPLUNDH Tree Expert, LLC
106 SW 140th Terrace, Suite 3
Jonesville, FL 32669
Attn.: Ronnie Collins, Vice President
j) Section 3.9 of the Contract, titled "Applicable Law, Venue and Attorney's Fees", is hereby
added, with the following language:
This Agreement with the City of Miami will 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 ASPLUNDH and the City of Miami will be in a court of competent jurisdiction located in
Miami -Dade County, Florida. Each party shall bear their own respective attorney's fees.
k) Section 3.10 of the Contract titled "Equal Employment Opportunity", is hereby added with
the following language:
In the performance of this Agreement, ASPLUNDH shall not discriminate against any firm,
employee or applicant for employment or any other firm or individual in providing services
because of sex, age, race, color, religion, ancestry, disability, or national origin.
1) Section 3.11 of the Contract titled "Contingency Clause", is hereby added 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.
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m) Section 3.12 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, ASPLUNDH hereby certifies to the City that no individual member of ASPLUNDH, 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. ASPLUNDH
hereby represents and warrants to the City that throughout the term of this Agreement,
ASPLUNDH, Its employees, and its subcontractors will abide by this prohibition of the City Code.
n) Section 3.13 of the Contract titled "No Third Party Beneficiary", is hereby added with the
following language: e
No persons other than ASPLUNDH and the City (and their successors and assigns) shall have
any rights whatsoever under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their
respective officials thereunto duly authorized.
ASPLUNDH:
M
1197-1114
ATTEST:
CITY OF MIAMI, a municipal corporation:
Emilio T. Gonzalez, Ph.D., City Manager
DATE:
Corporate Secretary/Notary Public ATTEST:
Corporate Seal/Notary Seal
Approved by Public Works:
Juvenal Santana, PE, Public Works Director
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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