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HomeMy WebLinkAboutExhibitPEREZ, CPPD Chief Procurement officer tv of A-aI EMILIO T. GONZALEZ, Ph.D. City Manager ADDENDUM TO QUOTE 00001636 DATED 06/05/2019 TO PURCHASE HARDWARE, LICENSE SOFTWARE, AND SERVICE AGREEMENT BY AND BETWEEN CITY OF MIAMI AND PEN -LINK, LTD. CORP. The provisions of this Addendum ("Addendum") shall supersede any and all provisions in any other addendum, writing, document, or understanding between the Parties whether oral or in writing, and in the event a provision of this Addendum conflicts with or seeks elimination of a provision of the Agreement between the City of Miami, a Florida municipal corporation ("City"), and Pen -Link, Ltd. Corp., a Nebraska foreign profit corporation authorized to transact business in the State of Florida ("PLL" or "Provider"), the provisions of this Addendum shall control, supersede, and apply. 2. All references to "Customer" shall be deleted and replaced with the "City of Miami" ("City") 3. Applicable Law, Venue, etc. The Agreement shall be construed under the laws of the State of Florida regardless of choice or conflict of law principles. Venue in any actions or proceedings between the Parties shall be in Miami -Dade County, Florida. Each Party shall bear its own attorneys' fees. The Parties irrevocably and freely waive any rights to a jury trial. 4. Section 4.10 titled Termination for Convenience is hereby deleted in its entirety and replaced with the following language: The City, acting by and through its City Manager, shall have the right to terminate the Agreement, in its sole discretion, and without penalty, at any time, by giving written notice to PLL at least thirty (30) calendar days prior to the effective date of such termination. In such event, the City shall pay to PLL compensation for Services rendered and approved expenses incurred prior to the effective date of .termination. In no event shall the City be liable to PLL 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. PLL 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. 5. 'Section 5.1, titled Limitation of Liability, is hereby deleted in its entirety and replaced with the following language: Other than those warranties expressly set forth in this agreement, PLL does not make any warranties to the City or any other person or entity, either express or implied (including without limitation, anywarranties of merchantability or fitness for a particular purpose) with respect to the services provided hereunder, PLL shall not be liable to the City for consequential, or indirect damages including, loss of profit, loss of use or business stoppage.[Pv1] 18-2840 6. Paragraph 6.1, titled Entire Agreement is hereby deleted in its entirety and replaced with the following language: In case of any contradictions and discrepancies between this Addendum and parts of the Agreement, precedence shall be given in the following decreasing order: i. This Addendum; ii. Purchase Order Terms and Conditions; N. The Agreement; iv. Exhibits thereto. 7. Paragraph 6.4, titled Notices, is hereby added with the following language: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may 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: Pen -Link, Ltd. Corp. Philip K. Pope Chairman/President 5944 Vandervoort Drive Lincoln, Nebraska 68516 TO: The City of Miami Emilio T. Gonzalez, Ph. D. City Manager 444 SW 2nd Avenue, 10th Floor Miami, Florida 33130 Victoria Mendez 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 8. Paragraph 6.5, titled Insurance Requirements, is hereby added with the following language: INSURANCE REQUIREMENTS PLL shall furnish to City of Miami, c/o Procurement Department, 444 SW 2nd Avenue, 6th Floor, Miami, Florida 33130, Certificate(s) of Insurance which indicate that insurance coverage has been obtained which meets the requirements as outlined below: Page 2 I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury B. 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. II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $1,000,000.00 B. Endorsements Required City of Miami included as an Additional Insured Additional Insured Endorsement naming the City of Miami as an additional insured must be provided. III. Umbrella/Excess Liability (Excess Follow Form) A. 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. IV, Workers' Compensation Page 3 Limits of Liability Statutory - State of Florida V. Employer's Liability A. 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 V. Professional/Errors and Omissions Combined Single Limit Each Claim $1,000,000.00 General Aggregate Limit $1,000,000.00 Retro Date Included VI. Network Security and Privacy Injury (Cyber Liability) If Applicable Each Claim Policy Aggregate Retro Date Included $1,000,000.00 $1,000,000.00 Provider agrees to maintain Professional Liability/Errors & Omissions coverage, along with Network Security and Privacy Injury (Cyber) coverage, if applicable, for at least two (2) years after termination of the contract period subject to continued availability of commercially reasonable terms and conditions for such coverage. The above policies shall provide the City of Miami with written notice of cancellation or material change in accordance with 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/or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. The City shall retain the right to modify respective insurance limits based upon the Provider's actual loss experience. Upon receiving the City's notice to increase insurance limits, the Provider must produce evidence of compliance within ten (10) days of such notice. NOTE: CITY BID/RFP NUMBER AND/OR TITLE OF BID 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. Page 4 --If insurance certificates are scheduled to expire during the contractual period, the Provider shall be responsible for submitting new or renewed insurance certificates to the City at a minimum of ten (10) calendar days in advance of such expiration. --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: (1) Suspend the contract until such time as the new or renewed certificates are received by the City in the manner prescribed in the solicitation; or, (2) Terminate this contract for cause and seek re -procurement damages from the Provider in conjunction with the General and Special Terms and Conditions of the solicitation. 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. 9. Paragraph 6.6, titled Indemnification, is hereby added with the following language: The Provider 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 liabilities, damages, losses, judgements, and costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, negligent act or omission, or intentional wrongful misconduct of Provider and persons employed or utilized by Provider in the performance of this Contract. Provider shall further indemnify, save, hold harmless, and defend (at its own cost), the Indemnitees against any civil actions, statutory or similar claims, injuries or damages arising or resulting from any Work, 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, even if it is alleged that the Indemnitees were negligent. In the event that any action or proceeding is brought against the Indemnitees by reason of any such claim or demand, the Provider shall, upon written notice from the Indemnitees, resist and defend such action or proceeding by counsel satisfactory to the City. The Provider expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the Provider shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Indemnitees as herein provided. The indemnification provided above shall obligate the Provider 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, for any and all claims of liability and all suits and actions of every name and description which may be brought against the Indemnitees, whether performed by the Provider, or persons employed or utilized by Provider. These duties will survive the cancellation or expiration of the Agreement. This Section will be interpreted under the laws of the State of Florida, Provider shall require all sub -contractor agreements to Page 5 Jude a provision that each sub -contractor will indemnify the Indemnitees in substantially the same language as this Section. Provider 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 Provider in which the City participated either through review or concurrence of the Provider's actions. In reviewing, approving or rejecting any submissions by the Provider or other acts of the Provider, the City, in no way, assumes or shares any responsibility or liability of the Provider or sub -contractor under this Contract. Ten dollars ($10) 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 Provider. 10. Paragraph 6.7, titled City Not Liable for Delays, is hereby added with the following language: PLL hereby understands and agrees that in no event shall the City be liable for, or responsible to PLL, or any subcontractor, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) 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. THERE SHALL BE NO DAMAGES OR CLAIMS FOR DELAYS UNDER ANY CIRCUMSTANCEREGARDLESS OF WHETHER DIRECTLY, SOLELY, OR PROXIMATELY CAUSED BY THE CITY. 11. Paragraph 6.8, titled Use of Name, is hereby added with the following language: PLL understands and agrees that the City is not engaged in research for advertising, sales promotion, or other publicity purposes. PLL 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. PLL 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. 12. Paragraph 6.9, 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, PLL hereby certifies to the City that no individual member of PLL, no employee, and no sub -contractors 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. PLL hereby represents and warrants to the City that throughout the term of this Agreement, Provider, its employees, and its sub -contractors will abide by this prohibition of the City Code. 13. Paragraph 6.10, titled Most Favored Nations, is hereby added with the following language: PLL shall not treat the City of Miami ("City") worse than any other similarly -situated local government and, in this regard, grants the City a "most favored nations clause" meaning the City will be entitled to receive and be governed by the most favorable terms and conditions that Pen -Link grants now or in the future to a similarly situated local government. Page 6 ,agraph 7.0, titled Truth -in -Negotiations, is hereby added with the following language: PLL hereby certifies, represents and warrants to the City that on the date of Provider's execution of this Agreement, and so long as this Agreement shall remain in full force and effect, the wage rates and other factual unit costs supporting the compensation to PLL under this Agreement are and will continue to be accurate, complete, and current, PLL understands, agrees and acknowledges 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 contract price of compensation hereunder was increased due to inaccurate, incomplete, or non-current wage rates and other factual unit costs, In the event PLL provides services on an hourly basis, 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. 15. Paragraph 7.1, titled Counterparts, is hereby added 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. 16. Paragraph 7.2, titled Public Records, is hereby added with the following language: Notwithstanding any other provisions of the Agreement, PLL 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 PLL 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. PLL's failure or refusal to comply with the provisions of this section shall result in immediate termination of the Agreement by the City. Pursuant to the provisions of Section 119.0701, Florida Statutes, PLL shall comply with the Florida Public Records Laws, specifically, PLL shall: 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 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 PLL determine to dispute any public access provision required by Florida Statutes, then PLL shall do so at its own expense and at no cost to the City. Page 7 IF PEN -LINK, LTD. CORP. HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, CONCERNING PEN -LINK, LTD. CORP.'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 FL, MIAMI, FL 33130. PEN -LINK, LTD. CORP. MAY ALSO CONTACT THE RECORDS CUSTODIAN AT THE CITY OF MIAMI DEPARTMENT WHO IS ADMINISTERING THIS CONTRACT. Page 8 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized. ATTEST: GENERAL NOTARY- State of Nebraska SHAWN A DAILY My Comm. Exp, April 27, 2022 Name: Title: kk I` int e 5S 611 Date: q 1 3�( ATTEST: Todd B. Hannon City Clerk Date: Approved to Form and Correctness: Victoria Mendez City Attorney "PROVIDER" PEN -LINK, LTD. CORP., a Nebraska foreign profit corporation authorized to transact business in the State of Florida Pat Severson Chief Rci Officer Date: R/s7h , i "CITY" CITY OF MIAMI, a Florida municipal corporation Emilio T. Gonzalez, Ph.D. City Manager Date: Approved as to Insurance Requirements: Ann -Marie Sharpe Risk Management Page 9