Agreement between CMB and XYLEM WATER SOLUTIONS U.S.A, INC (2.5)-2.. - 3 \t (o 1
AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH
AND
XYLEM.WATER SOLUTIONS U.S.A., INC.
FOR
FOR THE PURCHASE OF FLYGT/XYLEM PUMP EQUIPMENT, PARTS,
SOFTWARE, SERVICE AND RELATED ITEMS
This Agreement is entered into this , day of -1467 , 20 Zs ("Effective
Date"), between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation organized
and existing under the laws of the State of Florida, having its principal offices at 1700
Convention Center Drive, Miami Beach, Florida, 33139 (the "City"), and XYLEM WATER
SOLUTIONS U.S.A., INC., a Delaware corporation, authorized to do business in Florida, whose
address is 14125 South Bridge Circle, Charlotte, North Carolina 28273("Contractor").
SECTION 1
DEFINITIONS
Agreement: This Agreement between the City and Contractor, including any exhibits
and amendments thereto. The City is authorized to enter into this
Agreement pursuant to Resolution No. 2020-31161.
City Manager: The chief administrative officer of the City.
City Manager's
Designee: The City staff member who is designated by the City Manager to
administer this Agreement on behalf of the City. The City Manager's
designee shall be the Roy ' Coley, Public Works Assistant
Director/Infrastructure Director.
Contractor: For the purposes of this Agreement, Contractor shall be deemed to be an
independent Contractor, and not an agent or employee of the City.
Services: All services, work, sale of products and actions by the Contractor
performed or undertaken pursuant to the Agreement.
Fee: Amount paid to the Contractor as compensation for Services.
Risk Manager: The Risk Manager of the City, with offices at 1700 Convention Center
Drive, Third Floor, Miami Beach, Florida 33139; telephone number (305)
673-7000, Ext. 6435; and fax number(305) 673-7023.
SECTION 2
SCOPE OF SERVICES
2.1 The Contractor will sell to the City and connect Sulzer submersible pumps (the pumps),
and sell related equipment, parts, and software (if required) (collectively, "Products"), and
provide related services including, without limitation, performance of repairs (the "Product
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Related Service(s)"), on an "as needed" basis, as determined and requested by the City
pursuant to a written purchase order (a "Purchase Order"), pursuant to the terms of this
Agreement. The sale of Products to the City, including the related services defined herein as
"Product Related Services" shall be collectively referred to herein as ("Services").
2.2 PURCHASE ORDER ACCEPTANCE: Unless otherwise agreed between the
Contractor the City, the Purchase Order shall be deemed accepted by the Contractor upon
the Contractor's written confirmation to the.City or by the furnishing of the Products or Product
Related Services in the Purchase Order. Either of the foregoing shall constitute the Contractor's
acknowledgement of the Purchase Order(the"Order Acknowledgement").
2.3 PRODUCT CONTENT AND SPECIFICATIONS OF PRODUCTS: Contractor agrees to
provide the City with the Product content and specification information for all Products
purchased by the City from Contractor.
2.4 REPAIRS: At the request of the City, Contractor may perform any needed repairs to the
pumps, pursuant to the price list incorporated herein by reference and attached as Exhibit A
hereto.
SECTION 3
TERM
3.1 The term of this Agreement (Term) shall commence upon execution of this Agreement
by all parties hereto and shall have a term of five(5)years.
SECTION 4
FEE
4.1 The purchase of the products and costs of related Service(s) shall not exceed the.
amount appropriated annually for these products through the City's budgeting process,
commencing upon the execution of this Agreement by all parties hereto.
4.2 During the Term, Contractor shall provide the City with a discount toward the price of the
Products covered in this Agreement, as more particularly set forth in Exhibit A hereto.
Additionally, during the term, the prices for Products and Product Related Services as set forth
in Exhibit A hereto shall remain fixed.
4.3 INVOICING
Upon receipt of an acceptable and approved invoice, payment(s) shall be made within forty-five
(45) days of the Service(s) satisfactorily rendered (and referenced in the particular invoice).
Invoices shall include a detailed description of the Service(s) (or portions thereof) provided, and
shall be submitted to the City at the following address:
Accounts Payable Division
Finance Department
City of Miami Beach
1700 Convention Center Drive, 3rd Floor
Miami Beach, FL 33139
Email: accountspayable a(�.miamibeachfl.gov
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Invoices not containing a Purchase Order Number(PO No.), or containing an incorrect PO No.
shall not be approved for payment.
SECTION 5
TERMINATION
5.1 TERMINATION FOR LACK OF FUNDS: The City is a governmental entity and is
subject to the appropriation of funds by its legislative body in an amount sufficient to allow
continuation of its performance in accordance with the terms and conditions of this Agreement.
In the event there is a lack of adequate funding either for the Products, Product Related
Services and/or the project; the City may terminate this Agreement without further liability to the
City.
5.2 TERMINATION FOR CAUSE: The City, through the City Manager, may terminate this
Agreement for cause, upon written notice to Contractor, in the event that the Contractor (1)
violates any provision of this Agreement or performs same in bad faith; (2) unreasonably delays
the performance of the Services or any portion thereof; or (3) does not perform the Services or
any portion thereof in a timely and satisfactory manner. In the case of termination for cause by
the City, the Contractor shall first be granted a thirty (30) day cure period (commencing upon
receipt of the initial written notice of default from the City). In the event of a termination for
cause, the City shall be fully discharged from any and all liabilities, duties, and terms arising out
of, or by virtue of, this Agreement.
Notwithstanding the above, the Contractor shall not be relieved of liability to the City for
damages sustained by the City by any breach of the Agreement by the Contractor. The City, at
its sole option and discretion, shall be entitled to bring any and all legal/equitable actions that it
deems to be in its best interest in order to enforce the City'sright and remedies against
Contractor. The City shall be entitled to recover all costs of such actions, including reasonable
attorneys'fees.
5.2.1 In the event this Agreement is terminated for cause by the City, the City, at its
sole option and discretion, may take over the remaining Services and complete them by
contracting with another Contractor(s), or otherwise. The Contractor shall be liable to the
City for any additional cost(s) incurred by the City due to such termination. "Additional
Cost" is defined as the difference between the actual cost of completion of the Services,
and the cost of completion of such Services had the Agreement not been terminated.
5.3 TERMINATION FOR CONVENIENCE:
THE CITY MAY ALSO, THROUGH ITS CITY MANAGER, AND FOR ITS
CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT ANY
TIME DURING THE TERM BY GIVING WRITTEN NOTICE TO CONTRACTOR OF
SUCH TERMINATION; WHICH SHALL BECOME EFFECTIVE WITHIN THIRTY (30)
DAYS FOLLOWING RECEIPT BY THE CONTRACTOR OF SUCH NOTICE.
ADDITIONALLY, IN THE EVENT OF A PUBLIC HEALTH, WELFARE OR SAFETY
CONCERN, AS DETERMINED BY THE CITY MANAGER, IN THE CITY MANAGER'S
SOLE DISCRETION, THE CITY MANAGER, PURSUANT TO A VERBAL OR
WRITTEN NOTIFICATION TO CONTRACTOR, MAY IMMEDIATELY SUSPEND THE
SERVICES UNDER THIS AGREEMENT FOR A TIME CERTAIN, OR IN THE
ALTERNATIVE, TERMINATE THIS AGREEMENT ON A GIVEN DATE. IF THE
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AGREEMENT IS TERMINATED' FOR CONVENIENCE BY THE CITY, CONTRACTOR
SHALL BE PAID FOR ANY SERVICES SATISFACTORILY PERFORMED UP TO THE
DATE OF TERMINATION; FOLLOWING WHICH THE CITY SHALL BE DISCHARGED
FROM ANY AND ALL LIABILITIES, DUTIES, ANDTERMS ARISING OUT OF, OR BY
VIRTUE OF, THIS AGREEMENT.
5.4 TERMINATION FOR INSOLVENCY: If prior to delivery, Contractor is placed either in
voluntary or involuntary bankruptcy, the City may terminate the Purchase Order immediately by
sending Contractor written notice and the rights and obligations of the parties shall be the same
as provided in Section 5.3.
5.5 IMPLEMENTATION OF TERMINATION: In the event of termination (whether for
cause or for convenience), the Contractor shall immediately, upon receipt of the City's written
notice of termination: (1) stop the performance of Services; (2) place no further orders or issue
any other subcontracts, except for those which may have already been approved, in writing, by
the City Manager's designee; (3) terminate all existing orders and subcontracts; and (4)
promptly assemble all project documents (for delivery to the City Manager's designee).
SECTION.6
INDEMNIFICATION AND INSURANCE REQUIREMENTS
6.1 INDEMNIFICATION
Contractor agrees to indemnify, defend and hold harmless the City of Miami Beach and its
officers, employees, agents, and contractors, from and against any and all actions (whether at
law or in equity), claims, liabilities, losses, and expenses, including, but not limited to, attorneys'
fees and costs, for personal, economic or bodily injury, wrongful death, loss of or damage to
property, which may arise or be alleged to 'have arisen from the negligent acts, errors,
omissions or other wrongful conduct of the Contractor, its officers, employees, agents,
contractors, or any other person or entity acting under Contractor's control or supervision, in
connection with, related to, or as a result of the Contractor's performance of the Services
pursuant to this Agreement. To that extent, the Contractor shall pay all such claims and losses
and shall pay all such costs and judgments which may issue from any lawsuit arising from such
claims and losses, and shall 'pay all costs and attorneys' fees expended by the City in the
defense of such claims and losses, including appeals. 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 Contractor's responsibility to indemnify, keep and save
harmless and defend the City or its officers, employees, agents and instrumentalities as herein
provided.
The parties agree that one percent (1%) of the total' compensation to Contractor for
performance of the Services under this Agreement is the specific consideration from the City to
the Contractor for the Contractor's indemnity agreement. The provisions of this Section 6.1 and
of this indemnification shall survive termination or expiration of this Agreement.
6.2 INSURANCE REQUIREMENTS
The Contractor shall'maintain and carry in full force during the Term, the following insurance:
A. General Liability/Public liability coverage including products completed operations,
blanket contractual liability, bodily injury and property damage, and automobile coverage
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(bodily injury and property damage) shall be maintained each with minimum limits of
USD 1 million ($1,000,000);
B. Workers Compensation & Employers Liability, as required pursuant to Florida Statutes,
including Employer's liability with a limit of USD 1 million ($1,000,000) unless a higher
limit is specified in the Purchase Order.
The insurance must be furnished by insurance companies authorized to do business in the
State of Florida. All insurance policies,must be issued by companies rated no less than "B+" as
to management and not less than "Class VI" as to strength by the latest edition of Best's
Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent.
All of Contractor's certificates shall contain endorsements providing that written notice shall be
given to the City at least thirty (30) days prior to termination, cancellation or reduction in
coverage in the policy. The insurance certificates for General Liability shall include the City as
an additional insured and shall contain a waiver of subrogation endorsement.
Original certificates of insurance must be submitted to the City's Risk Manager for approval
(prior to any Services commencing) and will be kept on file in the Office of the Risk Manager.
The City shall have the right to obtain from the Contractor specimen copies of the insurance
policies in the event that submitted certificates of insurance are inadequate to ascertain
compliance with required coverage.
The Contractor is also solely responsible for obtaining and submitting all insurance certificates
for any sub-contractors.
Compliance with the foregoing requirements shall not relieve the Contractor of the liabilities and
obligations under this Section or under any other portion of this Agreement.
The Contractor shall not commence any Services pursuant to this Agreement until all insurance
required under this Section has been obtained and such insurance has been approved by the
City's Risk Manager.
SECTION 7
LITIGATION JURISDICTIONNENUE/JURY TRIAL WAIVER
This Agreement shall be construed in accordance with the laws of the State of Florida. This
Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary
by either party with respect to the enforcement of any or all of the terms or conditions herein,
exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. By
entering into this Agreement, Contractor and the City expressly waive any rights either party
may have to a trial by jury of any civil litigation related to or arising out of this Agreement.
SECTION 8
LIMITATION OF LIABILITY
The City and Contractor waive against each other, and against the other's officers, directors,
members, partners, and employees any and all claims for other entitlement to special,
incidental, indirect; punitive or consequential damages arising out of, resulting from, or related to
the Agreement. The parties further agree that the total liability of each party to the other for
claims, costs, losses, and damages arising from this Agreement shall be limited to the contract
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amount established in the Agreement. The terms of this overall limitation of liability does not
apply to or limit Contractor's duty to indemnify the City for third party claims as set forth in
Section 6.1
Nothing contained in this section or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida
Statutes.
SECTION.9
DUTY OF CARE/COMPLIANCE WITH APPLICABLE LAWS/PATENT RIGHTS; COPYRIGHT;
AND CONFIDENTIAL FINDINGS
9.1 DUTY OF CARE
With respect to the performance of the Services contemplated herein, Contractor shall exercise
that degree of skill, care, efficiency and diligence normally exercised by reasonable persons
and/or recognized professionals with respect to the performance of comparable Services.
9.2 COMPLIANCE WITH APPLICABLE LAWS
In its performance of the Services, Contractor shall comply with all applicable laws, ordinances,
and regulations of the City, Miami-Dade County, the State of Florida, and the federal
government, as applicable.
9.3 PATENT RIGHTS; COPYRIGHT;CONFIDENTIAL FINDINGS
Any work product arising out of this Agreement, as well as all information specifications,
processes, data and findings, are intended to be the property of the City and shall not otherwise
be made public and/or disseminated by Contractor, without the prior written consent of the City
Manager, excepting any information, records etc. which are required to be disclosed pursuant to
Court Order and/or Florida Public Records Law.
All reports, documents, articles, devices, and/or work produced in whole or in part under this
Agreement are intended to be th}e sole and exclusive property of the City, and shall not be
subject to any application for copyright or patent by or on behalf of the Contractor or its
employees or sub-contractors, without the prior written consent of the City Manager.
SECTION'10
GENERAL PROVISIONS
10.1 AUDIT AND INSPECTIONS
Upon reasonable verbal or written notice to Contractor, and at any time during normal
business hours (i.e. 9AM-5PM, Monday through Fridays, 'excluding nationally recognized
holidays), and as often as the City Manager may, in his/her reasonable discretion and
judgment, deem necessary, there shall be made available to the City Manager, and/or such
representatives as the City Manager may deem to act on the City's behalf, to audit, examine,
and/ or inspect, any and all other documents and/or records relating to all matters covered by
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this Agreement. Contractor shall maintain any and all such records at its place of business at
the address set forth in the "Notices" section of this Agreement.
10.2 INSPECTOR GENERAL AUDIT RIGHTS
(A) Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has
established the Office of the Inspector General which may, on a random basis, perform
reviews, audits, inspections and investigations on all City contracts, throughout the
duration of said contracts. This random audit is separate and distinct from any other
audit performed by or on behalf of the City.
(B) The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts, records,
contracts and transactions. In addition, the Inspector General has the power to
subpoena witnesses, administer oaths, require the production of witnesses and monitor
City projects and programs. Monitoring of an existing City project or program may
include a report concerning whether the project is on time, within budget and in
conformance with the contract documents and applicable law. The Inspector General
shall have the power to audit, investigate, monitor, oversee, inspect and review
operations, activities, performance and procurement process including but not limited to
project design, bid specifications, (bid/proposal) submittals, activities of the Contractor,
its officers, agents and employees, lobbyists, City staff and elected officials to ensure
compliance with the contract documents and to detect fraud and corruption. Pursuant to
Section 2-378 of the City Code, the City is allocating a percentage of its overall annual
contract expenditures to fund the activities and operations of the Office of Inspector
General.
(C) Upon ten (10) days written notice to the Contractor, the Contractor shall make all
requested records and documents available to the Inspector General for inspection and
copying. The Inspector General is empowered to retain the services of independent
private sector auditors to audit, investigate, monitor, oversee, inspect and review
operations activities, performance and procurement process including but not limited to
project design, bid specifications, (bid/proposal) submittals, activities of the Contractor its
officers, agents and employees, lobbyists, City staff and elected officials to ensure
compliance with the contract documents and to detect fraud and corruption.
(D) The Inspector General shall have the right to inspect and copy all documents and
records in the Contractor's possession, custody or control which in the Inspector
General's sole judgment, pertain to performance,of the contract, including, but not limited
to original estimate files, change order estimate files, worksheets, proposals and
agreements from and with successful subcontractors and suppliers, all project-related
correspondence, memoranda, instructions, financial documents, construction
documents, (bid/proposal) and contract documents, back-change documents, all
documents and records which involve cash, trade or volume discounts, insurance
proceeds, rebates, or dividends received, payroll and personnel records and supporting
documentationfor the aforesaid documents and records.
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(E) The. Contractor shall make available at its office at all reasonable times the records,
materials, and other evidence regarding the acquisition (bid preparation) and performance of
this Agreement, for examination, audit, or reproduction, until three (3) years after final
payment under this Agreement or for any longer period required by statute or by other
clauses of this Agreement. In addition:
i. If this Agreement is completely or partially terminated, the Contractor shall make
available records relating to the work terminated until three (3) years after any resulting final
termination settlement; and
ii. The. Contractor shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this Agreement until such appeals, litigation,
or claims are finally resolved.
(F) The provisions in this section shall apply to the Contractor, its officers, agents, employees,
subcontractors and suppliers. The Contractor shall incorporate the provisions in this section
in all subcontracts and all other agreements executed by the Contractor in connection with
the performance of this Agreement.
(G)Nothing in this section shall impair any independent right to the City to conduct audits or
investigative activities. The provisions of this section are neither intended nor shall they be
construed to impose any liability on the City by the Contractor or third parties.
10.3 ASSIGNMENT,TRANSFER OR SUBCONSULTING
Contractor shall not subcontract, assign, or transfer all or any portion of any work and/or
service under this Agreement without the prior written consent of the City Manager, which
consent, if given at all, shall be in the Manager's sole judgment and discretion. Neither this
Agreement, nor any term or provision hereof, or right hereunder, shall be assignable unless as
approved pursuant to this Section, and any attempt to make such assignment (unless
approved) shall be void.
10.4 PUBLIC ENTITY CRIMES
Prior to commencement of the Services, the Contractor shall file a State of Florida Form PUR
7068, Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes
with the City's Procurement Division.
10.5 NO DISCRIMINATION
In connectionwith the performance of the Services, the Contractor shall not exclude from
participation in, deny the benefits of, or subject to discrimination anyone on the grounds of
race, color, national origin, sex,,age, disability, religion, income or family status.
Additionally, Contractor shall comply fully with the City of Miami Beach Human Rights
Ordinance, codified in Chapter 62 of the City Code, as may be amended from time to time,
prohibiting discrimination in employment, housing, public accommodations, and public
services on account of actual or perceived race, color, national origin, religion, sex,
intersexuality, gender identity, sexual orientation, marital and familial status, age, disability,
ancestry, height, weight, domestic partner status, labor organization membership, familial
situation, or political affiliation.
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10.6 CONFLICT OF INTEREST
Contractor herein agrees to adhere to and be gover ed by all applicable Miami-Dade County
Conflict of Interest Ordinances and Ethics provisions, as set forth in the Miami-Dade County
Code, as may be amended from time to time; and by the City of Miami Beach Charter and
Code, as may be amended from time to time; both of which are incorporated by reference as if
fully set forth herein.
Contractor covenants that it presently has no interest and shall not acquire any interest,
directly or indirectly, which could conflict in any manner or degree with the performance of the
Services. Contractor further covenants that in the performance of this Agreement, Contractor
shall not employ anyy person having any such interest. No member of or delegate to the
Congress of the United States shall be admitted to any share or part of this Agreement or to
any benefits arising therefrom:
10.7 CONTRACTOR'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS.LAW
(A) Contractor shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time.
(B) The term"public records" shall have the meaning set forth in Section 119.011(12),,which
means all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or other material, regardless of the physical form,
characteristics, or means of transmission, made or received pursuant to law or
ordinance or in connection with the transaction of official business of the City.
(C) Pursuant to Section 119.0701 of the Florida Statutes, if the Contractor meets the
definition of"Contractor" as defined in Section 119.0701(1)(a), the Contractor shall:
(1) Keep and maintain public records required by the City to perform the 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 contract term and following completion of the
Agreement if the Contractor does 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 the Contractor or keep and maintain public records
required by the City to perform the service. If the Contractor transfers all public
records to. the City upon completion of the Agreement, the Contractor shall
destroy any duplicate public records that are exempt.or confidential and exempt
from publicrecords disclosure requirements. If the Contractor keeps. and
maintains public records upon completion of the Agreement, the Contractor 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.
(D) REQUEST FOR RECORDS; NONCOMPLIANCE.
(1) A request to inspect or copy public records relating to the City's contract for
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services must be made directly to the City. If the City does not possess the
requested records, the City shall immediately notify the Contractor of the request,
and the Contractor must provide the records to the City or allow the records to be
inspected or copied within a reasonable time. •
(2) Contractor's failure to comply with the City's request for records shall constitute a
breach of this Agreement, and the.City, at its sole discretion, may: (1) unilaterally
terminate the Agreement; (2) avail iiself of the remedies set forth under the
Agreement; and/or(3) avail itself of any available remedies at law or in equity.
(3) A Contractor who fails to provide the public records to the City within a
reasonable time may be subject to penalties under s. 119.10.
(E) CIVIL ACTION.
(1) If a civil action is filed against a Contractor to compel production of public records
relating to the City's contract for sewices, the court shall assess and award
against the Contractor the reasonable costs of enforcement, including
reasonable attorneys'fees, if:
a The court determines that the Contractor unlawfully refused to comply with
the public records request within a reasonable time; and
b. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the
Contractor has not complied wth the request, to the City and to the
Contractor.
(2) A notice complies with subparagraph 1)(b) if it is sent to the City's custodian of
public records and to the Contractor at the Contractor's address listed on its
contract with the.City or to the Contractor's registered agent. Such notices must
be sent by,common carrier delivery service or by registered, Global Express
Guaranteed, or certified mail, with postage or shipping paid by the sender and
with evidence of delivery, which may in an electronic format.
(3) A Contractor who complies with a public records request within 8 business days
after the notice is sent is not liable for the reasonablecosts of enforcement.
(F) IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES,TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADOAMIAMIBEACHFL.GO V
PHONE: 305-673-7411
SECTION 11
NOTICES
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All notices and communications in writing required or permitted hereunder, shall be delivered
personally to the representatives of the Contractor and the City listed below or may be mailed
by U.S. Certified Mail, return receipt requested, postage prepaid, or by a nationally recognized
overnight delivery, service.
Until changed by notice,'in writing, all such notices and communications shall be addressed as
follows:
TO CONTRACTOR: Xylem Water So utions U.S.A„ Inc.
15132 Park of Commerce Boulevard, Suite 102
Jupiter, FL 3.3478
Attn: Deborah Scanlon, Inside Sales Engineer
TO CITY: City Manager's Office
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Jimmy L. 11llorales
With a Copy to:
Public Works Department
City of Miami Beach
451 Dade Boulevard
Miami Beach, FL 33139
Attn: Roy Coley, Public Works Assistant Director
and Infrastructure Director
Notice may also be provided to any other address designated by the party to receive notice if such
alternate address is provided via U.S. certified mail, return receipt requested, hand delivered, or by
overnight delivery. In the event an alternate notice address is properly provided, notice shall be
sent to such alternate address in addition to any other address which notice would,otherwise be
sent, unless other delivery instruction as specifically provided for by the party entitled to notice.
Notice shall be deemed given on the date of an acknowledged receipt, or, in all other cases, on the
date of receipt or refusal.
SECTION 12
WARRANTIES
12.1 INTELLECTUAL PROPERTY WARRANTY: Contractor warrants that the use of the
Products by the City or its employees, agents, representatives and Contractors does not entail
any infringement of patent, copyright, design, trademark or similar right. Contractor shall defend,
hold harmless and indemnify the City, its successors and assigns (whether direct or indirect),
against any and all losses, damages and expenses of any nature (including attorney's and other
professional fees) which they, or any of them, may sustain or incur as a result of breach, except
such indemnity does not apply if the infringement or violation arises from or is based upon
Contractor's compliance with particular requirements of the City that differ from Contractor's
standard specifications for the Product. If notified in writing, Contractor shall undertake at its
expense the defense of any such suit or proceeding and save the City harmless from any
expenses, loss or damage arising therefrom. Further if an infringement claim is made against
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the City, the City may without prejudice to its rights herein also request at its discretion and at
the City's expense and risk that Contractor (i) procures for the City the right to continue using
the Product(s) or using the results of the service, (ii) modifies the Products or the results of the
Service so that they cease to be infringing or (iii) replaces the Products or re-performs the
Service so that they become non-infringing; provided always that the modified or replaced
Products or Product Related Services do not detract from agreed functionality.
12.2 Contractor warrants that the Products or Product Related Services (or both) conform
in all respects to any expressed warranties made by Contractor to the City are (i) free from
defects in title, labor, materials, services, manufacture and or design, (ii) conform to the
applicable specifications, drawing, and standards of quality and performance, (iii) comply with all
governmental requirements that may apply to the design, production, sale or distribution of the
products, (iv) are new and unused at the date of delivery and fit for the purposes for which
purchased by the City; and (v) the Product Related Services, if any, will be performed with all
appropriate skill and care in accordance with industry best practice and in compliance with all
governmental requirements that apply to the Product.Related Services. Contractor's acceptance
or use of or payment for the Products or Product Related Services shall not diminish
Contractor's obligations under this warranty.
12.3 Warranty period (i) for Products is twenty-four (24) months from the date of
delivery to the City, and (ii) for Product Related Services is twenty-four (24) months from the
date of City's acceptance thereof; unless otherwise agreed between the parties and set forth on
the face of the Purchase Order.
12:4 If. the Products or Product Related Services do not conform with the above
warranties ("Non-Conforming Products or Product Related Services"), Contractor agrees, at the
City's option, to any of these remedies: (i) repair or-replace Non-Conforming Products or re-
perform the Non-Conforming Product Related Services within 48 to 72 hours, or(ii) exercise any
other applicable rights or remedies, including the purchase of substitute Product or Service. If
the Product is repaired or replaced or a Service is re-performed, the warranty period shall
restart. Contractor shall also be responsible to pay for or reimburse the City for all defective
Product costs, including but not limited to; labor (direct and indirect) and materials, (i) to return,
store or dispose any Non-Conforming Products, (ii) to inspect, evaluate and/or disassemble any
Non-Conforming Products wherever located, (iii) to transport and install replacement Product,
(iv) to repair and re-work Non-Conforming Product if Contractor is unable to repair or replace
the same to meet the City's time and quantity needs, (v) to perform value-add activities prior to
discovery of the defect/Non-Conformity, (vi) an administrative fee of equivalent to USD three
hundred ($300) per claim. The foregoing remedies are cumulative and are not exclusive of any
rights and remedies at law or in equity.
SECTION 13
MISCELLANEOUS PROVISIONS
13.1 CHANGES AND ADDITIONS
This Agreement cannot be modified or amended without the express written consent of the
parties. No modification, amendment, or alteration ofi the terms or conditions contained herein
shall be effective unless contained in a written document executed with the same formality and
of equal dignity herewith.
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13.2 SEVERABILITY
If any term or provision of this Agreement is held invalid or unenforceable, the remainder of this
Agreement shall not be affected and every other term and provision of this Agreement shall be
valid and be enforced to the fullest extent permitted by law.
13.3 WAIVER OF BREACH
A party's failure to enforce any provision of this Agreement shall not be deemed a waiver of
such provision or modification of this Agreement. A party's waiver of any breach of a provision
of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be
construed to be a modification of the terms of this.Agreement.
13.4 JOINT PREPARATION
The parties hereto acknowledge that they have sought and received whatever competent advice
and counsel as was necessary for them to form a full and complete understanding of all rights
and obligations herein and that the preparation of this Agreement has been a joint effort of the
parties, the language has beenagreed to by parties to express their mutual intent and the
resulting document shall not, solely as a matter of judicial construction, be construed more
severely against one of the parties than the other.
13.5 ENTIRETY OF AGREEMENT
The City and Contractor agree that this is the entire agreement between the parties. This
Agreement supersedes all prior negotiations, correspondence, conversations, agreements or
understandings applicable to the matters contained herein, and there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are not
contained in this document. Title and paragraph headings are for convenient reference and are
not intended to confer any rights or obligations upon the parties to this Agreement.
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IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed
by their appropriate officials, as of the date first entered above,
FOR CITY: CITY OF MIAMI RACH, FLORIDA
ATTEST:
By: ..��litl �
Cit Clerk anager
Date: #2—/1.5.-Let ?; , P �.L
ItiCORP OR.ATEO' ;
cFi••2�
FOR CONTRACTOR: XYLEM WATER SOLUTIONS U.S.A.,INC.
ATTEST:
Ol r t- 3 <� .z
0 `" f 5a.., rank Ja es/Branch Manager
Print Name and Title 5 _-'S'' Print Name and Title
Date: 61 '7
APPROVED AS TO
FORM Er LANGUAGE
& - E CECUTION
5 . (� Z
City Attorney:[IPS Date
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EXHIBIT A
DISCOUNTS AND LIST OF FIXED PRICES
Item Description Unit Price/%Discount
1 Pumps 5%for annual sales up to$500,000
7.5%for annual sales over$500,001 to$750,000
10%for annual sales over$750,001
2 Parts 5%for annual sales up to$500,000
7.5%for annual sales over$500,001 to$750,000
10%for annual sales over$750,001
Hourly Labor Rate for
3 Repairs $80.00 Per Hour
4 Environmental Fee
1 to 10 HP $35.00 Each
11 to 50 HP $55.00 Each
Greater than 50 HP $73.00 Each
5 Lubricants and Materials
1 to 10 HP $28.00 Each
11 to 50 HP $41.00 Each
Greater than 50 HP $66.00 Each
6 Flange Drilling $165.00 Each
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