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Agreement with Hydra Service(s), Inc.A G R E E M E N T B E T W E E N T H E C IT Y O F M IA M I B E A C H A N D H Y D RA S E R V IC E (S ), IN C . F O R F O R T H E P U R C H A S E O F S U L Z E R P U M P E Q U IP M E N T , P A R T S , S O F T W A R E , S E R V IC E A N D R E L A T E D IT E M S This Agreement is entered into this 22 day of P A7 , 20(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 HYDRA SERVICE (S), INC., an Alabama corporation, authorized to do business in Florida, whose address is 142104 State Highway 160, Warrior, AL. 35180 ("Contractor"). SECTION 1 DEFINITIONS Agreement: City Manager: City Manager's Des ignee: Contractor: Services: Fee: Risk Manager: 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. The chief administrative officer of the City. 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. For the purposes of this Agreement, Contractor shall be deemed to be an independent Contractor, and not an agent or employee of the City. All services, work, sale of products and actions by the Contractor performed or undertaken pursuant to the Agreement. Amount paid to the Contractor as compensation for Services. The Risk Manager of the City, with offices at 1700 Convention Center Drive, Third Floor, Mi am i 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 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, 3"" Floor Miami Beach, FL 33139 Email: accountspayable@miamibeachfl.gov 2 In v o ice s not conta in in g a P urchase O rde r N u m be r (P O N o .), or co ntain ing an in co rrect P O N o . sha ll not be ap pro ve d fo r pa ym e nt. 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's right 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 HEAL TH, 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 3 A G R E E M E N T IS T E R M IN A T E D F O R C O N V E N IE N C E B Y T H E C IT Y , C O N T RA C T O R S H A L L B E P A ID F O R A N Y S E R V IC E S S A T IS F A C T O R IL Y P E R F O R M E D U P T O T H E D A T E O F T E R M I N A T IO N ; F O L L O W I N G W H I C H T H E C IT Y S H A L L B E D IS C H A R G E D F R O M A N Y A N D A L L LI A B ILI T IE S , D U T IE S , A N D T E R M S A R IS IN G O U T O F , O R B Y V IR T U E O F , T H IS A G R E E M E N T . 5 .4 T E R M IN A T IO N F O R IN S O L V E N C Y : 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 4 (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 5 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. Alf reports, documents, articles, devices, and/or work produced in whole or in part under this Agreement are intended to be the 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 6 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. (O) 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 documentation for the aforesaid documents and records. 7 (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 connection with 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. 10.6 CONFLICT OF INTEREST 8 Contractor herein agrees to adhere to and be governed 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 any 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 CONTRA CTOR'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. (8) 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 public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the Agreement, the Contractor shall meet all applicable requirem ents 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 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 9 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 itself 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. 119.1 O. (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 services, 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 with 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 be 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 reasonable costs of enforcement. (F ) IF THE CONTRA CTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELA TING 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: RAFAELGRANADO@MIAMIBEACHFL.GOV PHONE: 305-673-7411 SECTION 11 NOTICES 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: 10 T O C O N T R A C T O R : T O C IT Y : Hydra Service (S), Inc. 250 Springview Commerce Dr. Debary, FL 32713 Attn: Paul Robinson, General Manager City Manager's Office City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attn: Jimmy L. Morales 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 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 Product Related Service, (ii) modifies the Products or the results of the Product Related Service so that they cease to be infringing or (iii) replaces the Products or re-performs the Product Related Service so that they become non-infringing; 11 provided always that the modified or replaced Products or Product Related service 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 Product Related Services. If the Product is repaired or replaced or a Product Related 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 of 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. 13.2 SEVERABILITY 12 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 been agreed 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. [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] 13 IN W IT N ESS W H ER EO F, 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 BEACH, FLORIDA ATTEST: By: 4 City clerk Date: __ s__,_L,,.,,.,,__"--/-/_L-<3_"2--_'i:J _ 7- 7 FOR CONTRACTOR: ATTEST: l,- City HYDRA SERVICE (S), INC. Print Name and Title .ct r Lallelae to./tar«pa Print Name and Title f Date: ----------- APPROVED AS TO ).784 ±-", ------ .Y~-r-< --- -- Ci Ar:orne JI oa:e 14 E X H IB IT A D IS C O U N T S A N D LI S T O F F IX E D P R IC E S Item Description Unit Price/% Discount 1 Pumps 10% 2 Parts 10% 3 Hourly Labor Rate for Repairs $75.00 Per Hour 4 Environmental Fee 1 to 10 HP $20.00 Each 11 to 50 HP $40.00 Each Greater than 50 HP $60.00 Each 5 Lubricants and Materials 1 to 10 HP $20.00 Each 11 to 50 HP $30.00 Each Greater than 50 HP $45.00 Each 6 Flange Drilling $0.00 Each [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] 15