HomeMy Public PortalAbout2015-23a Approving the purchase of emergency alerting system equipment from Wesnet Inc for the Fire DepartmentRESOLUTION NO. 2015-23a
A CAPITAL PROJECT AUTHORIZING RESOLUTION OF
THE VILLAGE COUNCIL OF THE VILLAGE OF KEY
BISCAYNE, FLORIDA, APPROVING THE PURCHASE OF
EMERGENCY ALERTING SYSTEM EQUIPMENT FROM
WESTNET, INC. FOR THE VILLAGE FIRE DEPARTMENT;
PROVIDING FOR WAIVER OF COMPETITIVE BIDDING;
AUTHORIZING EXPENDITURE OF FUNDS; PROVIDING
FOR IMPLEMENTATION; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, pursuant to Section 3.07(b) of the Village Charter, the Village Council desires
to authorize the expenditure of Village funds for a capital project consisting of the purchase of
emergency alerting system equipment (the "Equipment"); and
WHEREAS, Westnet, Inc. ("Westnet") has submitted a proposal, attached as Exhibit "A,"
to the Village for the Equipment; and
WHEREAS, the Village Council desires to accept the proposal and purchase the Equipment;
and
WHEREAS, pursuant to Section 2-85 of the Village Code of Ordinances (the "Village
Code"), the Village Council finds that it is impractical to competitively bid the Equipment and
desires to waive competitive bidding requirements in order to be compatible and consistent with the
City of Miami's equipment since the Village utilizes the City's Fire Dispatch Center; and
WHEREAS, the Village Council finds that the adoption of this Resolution is in the best
interest and welfare of the residents of the Village.
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE VILLAGE COUNCIL
OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. Recitals Adopted. That each of the recitals stated above is hereby adopted
and confirmed.
Section 2. Westnet Purchase Authorized; Specification of Funds. That the purchase
of the Equipment from Westnet as described herein is approved and authorized, subject to the
condition that the cost of the Equipment shall not exceed $115,000.00 The funding sources and
amounts for the Equipment is hereby authorized and approved as set forth in the Village Manager's
Memorandum accompanying this Resolution.
Section 3. Waiver of Competitive Bidding. That pursuant to Section 2-85 of the
Village Code, competitive bidding procedures of the Village Code are hereby waived for the
Equipment.
Section 4. Implementation. That the Village Manager is authorized to take any
necessary action to implement the purposes of this Resolution.
Section 5. Effective Date. That this Resolution shall be effective immediately upon
adoption hereof.
PASSED AND ADOPTED this 12th day of May , 2015.
MA YRA PENA L i ' AY
ATT.
CONCHITA H. ALVAREZ, MMC, VILLAGE CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
VILLAGE ATTORNEY
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AGREEMENT BETWEEN
VILLAGE OF KEY BISCAYNE
AND
WESTNET, INC.
THIS AGREEMENT ("Agreement" and/or "Contract") is made between and entered
into on Xun e 2 9 , 2015 between the VILLAGE OF KEY BISCAYNE, a Florida
municipal corporation (the "Village" or "Customer") and WESTNET, INC., a California
corporation ("Westnet" or "Provider") pursuant to which Village will purchase and Westnet will
sell the equipment and services more fully described below. Customer and Westnet may be
referred to individually as "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Provider and the Village have agreed to terms wherein Provider will
provide and install a First -In Fire Station Alerting System for the Village's Fire Station(s); and
WHEREAS, the Village desires to engage the Provider to perform these services and
provide the deliverables as specified below.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the Provider and the Village agree as follows:
1. Definitions.
a. "Acceptance Tests" means those tests described in the Acceptance Test
Plan.
b. "Confidential Information" is any information disclosed in written,
graphic, verbal, or machine -recognizable form, and is marked, designated,
labeled or identified at the time of disclosure as being confidential or its
equivalent; or if in verbal form is identified as confidential or proprietary
at the time of disclosure and confirmed in writing within thirty (30) days
of such disclosure. Confidential Information shall not include any
information that: (i) is or becomes publicly known through no wrongful
act of the receiving party; (ii) is already known to the receiving party
without restriction when it is disclosed; (iii) is, or subsequently becomes,
rightfully and without breach of this Contract, in the receiving party's
possession without any obligation restricting disclosure; (iv) is
independently developed by the receiving party without breach of this
Contract; or (v) is explicitly approved for release by written authorization
of the disclosing party.
c. "Contract Price" means the price for the System, inclusive of freight and
handling charges, as well as applicable state sales tax at the rate as stated
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in Exhibit "C," but exclusive of any other applicable sales or similar taxes
or tax rate changes.
d. "Effective Date" means the date upon which the last party to sign this
Agreement has executed it. "Equipment" means the hardware listed in the
Statement of Work (Exhibit "C").
e. "Final System Acceptance" means the Village's written acceptance of the
total System pursuant to the terms of the Agreement.
f. "Maintenance and Support Services" means the services described in
Westnet's Maintenance and Support Agreement as reflected in Exhibit
"a"
g. "Post Warranty Period" is the period after the expiration of the Warranty
(Exhibit "B").
h. "Punch List" is a list of mutually agreed upon tasks that need to be
performed to satisfy the terms of this contract (Exhibit "A-2").
i. "Specifications" means the technical, design, engineering, operational,
functional, and interface requirements of the System or, if the context so
indicates, of the Software or Equipment, all as provided in this Agreement.
j. "System" means the deliverables to be provided by Westnet under this
Agreement and is comprised of the Equipment and services as described
in Exhibits "A" and "C."
k. "System Acceptance" means Westnet's successful completion of the
Acceptance Tests.
1. "Warranty Period" is the period as stated in Exhibit "B."
2. Exhibits.
a. The Exhibits listed below are incorporated into and made a part of this
Agreement. In interpreting this Agreement and resolving any ambiguities,
the main body of this Agreement will take precedence over the Exhibits
and any inconsistency between the Exhibits will be resolved in the order in
which they are listed.
i. Exhibit A Statement of Work, Delivery and Installation Verification
Forms
ii. Exhibit B Warranty
iii. Exhibit C Contract Price and Deliverables
iv. Exhibit D Payment Schedule
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v. Exhibit E
vi. Exhibit F
vii. Exhibit G
3. Scope of Services.
Acceptance Test Plan
Final System Acceptance Certificate
Maintenance and Support Statement of Work
a. Provider agrees to provide and install the Equipment and other
deliverables as described in the "Statement of Work" attached hereto as
Exhibit "A," as well as provide the Maintenance and Support Services
attached hereto as Exhibit "G."
b. Provider also agrees to provide Services as may be further described in
Exhibits "B" through "E."
4. Term.
a. The term of this Agreement shall begin on the Execution Date and shall
continue until the expiration of the warranty period as set forth in Exhibit
"G."
5. Compensation and Payment.
a. The amount of compensation to the Provider for the Services shall be
based on the rates described in Exhibit "C." Payment to the Provider shall
be made in accordance with the payment terms described in Exhibit "D."
However, the total amount of compensation to the Provider for the
Services shall not exceed $117,883.74.
b. Provider will submit invoices to the Village in accordance with Exhibit
"D," and the Village will pay the amount due within thirty (30) days of
receipt of a proper invoice.
6. Default and Termination.
a. If either party breaches a material obligation under this Agreement, the
other party may consider the breaching party to be in default. If a party
asserts a default, it will give the breaching party a written notice of the
default. The breaching party will have thirty (30) days thereafter to cure
the default. If the breaching party fails to cure the default, then the non -
breaching party may terminate this Agreement.
b. The Village Manager, without cause and in his sole discretion, may
terminate this Agreement upon thirty (30) calendar days written notice to
the Provider. Upon receipt of said notice by the Village, Provider shall
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immediately stop performing the Services unless directed otherwise by the
Village Manager.
c. In the event of termination by the Village, the Provider shall be paid for all
work accepted by the Village Manager up to the date of termination.
7. Insurance.
a. Provider shall secure and maintain throughout the duration of this
Agreement insurance of such types and in such amounts not less than
those specified below as satisfactory to Village, naming the Village as an
Additional Insured, underwritten by a firm rated A -X or better by A.M.
Best and qualified to do business in the State of Florida. The insurance
coverage shall be primary insurance with respect to the Village, its
officials, employees, agents and volunteers naming the Village as
additional insured. Any insurance maintained by the Village shall be in
excess of the Provider's insurance and shall not contribute to the
Provider's insurance. The insurance coverages shall include at a minimum
the amounts set forth in this Section 8 and may be increased by the Village
as it deems necessary or prudent.
b. Commercial General Liability coverage with limits of liability of not less
than a $1,000,000 per Occurrence combined single limit for Bodily Injury
and Property Damage. This Liability Insurance shall also include
Completed Operations and Product Liability coverages. The General
Aggregate Liability limit and the Products/Completed Operations Liability
Aggregate limit shall be in the amount of $2,000,000 each.
c. Workers Compensation and Employer's Liability insurance, to apply for
all employees for statutory limits as required by applicable State and
Federal laws. The policy(ies) must include Employer's Liability with
minimum limits of $1,000,000.00 each accident. No employee,
subcontractor or agent of the Provider shall be allowed to provide any
services pursuant to this Agreement who is not covered by Worker's
Compensation insurance.
d. Business Automobile Liability with minimum limits of $1,000,000 per
Occurrence, combined single limit for Bodily Injury and Property
Damage. Coverage must be afforded on a form no more restrictive than
the latest edition of the Business Automobile Liability policy, without
restrictive endorsements, as filed by the Insurance Service Office, and
must include Owned, Hired, and Non -Owned Vehicles.
e. Professional Liability Insurance in an amount of not less than One Million
Dollars ($1,000,000.00) per occurrence, single limit.
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f. Certificate of Insurance. Certificates of Insurance shall be provided to
the Village, reflecting the Village as an Additional Insured (except with
respect to Professional Liability Insurance), prior to the execution of this
Agreement by the Village and prior to commencing any services. Each
certificate shall include no less than (30) thirty -day advance written notice
to Village prior to cancellation, termination, or material alteration of said
policies or insurance. The Provider shall be responsible for assuring that
the insurance certificates required by this Section remain in full force and
effect for the duration of this Agreement, including any extensions or
renewals that may be granted by the Village. The Certificates of Insurance
shall not only name the types of policy(ies) provided, but also shall refer
specifically to this Agreement and shall state that such insurance is as
required by this Agreement. The Village reserves the right to inspect and
return a certified copy of such policies, upon written request by the
Village. If a policy is due to expire prior to the completion of any
services, renewal Certificates of Insurance shall be furnished thirty (30)
calendar days prior to the date of their policy expiration. Each policy
certificate shall be endorsed with a provision that not less than thirty (30)
calendar days' written notice shall be provided to the Village before any
policy or coverage is cancelled or restricted. Acceptance of the
Certificate(s) is subject to approval of the Village.
g.
Additional Insured. Except with respect to Professional Liability
Insurance, the Village is to be specifically included as an Additional
Insured for the liability of the Village resulting from any services
performed by or on behalf of the Provider in performance of this
Agreement. The Provider's insurance, including that applicable to the
Village as an Additional Insured, shall apply on a primary basis and any
other insurance maintained by the Village shall be in excess of and shall
not contribute to the Provider's insurance. The Provider's insurance shall
contain a severability of interest provision providing that, except with
respect to the total limits of liability, the insurance shall apply to each
Insured or Additional Insured (for applicable policies) in the same manner
as if separate policies had been issued to each.
h. Deductibles. All deductibles or self -insured retentions must be declared
to and be reasonably approved by the Village. The Provider shall be
responsible for the payment of any deductible or self -insured retentions in
the event of any claim.
i. The provisions of this section shall survive termination of this Agreement.
8. Nondiscrimination.
a. During the term of this Agreement, Provider shall not discriminate against
any of its employees or applicants for employment because of their race,
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color, religion, sex, or national origin, and to abide by all Federal and
State laws regarding nondiscrimination.
9. Attorneys Fees and Waiver of Jury Trial.
a. In the event of any litigation arising out of this Agreement, the prevailing
party shall be entitled to recover its attorneys' fees and costs, including the
fees and expenses of any paralegals, law clerks and legal assistants, and
including fees and expenses charged for representation at both the trial and
appellate levels.
b. In the event of any litigation arising out of this Agreement, each party
hereby knowingly, irrevocably, voluntarily and intentionally waives its
right to trial by jury.
10. Indemnification/Limited Warranty.
a. Provider's Limited Warranty is attached as Exhibit "B."
11. Notices.
a. Any notices required by this Agreement shall be in writing and shall be
deemed to have been properly given if transmitted by hand -delivery, by
registered or certified mail with postage prepaid return receipt requested,
or by a private postal service, addressed to the parties (or their successors)
at the following addresses:
For the Village: Key Biscayne Fire Department
Attn: Marcos Osorio
560 Crandon Blvd.
Key Biscayne, FL 33149
Fax: 305-365-8933
With a copy to: Stephen J. Heitman, Esq.
Village Attorney
Weiss Serota Helfman Cole & Bierman, P.L.
2525 Ponce de Leon Blvd., Suite 700
Coral Gables, Florida 33134
For The Provider:
Westnet, Inc.
Attn: Dawn Matheny
15542 Chemical Lane
Huntington Beach, CA 92649
Fax: 714-901-5610
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12. Governing Law.
a. This Agreement shall be construed in accordance with and governed by
the laws of the State of Florida. Venue for any litigation arising out of this
Agreement shall be proper exclusively in Miami -Dade County, Florida.
13. Entire Agreement/Modification/Authorization.
a. This writing contains the entire Agreement of parties and supercedes any
prior oral or written representations. No representations were made or
relied upon by either party, other than those that are expressly set forth
herein.
b. No agent, employee, or other representative of either party is empowered
to modify or amend the terms of this Agreement, unless executed with the
same formality as this document.
c. The execution, delivery and performance of this Agreement by Provider
have been duly authorized, and this Agreement is binding on Provider and
enforceable against Provider in accordance with its terms. No consent of
any other person or entity to such execution, delivery and performance is
required.
14. Public Records/Access and Audits.
a. The Village Manager or his designee shall, during the term of this
Agreement and for a period of three (3) years from the date of termination
of this Agreement, have access to and the right to examine and audit any
Records of the Provider involving transactions related to this Agreement.
In addition, the Provider agrees to comply specifically with the provisions
of Section 119.0701, Florida Statutes.
b. The Village may cancel and terminate this Agreement immediately for
refusal by the Provider to allow access by the Village Manager or his
designee to any Records pertaining to work performed under this
Agreement that are subject to the provisions of Chapter 119, Florida
Statutes.
c. Notwithstanding the foregoing or anything else to the contrary, subject to
the provisions of Chapter 119, Florida Statutes, the Village agrees not to
disclose any confidential and proprietary information and trade secrets of
Provider as discussed below in section 16.
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15. Confidentiality.
a. During the term of this Agreement, a party may provide the other with
Confidential Information. Each party who receives the Confidential
Information of the other party will: (i) maintain the confidentiality of such
Confidential Information and not disclose it to any third party, except as
authorized by the disclosing party in writing or as required by a court of
competent jurisdiction; (ii) restrict disclosure of Confidential Information
to its employees who have a "need to know" and not copy or reproduce
such Confidential Information; (iii) take necessary and appropriate
precautions to guard the confidentiality of Confidential Information,
including informing its employees who handle such Confidential
Information that it is confidential and not to be disclosed to others, but
such precautions shall be at least the same degree of care that the receiving
party applies to its own confidential information and shall not be less than
reasonable care; and (iv) use such Confidential Information only in
furtherance of the performance of this Agreement, Westnet's Maintenance
and Support Agreement, or to otherwise support Customer in its use and
maintenance of the System. Confidential Information is and shall at all
times remain the property of the disclosing party, and no grant of any
proprietary rights in the Confidential Information is hereby given or
intended, including any express or implied license, other than the limited
right of the recipient to use the Confidential Information in the manner and
to the extent permitted by this Agreement.
16. Maintenance and Support.
a. During the Post Warranty Period, Westnet will make Maintenance and
Support Services available to the Village. The Village understands that it
will be obligated to purchase such services at the time services are
rendered unless the Village and Westnet have executed a Maintenance and
Support Agreement. If the Village exercises its option to purchase
extended Maintenance and Support, notice must be provided at least 30
days prior to the expiration of the Warranty Period. See Maintenance and
Support Statement of Work (Exhibit G) for complete details.
17. Shipment/Risk of Loss.
a Westnet will pack and ship all Equipment F.O.B. to the delivery sites
designated by the Village in accordance with the applicable packing and
shipping instructions or, in the absence of such instructions, with best
commercial practices to ensure safe arrival at the destination. Title to the
Equipment shall pass to the Village upon completion of installation.
b. Risk of loss for the Equipment shall pass to the Village upon delivery.
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18. System Acceptance.
a. After the Equipment is installed, Westnet will notify the Village in writing
that it is ready to commence the Acceptance Test. Westnet and the Village
will mutually agree on the date to commence the Acceptance Test per the
acceptance test procedure of Exhibit "E." If the Village is unable or
unwilling to participate in the Acceptance Tests within the on -site
installation period, the Acceptance Test procedure will be conducted by an
authorized Westnet representative with results shared in writing to the
Village. When the System is fully operational based on the documented
acceptance test procedure, the System will be deemed accepted as certified
in Exhibit "F."
19. Delays.
a. Neither party will be liable for its non-performance or delayed
performance if caused by a "Force Majeure" which means an event,
circumstance, or act of a third party that is beyond a party's reasonable
control, such as an act of God, an act of the public enemy, an act of a
government entity, strikes or other labor disturbances, hurricanes,
earthquakes, fires, floods, epidemics, embargoes, war, riots, or any other
similar cause. Each party will notify the other if it becomes aware of any
Force Majeure that will significantly delay performance. The notifying
party will give such notice promptly (but in no event later than fifteen (15)
days) after it discovers the Force Majeure. If a Force Majeure occurs, the
parties will execute a change order to extend the Project Schedule for a
time period that is reasonable under the circumstances.
20. Nonassignability.
a. This Agreement shall not be assignable by Provider unless such
assignment is first approved by the Village Manager. The Village is
relying upon the apparent qualifications and expertise of the Provider, and
such firm's familiarity with the Village's area, circumstances and desires.
21. Severability.
a. If any term or provision of this Agreement shall to any extent be held
invalid or unenforceable, the remainder of this Agreement shall not be
affected thereby, and each remaining term and provision of this
Agreement shall be valid and be enforceable to the fullest extent permitted
by law.
22. Independent Contractor.
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a. The Provider and its employees, volunteers and agents shall be and remain
an independent contractor and not an agent or employee of the Village
with respect to all of the acts and services performed by and under the
terms of this Agreement. This Agreement shall not in any way be
construed to create a partnership, association or any other kind of joint
undertaking, enterprise or venture between the parties.
23. Compliance with Laws.
a. The Provider shall comply with all applicable laws, ordinances, rules,
regulations, and lawful orders of public authorities in carrying out
Services under this Agreement, and in particular shall obtain all required
permits from all jurisdictional agencies to perform the Services under this
Agreement.
24. Waiver.
a. The failure of either party to this Agreement to object to or to take
affirmative action with respect to any conduct of the other which is in
violation of the terms of this Agreement shall not be construed as a waiver
of the violation or breach, or of any future violation, breach or wrongful
conduct.
25. Counterparts.
a. This Agreement may be executed in several counterparts, each of which
shall be deemed an original and such counterparts shall constitute one and
the same instrument.
26. Use of Trademarks and Names.
a. Except as expressly agreed to in writing, neither party may use the other
party's name, logo, or trademarks, or any abbreviation of the other party's
name, in any advertising, marketing campaigns, press releases, or
communication with the press, without the specific prior consent of the
other party. Each party must strictly follow the other party's instructions
concerning use of the other party's trademarks.
27. No License of Intellectual Property.
a. This Agreement does not grant to either party any license under any
patents or other intellectual property rights of the other party. This
Agreement does not grant either party the right to manufacture any of the
other party's Software or Equipment.
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Signed and dated this 2c day of June, 2015.
Village of Key Biscayne
Westnet, Inc.
By:
Name: t vu- VnOr} r,I�
Title: tt? Go rOret e'ts"
Date: 047 (25/avr5"'
SWORN TO AND SUBSCRIBED before me this
Signature of Notary Public, State of Flo
Print, Type or stamp nam of Notary Public.
Personally known to me, or produced identification
11
day of June , 2015
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate
is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Orange
Subscribed and sworn to (or affirmed) before me on this 23rd
day of June , 20 15 , by
Dawn Marsha Matheny
proved to me on the basis of satisfactory evidence to be the
person(s) who appeared before me
0
LANA GRAY
COMM. #1962601
Notary Public • California
Orange County
M: Comm E res Dec. 3, 2015 t
(Seal) Signature