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HomeMy WebLinkAboutR-89-0892J-89-942 9/18/89 RESOLUTION NO. 89--89Z A RESOLUTION, WITH ATTACHMENT, AUTHORIZING THE CITY MANAGER TO ENTER INTO A PROFESSIONAL SERVICES AGREEMENT, IN SUBSTANTIALLY THE FORM ATTACHED, WITH ERNST & YOUNG, FORMERLY KNOWN AS ARTHUR YOUNG AND COMPANY, CERTIFIED PUBLIC ACCOUNTANTS, WITH THE PARTICIPATION OF THE MINORITY -OWNED ACCOUNTING FIRM OF JORDAN, ABELLA AND COMPANY, TO ANALYZE THE FINANCIAL VIABILITY OF PROPOSALS TO BE SUBMITTED IN RESPONSE TO THE REQUEST FOR PROPOSALS FOR THE 1145 N.W. 11 STREET, MUNICIPAL JUSTICE BUILDING PROPERTY UNIFIED DEVELOPMENT PROJECT; AUTHORIZING COMPENSATION FROM FUNDS AVAILABLE IN THE PROFESSIONAL SERVICES ACCOUNT OF THE DEPARTMENT OF DEVELOPMENT FY 1989 BUDGET, TO BE REIMBURSED TO THE CITY BY THE SUCCESSFUL PROPOSER UPON EXECUTION OF A NEGOTIATED LEASE AGREEMENT, FOR SERVICES NOT TO EXCEED AN AMOUNT OF $35,000, TO BE DETERMINED BY THE NUMBER OF RESPONSIVE PROPOSALS SUBMITTED AND ANALYZED, PLUS OUT- OF-POCKET EXPENSES NOT TO EXCEED AN AMOUNT OF $2,500, FOR THE PERIOD COMMENCING UPON EXECUTION OF AN AGREEMENT AND TERMINATING UPON COMPLETION OF PROFESSIONAL SERVICES; FURTHER PROVIDING THAT 50% OF THE FEES BE PAID TO THE MINORITY OWNED SUBCONSULTING FIRM OF JORDAN, ABELLA AND COMPANY, FOR THEIR PARTICIPATION IN THE ANALYSIS OF PROPOSALS. WHEREAS, the City Commission adopted Resolution No. 89- 658 on July 13, 1989, authorizing the issuance of a request for proposals for the Unified Development of a mixed -use commercial Project on City -owned property located at 1145 N.W. 11 Street, more commonly known as the "Municipal Justice Building Property"; and WHEREAS, Section 29-A(c) of the City Charter requires the City Commission to select a certified public accounting firm to analyze proposals based on certain specific evaluation criteria defined in the Request for Proposals and to render a written report of its findings to the City Manager; and WHEREAS, by the adoption of Resolution No. 89-658 on July 13, 1989, the City Commission further selected the certified public accounting firm of Arthur Young and Company, with the participation of minority -owned accounting firm of Jordan, Abella and Company, to analyze proposal submissions; and 'Y COMMISSION MEETING OF OCT 12 1989 r P, WHEREAS, the due date for proposal submissions for the Unified Development of the Municipal Justice Building Property is November 10, 1989; and WHEREAS, it is now necessary to enter into a professional services agreement with Ernst and Young, formerly known as Arthur Young and Company, with participation of Jordan, Abella and Company, to analyze the financial viability of proposals in an amount not to exceed $35,000 to be determined by the number of responsive proposals submitted and analyzed, plus out-of-pocket expenses with a maximum limit of $2,500; and WHEREAS, the scope of services includes an evaluation of the financial viability of the development teams, the proposed financing strategies, and an assessment of the short and long range economic and fiscal returns to the City; and WHEREAS, compensation for such services in an amount not to exceed $35,000 plus out-of-pocket expenses not to exceed $2,500 from funds available in the professional services account of the Department of Development FY 1989 Budget; and WHEREAS, all monies expended for certified public accounting professional services shall be reimbursed the City by the successful proposer upon execution of a negotiated lease agreement; NOW THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Commission hereby authorizes the City Manager to enter into a Professional Services Agreement, in substantially the form attached, with Ernst & Young, formerly known as Arthur Young and Company, certified public accountants, with the participation of the minority -owned accounting firm of Jordan, Abella and Company, to analyze the responsive proposals to be submitted in response to the Request for Proposals for the Unified Development of the Municipal Justice Building Property located at 1145 N.W. 11 Street, Miami, whereby the firm will analyze the financial viability of the proposed development teams and financing strategies, assess the short and long range economic and fiscal return to the City, and render a written report of its findings to the City Manager for consideration. Section 2. Compensation for the above services is hereby allocated and authorized to be paid from funds available in the professional services account of the Department of Development FY 1989 Budget, to be reimbursed the City by the successful proposer upon execution of a negotiated lease agreement, in an amount not to exceed $35,000, to be determined by the number of responsive proposals submitted November 10, 1989, for analysis, plus out-of-pocket expenses not to exceed $2,500, for the period commencing upon execution of an Agreement and terminating upon completion of said professional services. ,Further, 50% of said compensation is to be paid to the minority -owned firm of Jordan, Abella and Company participating with Ernst and Young in the analysis of proposal submissions. Section 3. This Resolution shall be effective immediately upon its adoption pursuant to law. PASSED AND ADOPTED this 12th day of October 1989. ATTE l MATIM HIRAI, CITY CLERK FINANCE REVIEW: ( 2..i-I ZAVLgO GARCIA, DIRECTOR FINANCE DEPARTMENT BUDGETARY REVIEW: MAN R S. SURANA, DIRECTOR DEP TMENT OF BUDGET APPROVED AS TO FORM AND CORRECTNESS: JOR L. FE CIT ATTORNE PROFESSIONAL SERVICES AGREEMENT This Agreement is entered into this day of , 1989, by and between the CITY OF MIAMI, a municipal corporation of the State of Florida, 'hereinafter referred to as "CITY" and Ernst & Young, formerly known as Arthur Young and Company, Certified Public Accountants, hereinafter referred to as "CONSULTANT". R E C I T A L S: WHEREAS, the City of Miami Commission on July 13, 1989, adopted Resolution No. 89-658 authorizing the City Manager to issue a Request for Proposals (RFP) for the Unified Development of a mixed -use commercial project, on City -owned property located at 1145 N.W. 11 Street, more commonly known as the "Municipal Justice Building Property", and; WHEREAS, Section 29-A(c) of the City of Miami Charter requires the City Commission to select a certified public accounting firm to analyze proposals to be submitted in response to the Request for Proposals based upon certain- specific evaluation criteria defined in the Request for Proposals and to render a written report of its findings to the City Manager; and WHEREAS, Resolution No. 89-658, adopted July 13, 1989, further selected the certified public accounting firm of Arthur Young, with the participation of the minority -owned firm of Jordan, Abella and Company, hereinafter referred to as "SUBCONSULTANT" to analyze proposals to be submitted November 10, 1989, in response to the Request for Proposals for said Unified Development Project; and WHEREAS, CITY desires CONSULTANT to conduct an independent analysis and assessment of each responsive proposal with specific attention paid to the financial and economic aspects of each responsive submission; and WHEREAS, CONSULTANT shall be paid on a hourly rate payment schedule, based on a projected staff schedule and rate structure with a maximum limit not to exceed $35,000 for professional services, to be determined by the number of responsive proposals, but not exceeding seven proposals to be analyzed, plus out-of- pocket expenses to be billed to CITY at cost with a maximum limit of $2, 500; NOW, THEREFORE, in consideration of the mutual covenants and obligations herein contained, and subject to the terms and conditions hereinafter stated, the parties hereto stipulate, understand and agree as follows: I. TERM The term of this Agreement shall commence upon execution of same, and shall terminate upon completion of CONSULTANT'S responsibilities as outlined below in Section II, entitled "SCOPE OF SERVICES." II. SCOPE OF SERVICES Pursuant to the dictates of Section 29-A(c ) of the City of Miami Charter, this Agreement and the Request for Proposals for the Municipal Justice Building Property, 1145 N.W. 11 Street Unified Development Project, under the general direction of the . the Department of Development, the CONSULTANT'S responsibilities are as follows: A. CONSULTANT shall develop a model to summarize responsive proposal information. B. CONSULTANT shall specifically evaluate the viability of the development teams and the proposed financing strategies, and shall assess comparatively the short and long-range economic and fiscal returns to the City, proffered in each responsive proposal. M-M ACk C. CONSULTANT shall assess each responsive proposer's market analysis and feasibility study, and evaluate the economic feasibility of the proposed developments based on information supplied by the proposers. D. CONSULTANT shall provide a preliminary financial analysis of each responsive proposal and submitted supplemental materials to the Review Committee. Said analysis shall include an assessment of the financial viability, level of financial commitment, and the financial return to the CITY of each proposal based on information supplied by each proposer. E. CONSULTANT shall attend all of the oral presentations of the responsive proposer's as may be scheduled by the Review Committee. F. CONSULTANT shall prepare an independent report to be submitted to the City Manager to include without limitation, an analysis of the data and information submitted by each responsive proposer, based upon the criteria specified in the Request For Proposals. Specifically, CONSULTANT shall evaluate the following criteria: (1) Experience of the proposer (2) Capability of the development team (3) Financial capability, level of financial commitment (4) Financial return to the CITY G. CONSULTANT shall attend meetings with the City Manager or his designee to review the findings. H. CONSULTANT shall attend meetings with the City Commission regarding the selection of a proposer. III. COMPENSATION A. The CITY shall pay the CONSULTANT, as maximum compensation for the services performed, a fee not to exceed $35,000, to be determined by the number of responsive proposals, -3- but not exceeding seven proposals to be analyzed, plus out-of- pocket expenses not to exceed $2,500. The $35,000 maximum fee will be divided among CONSULTANT and SUBCONSULTANT as follows: Ernst and Young $17,500 Jordan, Abella and Co. 17,500 Total $35,000 In the event that the fee paid CONSULTANT is less than the $35,000 maximum fee, the CONSULTANT and SUBCONSULTANT shall split the fee paid according to the following percentages: Ernst and Young 50.0% Jordan, Abella and Co. 50.0% Total 100.0% B. The CONSULTANT's fee shall be determined by CITY within thirty (30) days from the submission date of the proposals and shall be determined by the number of responsive proposals to be analyzed and the total hours estimated to complete the SCOPE OF SERVICES. The CONSULTANT fee shall be calculated utilizing the following hourly rate structure and percentages of total hours at each rate structure: Ernst and Young Project Team Percentage of Hourly Rate Total Hours Partner $230/hour 20% Manager $150/hour 20% Senior Consultant $95/hour 60% Total 100% In the event that -CITY and CONSULTANT cannot agree on a fee within thirty (30) days from the submission date of the proposals to be analyzed, the CITY and CONSULTANT may terminate this Agreement by written notice to the other party and such termination shall be effective in three (3) days from the date of such notice. In such event, CITY shall not be liable for any expenditure, damage, or cost of the CONSULTANT. MAIC 89-89Z isJ E `,1 In the event that CITY and CONSULTANT agree on the fee to by paid, CONSULTANT shall bill CITY on the hourly basis set forth above and CITY shall only pay CONSULTANT for actual work performed and billed. In no ovent will CITY pay CONSULTANT a fee greater than $35, 000, or lesser amount as determined by this Subsection. C. Out-of-pocket expenses will be billed to CITY at cost, with a maximum limit of $2,500. Reimbursement shall be limited to amounts which are substantiated by receipts, allowable under Section 112.0G1, Florida Statutes (1987), and subject to the approval of the City of Miami D apartment of Development. IV. COMPLIANCE WITH PEDERAL, STATE AND) LOCAL LAWS Both parties shill +comply with all applicable laws, ordiciances and codes of fe=cle.r-tl, stitte: and local governments. V. GENERAL CONDITIONS A. All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail addressed to the other party at the address indicated herein or as the same may be changed Cron time to time. Such notice shall be deemed given on the day on which persotially served; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. CITY OF MIAMI Department of Oi:ve lopiaetit 300 Biscayne✓ Boulevard Way Suite 400 Miami, Florida 33131 CONSULTANT Ernst and Young 100 Chopin Plaza Suite 1800 Miami, Florida 33131 [a Irk B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms in this Agreement shall rule. D. No waiver or breach of any provision of. this Agreement shall constitute a waiver of any subsequent breach of the same or any provision hereof, and no waiver shall be effective unless made in writing. E. Should any provisions, paragraphs, sentences, words or phrases contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the United States, State of Florida, County of Dade, or the City of Miami, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable to conform -with such laws, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. VI. OWNERSHIP OF DOCUMENTS All documents developed by CONSULTANT under this Agreement shall be delivered to CITY by CONSULTANT upon completion of the services required pursuant to Section II hereof and shall become the property of CITY, without restriction or limitation on their use. CONSULTANT agrees that any and all documents maintained and generated pursuant to this contractual relationship between CITY and CONSULTANT shall be subject to all provisions of the Public Records Law, Chapter 119, Florida Statutes (1987) . It is further understood by and between the parties that any documents which are given by CITY to CONSULTANT pursuant to this EM Agreement shall at all times remain the property of the CITY and shall not be used by CONSULTANT for any other purpose whatsoever without the written consent of CITY. VII. NON-DELEGABILITY The obligations undertaken by CONSULTANT pursuant to this Agreement shall not be delegated or assigned to any other person (other than the specified minority SUBCONSULTANT identified in this Agreement) or firm unless CITY shall first consent in writing to the performance or assignment of such services or any part thereof by another person or firm. VIII. SUBCONSULTANTS Notwithstanding the provisions of Section VII, the obligations undertaken by the CONSULTANT shall include the employment of Jordan, Abella and Company, minority -owned certified public accounting firm as SUBCONSULTANT. Nothing contained herein shall be deemed to create a contractual relationship between CITY and the above -named SUBCONSULTANT. Any SUBCONSULTANTS of CONSULTANT shall be the sole responsibility of CONSULTANT. IX. AUDIT RIGHTS CITY reserves the right to audit the records of CONSULTANT pertaining to any billings to CITY for time or expenses at any time during the performance of this Agreement and for a period of ,one year after final payment is made under this Agreement. X. AWARD OP AGREEMENT CONSULTANT warrants that it has not employed or retained any person employed by CITY to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by CITY any fee, --commission percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. XI. CONSTRUCTION OF AGREEMENT This Agreement shall be construed and enforced according to the laws of the State of Florida. XII. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors, and authorized assigns. XIII. INDEMNIFICATION CONSULTANT shall indemnify and save CITY and its officials harmless from and against any and all claims, liabilities, losses, and causes of action, which may arise out of CONSULTANT's performance under the provisions of this Agreement, including all acts or omissions to act on the part of CONSULTANT, including any person performing under this Agreement for or on CONSULTANT's behalf, provided that any such claims, liabilities, losses and causes of such action are attributable to the fault of CONSULTANT, and , from and against any orders, judgments or decrees which may be entered and which may result from CONSULTANT's performance under this Agreement, and from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claim, or the investigation thereof. If CITY chooses to defend any action on behalf of itself, it shall bear its own costs of defense, and if the provisions of this indemnity provision are applicable, CONSULTANT shall indemnity CITY accordingly. In any event, CITY shall promptly notify CONSULTANT as soon as it has notice of any matter for which this indemnity provision may be applicable. 69--89Z IRM XIV. CONFLICT OF INTEREST CONSULTANT covenants •that no person under its employ who presently exercises any functions or responsibilities in connection with this Agreement has any personal financial interest, direct or indirect, in the work product of this Agreement. CONSULTANT further covenants that, in the performance of this Agreement, no person having such conflicting interest shall be employed. Any such interests on the part of CONSULTANT or its employees must be disclosed in writing to CITY. CONSULTANT, in the performance of this Agreement, shall be subject to the more restrictive law and/or guidelines regarding conflict of interest promulgated by federal, state or local government. CONSULTANT is aware of the conflict of interest laws of the City of Miami (City of Miami Code Chapter 2, Article V), Dade County Florida (Dade County Code Section 2-11.1) and the State of Florida, and agrees that it will fully comply in all respects with the terms of said laws'. XV. INDEPENDENT CONTRACTOR CONSULTANT and its employees, SURCONSULTANTS, and agents shall be deemed to be independent contractors, and not agents or employees of the CITY, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of CITY, or any rights generally afforded classified or unclassified employes; furthermore, its agents or employees shall not be deemed entitled to the Florida Workers' Compensation benefits as an employee of CITY. XVI. TERMINATION OF AGREEMENT CITY retains the right to terminate this Agreement at any time prior to the completion of the services required pursuant to -9- Section II hereof without penalty to CITY. In that event, notice of termination of this Agreeme►it shall be in writing to CONSULTANT who shall be paid for those services performed prior to the date of its receipt of the notice of termination. In no case, however, will CITY pay CONSULTANT an amount in excess of the total sum provided by this Agreement. It is hereby understood by and between CITY and CONSULTANT that any payment made in accordance with this Section to CONSULTANT shall be made only if said CONSULTANT is not in default under the terms of this Agreement. If CONSULTANT is in default, CITY shall in no way be obligated and shall not pay to the CONSULTANT any further sum whatsoever and shall, upon request, be reimbursed for any past payments. It is further understood that should CONSULTANT fail to perform any of the services under this Agreement, CITY agrees that CONSULTANT's entire liability and CITY's sole and exclusive remedy'.for claims in connection with or arising out of this Agreement, for any cause whatsoever, and regardless of the form of action, shall be CITY's fees under this Agreement, which fees were received by CONSULTANT. XVII. NONDISCRIMINATION CONSULTANT agrees that it shall not discriminate as to race, sex, color, creed, age, national origin, or handicap, in connection with its performance under this Agreement. XVIII. MINORITY PROCUREMENT COMPLIANCE CONSULTANT acknowledges that it has been furnished a copy of Ordinance No. 10538, the Minority and Women Business Affairs and Procurement Ordinance, as amended, of the City of Miami, and agrees to comply with all applicable substantive and procedural provisions therein, including any amendments thereto. -10- XIX. CONTINGENCY CLAUSE Funding for this Agreement is contingent on the availability of funds and is subject to amendment or termination due to lack of funds, or authorization, reduction of funds, and/or change in regulations. XX. DEFAULT PROVISION In the event that CONSULTANT shall fail to comply with each and every term and condition of this Agreement or fails to perform any of the terms and conditions contained herein, then CITY, at its sole option and upon written notice to CONSULTANT, may cancel and terminat.e.. this Agreement, an all payments, advances, or other compensation paid to CONSULTANT by CITY while CONSULTANT was in default of the provisions herein contained, shall be forthwith returned to CITY provided CONSULTANT was given written notice of such default and the opportunity to cure the same, but failed to do so. XXI. ENTIRE AGREEMENT This instrument and its attachments constitute the sole and only Agreement of the parties hereto relating to said services and correctly set for the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. XXII. AMENDMENTS No amendments to this- Agreement shall be binding on either party unless in writing and signed by both parties. -11- IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by the respective officials thereunto duly authorized, this day and year first above written. CITY OF MIAMI, a Municipal Corporation of the State of Florida: ATTEST: By MATTY HIRAI CESAR 11. ODIO CITY CLERK CITY MANAGER WITNESS: APPROVED AS TO INSURANCE REQUIREMENTS: CONSULTANT: Ernst and Young PARTNER AUTHORIZED TO EXECUTE INSTRUMENTS ON BEHALF OF THE FIRM APPROVED AS TO LEGAL FORM AND CORRECTNESS: INSURANCE MANAGER JORGE L. FERNANDEZ 0 It, CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM To: Honorable Mayor and Members of the City Commission FROM: Cesar H. Odio City Manager RECOMMENDATION: CA=18 DATE : O C T � i 1989 FILE . SUBJECT Resolution Authorizing Professional Accounting Services for the 1145 NW 11 St. Property UDP REFERENCES. For City Commission ENCLOSURES: Meeting of 10/12/89 It is respectfully recommended that the City Commission adopt the attached Resolution, with attachment, authorizing the City Manager to enter into a Professional Services Agreement, in substantially the form attached, with the certified public accounting firm of Ernst & Young, formerly known as Arthur Young and Company, with the participation of the minority -owned firm of Jordan, Abella and Company, to analyze the financial viability of proposals to be submitted for the 1145 N.W. 11 Street Property Unified Development Project (UDP), in an amount not to exceed $35,000, to be determined by the number of responsive proposals to be submitted November 10, 1989, plus out-of-pocket expenses not to exceed $2,500, further authorizing compensation from funds available in the Department of Development's FY 1989 Budget, to be reimbursed the City by the successful proposer. BACKGROUND: The Department of Development recommends that the attached Resolution be adopted by the City Commission on October 12th, thereby authorizing the City Manager to enter into an agreement for the provision of professional accounting services for the 1145 N.W. 11 Street Property proposal submissions due November 10, 1989. On July 13, 1989, the City Commission adopted Resolution No. 89 658 authorizing the issuance of a Request for Proposals (RFP) for the development of a mixed -use commercial project, on City -owned property located at 1145 N.W. 11 Street, Miami, Florida, more commonly known as the "Municipal Justice Building Property". Section 29-A(c) of the City Charter requires analysis of proposals by a certified public accounting firm. Resolution No. 89-658 further selected the accounting firm of Arthur Young and Honorable Mayor and Members of the City Commission Page 2 Company in association with the minority -owned accounting ficin of Jordan, Abella and Company, to perform the analysis. The scope of services to be performed by the accounting firms include an analysis of the financial viability of the development teams, the proposed financing strategies, and an assessm?:it of the short and long range economic returns to the City. Compensation for said services in an amount not to exceed $35,000, will be determined by the number of proposals submitted November 10, 1989, plus out-of-pocket expenses in an amount not to exceed $2,500. 50% of the amount of fees to be paid will be received by the minority -owned firm of Jordan, Abella and Company for their participation in the analysis of proposal submissions. Funding is available from the professional services account of the Department of Development FY 1989 Budget. The successful proposer of this Unified Development Project, upon execution of a negotiated lease agreement with the City, is required to reimburse the City the full cost of professional accounting services, as stated in the Request for Pr,Dgosals document. Attachments: Proposed Resolution Professional Services Agreement