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HomeMy WebLinkAboutExhibitPROFESSIONAL SERV ICES AGREEMENT This Agreement ("Agreement") is entered into this day of .2009 (but effective as of , being the "Effective Date") by and betNveen the City of Miami, a municipal corporation of the State of Florida whose address is 444 SW 2nd Avenue, 10th Floor, Miami, Florida 33130 ("City") and ("Provider") whose address is RECITALS: T A. The City has issued a Request for Qualification ("RFQ") No. 126077, 1 for the provision of Municipal Bond Underwriting Services ("Services") and Provider's proposal ("Proposal"), in response thereto, has been selected as the most qualified proposal for the provision of the particular services under the Specifications/Scope of Work (hereinafter collectively referred to as the "Services"). The RFQ and the Proposal are sometimes referred to herein, collectively, as the "Solicitation Documents," and are by this reference incorporated into and made a part of this Agreement. B. After review and consideration by the Evaluation Committee, Provider's proposal was recommended by the Evaluation Committee and the City Manager, the Commission of the City of Miami, by Resolution No. _, adopted on 200—, approved the selection of Provider as one of the qualified proposers and authorized the City Manager to execute a professional services agreement, under the terms and conditions set forth herein. NOR', THEREFORE, in consideration of the mutual covenants and promises herein contained. Provider and the City agree as follows: TERMS: 1. RECITALS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. , The Services are hereby incorporated into, made part of this Agreement, and attached hereto as Attachment "A". The Solicitation Documents are hereby incorporated into, made a part of this Agreement, and attached hereto as Attachment "B". 2. TERM: The term of this Agreement shall be two (2) years commencing on the effective date hereof. 3. OPTION TO EXTEND: The City shall have three (3) option(s) to extend the term hereof for a period of one (1) year each. 4. SCOPE OF SERVICE: A. Provider agrees to provide the Services as specifically described, and under the special terms and conditions set forth in Attachment "A" hereto, which by this reference is incorporated into and made a part of this Agreement. B. Provider represents and warrants to the City that: (i) it possesses all qualifications, licenses and expertise required under the Solicitation Documents for the performance of the Services; (ii) it is not delinquent in the payment of any sums due the City, including payment of permit fees, occupational licenses, etc., nor in the performance of any obligations to the City, (iii) all personnel assigned to perform the Services are and shall be, at all times during the term hereof, fully qualified and trained to perform the tasks assigned to each; and (iv) the Services will be performed in the manner described in Attachment "A"; and (v) each N person executing this Agreement on behalf of Provider has been duly authorized to so excute the same and fully bind Provider as a party to this Agreement. 5. COMPENSATION: A. The amount of compensation payable by the City to Provider shall be based on the proceeds of the bonds issued. 6. OWNERSHIP OF DOCUMENTS: Provider understands and agrees that any information, document, report or any other material whatsoever which is given by the City to Provider or which is otherwise obtained or prepared by Provider pursuant to or under the terms of this Agreement is and shall at all times remain the property of the City. Provider agrees not to use any such information; document, report or material for any other purpose whatsoever without the written consent of City, which may be withheld or conditioned by the City in its sole discretion. 7. AUDIT AND INSPECTION RIGHTS: A. The City may, at reasonable times, and for a period of up to three (3) years following the date of final payment by the City to Provider under this Agreement, audit, or cause to be audited, those books and records of Provider which are related to Provider's performance under this Agreement. Provider agrees to maintain all such books and records at its principal place of business for a period of three (3) years after final payment is made under this Agreement. B. The City may, at reasonable times during the term hereof, inspect Provider's facilities and perform such tests, as the City deems reasonably necessary, to determine whether the goods or services required to be provided by Provider under this Agreement conform to the terms hereof and/or the terms of the Solicitation Documents, if applicable. Provider shall make 3 available to the City all reasonable facilities and assistance to facilitate the performance of tests or inspections by City representatives. All tests and inspections shall be subject to, and made in accordance with, the provisions of Section 18-55.2 of the Code of the Citi- of Miami, Florida. as same may be amended or supplemented, from time to time. S. AWARD OF AGREEMENT: Provider represents and warrants to the City, that it has not employed or retained any person or company employed by the City to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage brokerage fee, or gift of any kind contingent upon or in connection with, the award of this Agreement. 9. PUBLIC RECORDS: Provider understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts; subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. Provider's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. 10. COMPLIANCE WITH FEDERAL STATE AND LOCAL LAWS: Provider understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. City and Provider agree to comply with and observe all applicable laws, codes and ordinances as they may be amended from time to time. 11. INDEMNIFICATION: Provider shall indemnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including 0 attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injure to or death of any person or damage to or destruction or loss of any property arising out of. resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Provider or its employees, agents or subcontractors (collectively referred to as "Provider"), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnitees, or any of them or (ii) the failure of the Provider to comply with any of the paragraphs herein or the failure of the Provider to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. Provider expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Provider, or any of its subcontractors, as provided above, for which the Provider's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. 12. DEFAULT: If Provider fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Provider shall be in default. Upon the occurrence of a default hereunder the City, in addition to all remedies available to it by law, may immediately, upon written notice to Provider, terminate this Agreement whereupon all payments, advances, or other compensation paid by the City to Provider while Provider was in default shall be immediately returned to the City. Provider understands and agrees that termination of this Agreement under this section shall not release Provider from any obligation accruing prior to the Wi effective date of termination. Should Provider be unable or unwilling to continence to perform the Services within the time provided or contemplated herein, then, in addition to the foregoing. Provider shall be liable to the City for all expenses incurred by the City, in preparation and negotiation of this Agreement; as well as all costs and expenses incurred by the City in the re - procurement of the Services, including consequential and incidental damages. 13. RESOLUTION OF CONTRACT DISPUTES: Provider understands and agrees that all disputes between Provider and the City based upon an alleged violation of the terms of this Agreement by the City shall be submitted to the City Manager for his/her resolution, prior to Provider being entitled to seek judicial relief in connection therewith. In the event that the amount of compensation hereunder exceeds $25,000, the City Manager's decision shall be approved or disapproved by the City Commission. Provider shall not be entitled to seek judicial relief unless: (i) it has first received City Manager's written decision, approved by the City Commission if the amount of compensation hereunder exceeds $25,000, or (ii) a period of sixty (60) days has expired, after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation (90 days if City Manager's decision is subject to City Commission approval); or (iii) City has waived compliance with the procedure set forth in this section by written instruments, signed by the City Manager. 14. CITY'S TERNIINATION RIGHTS: A. The City shall have the right to terminate this Agreement, in its sole discretion, at any time, by giving written notice to Provider at least five (5) business days prior to the effective date of such termination. In such event, the City shall pay to Provider compensation for services rendered and expenses incurred prior to the effective date of termination. In no event shall the 2 City be liable to Provider for any additional compensation, other than that provided herein, or for any consequential or incidental damages. B. The Cit, shall have the right to terminate this Agreement. without notice to Provider; upon the occurrence of an event of default hereunder. In such event, the City shall not be obligated to pay any amounts to Provider and Provider shall reimburse to the City all amounts received while Provider was in default under this Agreement. 15. INSURANCE: Provider shall, at all times during the term hereof, maintain such insurance coverage as may be required by the City. All such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage shall be furnished to the City on Certificates of Insurance indicating such insurance to be in force and effect and providing that it will not be canceled during the performance of the services under this contract without thirty (30) calendar days prior written notice to the City. Completed Certificates of insurance shall be filed with the City prior to the performance of services hereunder, provided, however, that Provider shall at any time upon request file duplicate copies of the policies of such insurance with the City. If, in the judgment of the City, prevailing conditions warrant the provision by Provider of additional liability insurance coverage or coverage which is different in kind, the City reserves the right to require the provision by Provider of an amount of coverage different from the amounts or kind previously required and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. Should the Provider fail or refuse to satisfy the requirement of changed coverage within thirty . (30) days following the City's written notice, this Contract shall be considered terminated on the date that the required change in policy coverage would otherwise take effect. 7 16. NONDISCRIMINATION: Provider represents and warrants to the Cite that Provider does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Provider's performance under this Agreement on account of race, color, sex, religion, age; handicap, marital status or national origin. Provider further covenants that no otherwise qualified individual shall; solely by reason of his/her race, color, sex, religion; age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 17. MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT PROGRAM: The City has established a Minority and Women Business Affairs and Procurement Program (the "M/WBE Program") designed to increase the volume of City procurement and contracts with Blacks, Hispanic and Women -owned business. The MlWBE Program is found in Ordinance No. 10062, a copy of which has been delivered to, and receipt of which is hereby acknowledged by; Provider. Provider understands and agrees that the City shall have the right to terminate and cancel this Agreement, without notice or penalty to the City, and to eliminate Provider from consideration and participation in future City contracts if Provider, in the preparation and/or submission of the Proposal, submitted false of misleading information as to its status as Black, Hispanic and/or Women owned business and/or the quality and/or type of minority or women owned business participation. 18. ASSIGNMENT: This Agreement shall not be assigned by Provider, in whole or in part, without the prior written consent of the City's, which may be withheld or conditioned, in the City's sole discretion. 19. NOTICES: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return. Ei receipt requested; addressed to the other parte at the address indicated herein or to such other address as a party may designate bN7 notice given as herein provided. Notice shall be deemed given on the day on which personally delivered_ or;if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. TO PROVIDER: TO THE CITY: City Manager 444 SW 2"d Avenue, 10'' Floor Miami, Florida 33130 With copies to: City Attorney 444 SW 2"d Avenue, Suite 945 Miami, Florida 33130 20. MISCELLANEOUS PROVISIONS: A. This Agreement shall be construed and enforced according to the laws of the State of Florida. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to 7 conform with such laws, or if not modifiable, 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 or limitation of its use. E. This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto. 21. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 22. INDEPENDENT CONTRACTOR: Provider has been procured and is being engaged to provide services to the City as an independent contractor, and not as an agent or employee of the City. Accordingly, Provider shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Provider further understands that Florida VvIorkers' Compensation benefits available to employees of the City are not available to Provider, and agrees to provide workers' compensation insurance for any employee or agent of Provider rendering services to the City under this Agreement. 23. CONTINGENCY CLAUSE: Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thirty (30) days notice. 24. REAFIRMATION OF REPRESENTATIONS: Provider hereby reaffirms all of the representations contained in the Solicitation Documents. 10 2-5. ENTIRE AGREEMENT: This instrument and its attachments constitute the sole and only agreement of the parties relating to the subject matter hereof and correct]) set forth 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. 26. COUNTERPARTS: This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. 27. SPECIAL INSURANCE AND INDEMNIFICATION RIDER: Please initial if applicable: ❑ ❑ IN VVITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. ATTEST: Priscilla A. Thompson, City Clerk ATTEST: Print Name: Title: Corporate Secretary "Cita," CITY OF NHAMI, a municipal corporation By: Pedro G. Hernandez, City Manager "Provider" a By: Print Name: Title: 11 APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: JULIE O. BRU City Attorney LEEANN BREHM Risk Management 12 ATTACHMENT A 3.0 SPECIFICATIOI\S / SCOPE OF WORK 3.1 BACKGROUND INFORNIATION The City of Miami is seeking qualified investment banking firms (the "Proposer" or "Firm") to serve as bond underwriters to the City in connection with the advancement of the City's Capital Improvement Program (the "Engagement"). The City intends to compose a team of underwriters (the "Underwriting Team") to serve for five years. The financing team for any transaction will consist of City staff, bond counsel, financial advisor and the Underwriting Team. The City shall not guarantee the amount of bond transactions, if any, issued during the five (5) year period. The City reserves the right, in its sole and absolute discretion; to dismiss from the underwriting team any member for any reason at any time. Submission of a response to this RFQ shall constitute the agreement of the Proposer to these terms, if selected as a Successful Proposer. The Underwriting Team will consist of the following Positions and bond allocations: A. Two (2) Firms to serve as Senior Managers. On any given bond transaction, the City will designate one firm as Senior Manager and the other as Co -Senior Manager as deemed appropriate by the City. Target bond allocation for the Senior Manager will be 45% of the issue size and for Co -Senior Manager, 25% of the issue size_ Firms in a Senior Manager Position shall demonstrate national underwriting experience, strong bond distribution capabilities, and an expertise in municipal tax- exempt financings. B. Three (3) Firms to serve as Co -Managers. On any given bond transaction, the City will assign all three funis as Co -Managers at a target bond allocation of 10% each of 'the issue size. Firms in a Co -Manager position shall demonstrate at least regional underwriting experience and strong bond distribution capabilities. Senior Managers, and/or (2) Co -Managers shall follow the requirements in the RFQ for addressing the qualifications for both. Both Senior Manager and Co -Senior Manager will be used based on a rotational method. However, in a situation where a conflict of interest exists, the rotational method will be vacated, and the other firm will be selected to provide said services. Co -Managers will be allocated a target bond of 10%. 13 The Cit} will negotiate suitable compensation for any given bond transaction with the selected Senior Manager before the transaction is priced. The remaining members of the UndenNTiting Team agree to accept the compensation negotiated between the Senior Manager and the City. 3.2. SCOPE OF WORK A. SENIOR MANAGER The services to be provided by a Senior Manager assigned to a particular transaction shall include, but not be limited to, the following: 1. Develop the structure and overall marketing strategy on a bond transaction to which it has been assigned and to work with the Finance Director, the City Attorney's office, bond counsel, financial advisor, rating agencies, trustees and other professionals involved in the transactions. City of Miami Page 31 RFQ No. 126077,1 2. Manage the underwriting team assigned by the City to work with the Senior Manager (as book running manager). 3. Assist the City, its financial advisor and bond counsel in drafting the preliminary official statement, the final official statement and any other documents required to authorize, market and sell the Bonds. The City will provide to the Senior Manager its customary financial information and will make every effort to provide the Senior Manager with all necessary additional information for the specific financing/bond issuance. It shall be the duty of the Senior Manager to thoroughly review and determine the completeness and accuracy of any material representations set forth in the preliminary and final official statements. The Senior Manger will be responsible to the City in all aspects for the accuracy and completeness of information provided by such Senior Manager with respect to such disclosure documents. 4. Sell Bonds. 5. Provide analyses of market conditions and advise the City and its financial advisor with regard to market timing and development of a marketing plan for the Bonds. 6. Assist the City in developing and presenting information to the rating agencies, bond insurers and investment community. B. CO -SENIOR MANAGERS AND CO -MANAGERS The services to be provided by the underwriting furans assigned to a negotiated bond transaction when serving as Co -Senior Manager and Co -Manager on a transaction shall include, but not be limited to, the following: 1. Assist the Senior Manager in providing -the primary and secondary market support for the City's financing endeavors. 2. Assist the Senior Manager in providing the analyses of market conditions and advise the City and its financial advisors with regard to market timing and development of a marketing plan for the Bonds. 3. Sell Bonds. 14 ATTACHMENT B Copy of RFQ and Provider's Response To be attached at time of document execution 15