HomeMy WebLinkAboutPSAe13,9Ph,SS.IONAL k►..1RVICES AGREEMENT
This Agreement entered into as of the ,act day or November 2001, by and between the City
of Miami, a municipal corporation of the State of Florida, (hereinafter referred to as "the City")
and First Union National Bank of Florida, a national banking association (the 'Bank" or "First
Union"),
.RECITAL:
'WHEREAS, the City Conmtission, by Resolution No. 01.I140 authorized the City
Manager to negotiate and execute an Agreement with a Bank to provide banking Services as
required by the City Charter and Florida statutes, and
WHEREAS, First Union has been selected to be the lead bank;
NOW, THEREFORE, in eonsiderntion of the promises and the mutual covenants and
obligations herein contained, and subject to the terms and conditions hereinafter stated, the parties
hereto understand and agree as follows.
Vi:. The team or this Agreement shall he for three (3) years. The City, by resolution of
the City Commission and at it's sole discretion, may renew this Agreement for three (3)
additional terms of one (1) year by written notice to First Union of its election to extend at
least 90 days prior to the expiration of the then current term. The terms and conditions of
such rcncwal shall be subject to approval by the City Commission.
II. SCOPE OF SERVICES; The services to be performed ("Services") are outlined in
Appendix A w- Scope of Services to this Agreement, which shall be incorporated herein by
reference, and which will he updated on a yearly basis by mutual agreement.
III. ApDIT1. ?NAL SERVICES: The Thank, upon receipt of a written request from the Finance
Director or his designee, •shall perform such additional services as may reasonably be
required.
gENEM14 .CONDITIONS; 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 from time to time. Such notice shall be deemed given on the day
on which personally serviced; or, if by mail, on the filth day after being posted or the date of
actual receipt, whichever is earlier.
City of Miami
Finance Deppartinent
City of Miami
444 S.W. 2nd Avenue . 6th Floor
Miami, Florida 33 133
Attention. Director of Finance
Phone (305) 416-1377
Fax: (305) 400.5275
BANK
First Union National Bank
Mail Code FL 6011
200 South Biscayne Boulevard
15th Floor
Miami, Florida 33131
Attention: Scott Krieger, Vice President
Phone: (305) 789-5035
Fax: (305) 789-4830
A. Title and Paragraph headings are for convenient reference and are not part of this
Agreement.
13. In the .event of conflict between terms of this Agreement and any terms or conditions
contained in any attached documents, the terms in this Agreement shall govern.
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 conform with such taws, 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 rennin unmodified and in full force and effect.
V. =VICE AGREEMENT: Additional service agreements may be added from time to time
$ mutually agreed upon by the parties, and any service agreement may be terminated
separately and severally without affecting the continued enforceability of all other provisions
of this Agreement as to non -terminated services.
VI. PU SE AND EFFECT OF TU1S A .REEMF i'f,
1. Delineation of Nanking Services - The banking Services to be provided to the City by the
Bank shall consist of:
(a) each of the specific requirements, terms and conditions set forth in Appendix A
which is hereby incorporated by reference in its entirety; and
(b) each of the Services, terms and conditions sct forth in the Proposal which is hereby
incorporated by reference in its entirety; and
(c) all current service agreements if not specifically covered in (a) and (b) above will
remain effective.
2; Services to be rendered
(a) The Bank will provide the City with the banking Services set forth in Appendix A.
Checks deposited will be available per the Bank's most reticent Availability
Schedule if deposited in the Bank before it normally closes its transactions for the
day which is currently 5:00 p.m. Should the City wish sarne day credit alter 3:00
p.m., a City representative must contact the Bank's designated individual prior to
1' 1:00 a.m. The Bank will provide same day ledger credit for checks deposited prior
to 3:00 p.m, at our First Union branch located at 200 Biscayne Boulevard, Miami
and checks delivered prior to 5:00 p.m. to our First Union Operations Center
located at 1801 N.W, 79th Avenue, Miami. In either ease, the Bank's representative
must be contacted prior to 11:00 a.m. For same day availability of State of Florida
Treasurer and Dada County checks in excess of One Hundred Thousand Dollars
($100,000) drawn on local banks deposited prior to 12:00 noon, the City must
notify the Bank's representative prior to 1 1:00 a.m.
(b)The City will attempt to limit the number of bank accounts maintained with the
Bank; however, where legal requirements dictate, separate bank accounts will be
maintained with the Bank. In addition, the City may deem that additional demand
deposit accounts or time deposit accounts with the Bank would operate under
service specifications and at such costs to the City as mutually deemed reasonable
by the City and the Bank.
3. Compensatory Balance Calculation - For the Services provided by the Bank, the City
agrees to maintain an uninvested amount of monies on deposit with the Bank. Such
amount is to be called "Minimum Average Daily Balance in Uninvested. Deposits" and to
be calculated as described below:
Monthly, the Bank will prepare a billing for Services rendered. This billing must be
presented in a format sirnilar to the fonn contained in RFP 00-01-162 with a total for all
the service charges for the month. The total monthly service charges will then be
converted to a "Balance Required to Support Service". The Compensating balance will
be calculated as required in the City's RFP 0-01-162 except Reserve Requirements will
be deducted from collected balances when calculating the compensating balance amount.
The banking Services c tameable are as shown in the Bank's Proposal.
4. Representations, 'Warranties and Covenants
(a) The Bank hereby represents and warrants to the City that it has hill power and
authority to enter into this Agreement and fully perform its obligations hereunder
without the need for any further corporate or governmental consents or approvals,
and that the persons executing this Agreement are authorized to execute and deliver
it. Assuming the due authorization, execution, delivery, legality and enforceability
hereof by or against the City when executed and delivered by the parties, this
Agreement will constitute a valid and binding agreernent of the Bank, enforceable
against it in accordance with its tortes, subject only to the application of general
principles of equity and limitations arising from `bankruptcy, insolvency,
moratorium and outer similar laws affecting the rights of creditors generally.
(b) The Bank has not employed or retained any person employed by the City to solicit
or secure this Agreement and that it bus not offered to pay, paid, or agreed to pay
any person employed by the City any fee, commission percentage, brokerage fee, of
gift of any kind contingent upon or resulting from the award of this Agreement.
(c) The Bank is aware of the conflict of interest .laws of the City, .Dade County, Florida
and the State of Florida, and covenants that the Bank will fully comply in all
material respects with the terms of said laws.
(d) The City hereby represents and warrants to the Bank that it has full power and
authority to enter into and perform all of its obligations under this Agreement
without the need for any further bids, notices or other actions by its Commission ox
any other governmental authority. When executed and delivered by the parties, this
Agreement will constitute a valid and binding agreement of the City, enforceable
against it in accordance with its terms, subject only to the application of general
principles of equity and limitations arising from bankruptcy, insolvency,
moratorium and other similar laws affecting the rights of creditors generally. The
City further represents and warrants to the Bank that it has authorized each of the
City Manager, Finance Director, or persons designated by than in writing, to
execute and deliver docutnents to the Bank as necessary hereunder or reasonably
deemed appropriate by such officers to effect the transactions contemplated hereby.
The City acknowledges and agrees that the Bank is fully authorized and directed to
accept orders, requests and authorizations from such officers on the City's behalf in
connection with the implementation or provision of .any of the banking Services
covered by the Bid. Such authorization and direction shall not be deemed to
prohibit or preclude the Bark from relying upon actions or requests of other City
personnel so long as the Bank reasonably believes, in good faith, that such persons
have bccn authorized in writing to act on behalf of the City or by any of such
officials.
(c) At the request of the Bank, the City agrees to cause its •designated officials or their
designees to execute such signature cards and other signature and identification
verification documents as the Bank deems reasonably necessary for the purposes of
establishing appropriate security measures :in connection with the banking Services
to be provided hereunder.
VII. PAYMENT FOR SERVICES/AMOUNT OBLIGATED: The Bank warrants that it has
reviewed the City's requirements and has asked such questions and conducted such other
inquires as the Bank deemed necessary in order to determine the price of Services. The City
will not directly compensate the Bank for any work and Services performed under this
contact, including all costs associated with such work and Services. Such Services will be
compensated with the analysis credits earned by the City. The City will receive earnings
credits on balances existing in its account(s). The Earnings Credit Rate is calculated utilizing
the weekly average auction prices of the three-month Treasury Bills as stated in The Walt
Street Journal. The average price of the .four latest Treasury Bill auctions, prior to billing
date, will be averaged and used. The Bank will invoice the City monthly for Services, such
Services to be calculated in accordance with the service price schedule attached hereto as
Appendix B. After reviewing the charges, the City will authorize the use of the analysis
credits to pay the amount of the invoice. Remaining balances on the analysis credits will
accrue to the benefit of the City's to pay any obligations related to banking Services,
including but not limited to charges for the use of credit cards or any other payments received
or accepted via the Internet and carry forward to subsequent months, as a cumulative balance
for the life ofthe tern of the Agreement. The City shall have no obligation to pay the Bank
any sum except far a change and/or modification to the Agreement, which is approved and
executed in writing by the City and the Bank. With respect to travel costs and travel related
expenses, the Bank agrees to adhere to § 112.061, Florida Statutes, as they pertain to out-of-
pocket expenses including employee lodging, transportation, per diem, and all miscellaneous
cost and fees. The City shall not he liable for any such expenses that have not been approved
in advance, in writing by the City.
VIII. ) Nl : Prices shall remain firm and fixed for the tern, of the Agreement including any
option years; however, the Bank may offer incentive discounts to the City at any time during
the contractual term and any extensions thereof. After the initial termof this .Agreement,
annual price adjustments in line with changes in the Consumer Price Index (CPI=U) are
allowable, excluding employee benefit programs.
IX. NONDELEGABILILTY: This Agreement shall not be assigned, transferred, or
encumbered, in whole or in part, without prior approval of the City Commission and written
notice by the City Manager.
X. CONSTRUCTION OF AGREEMENT: This Agreement shall be construed and enforced
according to the laws of the State of Florida:
XI. Ni 'ICA°1IONtia i U 10E; The Bank shall indemnify and save the City
harmless from any and all claims, liabilities, losses and causes of action which may arise out
of the gross negligence or willful misconduct of the Bank, its officials, agents, employees or
assigns in the fulfillment of this Agreement. The Bank shad pay all claims and losses of any
nature whatever arising therefrom, and shall defend all suits arising therefrom, in the name of
the City when applicable, and shall pay all costs and judgements which may issue thereon,
except to the extent caused by the negligence of City officers or employees. During the term
ofthis Agreement, First Union shall carry the minimum insurance described below:
(a) A Comprehensive General Liability Insurance Policy shall be provided which shall
contain minimum limits of One Million Dollars (S1,OOO,OOO.00) per occurrence
mbined single limit for bodily injury liability and property damage liability. Coverage
must be afforded on a form no more restrictive than the latest edition of the
Comprehensive General Liability Policy, without restrictive endorsements, as tiled by the
Insurance Services Office and must include:
-Premises and/or operations.
—Independent contractors.
(b) Workers' Compensation insurance, to apply for all employees of the Bank in compliance
with the "workers' Comprehension Law" of the State of Florida and all applicable federal
laws. In addition, the policy must include employers' liability with statutory limits oldie
State of Florida,
(c) Professional liability insurance shall be provided which shalt contain minimum limits
One Million Dollars (S1,000,000.00) per occurrence with a maximum deductible of Two
Thousand Five Hundred Dollars (S2,500.00).
(d) Commercial auto liability insurance, covering owned, non -owned and hired vehicles,
combined single limit of .Five Hundred Thousand Dollars ($500,000.00) bodily injury
and property damage. Such insurance shall provide that it will not be cancelled or
modified without at least thirty (30) days prior written notice to the City. All applicable
policies shall name the City as additional insured.
cONFI ICT OF INTEREST: . .
A First Union 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 with the City. First Union further covenants that, in the
performance of this Agreement, no person having such conflicting interest shall be
employed. Any such interest on the part of First Union or it's employees, must be
disclosed in writing to the City.
B.First Union 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 to folly comply with said laws in all respects.
XIII. QUALITY ASSURANCE/RECORD...KE PJNC: The Bank shall maintain, and shall
require that its subcantrnctors and suppliers maintain, complete and accurate records to
substantiate compliance with the requirements set forth in Appendix A. The Bank and its
subcontractors and suppliers, shall retain such records, and all other documents relevant to
the Services furnished under this Agreement for a period of three (3) years from the
expiration date of this Agreement and any extension thereof.
XIV. AUD1T1 : The Bank agrees to maintain an accounting system that provides accounting
records that are supported with adequate documentation, and adequate procedures for
determining the allowability and allocability of costs. Such records shall subsequently
conform to Generally Accepted Accounting Principles requirements, and shall only address
those transactions related to this Agreement.
P I EPENDENT CONTRACTOR: First Union and its employee and agents shall be
domed 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 the city, or any
rights generally afforded classified or unclussi iied employed, further they shall not be
.deemed entitled to the Florida Workers' Compensation benefits as employees of the City.
XVI, f,UBSTITUTION OF PERSONNEL: In the event the Bank wishes to substitute personnel
for the key personnel identified by the Bank's Proposal, the Bank must notify the City in
writing at least ten (10) business days prior to cfleeting such substitution.
XViI.. TERMINATION . OF AGREEMV VT: The City retains the right to terminate this
Agreement at any time during each of the fiscal years of its term or any extension thereat'
prior to the completion of the Services hereof without penalty to the City. In that event,
notice of termination of this Agreement shall be in writing to First Union, who shall be paid
for those Services performed prior to the date of receipt or notice oftcmlination,
XVIII. I4O DISCR1MINAT1PN: First Uniion agrees that it shall not discriminate as to race, sex,
color, religion, age marital status, national origin or handicap in connection with its
performance under this Agreement.
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
lamination by the City due to lack of tlmds, or authorization, reduction of funds, and/or
change itt regulations.
XX. irygNy Qy DIkAULT;
a) An Event of .Default shall mean a breach of this Agreement by the Bank. Without
limiting the generality of the foregoing and in addition to those instances referred to
herein as a breach, an Event of Default, shall include the following:
i, The Bank has refused or failed, except in case for which an extension of time is
provided, to supply enough properly skilled Staff Personnel;
11 The Bank has failed to make prompt payment to subcontractors or suppliers for .any
services;
iii. The Bank has become insolvent (other than as interdicted by the bankruptcy laws),
or has assigned the proceeds received for the benefit of the Bank's creditors, or the
Bank has taken advantage of any insolvency statute or debtor/creditor law or if the
Bank's affairs have been put in the hands of a receiver;
iv. The Bank has failed to obtain the approval of the City where required by this
Agreement:
v. The Bank has failed to provide ""adequate assurances" as required under subsection
"b" below;
vi. . The Bank has failed in the representation of any warranties stated herein.
b) When, in the opinion of the City, reasonable grounds for uncertainty exist with respect to
the<Bank's ability to perform the Services or any portion thereof, the City may request
that the Bank, within the time frame set forth in the City`s request, provide adequate
assurances to the City, in writing, of the Bank "s ability to perform in accordance with the
terms of this Agreement. Until the City receives such assurances the City may request an
altustment to the compensation received by the rank for portions of the Services, which
the Bank has not performed. In the event that the Bank fails to provide to the City the
requested assurances within the prescribed tune frame, the City may:
treat such failure as a repudiation of this Agreement;
ii. resort to any remedy for breach provided herein or at law, including but not limited
to taking over the performance of the Services or any part thereof either by itself or
through others.
In the event the City shall terminate this Agreement for default, the City or its
designated representatives, may immediately take possession of all applicable
equipment, materials, products, docurtmentation, reports and data,
XXI. IyOTl,CE O.F .DEFAULT — OPPOI "I"UNITY TO CtiRK/'rERMINATE: If an Event of
Default occurs, in the detennination of the City, the City may so notify the Bank ("Default
Notice"), specifying the basis for such default, and advising the Bank that such default must
be cured immediately or this Agreement with the City may be terminated, Notwithstanding,
the City may, in its sole discretion, allow the Bank to rectify the default to the City's
reasonable satisfaction within a thirty (30) day period. The City may grant an additional
period of such duration as the City shall deem appropriate without waiver of any of the City's
rights hereunder, so long as the Hank has commenced curing such default and is effectuating
a cum withdiligence and continuity during such thirty (30) day period or any other period
which the City prescribes. The default notice shall specify the dale the Bank shall discontinue
the Services upon the Termination Date.
REMEDIES IN THE EVENT OP DEl~AULT:. If an Event of Default occurs, the Bank
shall be liable for all damages resutting from the default, including but not limited to:
a) lost revenues,
b) the difference between the Bost associated with procuring Services hereunder and the
amount actually expended by the City for rcprocurcnrent of Services, including
procurcme nt and administrative costs; and,
c) such other direct damages.
The Bank shall also remain liable for any liabilities and claims related to the B3a nk's default.
As an alternative to termination, the City may bring any suit or proceeding for specific
Performance or for an injunction.
XXIII. .LOCAL. STATE. AND FEDERAL COMPLIANCE. REOUIREMENT4: The Bank
agrees to comply, subject to applicable professional standards, with the provisions of any and
all applicable Federal, State and the City orders, statutes, ordinances, rules and regulations
which may pertain to the Services required under this Agreement, including but not limited
to:
i) Equal Employment Opportunity (EEO), as applicable to this Agreement.
iii) City of Miami Florida, Department of .Business Development Participation Provisions,
as applicable to this Agreement.
ii)'Environmental Protection Agency (EPA), as applicable to this Agreement.
iv) City of Miami, City Code.
) ; "Conflicts of Interest" and "Employment Discrimination".
vi) Section 945.15(4), Florida Statute
vii) .City of Miami City Ordinance on Debarrncnt.
Notwithstanding any other provision of this Agreement, Bank shall not be required, pursuant
to this Agreement, to take any action or abstain from taking any action if such action or
abstention would, in the good faith determination of the Bank, constitute a violation of any
law or regulation to which Dank is subject, including but not limited to laws and regulations
requiring that Bank conduct its operations in a safe and sound manner.
XX.IV.FORCE MAJEURE.; In recognition of the fact that some of the Services to be provided by
the Bank hereunder require the related performance of services by the Federal Reserve
System, the City agrees that the Bank shall not be liable for Loss or damage of any kind
resulting from any delay in the performance of or failure to perform the Bank's
responsibilities hereunder due to delays or failures by the Federal Reserve System so long as
the Bank exercises its best Obits to correct the problem and/or replace the third party as
soon as reasonably practicable,
XXV. PRESS RELEASE PIS OTHER PUBLIC INFORMATION; Under no circumstances
shall the Bank without the express written consent of the City:
a); issue or permit the issuance of any press release, advertisement or literature of any kind
that refers to the City, or the Work being performed hereunder, unless the Bank first
obtains the written approval of the City. Such approval may be withheld if for any reason
the City believes that the publication of such information would be harmful to the public
interest or is in any way undesirable; and
b). Communicate in any way with any cr, ntracior, department, board, agency, conumission or
other organization or any person whether governmental or private in connection with the
Services to be performed hereunder exe pi, upon prior written approval and instructions
of the City; and
c). Except as may be required by law, the Bank and its ennplayees, agents, subcontractors
and suppliers will not represent, directly or indirectly, that any product or service
provided by the Bank or such parties has been approved or endorsed by the City.
XXVI. SURVIVAL: The parties acknowledge that any of the obligations in this Agreement will
survive the term, termination and cancellation hereof._ Accordingly, the respective obligations
of the Bank and the City under this Agreement, which by nature would continue beyond the
termination, cancellation or expirzttion thereof, shall survive termination, cancellation or
expiration hereof.
XXVII. TANRUPTCY: The City reserves the right to terminate this Agreement, if, during the
term of any Agreement the Bank has with the City, the Bank becomes involved as a debtor in
a bankruptcy proceeding, or beconncs involved in a reorganization, dissolution, or liquidation
proceeding, or i.f a trustee or receiver is appointed over all or a substantial portion of the
property of the Bank under federal bankruptcy law or any state insolvency law.
XXVIII,'inctillb AND citIENERA14 PR.OVUj1ONS:
a) The City reserves the right to establish demand deposit accounts in other Hanks and
receive the same or different services from other Banks as needed to conduct City
Business.
b) All checks deposited will be "good funds" on the next business day with the exception of
U.S. Government cheeks and checks drawn on the Bank which will be "good funds"
rnmediatc upon deposit. The City defines "good funds" as funds that will be available to
the City to invest or transfer out of the account on the next business day regardless of the
fact that the check deposited is drawn on a local or out of town bank..
The City, or its authorized representative, shall have access to the hooks and records
maintained by the Bank with respect to such City Bank Accounts at all reasonable times.
This access may include, but :is not limited to, the inspection and/or copying of such
books and records and any related memoranda, checks, correspondence or documents.
The Bank shall preserve such books and. records for a period of three (3) years after the
closing of these .Bank Accounts.
d) The Rank will prepare a monthly Analysis Statement for services rendered. This billing
must he presented in a format similar to the Price Data Form with a total of all service
charges for the month. This billing will state the Analysis of Debit and Credit will be
carried forward to the next month as a cumulative figure for the term of this Agreement.
Any excess credit 'balances accumulated by the City may be used by the City to pay any
obligations, including but not limited to charges for the use of credit cards or any other
payments received or accepted via the interact and carry forward to subsequent months,
a cumulative balance for the life of the term of the Agreement,
) The Earnings Credit Rate will be computed utilizing the weekly average auction prices of
the three-month Treasury dills as stated in The Wall Street Journal. To accomplish this,
the average price of the four latest Treasury Bill auctions, prior to the billing date, will be
averaged and used.
In formalizing this Agreement, the City will reserve the right to restate and/or renegotiate
with the depository Bank such additions, dcletions, or changes, or clarifications of the
provisions of this Agreement as may be necessitated by law or changed circumstances.
XXIX. VIM; AGREEMENT: 'Phis instrument and its attachments constitute the sole and only
agreement of the parties hereto relating to the subject matter hereof and correctly sets 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 the Agreement are of no
force or effect.
XXX. Ail+fENDIN :NTS: No amendments to this Agreement shall be binding on either party unless
in writing and signed by both parties.
IN WITNESS WHEREOF, the panics hereto have caused this instrument to be executed by the
respective officials thcreunto duly authorized, this day and year first above written.
CITY OF MiAMI, a municipal corporation or
ATTEST: the State of Florida
WAITER FOEMAN
CITY CLERK
BY:
13Y:
FIRST UNION NATIONAL BANK OF FLORIDA
ScOTT KRIEGER, V PRESIDENT
tness:
RO VII AIti.I..O, rI AT FO NEY
Approv to t. it uramiie r irements:
MARI() SOLDEV1I LA, RISK MANAGEMENT ADMINISTRATOR