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HomeMy WebLinkAboutexhibit1PROFESSIONAL SERVICES AGREEMENT This Agreement entered into this day of 2005, by and between the City of Miami, a municipal corporation of the State of Florida, hereinafter referred to as "CITY", and Sharpton, Brunson & Company, P.A hereinafter referred to as "Provider". RECITAL: WHEREAS, the City Commission, on April 14, 2005 adopted Resolution No. 05-0237 which authorized the issuance of a Request for Proposals ("RFP") for a Unified Development Project ("UDP") to solicit development proposals from the private sector for the Melreese Goff Course, located at 1802 Northwest 37th Avenue, Miami, Florida; and WHEREAS, Section 29-A of the City of Miami Charter requires the City Commission to select a Certified Public Accounting (`CPA") firm to analyze proposals received in response to the RFP based upon certain specific evaluation criteria defined within the RFP and to render a written report of its findings to the City Manager; and WHEREAS, the City of Miami Commission by Resolution No. 05-0237, selected the CPA firm of Sharpton, Brunson & Company, P.A ("Provider") for the purpose of analyzing proposals received in response to the RFP; and WHEREAS, the CITY desires that the Provider conduct an analysis and assessment of the development proposal(s) focusing on the financial and economic aspects of said proposal(s) as more specifically detailed herein; and WHEREAS, the Provider has the necessary professional qualifications required to assist the City of Miami in the evaluation and analysis of this development proposal; and pa6 A06-00831 Page 1 of 13 WHEREAS, the Provider has expressed a desire to perform the required professional services for the CITY ("Services"); NOW THEREFORE, in consideration of the mutual covenants and obligations herein contained, and subject to the terms and conditions hereinafter stated, the parties hereto understand and agree as follows: TERMS: 1. RECITALS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. 2. TERM: The term of this Agreement shall commence upon execution of same, and shall terminate upon completion of Provider's responsibilities as outlined in Attachment A. entitled "Scope of Services" and acceptance of same by the City. It is anticipated, based on the dates outlined in Attachment A, that Provider's responsibilities will be completed no later than , 2006. Therefore, any change in schedule resulting in a delay may require a change of scope and a revision in the amount of compensation, subject to approval by the City Commission. 3. OPTION TO EXTEND: The City shall have two options to extend the term hereof for a period of one (1) year, subject to availability and appropriation of funds. City Commission approval shall not be required as long as the total extended term does not exceed three (3) years. 4. SCOPE OF SERVICES: A. Provider agrees to provide the Services as specifically described, and subject to 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. Page 2 of 13 B. Provider represents and warrants to the City that: (i) it possesses all qualifications, licenses and expertise required 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". 5. COMPENSATION: A. The amount of compensation payable by the City to Provider shall be based on the rates and schedules described in Attachment "B" hereto, which by this reference is incorporated into and made a part of this Agreement. If Provider is entitled to reimbursement of travel expenses (i.e. Attachment "B" includes travel expenses as a specific item of compensation), then all bills for travel expenses shall be submitted in accordance with Section 112.061, Florida Statutes. In no event shall the amount of compensation exceed $65,000, including out-of-pocket expenses charged at cost, as described in Attachment "B". B. Unless otherwise specifically provided in Attachment "B", payment shall be made within forty-five (45) days after receipt of Provider's invoice(s), which shall be accompanied by supporting documentation that contains sufficient detail, as is customary according to CPA/consulting industry standards, to allow a proper audit of expenditures, should City require one to be performed. C. In the event that the project is terminated by the City prior to completion of the Scope of Services, City shall pay Provider for Services rendered through the date of project termination. Page 3 of 13 D. In the event that no proposals are received, the project will be terminated by the City and total compensation to Provider shall be the first installment of the "Retainer Fee", as set forth in Attachment "B", invoiced at contract execution. E. In the event that five (5) or more proposals are received, the additional fees set forth in Attachment "B" will become effective, F. In the event that Provider is required by government regulations, subpoena or other legal process to produce Provider's documents or personnel as witnesses with respect to the Services provided, hereunder, City will, so long as Provider is not a party to the proceeding in which the information is sought, reimburse Provider for its professional fees and expenses, as well as the fees and expenses of its counsel, incurred in responding to such requests. Such fees, expenses and reimbursements shall be in addition to the compensation provided for Services, and shall not be subject to any maximum compensation amount, if any, set forth in any Statement of Work. 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. Computer models developed by the Provider and used in the analysis of information provided by the City shall not be considered the property of the City. 7. AUDIT AND INSPECTION RIGHTS: Page 4 of 13 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 Services required to be provided by Provider under this Agreement conform to the terms hereof. Provider shall make 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 18-101 of the Code of the City of Miami, Florida, as same may be amended or supplemented, from time to time. 8. 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 maintained by the City that pertain to City contracts, subject to the provisions of Chapter 119, Florida Statutes. Nothing herein shall be deemed to make Provider the custodian of such documents and information for purposes of such Page 5 of 13 statutory provisions. 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 third party claims against and any related losses, liabilities or damages, (including attorney's fees) (collectively referred to as "Liabilities") incurred by the Indemnitees as a result of any bodily injury to or death or damage to or destruction or Toss of any real or tangible personal property to the extent such injury, death or damage is caused solely by the willful misconduct or negligence (whether active or passive) of Provider or its employees, authorized agents or subcontractors (collectively referred to for purposes of this Section 11 only as "Provider Indemnitors"). 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. Provider's obligation to indemnify and hold harmless the Indemnitees pursuant to this Section 11 is subject to City having given Provider prompt written notice of the claim or of the commencement of the related action, as the case may be, and permitting Provider to consult with City and the Indemnitees with Page 6 of 13 respect to the defense of the claim or action, at Provider's own expense. The Indemnitees shall not settle or compromise any such third party claim without the consent of Provider (which consent shall not be unreasonably withheld.) 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 effective date of termination. Should Provider be unable or unwilling to commence 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 Page 7 of 13 (60) days has expired, after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation (ninety (90) days if City Manager's decision is subject to City Commission approvaI); 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 TERMINATION 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 Ieast 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 City be liable to Provider for any additional compensation, other than that provided herein, or for any consequential or incidental damages. B. The City 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 Page 8 of 13 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. 16. NONDISCRIMINATION: Provider represents and warrants to the City 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 M/WBE 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 Page 9 of 13 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 or 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 receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by 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: Darryl K. Sharpton, Consulting Partner Sharpton, Brunson & Company, P.A. One Southeast Third Avenue, Suite 2100 Miami, FL 33131 (305) 374-1574 With Copies to: TO CITY: Joe Arriola, City Manager City Manager's Office 3500 Pan American Drive Miami, FL 33033 (305) 250-5400 With Copies to: Laura Billberry, Acting Director Department of Economic Development 444 SW 2" Avenue, 3rd Floor Miami, FL 33130 (305) 416-1452 Page 10 of 13 Jorge L. Fernandez, City Attorney Office of the City Attorney 444 SW 2nd Avenue, 9th Floor Miami, FL 33130 (305) 416-1800 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 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. Page 11 of 13 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 Workers' 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 the Agreement 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. ENTIRE AGREEMENT: This instrument and its attachments constitute the sole and only Agreement of the parties relating to the subject matter hereof and correctly 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. 25. 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. Page 12of13 IN WITNESS 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. "City" CITY OF MIAMI, a municipal ATTEST: corporation By: Priscilla A. Thompson, City Clerk Joe Arriola, City Manager ATTEST: Print Name: Title: Print Name: Title: "Provider" Sharpton, Brunson & Company, P.A. a Florida Corporation By: Darryl K. Sharpton, CPA/ABV Consulting Partner APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Jorge L. Fernandez Dania F. Carillo, Risk Management Administrator City Attorney Risk Management Department Page 13 of 13