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HomeMy WebLinkAboutExhibit 8PROFESSIONAL SERVICES AGREEMENT By and Between The City of Miami, Florida and RBC Dain Rauscher, Inc. This Professional Services Agreement ("Agreement") is entered into this day of. , 2005 by and between the City of Miami, a municipal corporation of the State of Florida ("City"), and RBC Dain Rauscher, Inc,, a Minnesota Corporation, whose principal address is 100 2nd Avenue South, Suite 800, Saint Petersburg 33701-4338, and which is qualified to transact business in Florida ("Provider"). RECITALS: A. The City is in need of one or more qualified professional(s) to perform Financial Advisory Services as set forth in the Scope of Services in Attachment A hereto (the "Services") and has entered into competitive negotiations to select a vendor pursuant to Section 18-86 of the Code of the City of Miami. B. Provider possesses all necessary qualifications and expertise to perform the Services and the City Manager has recommended that Provider is the most qualified to provide the Services to the City. C. The City wishes to engage the services and expertise of Provider, and Provider wishes to perform the Services for the City. D. The Commission of the City of Miami, by Resolution No. 05- adopted on September , 2005, accepted the recommendations of the City Manager approving the findings of the Finance Committee pursuant to Request for Proposals No. 04-05- 021 and all addenda thereto (collectively, the "RFP") which designated Provider as the most ���4 .0-01-0,3Vy 1 qualified to provide the Services and authorized the City Manager to negotiate and to execute this Agreement under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, Provider and the City agree as follows: TERMS: 1. RECITALS AND INCORPORATIONS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. The Services set forth in Attachment A, the Fee Structure set forth in Attachment B ("Fee Structure"), the Insurance Requirements set forth in Attachment C ("Insurance Requirements"), and Provider's Corporate Status Documentation, Resolution, and Authorizations (collectively, "Provider's Corporate Documents") set forth in Attachment D are each and all hereby incorporated into and made a part of this Agreement and attached hereto as Attachments A, B, C & D, respectively. 2. TERM: The term of this Agreement shall be one (1) year commencing on the date of its execution by all parties. 3. OPTION TO EXTEND: The City shall have four (4) option(s) to extend the term hereof for a period of one (1) year each, subject to availability and appropriation of funds. City Commission approval shall not be required as long as the total extended term does not exceed five (5) years. Upon each extension, if any, the insurance requirements for this Agreement will be subject to review by the Risk Management Administrator. 4. .SCOPE OF SERVICE: A. Provider agrees to provide the Services as specifically described, and under the special terms, schedules, and conditions set forth, in Attachment "A" hereto. All formats for the Services are to be as directed in writing from time to time by the City's Finance Director. 2 B. Provider represents and warrants to the City that (i) Provider possesses all qualifications, licenses and expertise required under the competitive negotiation requirements for the performance of the Services; including but not limited to full qualification and good standing to do business in Florida and full-time professional(s) licensed and working in the State of Florida; (ii) Provider 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; (iv) the Services will be performed in the manner and at such times as described in Attachment "A", and for the budgeted amounts, rates and schedules described in Exhibit "B° , and (v) each person executing this Agreement on behalf of Provider has been duly authorized to so execute the same and fully bind Provider as a party to this Agreement. C. Provider's authorized Project Manager ("Project Manager") shall be Edward Marques. Should the Project Manager deemed acceptable by the City leave Provider's firm for any reason, the City reserves the right to accept or reject any change of Project Manager and/or any other proposed Project Manager. Provider shall give at least sixty (60) days advance written notice to City of any intent to change the Project Manager. City shall have the right to receive pertinent information about the proposed individuals at the time of such notice of intent to change. In the event that Provider changes the Project Manager, it is the intent of the parties to this Agreement that the City should not be penalized by such change; accordingly, Provider agrees to provide any and all such replacement Project Manager(s) to City free of charge during a three (3) week transition and ramp up period. 3 5. COMPENSATION: A. The amount of compensation payable by the City to Provider shall be based on the rates, schedules, structures, and amounts described in Attachment B" hereto; provided, however, that in no event shall the rates, schedules, structures and amounts of compensation for the Services and expenses referenced in Attachment A exceed the Fee Structure set forth in Attachment B. Absent an amendment to this Agreement, additional services and expenses are not included in this compensation and shall only be provided upon a written amendment entered into by the City and Provider and approved by the City Commission. The City shall not be liable for any costs, fees, expenses or charges beyond the approved fee rates and types of expenses specified in this subsection for the Services referenced in Attachment A and for the Fee Structure referenced in Attachment B for Provider, its employees, subcontractors, agents, or representatives. B. Payment shall be made in arrears based upon work performed to the satisfaction of the City within forty-five (45) days after receipt of Provider's invoice for Services performed, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should the City require one to be performed. Invoices shall be sufficiently detailed so as to comply with the "Florida Prompt Payment Act", §218.70. - 218.79, Florida Statutes, and other applicable laws. No advance payments shall be made at any time. C. Provider is entitled to reimbursement of expenses (as set forth now in the Fee Structure in Attachment B with travel and other actual out-of-pocket expenses delineated as a specific item of compensation). All bills for travel and other expenses shall be submitted in accordance with Section 112.061, Florida Statutes, and shall be accompanied by sufficient 4 supporting documentation and contain sufficient details, as may be reasonably required by the City, to allow a proper audit of Provider's travel and other expenses, should City require one to be performed. D. Provider agrees and understands that (i) any and all subcontractors providing Services related to this Agreement shall be paid through Provider and not paid directly by the City, and (ii) any and all liabilities regarding payment to or use of subcontractors for any of the Services related to this Agreement shall be borne solely by Provider. E. Neither Provider nor any of its employees nor its subcontractors shall perform any work unless duly authorized by the Finance Director or his/her designated representative. Provider shall not be paid (i) for any work performed outside the Services for this Agreement, or (ii) for any work performed by any of Provider's employees or subcontractors not otherwise previously authorized. Provider shall at all times provide fully qualified, competent and physically capable employees and subcontractors to perform the Services under this Agreement. City may require Provider to remove any employee the City deems careless, incompetent, insubordinate, or otherwise objectionable and whose continued services under this Agreement is not in the best interest of the City. Each of Provider's employees shall have and wear proper identification. 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, its employees, or any subcontractor, 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 5 withheld or conditioned by the City in its sole discretion. The City shall maintain and retain ownership of any and all documents which result upon the completion of the work and Services under this Agreement. 7. AUDIT AND INSPECTION RIGHTS AND RECORDS RETENTION: A. Provider agrees to provide access to the City or to any of its duly authorized representatives, to any books, documents, papers, and records of Provider which are directly pertinent to this Agreement, for the purpose of audit, examination, excerpts, and transcripts. 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, inspect or cause to be inspected, 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 and all other pending matters are closed. Provider's failure to adhere to, or refuse to comply with, this condition shall result in the immediate cancellation of this Agreement by the City. 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 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 the Code of the City of Miami, Florida, as same may be amended or supplemented, from time to time. Provider's 6 failure to adhere to, or refuse to comply with, this condition shall result in the immediate cancellation of this Agreement by the City. C. On an ongoing basis, Provider's most recent financial statements and audit reports, whether internal or outside audits, must be provided to the City. S. AWARD OF AGREEMENT: Provider represents and warrants to the City that he/she has not employed or retained any person or company employed by the City to solicit or secure this Agreement and that he/she 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. Provider further agrees to include in all of Provider's agreements with employees and subcontractors for any Services related to this Agreement this provision requiring employees and 7 subcontractors to comply with and observe all applicable federal, state, and local laws rules, regulations, 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 "Indemnities") and each of them from and against all losses, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury 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 caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of the Indemnities or of the Provider or its employees, agents or subcontractors (collectively referred to as "Provider"), 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 Indemnities, 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 further agrees to indemnify, defend, and hold harmless the Indemnitees from and against (i) any and all Liabilities imposed on account of the violation of any law, ordinance, order, rule, regulation, condition, or requirement, in any way related, directly or indirectly, to Provider's performance under this Agreement, compliance with which is left by this Agreement to Provider, (ii) for any errors in the provisions of Services and for any fines 8 which may result from the fault of Provider, and (iii) any and all claims, and/or suits for labor and materials furnished by Provider or utilized in the performance of this Agreement or otherwise. This section shall be interpreted to comply with Sections 725.06 and/or 725.08, Florida Statutes. Provider's obligations to indemnify, defend, and hold harmless the Indemnitees shall survive the termination of this Agreement. Provider understands and agrees that any and all liabilities regarding the use of any subcontractor for Services related to this Agreement shall be borne solely by Provider throughout the duration of this Agreement and that this provision shall survive the termination of this Agreement. 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, expenses, advances, or other compensation paid by the City to Provider for the period during which 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 for reasons within Provider's control, 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. 9 13. RESOLUTION OF CONTRACT DISPUTES: Provider understand 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 $4,500, 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) Provider has first received City Manager's written decision, approved by the City Commission if the amount of compensation hereunder exceeds $4,500; or (ii) a period of thirty (30) days has expired, after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation (60 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 TERMINATION RIGHTS: A. The City shall have the right to terminate this Agreement, in its sole discretion, at any time. In such event, the City shall pay to Provider compensation for Services rendered and City -approved 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, upon the occurrence of an event of default hereunder in the event that Provider fails to cure a default within 30 days of receiving notice of the default. In such event, the City shall not be obligated to pay any amounts to Provider for any period during which Provider was in default and Provider shall reimburse to 10 the City all amounts received for any period during which 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 for the term of this Agreement and any extensions hereof. The Insurance Requirements for the one-year term of this Agreement are set forth in Attachment C hereto. Provider understands that such Insurance Requirements will be reviewed and may be revised by the City Risk Management Administrator if this Agreement is extended. All such insurance, including renewals and types of coverages, 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, modified, or changed during the performance of the Services under this Agreement 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, subject to paragraph 14(B) above, this Contract 11 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. ASSIGNMENT: This Agreement shall not be assigned by Provider, in whole or in part, without the prior written consent of the City Manager, which may be withheld or conditioned, in the City Manager's sole discretion. 18. 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: Nate Ecklaff Managing Director RBC Dain Rauscher, Inc. 600 Corporate Drive Fort Lauderdale, Fl 33334 TO THE CITY: City Manager City of Miami 444 SW 2"d Avenue Miami, F133130 12 Floor 19. MISCELLANEOUS PROVISIONS: With copies to: J. Scott Simpson Finance Director 444 SW 2nd Avenue, 6th Miami, Florida 33130 Jorge L. Fernandez City Attorney Office of the City Attorney 444 SW 2nd Avenue, 9`h FI. Miami, Fl 33130 A. This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue in any proceedings between the parties shall be in Miami -Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. 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 13 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. 20. SUCCESSORS AND ASSIGNS: This Agreement shall be binding on the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 21. 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, neither Provider, nor any of its employees, subcontractors, or representatives shall 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, its employees, or any subcontractor hired by Provider to provide any Services hereunder, and Provider agrees to provide or to require subcontractor(s) to provide, as applicable, workers compensation insurance for any employee or agent of Provider rendering Services to the City under this Agreement. Provider further understands and agrees that Provider's or subcontractors' use or entry upon City properties shall not in any way change its or their status as an independent contractor. 14 22. 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. 23. 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. 24. FORCE MAJEURE: A "Force Majeure Event" shall mean an act of God, act of governmental body or military authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the event that either party is delayed in the performance of any act or obligation pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use its best efforts to rectify any condition causing such delay and shall cooperate with the other party to overcome any delay that has resulted. 15 25. CITY NOT LIABLE FOR DELAYS: Provider hereby understands and agrees that in no event shall the City be liable for, or responsible to Provider or any subcontractor, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) in work herein provided for, or any damages whatsoever related thereto, because of any injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over which the City has no control. 26. USE OF NAME: Provider understands and agrees that the City is not engaged in research for advertising, sales promotion, or other publicity purposes. No advertising, sales promotion, or other publicity materials containing information obtained in connection with the RFQ or this Agreement are to be mentioned by Provider, its employees, or its subcontractors providing Services related to this Agreement, or imply the name of the City, without prior express written permission of the City Manager or the City Commission. 27. NO CONFLICT OF INTEREST: Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of interest, Provider hereby certifies to City that no individual member of Provider, no employee, and no subcontractor under this Agreement nor any immediate family member of any of the same is also a member of any board, commission, or agency of the City. Provider hereby represents and warrants to the City that throughout the term of this Agreement, Provider, its employees and its subcontractors will abide by this prohibition of the City Code. 28. NO THIRD -PARTY BENEFICIARY: No persons other than the Provider and the City (and their successors and assigns) shall have any rights whatsoever under this Agreement. 29. SURVIVAL: All obligations (including but not limited to indemnity and obligations to defend and hold harmless) and rights of any party arising during or attributable to 16 the period prior to expiration or earlier termination of this Agreement shall survive such expiration or earlier termination. 30. TRUTH -IN -NEGOTIATION CERTIFICATION, REPRESENTATION AND WARRANTY: Provider hereby certifies, represents and warrants to City that on the date of Provider's execution of this Agreement and so long as this Agreement shall remain in full force and effect, the wage rates and other factual unit costs supporting the compensation to Provider under this Agreement are and will continue to be accurate, complete, and current. Provider understands, agrees and acknowledges that the City shall adjust the amount of the compensation and any additions thereto to exclude any significant sums by which the City determines the contract price of compensation hereunder was increased due to inaccurate, incomplete, or non- current wage rates and other factual unit costs. All such contract adjustments shall be made within one (1) year of the end of this Agreement, whether naturally expiring or earlier terminated pursuant to the provisions hereof. 31 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. 17 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, ATTEST: Priscilla A. Thompson, City Clerk Date: WITNESSES: Print Name: W e.i t r y RN,,, d s% Date: 9 -q-o5 "City" CITY OF MIAMI, a municipal corporation By: Joe Arriola, City Manager Date: "Provider" RBC Bain RauschQt'1lnc. Nate Eckloff, Mana ir/g Director Date: Q .S APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS REQUIREMENTS: r JORGE L. FERNANDEZ DANIA F. CARRILLO City Attorney Risk Mana ement Administrator Date: Date: co/40 os- 18