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HomeMy WebLinkAboutExhibitPROFESSIONAL SERVICES, AGREEMENT This Agreement is entered into this day of , 2006 (the. "Effective Date") by and between the City of Miami, a municipal corporation of the State of Florida ("City") and The Staubach Company -- Northeast, Inc., a Texas corporation ("Provider"). RECITALS: A. The City has issued a Request for Letters of Interest ("RFLI") for the provision of real estate and financial advisory services ("Services")in connection with the potential disposition of the names L. Knight Center Complex ("Property") and Provider's proposal ("Proposal"), in response thereto, has been selected as the most qualified proposal for the provision of the Services. The RFLI and the Proposal are sometimes referred to herein, collectively, as the Solicitation Documents, are attached hereto, collectively, as Exhibit No. I, and are bythis-referenceincorporated-into-and made a part of this Agreement. B. The Cornmission of the City of Miami, by Resolution No. adopted on , 2006, approved the selection of Provider and authorized the City Manager to execute a contract, 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: 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 on the Effective Date, and, unless terminated in accordance with the provisions hereof, shall continue for a period of one year. ors:Document 44705 3. OPTION TO EXTEND: The City Manager shall have the option to extend the term hereof for a period not 10 exceed two (2) years, subject to availability and appropriationoffurxits. 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 qualifcations, 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". 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 this Agreement. B. Unless otherwise specifically provided in Attachment "B", payment shall be made within forty five (45) days after receipt of Provider's invoice, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should City require one to be performed. 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 ors:Document 44705 Provider 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.. The City shall have the right to use all reports, data, information and other documents that may constitute Provider's deliverables as a result of the provision of the Services (the "Deliverables"). Provider and/or any third party service providers to Provider, as applicable, shall have and retain full title and all rights in and to (including the sole right to obtain patents and register copyrights on) the methodology, appearance, organization and format of the Deliverables, any inventions, ideas, methods, processes, designs, and/or means used to perform the Services and create, assemble and deliver the Deliverables, provided, however, that nothing contained herein shall impair the right of public access as provided in paragraph 9 herein. 7. AUDIT AND INSPECTION RIGHTS: 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. 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. ors:Document 44705 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 (col]ectively referred to as "indemnities") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including reasonable attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or darnage 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 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") or (ii) the failure of the --Provider- tocomplywith 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 ors:Documenl 441a5 expressly agrees to indemnify and hold harmless the indemnities, or any of there, 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 ar 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, ar fails to perform any of its obligations hereunder, and Provider fails to cure such failure to comply or perform within thirty (30) days following receipt of written notice thereof from the City, 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 -the 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 either party shall first be submitted to a non -binding mediator for his/her resolution, prior to either party being entitled to seek judicial relief in connection therewith. ors:Document 4470 Neither party shall be entitled to seek judicial relief unless a period of sixty (60) days has expired after submitting the dispute to the non -binding mediator, together with a detailed statement of the dispute, accompanied by all supporting documentation. 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 al least ten (10) 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. Except as provided in Paragraph C, of this Section 14, 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 shaI] have the right to terminate this Agreement, with notice to Provider, - upon -the. occurrence of an event --.of uncured.. default hereunder.. in .such. event, .the.. City...shall not be obligated to pay any further amounts to Provider and Provider shall reimburse to the City all amounts received while Provider was in default under this Agreement. C. Within 15 days following the termination of this Agreement, Provider shall furnish to the City a list of al] prospective purchasers with respect to which Provider, as of the time of termination, has been having negotiations (for purposes hereof, "negotiations" shall mean the receipt of proposals from such prospective purchasers in response to a request for proposals issued by Provider on the City's behalf or, in the absence of such a request for proposals, the exchange of substantive business terms between such prospective purchasers and Provider on the City's behalf) for the. purchase.of.all or any _portion of the Property. .If within twelve_(12).months_thereafer, the City consummates a sale with any such listed party, or negotiations continue, resume or commence with any such listed party during such 12-month period and thereafter consummates a sale with any ors:Document 44705 such listed party, the City shall pay to Provider a •commission in accordance with the commission schedule in Attachment B. However, if wit in such 15-day period Provider has failed to famish to the City the name(s) of such parties, no corrnnission shall be payable to Provider with respect to any such sale. 15. INSURANCE: Provider shall, at all times during the term hereof, maintain the following insurance coverages: Workers' Compensation and Employer's Liability Insurance. Provider shall carry workers' compensation insurance at statutory limits and employer's liability insurance in an amount not less than $500,000 per occurrence. Commercial General Liability Insurance. Provider shall carry commercial general liability insurance providing insurance for bodily injury, property damage, personal • injury -arid 'advertising --injury, with limits of liability of not less --than • $1,000,000 •each __ occurrence and $2,000,000 in the aggregate. Such insurance must be an an "occurrence" basis and not a "claims made" basis and shall provide for contractual liability coverage and products/completed operations coverages. Automobile Liability Insurance. Provider shall carry business automobile liability insurance, including bodily injury and property damage for all owned, hired and non - owned vehicles, with Iimits of not less than $1,000,000 combined single limit for each accident. Umbrella Liability and/or Excess Liability Insurance. Provider shall carry umbrella liability .and/or excess liability insurance, with limits of not less than $5,000,000.per occurrence in excess of limits provided by its employer's liability, commercial general ors:Document 44705 liability and automobile liability insurance policies. Such umbrella or excess liability insurance policy shall not contain exclusion for contractual liability. Errors and Omissions/Professional Liability Insurance. Provider shall carry -emirs and omissions/professional liability insurance, with limits of not less than $2,000,000 annual aggregate. 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. 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 MIWBE 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 ors:Document 44705 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 Manager, which may be withheld or conditioned, in the City Manager'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, by registered or certified U.S. Mail, return receipt requested, or by recognized overnight courier providing proof of delivery, 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; or, if by courier, on the date of receipt. TO PROVIDER: Peter Larkin The Staubach Company - Northeast, Inc. 575 76 Street, NW Washington, DC 20004 WITH A COPY TO: - The Staubach Company — Northeast, Inc. 8484 Westpark Drive Suite 150 McLean, VA 22102 TO THE CITY: Pedro G. Hern•andez City Manager 3500 Pan American Drive Miami, FL 33133 --WITHCOPYTO: - Laura Billberry Director of Public Facilities 444 SW 2 Ave, 3rd Floor Miami, FL 33130 ors:Document 44705 Attention: Senior Vice President & Counsel Jorge L. Fernandez City Attorney 444 SW 2 Ave, 9th Floor Miami, FL 33130 20. MISCELLANEOUS PROVISIONS: A. This Agreement shall be construed and enforced according to the laws of the State of Florida, excluding the conflicts of laws provisions thereof. 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, including all attachments and exhibits thereto, constitutes the sole• and entire agreement between the parties hereto relating to the subject matter hereof. All prior agreements, promises; negotiations or- representations not expressly set forth in this Agreement are of no force and effect. No modification or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto. The ors:Document 44705 City Manager is hereby authorized on behalf of the City to execute non -substantive amendments to this Agreement. 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 Workers' Compensation benefits available to employees of the City are not available to Provider, and agrees to provide workers' compensation insurance for any employee 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 Iack 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. 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. ors:Document 44705 26. CONFLICTS: ]n the event of any conflict. between or among the terms of this Agreement, the RFLI and/or the Proposal, the terms of the RFLI shall govern over the terms oof this Agreement which shall govern over the terns of the Proposal. 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 ATTEST: Print Name: "City" CITY OF MIAMI, a municipal corporation By: Pedro G. Hernandez, City Manager _ - -- _ .: "Provider" The Staubach Company - Northeast, Inc. as corporation By: Print Name: Title: Corporate Secretary • Title: President APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Jorge L. Fernandez City Attorney • �`,` LeeAnn Brehm Risk Management Administrator ors:Document 44705