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HomeMy WebLinkAboutExhibit 17PROFESSIONAL SERVICES AGREEMENT This Agreement is entered into and effective this day of July 2004, by and between THE CITY OF MIAMI, a municipal corporation of the State of Florida, hereinafter referred to as "CITY" and SARMIENTO ADVERTISING GROUP, L.L.C., a Florida Iimited liability company, hereinafter referred to as "CONTRACTOR." RECITALS: A. WHEREAS, CITY is in need of maintenance services for bus shelters in the City of Miami (the "Services"). B. WHEREAS the CONTRACTOR possesses all necessary qualifications and expertise to perform the Services. C. WHEREAS, CITY wishes to engage the services of CONTRACTOR, and CONTRACTOR wishes to perform the services for CITY. D. WHEREAS, the City Commission of the City of Miami, by Resolution No. R-04- 0427, passed and adopted on June 24, 2004, authorized the City Manager to execute a contract with CONTRACTOR under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, CONTRACTOR 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 be month -to -month, commencing on the effective date stated above and continuing until cancelled by either party. 3. OPTION TO EXTEND: N/A 4. SCOPE OF SERVICE: A. CONTRACTOR agrees to provide the Services as specifically described in its proposal dated February 6, 2004, 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. B. CONTRACTOR represents and warrants to the CITY that: (i) it possesses all qualifications, licenses and expertise required for the performance of the Services; (ii) to its knowledge, it is not delinquent in the payment of any sums due the City of Miami, including payment of permits fees, occupational licenses, etc., nor in the performance of any obligations to the City of Miami, (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 CONTRACTOR 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 CONTRACTOR'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. Page 2 of 14 6. OWNERSHIP OF DOCUMENTS: CONTRACTOR understands and agrees that any information, document, report or any other material whatsoever which is given by CITY to CONTRACTOR or which is otherwise obtained or prepared by CONTRACTOR specifically and exclusively for CITY pursuant to or under the terms of this Agreement is and shall at all times remain the property of CITY. CONTRACTOR 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 CITY in its sole discretion. 7. AUDIT AND INSPECTION RIGHTS: A. CITY may, at reasonable times, and for a period of up to three (3) years following the date of final payment by CITY to CONTRACTOR under this Agreement, audit, or cause to be audited, those books and records of CONTRACTOR which are related to CONTRACTOR's performance under this Agreement. CONTRACTOR agrees to maintain all such books and records for a period of three (3) years after final payment is made under this Agreement or until all claims or audit findings have been resolved. B. CITY may, at reasonable times and upon reasonable advance notice during the term hereof, inspect CONTRACTOR's facilities and perform such tests, as CITY deems reasonably necessary, to determine whether the goods or services required to be provided by CONTRACTOR under this Agreement conform to the terms hereof, if applicable. CONTRACTOR shall make available to CITY all reasonable facilities and assistance to facilitate the performance of tests or inspections by CITY's representatives. All tests and inspections shall be subject to, and made in accordance with, the provisions of Section 18-55.2 of the Code of the City of Miami, Florida, as same may be amended or supplemented, from time to time. Page 3of14 :L...e_...,....n, u..r C1,..6Pr. 7.1944 8. AWARD OF AGREEMENT: CONTRACTOR represents and warrants to CITY that it has not employed or retained any person or company employed by 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: CONTRACTOR 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 CITY and the public to all documents subject to disclosure under applicable law. CONTRACTOR's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by CITY. 10. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: CONTRACTOR understands that agreements between private entities and public agencies are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. CITY and CONTRACTOR agree 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. CONTRACTOR is aware of the conflict of interest laws of the City of Miami (Chapter 2, Article V, Sections 2-611 - 2-650 of the Code of the City of Miami, Florida), Miami -Dade County Florida (Chapter 2, Article I, Section 2-11.1 of the Code of Miami - Dade County, Florida) and the State of Florida (Chapter 112, Part III, Sections 112.311-112.326, Florida Statutes) and agrees that it shall fully comply in all respects with the terms of said laws. 11. INDEMNIFICATION: CONTRACTOR shall indemnify, defend and hold harmless CITY and its officials, employees and agents (collectively referred to as "Indemnitees") and each Page 4 of 14 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 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 wrongful act or omission, default or negligence (whether active or passive) of CONTRACTOR or its employees, agents or subcontractors (collectively referred to as "CONTRACTOR"), or (ii) the failure of the CONTRACTOR to comply with any of the terms or conditions contained herein or the failure of the CONTRACTOR to conform to applicable statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. CONTRACTOR 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 CONTRACTOR, or any of its subcontractors, as provided above, for which the' CONTRACTOR's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. 12. DEFAULT: If CONTRACTOR fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then CONTRACTOR shall be in default. Upon the occurrence of a default hereunder and such failure continues for a period of seven (7) days after receipt of written notice thereof, CITY, in addition to all remedies available to it by law, may immediately, upon written notice to CONTRACTOR, terminate this Agreement whereupon all payments, advances, or other compensation paid by CITY to CONTRACTOR while CONTRACTOR was in default shall be immediately returned to CITY. CONTRACTOR Page 5of14 understands and agrees that termination of this Agreement under this section shall not release CONTRACTOR from any obligation accruing prior to the effective date of termination. 13. RESOLUTION OF CONTRACT DISPUTES: CONTRACTOR understands and agrees that all disputes between CONTRACTOR and CITY based upon an alleged violation of the terms of this Agreement by CITY shall be submitted to CITY's City Manager, or his/her designee for resolution, prior to CONTRACTOR being entitled to seek judicial relief in connection therewith. CONTRACTOR shall not be entitled to seek judicial relief unless: (i) it has first received the City Manager's, or his/her designee's, written decision, approved by the City Commission of .the City of Miami if the amount of compensation thereunder exceeds $4,500; or (ii) a period of sixty (60) days has expired, after submitting to the City Manager, .a detailed statement of the dispute, accompanied by all supporting documentation (90 days if the 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 instrument, signed by the City Manager. 14. CITY TERMINATION RIGHTS: A. CITY shall have the right to terminate this Agreement, in its sole discretion, at any time, by giving written notice to CONTRACTOR at least seven (7) calendar days prior to the effective date of such termination. In such event, CITY shall pay to CONTRACTOR, on a prorata basis through the effective date of termination, compensation for services rendered at the rate described in Attachment "B". In no event shall CITY be liable to CONTRACTOR for any additional compensation, or for any consequential or incidental damages. B. CITY shall have the right to terminate this Agreement, upon the occurrence of an event of default hereunder, in accordance with the provisions of Section 12 hereof. In such Page 6of14 event, CITY shall not be obligated to pay any amounts to CONTRACTOR for services rendered while CONTRACTOR was in default hereunder, and in the event that payment was made, the CONTRACTOR shall reimburse to CITY all amounts received for services rendered while CONTRACTOR was in default under this Agreement. 15. INSURANCE: CONTRACTOR shall, at all times during the term hereof, maintain such insurance coverage as may be reasonably required by CITY. All such insurance, including renewals, shall be subject to the approval of CITY's Risk Management Administrator for adequacy of protection and evidence of such coverage shall be furnished to 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 CITY. Completed certificates of insurance shall be filed with CITY, to the extent practicable, prior to the performance of services hereunder. If, in the reasonable judgment of CITY, prevailing conditions warrant the provision by CONTRACTOR of additional liability insurance coverage or coverage which is different in kind, CITY reserves the right to require the provision by CONTRACTOR 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 CONTRACTOR fail or refuse to satisfy the requirement of changed coverage within thirty (30) days following CITY's written notice, this Contract shall be considered terminated on the date the required change in policy coverage would otherwise take effect. Upon such termination, CITY shall pay CONTRACTOR compensation for services rendered, and expenses incurred, prior to the date of termination but shall not be liable to Page 7 of 14 •. 111 RA CONTRACTOR for any additional compensation, or for any consequential or incidental damages. 16. NONDISCRIMINATION: CONTRACTOR represents and warrants to CITY that CONTRACTOR does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with CONTRACTOR'S performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. CONTRACTOR 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 of Miami has established a Minority and Women Business Affairs and Procurement Program (the "M/WBE Program") designed to increase the volume of procurement and contracts with Black, Hispanic, and Women -owned businesses. 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, CONTRACTOR. CONTRACTOR understands and agrees that CITY shall have the right to terminate and cancel this Agreement, without notice or penalty to CITY, and to eliminate CONTRACTOR from consideration and participation in future contracts if CONTRACTOR, in the preparation and/or submission of the Proposal, submitted false or misleading information as to its status as a Black, Hispanic and/or Women owned business and/or the quality and/or type of minority or women owned business participation. Page 8 of 14 .., n---•_-., a....01,.1�... 7_1a_na 18. ASSIGNMENT: This Agreement shall not be assigned by CONTRACTOR, in whole or in part, without the prior written consent of CITY, which may be withheld or conditioned, in 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 THE CITY OF MIAMI: City Manager 444 S.W. 2 Avenue 10th Floor Miami, Florida 33130-1910 TO SARMIENTO: with copy to: City Attorney City of Miami City Attorney's Office 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130-1910 Sarmiento Advertising Group, L.L.C. 1221 Brickell Avenue Miami, Florida 33131 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. Page 9of14 n. ... _._ n.._ N-..I ..... 7 10_ne. 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 or term contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable such provision or term 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. E. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. F. No modification or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto. G. In the event of a conflict between this agreement and the proposal, this agreement shall govern. 21. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 22. INDEPENDENT CONTRACTOR: CONTRACTOR has been procured and is being engaged 'to provide services to CITY as an independent contractor, and not as an agent or employee of CITY. Accordingly, CONTRACTOR shall not attain, nor be entitled to, any rights Page10of14 or benefits under the civil service or pension ordinances of the City of Miami, nor any rights generally afforded classified or unclassified employees. CONTRACTOR further understands that Florida Workers' Compensation benefits available to employees of CITY are not available to CONTRACTOR, and agrees to provide workers' compensation insurance for any employee or agent of CONTRACTOR rendering services to CITY under this Agreement. 23. CERTIFICATION: By signing this Agreement CONTRACTOR certifies that CONTRACTOR has familiarized itself with section 18-102 of the Code of the City of Miami, Florida and that neither Provider nor any of its principal owners or personnel have been convicted of an offense that would be cause for debarment under section 18-102 of the Code of the City of Miami, Florida or debarred or suspended by any federal, state or other governmental entity. 24. 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. 25. 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. 26. COUNTERPARTS: This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. Page 11 of 14 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective, duly authorized, officials, the day and year above written. Witness: ATTEST: Priscilla A. Thompson City Clerk APPROVED AS TO FORM AND CORRECTNESS: • Xci n Maria J. Chi Interim City Attorney SARMIENT ADVERTISING GROUP, L.L.C., a Flo " a limited liability company "CONT OR" Marc uillermo Victoria Corpor to Executive Vice -President, Publicidad Sarmiento of South Florida, Inc., Managing Partner, Sarrniento Advertising Group, L.L.C. THE CITY OF MIAMI, a municipal corporation of the of the State of Florida "CITY" By: Arriola Manager APPROVED AS TO INSURANCE REQUIREMENTS: M /8I1A),& Pl°)` Dania Carrillo Administrator, Risk Management Page 12 of 14 ATTACHMENT "A" REQUEST FOR SERVICES Scope of Work 1. Maintenance of City of Miami Bus Shelters in accordance with the proposal dated February 6, 2004 attached hereto and incorporated herein. 2. CONTRACTOR to review and coordinate work to be performed with the Director of the City of Miami's Department of Public Works with day-to-day supervision by the Director and/or designated city staff. CONTRACTOR to provide reports advising of the status of the shelters and the provision of services as requested by the Director. 3. Contractor shall provide liability insurance naming the City of Miami as an additional insured. Page 13of14 n. .. nl 1fl flR