HomeMy WebLinkAboutExhibitPROFESSIONAL SERVICES AGREEMENT
This Agreement is entered into this day of , 2006 (but effective as of
) by and between the City of Miami, a municipal corporation of the State
of Florida ("C.ity'-:)....nd...Metai raft.. .ar.i.nt:...iniorpora'ted,' ..a..corporation..ur.tie ...th ..laws- of the . .
province of Ontario, Canada ("Provider").
RECITAL
A. The City has issued a Request for Proposals ("RFP") for the provision of
procuring a Fire -Rescue Rapid Response Watercraft ("Firestorm 46") and Provider's proposal
("Proposal"), in response thereto, has been selected as the most qualified proposal for the
provision of procuring an Firestorm 46 Rapid .Response Watercraft. The RFP and its respective
addenda and the Proposal are sometimes referred to herein, collectively, as the Solicitation
Documents, and are by this reference incorporated into and made a part of this Agreement.
B. This agreement consist of Attachment "A" which contains Provider's Proposal,
including the technical specifications, itemized cost breakdown, life -cycle costing (total cost of
ownership) to maintain and operate the vessel, warranties, additional negotiated equipment to be
added to the Firestorm 46 Rapid Response Watercraft, including, but not limited to, listed and
non -listed of additional options which may be purchased at the sole option of the Department of
Fire -Rescue, but only to the extent that it is not in conflict with this Agreement and the City of
Miami Request .for.... Proposals for the procurement of the Firestorm 46 Rapid Response
Watercraft (REP No. 05-06-020). When a conflict exists between the Proposer's Proposal and
the City of Miami Request for Proposal or this Agreement, the terms and condition contained in
the City of Miami Request for Proposal or this Agreement shall prevail.
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C. The Commission 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 and delivery of the Firestorm 46 shall not
exceed two hundred seventy (270) days commencing on the effective date hereof and issuance of
purchase order.
3. SPECIFICATIONS:
A. Provider agrees to deliver the Firestorm 46 Rapid Response Watercraft 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
qualifications, licenses and expertise required under the Solicitation Documents to design, build,
and deliver the Firestorm 46 Rapid .Response Watercraft; (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 design, build, and
deliver the Firestorm 46 Rapid Response Watercraft are and shall be, at all times during the term
hereof, fully qualified and trained to design, build, and deliver the Firestorm 46 Rapid. Response
Watercraft; and (iv) same will be performed in the manner described in Attachment "A".
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4. 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; provided, however, that in no event shall the amount of
compensation exceed $908,194.14.
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. 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.
S. 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 infornation, 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.
6. AUDIT AND INSPECTION RIGHTS:
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
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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
'.._ ......_....... y.............. .......... _ .. whether
facilities and erform such tests, as the Citydeems reasonably necessary, to determine
the manufacturing and delivery of a rapid response watercraft required to be provided by
Provider under this Agreement conform to the terms hereof and/or the terms of the Solicitation
Docurnents, if applicable. 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-
100(b) of the Code of the City of Miami, Florida, as same may be amended or supplemented,
from time to time.
7. 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.
8. 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.
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9. 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 maybe amended from time to time.
10. 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 loss, 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 design;
build, and delivery of the rapid response watercraft contemplated by this Agreement which is or
is alleged to be directly or indirectly 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"), regardless of whether it is, or is alleged to be, caused in
whole or part (whether joint, concurrent or contributing) by any act, omission, default or
negligence (whether active or passive) of the Indemnitees, or any of them 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 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
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or former employee would otherwise be limited to payments under state Workers' Compensation
or similar laws.
11. 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
e c,_ fa y addition to es available to it by law, may
... ....... . .. ........... � , in to all remedies ........ ..... occurrence of a default hereunder the City,
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 thi.s
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 design,
build and deliver the rapid response watercraft 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 andnegotiation of this Agreement, as well as all costs and expenses
incurred by the City in the re -procurement of the rapid response watercraft, including
consequential and incidental damages.
12. 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 rnless; (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
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(60) days has expired, after submitting to the City Manager a detailed statement of the dispute,
accompanied by all supporting documentation or (90) 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.
13. 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 least 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.
14. 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 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, provided, however, that Provider
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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 rrght
to requrre 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) clays 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.
15. 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 discriminationunder any provision of this Agreement.
16. MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT
PROGRAM: The City has established a Minority and Women Business Affairs and
Procurement Program (the "MIWBE 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
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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.
17. 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.
18. NOTICES: All notices or other communications required under this Agreement shall
he 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: TO THE CITY:
MetalCraft Marine Incorporated
Attention: Tom Wroe, President
347 Wellington Street
Kingston, Ontario
K7K 6N7, Canada
C: Fire -Rescue Department and
Attention: William W. Bryson, Fire Chief
1151 N.W. 7th Street
Miami, FL 33136
19. MISCELLANEOUS PROVISIONS:
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City of Miami, Office of the City Manager
Attention: Pedro G. Hernandez, City Manager
444 S.W. 2" Avenue, 10th Floor
Miami, FL 33130
City of Miami, Office of the City Attorney
Attention: Jorge L. Fernandez
444 S.W. 2 Avenue
Suite 945 ._
Miami, FL 33130
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A. This Agreement shall be construed and enforced according to the laws of the State
of Florida, Venue in any legal or administrative proceedings shall be in Miami -Dade County,
Florida. In order to expedite the conclusion of any legal or administrative proceedings the
marommir-
parties knowingly and voluntarily waive their right to demand a jury trail or to file permissive
counterclaims in any such proceeding between them, The parties shall each bear their own
attorney's fees.
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.
20. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties
hereto, their heirs, executors, legal representatives, successors, or assigns.
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21. INDEPENDENT CONTRACTOR: Provider has been procured and is being
engaged to design, build, and deliver a Firestorm 46 Rapid Response Watercraft 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.
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. REAFIRMATION OF REPRESENTATIONS: Provider hereby reaffirms all of the
representations contained .in the Solicitation Documents.
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.
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26. SPECIAL INSURANCE AND INDEMNIFICATION RIDER: Please initial if
applicable:
ri
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 • Pedro G. Hernandez, City Manager
"Provider"
ATTEST: MetalCraft Marine Inc.,
a corporation under the laws of the Ontario, Canada
Signature
Print Name:
Title: Corporate Secretary
By:
Tom Wroe, President
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
Jorge L. Fernandez LeeAnn .Brehm,
City Attorney Risk Management Director
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