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HomeMy WebLinkAboutProfessional Services AgreementPROFESSIONAL SERVICES .A cR1 EMENT This Agreement entered into as of the AR day of' November 2001, by and between the City of Miami, a municipal corporation of the State of Florida, (hereinafter referred to as "the City") and First Union National Bank of Florida, a national banking association (the `Bank" or "First Union"), RECITAL: WHEREAS, the City Commission, by Resolution No. 01-1140 authorized the City Manager to negotiate and execute an Agreement with a Bank to provide banking Services as required by the City Charter and Florida statutes, and WHEREAS, First Union has been selected to be the lead bank; NOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations herein contained, and subject to the terms and conditions hereinafter stated, the parties hereto understand and agree as follows: I. TERM: The term of this Agreement shall be for three (3) years. The City, by resolution of the City Commission and at it's sole discretion, may renew this Agreement for three (3) additional terms of one (1) year by written notice to First Union of its election to extend at least 90 days prior to the expiration of the then current term. The terms and conditions of such renewal shall be subject to approval by the City Commission. H. SCOPE or SERVICES; The service to be performed ("Services") are outlined in Appendix A — Scope of Services to this Agreement, which shall be incorporated herein by reference, and whichwill be updated on a yearly basis by mutual agreement. III, ADDITIONAL_ SI RVJ ES: The Bank, upon receipt of a written request from the Finance Director or his designee, shall perform such additional so -vices as may reasonably be required. W. GENERAL CONDITIONS: All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail addressed to the other party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally serviced; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. City of Miami Finance Department City of Miami 444 S.W. 2nd Avenue — 6th Floor Miami, Florida 33133 Attention: Director of Finance Phone (305) 416-1377 Fax: (305) 400-5275 BANK First Union National Bank Mail Code FL 6011 200 South Biscayne Boulevard 15th Floor Miami, Florida 33131 Attention: Scott Krieger, Vice President Phone:. (305) 789-5035 Fax: (305) 789-4830 A. Title and Paragraph headings are for convenient reference and are not part of this Agreement. B. In the event of conflict between terms of this Agreement and any terms or conditions contained in any attached documents, the terms in this Agreement shall govern. 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 to conform with such laws, then same shall be deemed severable, and in either event, the remaining terms and provisions ofthis Agreement shall remain unmodified and in full force and effect. V. SERVICE AGREEMENT: Additional service agreements may be added from time to time as mutually agreed upon by the parties, and any service agreement may be terminated separately and severally without affecting the continued enforceability of all other provisions of this Agreement as to non -terminated services. VI. PURPOSE .AND EFFECT OF THIS AGRE1 MENT 1. Delineation of Banking Services - The banking Services to be provided to the City by the Bank shall consist of: (a) each of the specific requirements, terms and conditions set forth in Appendix A which is hereby incorporated by reference in its entirety; and (b) each of the Services, terms and conditions set forth in the Proposal which is hereby incorporated by reference in its entirety; and (c) all current service agreements if not specifically covered in (a) and (b) above will remain effective. z r, r parr: m m Ewa ar��irory a m wrcmr' z'a ash wrx;3F..,�b°���.., 2. Services to be rendered (a) (1) The Bank will provide the City with the banking Services set forth in Appendix A. Checks deposited will be available per the Bank's most recent Availability Schedule if deposited in the Bank before it normally closes its transactions for the day which is currently 5:00 p.m. Shook' the City wish same day credit after 5:00 p.m., a City representative must contact the Bank's designated individual prior to 1 I :00 a.m. The Bank will provide same day ledger credit for checks deposited prior to 3:00 p.m. at our First Union branch located at 200 Biscayne Boulevard, Miami and checks delivered prior to 5:00 p.m. to our First Union Operations Center located at 1801 N.W. 79th Avenue, Miami. In either case, the Bank's representative must be contacted prior to 11:00 a.m. For same day availability of State of Florida Treasurer and Dade County checks in excess of One Hundred Thousand Dollars ($100,000) drawn on local banks deposited prior to 12;00 noon, the City must notify the Bank's representative prior to 11:00 a.m. The City will attempt to limit the number of bank accounts maintained with the Bank; however, where legal requirements dictate, separate bank accounts will be maintained with the Bank. In addition, the City may deem that additional demand deposit accounts or time deposit accounts with the Bank would operate under service specifications and at such costs to the City as mutually domed reasonable by the City and the Bank. 3. Compensatory Balance Calculation - For the Services provided by the Bank, the City agrees to maintain an uninvested amount of monies on deposit with the Bank. Such amount is to be called "Minimum Average Daily Balance in Uninvested Deposits" and to be calculated as described below: Monthly, the Bank will prepare a billing for Services rendered. This billing must be presented in a format similar to the form contained in RFP 00-01-162 with a total for all the service charges for the month. The total monthly service charges will then be converted to a `Balance Required to Support Service". The Compensating balance will be calculated as required in the City's RFP 00-01-162 except Reserve Requirements will be deducted from collected balances when calculating the compensating balance amount. The banking Services chargeable are as shown in the Bank's Proposal. 4. Representations, Warranties and Covenants (a) The Bank hereby represents and wan -ants to the City that it has full power and authority to enter into this Agreement and fully perform its obligations hereunder without the need for any further corporate or governmental consents or approvals, and that the persons executing this Agreement are authorized to execute and deliver it. Assuming the due authorization, execution, delivery, legality and enforceability hereof by or against the City when executed and delivered by the parties, this Agreement will constitute a valid and binding agreement of the Bank, enforceable against it in accordance with its terms, subject only to the application of general principles of equity and limitations arising from bankruptcy, insolvency, moratorium and other similar laws affecting the rights of creditors generally. (b) The Bank has not employed or retained any person 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 employed by the City any fee, commission percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. (c) The Bank is aware of the conflict of interest laws of the City, Dade County, Florida and the State of Florida, and covenants that the Bank will fully comply in all material respects with the terms of said laws. (d) The City hereby represents and warrants to the Bank that it has full power and authority to enter into and perform all of its obligations under this Agreement without the need for any further bids, notices or other actions by its Commission or any other governmental authority. When executed and delivered by the parties, this Agreement will constitute a valid and binding agreement of the City, enforceable against it in accordance with its terms, subject only to the application of general principles of equity and limitations arising from bankruptcy, insolvency, moratorium and other similar laws affecting the rights of creditors generally. The City further represents and warrants to the Bank that it has authorized each of the City Manager, Finance Director, or persons designated by them in writing, to execute and deliver documents to the Bank as necessary hereunder or reasonably deemed appropriate by such officers to effect the transactions contemplated hereby. The City acknowledges and agrees that the Bank is fully authorized and directed to accept orders, requests and authorizations from such officers on the City's behalf in connection with the implementation or provision of any of the banking Services covered by the Bid. Such authorization and direction shall not be deemed to prohibit or preclude the Bank from relying upon actions or requests of other City personnel so long as the Bank reasonably believes, in good faith, that such persons rry have been authorized in writing to act on behalf of the City or by any of such officials. (e) At the request of the Bank, the City agrees to cause its designated officials or their designees to execute such signature cards and other signature and identification verification documents as the Bank deems reasonably necessary for the purposes of establishing appropriate security measures in connection with the banking Services to be provided hereunder. VII. PAYMENT FOR SERVICES/AMOUNT OBLIGATED: The Bank warrants that it has reviewed the City's requirements and has asked such questions and conducted such other inquires as the Bank deemed necessary in order to determine the price of Services. The City will not directly compensate the Bank for any work and Services performed under this contact, including all costs associated with such work and Services. Such Services will be compensated with the analysis credits earned by the City. The City will receive earnings credits on balances existing in its account(s). The Earnings Credit Rate is calculated utilizing the weekly average auction prices of the three-month Treasury Bills as stated in The Wall Street Journal. The average price of the four latest Treasury Bill auctions, prior to billing date, will be averaged and used. The Bank will invoice the City monthly for Services, such Services to be calculated in accordance with the service price schedule attached hereto as Appendix B. After reviewing the charges, the City will authorize the use of the analysis credits to pay the amount of the invoice. Remaining balances on the analysis credits will accrue to the benefit of the City's to pay any obligations related to banking Services, including but not limited to charges for the use of credit cards or any other payments received or accepted via the internet and carry forward to subsequent months, as a cumulative balance for the life of the term of the Agreement. The City shall have no obligation to pay the Bank any sum except for a change and/or modification to the Agreement, which is approved and executed in writing by the City and the Bank. With respect to travel costs and travel related expenses, the Bank agrees to adhere to § 112.061, Florida Statutes, as they pertain to out-of- pocket expenses including employee lodging, transportation, per diem, and all miscellaneous cost and fees. The City shall not be liable for any such expenses that have not been approved in advance, in writing by the City. VIII. PRICING: Prices shall remain firm and fixed for the term of the Agreement including any option years; however, the Bank may offer incentive discounts to the City at any time during the contractual term and any extensions thereof. After the initial term of this Agreement, annual price adjustments in line with changes in the Consumer Price Index (CPI-U) are allowable, excluding employee benefit programs. IX. NONDELEGABILILTY: This Agreement shall not be assigned, transferred, or encumbered, in whole or in part, without prior approval of the City Commission and written notice by the City Manager. X. CONSTRUCTION OF AGREEMENT: This Agreement shall be construed and enforced according to the laws of the State of Florida. XI. INDEMNII !CATI NJL.NSURANCE: The Bank shall indemnify and save the City harmless from any and all claims, liabilities, losses and causes of action which may arise out of the grass negligence or willful misconduct of the Bank, its officials, agents, employees or assigns in She fulfillment of this Agreement. The Bank shall pay all claims and Josses of any nature whatever arising therefrom, and shall defend all suits arising therefrom, in the name of the City when applicable, and shall pay all costs and judgements which may issue "thereon, except to the extent caused by the negligence of City officers or employees. During the term of this Agreement, First Union shall carry the minimum insurance described below: (a) A Comprehensive General Liability Insurance Policy shall be provided ,which shall contain minimum limits of One ; Million Dollars ($1,000,000.00) per occurrence combined single limit for bodily injury liability and property damage liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability Policy, without restrictive endorsements, as filed by the Insurance Seevices Office and must include: —Premises and/or operations, —Independent contractors. (b) Workers' Compensation insurance, to apply for all employees of the Bank in compliance with the "workers' Comprehension Law" of the State of Florida and all applicable federal laws. In addition, the policy must include employers' liability with statutory limits of the State of Florida. (c) Professional liability insurance shall be provided which shall contain minimum limits One Million Dollars ($1,000,000.00) per occurrence with a maximum deductible of Two Thousand Five Hundred Dollars ($2,50O.00). ti XVIII. NONDISCRIMINATION: First Union agrees that it shall not discriminate as to race, sex, color. religion, age marital status, national origin or handicap in connection with its performance under this Agreement. XIX. 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 by the City due to lack of funds, or authorization, reduction of funds, and/or change in regulations. XX. EVENT OF DEFAULT: a) An Event of Default shall mean a breach of this Agreement by the Bank. Without limiting the generality of the foregoing and in addition to those instances referred to herein as a breach, an Event of Default, shall include the following: i. The Bank has refused or failed, except in case for which an extension of time is provided, to supply enough properly skilled Staff Personnel; ii. The Bank has failed to make prompt payment to subcontractors or suppliers for any services; iii. The Bank has become insolvent (other than as interdicted by the bankruptcy laws), or has assigned the proceeds received for the benefit of the Bank's creditors, or the Bank has taken advantage of any insolvency statute or debtor/creditor law or if the Bank's affairs have been put in the hands ofa receiver; iv, The Bank has failed to obtain the approval of the City where required by this Agreement: v. The Bank has failed to provide "adequate assurances" as required under subsection "b" below: vi. The Bank has failed in the representation of any warranties stated herein. b) When, in the opinion of the City, reasonable grounds for uncertainty exist with respect to the Bank's ability to perform the Services or any portion thereof, the City may request that the Bank, within the time frame set forth in the City's request, provide adequate assurances to the City, in writing, of the Bank's ability to perform in accordance with the terms of this Agreement. Until the City receives such assurances the City may request an adjustment to the compensation received by the Bank for portions of the Services, which the Bank has not performed. in the event that the Bank fails to provide to the City the requested assurances within the prescribed time frame, the City may: i. treat such failure as a repudiation of this Agreement; ii. resort to any remedy for breach provided herein or at law, including but not limited to taking over the performance of the Services or any part thereof either by itself or through others. In the event the City shall terminate this Agreement for default, the City or its designated representatives, may immediately take possession of all applicable equipment, materials, products, documentation, reports and data. XX1. NOTI E OF DEFAULT -- OPPORTUNITY TO CURE/TERMINATE: If an Event of Default occurs, in the determination of the City, the City may so notify the Bank ("Default Notice"), specifying the basis for such default, and advising the Bank that such default must he cured immediately or this Agreement with the City may be terminated. Notwithstanding, rcr the City may, in its sole discretion, allow the Bank to rectify the default to the City's reasonable satisfaction within a thirty (30) day period. The City may grant an additional period of such duration as the City shall deem appropriate without waiver of any of the City's rights, hereunder, so long as the Bank has commenced curing such default and is effectuating a cure with diligence. and continuity during such thirty (30) day period or any other period which the City prescribes. The default notice shall specify the date the Bank shall discontinue the Services upon the Termination Date. XXI.I. Jf IVIEDIES IN THE EV ,fit ` OF DEFAULT: If an Event of Default occurs, the Bank shall be liable for all damages resulting from the default, including but not limited to: a) lost revenues; b) the difference between the cost associated with procuring Services hereunder and the amount actually expended by the City for reprocurement of Services, including procurement and administrative costs; and, c) such other direct damages. The Bank shall also remain liable for any liabilities and claims related to the Bank's default. As an alternative to termination, the City may bring any suit or proceeding for specific Performance or for an injunction. X.XIII, L CAL, STATE AND 1•+` , ER ► ., COMPLIANCE REOVIR MENTS: The Bank agrees to comply, subject to applicable professional standards, with the provisions of any and all applicable Federal, State and the City orders, statutes, ordinances, rules and regulations which may pertain to the Services required under this Agreement, including but not limited to: i) Equal Employment Opportunity (EEO), as applicable to this Agreement. ii) City of Miami Florida, Department of Business Development Participation Provisions, as applicable to this Agreement. iii) Environmental Protection Agency (EPA), as applicable to this Agreement. iv) City of Miami, City Code. v) "Conflicts of interest" and "Employment Discrimination". vi) Section 948.15(4), Florida Statute vii) City of Miami City Ordinance on Debarment. Notwithstanding any other provision of this Agreement, Bank shall not be required, pursuant to this Agreement, to take any action or abstain from taking any action if such action or abstention would, in the good faith determination of the Bank, constitute a violation of any law or regulation to which Bank is subject, including but not limited to laws and regulations requiring that Bank conduct its operations in a safe and sound manner. XXIV. ,FORCE MAJEURE: In recognition of the fact that some of the Services to be provided by the Bank hereunder require the related performance of services by the Federal Reserve System, the City agrees that the Bank shall not be liable for loss or damage of any kind resulting from any delay in the performance of or failure to perform the Bank's responsibilities hereunder due to delays or failures by the Federal Reserve System so long as the Bank exercises its best efforts to correct the problem and/or replace the third party as soon as reasonably practicable. XXV. PRESS RELEASE OR ()TWA PUBLIC INFORMATION: Under no circumstances shall the Bank without the express written consent of the City: a) Issue or permit the issuance of any press release, advertisement or literature of any kind that refers to the City, or the Work being performed hereunder, unless the Bank first obtains the written approval of the City. Such approval may be withheld if for any reason the City believes that the publication of such information would be harmful to the public interest or is in any way undesirable; and b). Communicate in any way with any contractor, department, board, agency, commission or other organization or any person whether governmental or private in connection with the Services to be performed hereunder except upon prior written approval and instructions of the City, and c). Except as may be required by law, the Bank and its employees, agents, subcontractors and suppliers will not represent, directly or indirectly, that any product or service provided by the Bank or such parties has been approved or endorsed by the City. XXVI. SURVIVAL: The parties acknowledge that any of the obligations in this Agreement will survive the term, termination and cancellation hereof. Accordingly, the respective obligations of the Bank and the City under this Agreement, which by nature would continue beyond the termination, cancellation or expiration thereof, shall survive termination, cancellation or expiration hereof. XXVII. BANKRU!TCY: The City reserves the right to terminate this Agreement, if, during the term of any Agreement the Bank has with the City, the Bank becomes involved as a debtor in a bankruptcy proceeding, or beconies involved in a reorganization, dissolution, or liquidation proceeding, or if a trustee or receiver is appointed over all or a substantial portion of the property of the Bank under federal bankruptcy law or any state insolvency law. XXVIII. Sj'ECIAL AND GENERAL PROVISIONS;. a) The City reserves the right to establish demand deposit accounts in other Banks and receive the same or different services from other Banks as needed to conduct City Business. b) All checks deposited will be "good funds" on the next business day with the exception of U.S. Government checks and checks drawn on the Bank which will be "good funds" immediate upon deposit. The City defines "good funds" as funds that will be available to the City to invest or transfer out of the account on the next business day regardless of the fact that the check deposited is drawn on a local or out of town bank. c) The City, or its authorized representative, shall have access to the books and records maintained by the Bank with respect to such City Bank Accounts at all reasonable times. This access may include, but is not limited to. the inspection and/or copying of such books and records and any related memoranda, checks, correspondence or documents. The Bank shall preserve such books and records for a period of three (3) years after the closing of these Bank Accounts. d) The Bank will prepare a monthly Analysis Statement for services rendered. This billing must be presented in a format similar to the Price Data Form with a total of all service charges for the month. This billing will state the Analysis of Debit and Credit will be carried forward to the next month as a cumulative figure for the term of this Agreement. 46 Al Any excess credit balances accumulated by the City may be used by the City to pay any obligations, including but not limited to charges for the use of credit cards or any other payments received or accepted via the Internet and carry forward to subsequent months, as a cumulative balance for the life of the term ofthe Agreement. e) The Earnings Credit Rate will be computed utilizing the weekly average auction prices of the three-month Treasury Bills as stated in The Wall Street Journal. To accomplish this, the average price of the four latest Treasury Bill auctions, prior to the billing date, will be averaged and used. In formalizing this Agreement, the City will reserve the right .to restate and/or renegotiate with the depository Bank such additions, deletions, or changes, or clarifications of the provisions of this Agreement as may be necessitated by law or changed circumstances. XXIX. ENTIRE ACRE) MMENT: This instrument and its attachments constitute the sole and only agreement of the parties hereto relating to the subject matter hereof and correctly sets 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 the Agreement are of no force or effect, XXX. AMENDMENTS: No amendments to this Agreement shall be binding on either party unless in writing and signed by both parties.