Loading...
HomeMy WebLinkAboutAgreement-SUBSubstitution Item RE.17 (file If 08-00742)- Municipal 13ond Underwriting Services PROFESSIONAL SERVICES AGREEMENT This Agreement ("Agreement") is entered into this day of , 2008 (but effective as of 2008 , being the `°Lffective Date") by and between the City of Miami, a municipal corporation of the State of Florida whose address is 444 SW 2" Avenue, 10`h Floor, Miami, Florida 33130 ("City") and Merill Lynch , a Delaware Corporation, whose address is 701 Brickell Avenue, 11`h Floor, Miami, Florida 33131 ("Provider"). RECITALS: A. On March 22, 2007, the Miami City Commission adopted the City Manager's recommendation and passed Resolution No. 07-0166, that the highest ranked firms, UBS Securities. LLC and JP Morgan, would serve the City, on a rotational basis, as Senior Manager and Co -Senior Manager; and, Sun Trust Capital Markets, Raymond James and LaSalle Financial Services as simultaneous Co -Managers. I3. UBS Securities, LLC, after a year under this contract, has decided to exit the Municipal Bond Underwriting business and will no longer serve the City as a Senior Manager/Co-Senior Manager. C. Pursuant to the City issued Request for Qualification No. 05-06-114 ("RFQ") for the provision of Municipal Bond Underwriting Services ("Services") and Provider's proposal ("Proposal"), in response thereto, has been selected as the next most qualified proposal for the provision of the particular services under the Specifications/Scope of Work (hereinafter collectively referred to as the "Services"). The RFQand the Proposal are sometimes referred to '1J 'lk vrw dO h lid .,1 herein, collectively, as the "Solicitation Documents,`' ei''4,11i,`,rmi?I;ncorporated into and made a part of this Agreement. Og--O?q2- rec amen- 5 UE "°'u° a�fB�AITTED INTO THE 3Hub6LIC RECORD FOR ITEM R�170N?-ia THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT B. After review and consideration by the Evaluation Committee, Provider's proposal was the next recommended by the Evaluation Committee and the City Manager, the Commission of the City of Miami, by Resolution No. , adopted on July 10 , 2008, approved the, Selection of Provider as one of the qualified proposers and authorized the City Manager to execute a professional services 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: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. The Services are hereby incorporated into, made part of this Agreement, and attached hereto as Attachment "A". The Solicitation Documents are hereby incorporated into. made a part of this Agreement, and attached hereto as Attachment "B". 2. TERM: The term of this Agreement shall commence on the effective date and be effective through April 2, 2009. 3 OPTION TO EXTEND: The City shall have three (3) option(s) to extend the term hereof for a period of one (1) year each. 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 qualifications, licenses and expertise required under the Solicitation Documents for the 2 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT 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"; and (v) each person executing this Agreement on behalf of Provider has been duly authorized to so excute the same and fully bind Provider as a party to this Agreement. 5. COMPENSATION: A. The amount of compensation payable by the City to Provider shall be based on the proceeds of the bonds issued. 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 or \A hich 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 withheld or conditioned by the City in its sole discretion. 7. 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 under this Agreement. Provider agrees to maintain all such books and records at its principal 3 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT 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 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 and/or the terms of the Solicitation Documents, 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 18-55.2 of the Code of the City of Miami, Florida, as same may be amended or supplemented, from time to time. S. 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. 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 4 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT 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. INDEMN1FICATION: 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 services 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 l;rnployee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. 5 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT 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, 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 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 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 unless: (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 (60) days has expired, after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation (90 days if City Manager's decision is subject to 6 TINS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN .AT END OF THIS DOCUMENT 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, 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. 15. INSURANCE. Provider shall, at all times during the term hereof, maintain such insurance cove erage 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 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, provided, however, that Provider shall at any time upon request file duplicate copies of the policies of such insurance with the City. 7 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT lf, 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, this Contract 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. 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 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 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 8 TEAS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN I3E SEEN AT END OF THIS DOCUMENT 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's, which may be withheld or conditioned, in the City's sole discretion. 19. 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: Merill Lynch 701 Brickell Avenue, 1 `h Floor Miami, Florida 33131 City Manager 444 SW 2nd Avenue, 10th Floor Miami, Florida 33130 With copies to: City Attorney 444 SW 2nd Avenue, Suite 945 Miami, Florida 33130 20. MISCELLANEOUS PROVISIONS: A. This Agreement shall be construed and enforced according to the laws of the State of Florida. 9 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT B. I itic 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 vc th 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 modilieation or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto. 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, 10 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT and agrees to provide workers' compensation insurance for any employee or agent 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 lack 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. 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. 27. SPECIAL INSURANCE AND INDEMNIFICATION RIDER: Please initial if applicable: 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„ 11 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF TIUIS DOCUMENT CITY OF MIAMI, a municipal ATTEST: corporation By: Priscilla A. Thompson, City Clerk Pedro G. Hernandez, City Manager ATTEST: Print Name: Title: Corporate Secretary "Provider" a Delaware Corporation By: Print Name: Title: APPROVED AS TO DORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: JULIE O. BRU City Attorney LEEANN BRf I-IM Risk Management 12 T1-1JS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCU MENT ATTACHMENT A 3.0 SPECIFICATIONS / SCOPE OF WORK 3.1 :BACKGROUND INFORMATION The City of Miami is seeking qualified investment banking firms (the "Proposer" or "Firm") to serve as bond underwriters to the City in connection with the advancement of the City's Capital Improvement Program (the "Engagement"). The City intends to compose a team of underwriters (the "Underwriting Team") to serve for five years. The financing team for any transaction will consist of City staff, bond counsel, financial advisor and the Underwriting Team. The City shall not guarantee the amount of bond transactions, if any, issued during the five (5) year period. The City reserves the right, in its sole and absolute discretion, to dismiss from the underwriting team any member for any reason at any time. Submission of a response to this RFQ shall constitute the agreement of the Proposer to these terms, if selected as a Successful Proposer. The Underwriting Team will consist of the following Positions and bond allocations: A. Two (2) Firms to serve as Senior Managers. On any given bond transaction, the City will designate one firm as Senior Manager and the other as Co -Senior Manager as deemed appropriate by the City. Target bond allocation for the Senior Manager will be 45% of the issue size and for Co -Senior Manager, 25% of the issue size. Firms interested in a Senior Manager Position shall demonstrate national underwriting experience, strong bond distribution capabilities, and an expertise in municipal tax- exempt financings. 13. Three (3) Firms to serve as Co -Managers. On any given bond transaction, the City will assign all three firms as Co -Managers at a target bond allocation of 10% each of the issue size. Firms interested in a Co -Manager position shall demonstrate at least regional underwriting experience and strong bond distribution capabilities. Firms submitting a Proposal for consideration must clearly indicate in the Proposal if they are seeking consideration as: (1) Senior Manager, and/or (2) Co -Manager, and shall follow the requirements in the RFQ for addressing the qualifications for both. 13 THIS DOCUMENT IS A SUBSTITUTION To ORIGINAL BACKUP ORIGINAL. CAN BE SEEN AT END OF THIS DOCUMENT Firms submitting for both (Senior Manager and Co -Manager) shall be first considered and ranked for Senior Manager. The City of Miami will be selecting the first two highest ranked firms under the category of Senior Manager as its Senior Manager and Co -Senior Manager. Both Senior Manager and Co -Senior Manager will be used based on a rotational method. However, in a situation where a conflict of interest exists, the rotational method will be vacated, and the other firm will be selected to provide said services. A firm electing to submit for both categories, Senior Manager and Co -Manager, and failing to be selected as one of the firms to be the City's Senior Manager or Co -Senior Manager, will then be considered for the category of Co -Manager. The City of Miami will then select the three (3) highest ranked firms to serve as Co -Managers. Each of those firms will be allocated a target bond of 10%. The City will negotiate suitable compensation for any given bond transaction with the selected Senior Manager before the transaction is priced. The remaining members of the Underwriting Team agree to accept the compensation negotiated between the Senior Manager and the City. 3.2. SCOPE OF WORK A. SENIOR MANAGER The services to be provided by a Senior Manager assigned to a particular transaction shall include, but not be limited to, the following: 1 Develop the structure and overall marketing strategy on a bond transaction to which it has been assigned and to work with the Finance Director, the City Attorney's office, bond counsel, financial advisor, rating agencies, trustees and other professionals involved in the transactions. City of Miami Page 24 RFQ No. 05-06-114 2. Manage the underwriting team assigned by the City to work with the Senior Manager (as book running manager). 3. Assist the City, its financial advisor and bond counsel in drafting the preliminary official statement, the final official statement and any other documents required to authorize, market and sell the Bonds. The City will provide to the Senior Manager its customary financial information and will make every effort to provide the Senior Manager with all necessary additional information for the specific financing/bond issuance. It shall be the duty of the Senior Manager to thoroughly review and determine the completeness and accuracy of any material representations set forth in the preliminary and final official statements. The Senior Manger will be responsible to the City in all aspects for the accuracy and completeness of information provided by such Senior Manager with respect to such disclosure documents. 4. Sell Bonds. 5. Provide analyses of market conditions and advise the City and its financial advisor with regard to market timing and development of a marketing plan for the Bonds. 6. Assist the City in developing and pklresenting information to the rating agencies, bond insurers and investment community. 14 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT B. CO -SENIOR MANAGERS AND CO -MANAGERS The services to be provided by the underwriting firms assigned to a negotiated bond transaction when serving as Co -Senior Manager and Co -Manager on a transaction shall include, but not be limited to, the following: 1. Assist the Senior Manager in providing the primary and secondary market support for the City's financing endeavors. 2. Assist the Senior Manager in providing the analyses of market conditions and advise the City and its financial advisors with regard to market timing and development of a marketing plan for the Bonds. 3. Sell Bonds. 15 THIS DOCUMENT I5 A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT ATTACHM ENT B Copy of R]FQ and Provider's Response To be attached at time of document execution 16 SUBSTITUTED PROFESSIONAL SERVICES AGREEMENT \This Agreement ("Agreement") is entered into this _ day of , 200_ (but effective a, of , being the "Effective Date") by and between the City of Miami, a mum i al corporation of the State of Florida whose address : 444 SW 2"d Avenue, 1.0th Floor, Miami, Florida 33130 ("City") and , a corporation, whose address is ("Provider"" RECITALS: The City has issued request for Qualification No. 05-06-114 ("RFQ") for the provisik: n o Municipal Bond Underwr g Services ("Services") and Provider's proposal ("Proposal in response thereto, has been » ;lected as the most qualified proposal for the provision of the particular services under the ecifications/Scope of Work (hereinafter collectively referred to as the "Services"). The RFQ an .the Proposal are sometimes referred to herein, collectively, as the "Solicitation Documents," and art iy this refer...ace incorporated into and made a par of this Agreement. B. After review and consideration by the Evaluation Com ittee, Provider's proposal was recommended by the Evaluation Committee and the City Manager, to Commission of the , 200_, approved the selection of Provider as one of the qualified proposers and authot'i ' d the City Manager tc F xecute a professional services agreement, under the terms and conditions e` forth herein. City of is - r::. by Resolution No. 07-3-7g adopted on SUBSTITUTED NOW, THEREFORE, in consideration of the mutual covenants and promises herein con ined, 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 tPais Agreement. The Services are hereby incorporated into, made part of this Agreement, and attached hereto as Attachment "A". The Solicitation Documents are hereby incorporated into, made a 4.irt of this Agreement, and attached hereto as Attachment " ]3". 2. TERM: The ter,; of this Agreement shall be two (2) years commencing on the effective date hereof. 3. OPTION TO EXTEND: They City shall have three (3) option(s) to extend the term hereof for a period of one (1) year each. 4. SCOPE OF SERVICE: A. Provider agrees to provide the Services as specifically described, and under the special tei ;__ and conditions set forth in Attachment ` .' " hereto, which by this reference is incorporate: into and made a part of this Agreement. 13.. Provider represents and warrants to the City `hat: (i) it possesses all qualifications, licenses and expertise required under the Solicitatic: Documents for the performance of the Services; (ii) it is not delinquent in the payment of any ums 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 sLl) be, at all times ~,.:ring the term hereof, fully qualified and trained to perform the tasks assigned to Pach; and (iv) the ; ervices will be perfonned in the manner described in Attachment "A"; and (v) eat. i SUBSTITUTED rson excel.::::tg this Agreement on behalf of Provider has been duly authorized to so excute the sam d fully bind Provider as a party to this Agreement. 5. MPENSATION: A. The amount of compensation payable by the City to Provider shall be based on the proceeds of th ' onds issued. 6. OWNERSHI.9,1 DOCUMENTS: Provider understands and agrees that any informat_._ i, document, re rt or any other material whatsoever which is given by the City to Prov: or which is otherwise htained or prepared by Provider pursuant to or under the terms of this Agreement is and shall at all r r,s remain the property of the City. Provider agrees not to use any si . t information, document, rooft or material for any other purpose whatsoever without the writte., consent of City, which may bz withheld or conditioned by the City in its sole discre 7. AUDI"' ' '` ;-i i s PECTION RIC TS: �'., The City may, at reasonable times, and ` r a period of up to three (3) years following t:e date of final payment by the City to Provider unde_" this Agreement, audit, or cause to be audited, those books and records of Provider which are relatud to Provider's performance under this Agreement. Provider agrees to maintain all such books and., .-ecords at its principal pL of business for a period of three (3) years after final payment\ made under this Agreement. The City may, at reasonable times during the term hereof, inspect rovider's facilities and perform such tests, as the City deems reasonably necessary, to determine ether the goods or services required to be provided by Provider under this Agreement conform to t terms hereof and/or the terms of the Solicitation Documents, if applicable. Provider shall make 3 SUBSTITUTED ailable to the City all reasonable facilities and assistance to facilitate the performance of tests or iin ections by City representatives. All tests and inspections shall be subject to, and made in accordan with, the provisions of Section 18-55.2 of the Code of the City of Miami, Florida, as same may be tended or supplemented, from time to time. 8. AWARD ' AGREEMENT: Provider represents and warrants to the City that it has not employed or retained any person or company employed by the City to solicitor secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brok 1' ; fee, or gift of any k_ Ltd contingent upon or in connection with, the award of this Agreement. ' 9. PU-i .iC RECORDS: Provider understands that the publi, shall have access, at all reasona': '., times, to all documents and infbrination pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and a. tees to allow access by the City and the public to all documents subject to disclosure under applic 1e law. Provider's failure or refusal to comply with the provisions of this section shall result the immediate cancellation of this Agreement by the City. 10. COMPLIANCE WITH FEDERAL, STATE AND LOCA LAWS: Provider understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflic• of interest, record keel.wg, et .. 2ity and Provider agree to comply with and observe all applicable " : ws, codes and ordinances as they may be amended from time to time. 11. INDEMNIFICATION: Provider shall indemnify, defend and hold harml..s the City and its officials, employees and agents (collectively referred to as "Indemnitees") and ea, a of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including 4 SUBSTITUTED ttorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or ath of any person or damage to or destruction or loss of any soperty arising out of, resultin from, or in connection with (i) the performance or non-performance of the services contemplate by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in par_.. by any act, omission, default or negligence (whether active or passive) of Provider or its empioiees, agents or subcontractors (collectively referred to as "Provider"), regardless of whether it is, ; is alleged to be, caused in whole or part (whether joint, concurrent or contribi:ting) by any act, o1 ission, default or negligence (whether active or passive) of the Indemnitees, or any of them or 'i) the failure of the Provider to comply with any of the paragraph:. herein or the failure of the3qrovider to conform to statutes, ordinances, or other reg.:.:t .1r requirements of any governs:"e:::.tal authority, federal or state, in connection with the performance of this Agreement. Provider expressly agrees to indemnify and hold harmless the Indemr.. tec-.or any of them, from and against r11 liabilities which may be asserted by an employee Or former employee of Provider, or any of its>:ubcontractors, 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. 12. DP:_iAULT: If Provider fails to comply with any term or coil ition of this Agreement, or fails to - rform any of its obligations hereunder, then Provider shall bc'in default. Upon the occurrence a default hereunder the City, in addition to all remedies available to it by law, may immedia upon written notice to Provider, terminate this Agreement whereupon ui payments, advances, or other compensation paid by the City to Provider while Provider was in defa t shall be immediately returned to the City. Provider understands and agrees that termination of is Agreement under this section shall not release Provider from any obligation accruing prior to the 5 SUBSTITUTED ective date of termination. Should Provider be unable or unwilling to commence to perform the S ices within the time provided or contemplated herein, then, in addition to the foregoing, Provider ali be liable to the City for all expenses incurred by the City in preparation and negotiation of is Agreement, as well as all costs and expenses incurred by the City in the re - procurement of the ervices, including consequential and incidental damages. 13. RESOLUTI(I F CONTRAC',".' 07S]HJTES: Provider understands and agrees that all disputes between Proviciey,and the City based upon an alleged violation of the terms of this Agreement b;• '. City shall be submitted to the City Manager for his/her resolution, prior to Provider being entitled to seek judic`'1 relief in connection therewith. In the event that the amount of-._)mpensation hereunder excc;:: $25,000, the City Manager's decision shall be approved or disapproved by the City Commisst<in. Provider shall not be entitled to seek judicial relief unlesL: ;1 it has first received City Mane r'. written decision, approved by the City Commissior -f the amount of compensation hereunder exceeds $25,000, or (ii) a period of sixty (60) days h :_ expired, after submitting to the City Manager detailed statement of the dispute, accompanie, . by all supporting documentation (90 days if City Mpnager's decision is subject to City Commission approval); or (iii) City has waived compliance wit the procedure set forth in this section by written instruments, signed by the City Manager. 14. CIT`'''S TER MINA TI ON RIC r. TS: A. The City shall have the right to terminate this Agreement, in its sole'discretion, at any time, by g:ving written notice to Provider at least five (5) business days prior to the'_ffective date of such termination. In such event, the City shall pay to Provider compensation for serdiees rendered and expenses incurred prior to the effective date of termination. In no event shall the , 6 SUBS be iiaut. to Provider for any additional compensationother than that provided herein, or for nsequential or incidental damages. The City shall have the right to terminate this Agreement, without notice to Provider, upo the occurrence of an event of default hereunder. In such event, the City shall not be obligated to pay ''ny amounts to Provider and Provider shall reimburse to the City all amounts received while Provider •ias in default under this Agreement. 15. INSURANCE: Provider shall, at all times during the term hereof, maintain such insurance coverage as may be rree . ired by the City. All such insurance, including renewals, shall be subject to the approval of the Cit) or adequacy of protection and evidence of such coverage shall be furnished to the City on Certifia`.--, of Insurance )dicating such insurance to be in force an, effect : • ...I providing that it will not be c.: ;:::led during the performance of the services under this contract without thirty (30) calendar days pr,or written notice to the City. Completed Certificates of Insurance shall be filed with the Ci prior to the performance of services hereun .'.zr, provided, however, that Provider shall at any ti upon request file duplicate copies of the policies of such insurance with the City. If, in the judgment of the City, prevailing conditions warrant e provision by Provider of additional liability insurance coverage or coverage which is different in ind, the City reserves the right to require the provision by Provider of an amount of coverage ; ifferent from the amounts or kind previously required and shall afford written notice of su.c.h change in requirements thirty (30) days prior to the date on which the requirements shall ti, :c effect, Should the Provider fail or refuse to satisfy the requirement of changed coverage within tI rty (30) days following the City's written notice, this Contract shall be considered terminated on tht: •, date that the i--.quired change in policy coverage would otherwise take effect. 7 SUBSTITUTED UTED NONDISCRIMINATION: Provider represents and warrants to the City that Provider doe of and will not engage in discriminatory practices and that there shall be no discrimination in conne_ on with Provider's performance under this Agreement on account of race, color, sex, religion, age, :ndicap, marital status or national origin. Provider fuller covenants that no otherwise qualifies individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital state:= 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 < eMEN BUSINESS AFFAIRS AND PRQ~UREMENT PROGRAM: The City has estf;^shed a Minority and Women Business Affairs and Procurement Program (the "M/WBE ';:ram") designed to increase the volume of City procurement and contracts with Blacks, Hisrmic 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 vnderstands and agrees that the City shall have ..,_ to terminate and cancel this Agreement, wit but notice or 1. <.nalty to the City, and to eiminate Provider from consideration and participation in futelre City contracts if Provider, in the preparatic:n and/or submission of the Proposal, submitted false i3'misleading information as to its status as Black, Hispanic and/or Women owned business and/or tnt. quality and/or type of minority or women owned business participation. 18. ASSIGNMENT: T':.is Agreement shall not be assigned by Provider, in whole or in part, witho,:t the prior written consent of the City's, which may be withheld or conditioned, in the City's sole discretion. 19. NOTICES: Al] notices or other communications required under this Agreement shai be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return 8 SUBSTITUTED ceipt requested, addressed to the other party at the address indicated herein orto such other dr ss as a party may designate by notice given as herein provided. Notice shall be deemed given o he day on which personally delivered; or, if by mail, on the fifth day after being posted or the date o 'actual receipt, whichever is earlier. TO PROVIDER: 20. MISCELLANEOUS PROVISION °:>: A. of Florida. B. Title and paragraph headings are for convergent reference and are not a part of this Agreement. TO THE CITY: City Manager 444 SW 2 Avenue, 101h Floor Miami, Florida 33130 With copies to: City Attorney 444 SW 2"d Avenue, Suite 945 Miami, Florida 33130 C. This Agreement shall be construed F:;:_d enforced according to the laws of the State No waiver or breach of any provision of this: Agreement shall constitute a waiver of any subs_:quent breach of the same or any other provision hereof, F;: d no waiver shall be effective unless made in writing. D. Should any provision, paragraph, sentence, word or phrase cc;:rained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal of ;otherwise unenforcel. under the laws of the State of Florida or the City of Miami, such proc.0on, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order i, conform with such laws, or if not modifiable, then same shall be deemed severable, and in either 9 • \\\ SUBSTITUTEI event, the:, naining terms and provisions of this Agreement shall remain unmodified and in full o e and effect or limitation of its use. This Agreement constitutes the sole and entire agreement between the parties hereto. No odification or amendment hereto shall be valid unless in writing and executed by properly author ed representatives of the parties hereto. 21. SUCCES S AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executgrs, legal representatives, successors, or assigns. 22. INDEPENDENT CO' ;TRACTOR: Provider has been procured and is being engagtr. provide services to .i;;; City as an independent contractor, and not as an agent or er::, ; y _ of the City. Accordingly, '.'? ovider shall not attain, nor be entitled to, any rights or _nett:, under the Civil Service or Pensinl Ordinances of the City, nor any rights generally afforded classified or unclassified employe Provider further understands that Florida Wog << s Compensation benefits available to e„ gployees of the City are not available to Provider, and agrees to provide workers' compensation nsurance for any employee or agent of ,vider rendering services to the City under this Agreemen 23. CONTINGENCY CLAUSE: Funding for this A Bement is contingent on the availability of funds and continued authorization for program a vities and is subject to amendment or termination due to lack of funds, reduction of funds and/or ;change in regulations, upon thirty (30) days notice. 24. REAFIRMATION OF REPRESENTATIONS: Provider hereby reaffi. ins all of the representations contained in the Solicitation Documents. ENTIRE AGREEMENT: This instrument and its attachments constitute the soi`and only agreement of the parties relating to the subject matter hereof and correctly set forth th 10 SUBSTITUTED ighis, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negattons, or representations not expressly set forth in this Agreement are of no force or effect. 26. CO TERPARTS: This Agreement may be executed in two or more counterparts, each of which sh 1 constitutean original but all of which, when taken together, shall constitute one and the same agre ent. 27. SPECIAL INSUNCE AND INDEMNIP CATION RIDER: Please initial if applicable: T IN WITNESS WHEREOF, 'e parties hereto have caused this instrument to be executed by their respective officials the - nto duly authorized, this the day and year above wrh Si,. ATTE-T. sciila A. Thompson, City Clerk ATTEST: Print Narne: Title: Corporate Secretary cc Cv, CITY OF MI: :MI, a municipal corpo.a =ton By: Pedro G. Hernandez, Ct. Manager "Provider" a corporation By: Print Name: Title: President NEMI SUBSTITUTED PROVED AS TO FORM AND APPROVED AS TO INSURANCE C►` ECTNESS: REQUIREMENTS: JORGE L.iERNANDEZ LEEANN BREHM Risk Management City Attorney•,, 12 SUBSTITUTED ATTACHMENT A 3.0 S `ECIFICATIONS / SC,OF WORK 3.1 BACICGROUND INFORMATION The City of/ mi is seeking qualified investment banking firms (the "Proposer" or "Firm") to serve as bond uri erwriters to the City in connection with the advancement of the City's Capital Improvement Pro,ram (the "Engagement"). The City intends to compose a team of underwriters (the "Ur :ierwriting Team") to serve for five years. The financing team for any transact,L.,n will eonsis of City staff, bond counsel, financial advisor and the Underwriting Team. The City shall not guarantee the amount of bond transactions, any, issued during the 9ve 5; year period. The City reserves the right, in its sole and absolute discretion, to dismiss from tts, underwriting tear. :,; ' member for any reason at any time. Submission of a response to this i.FQ shall constitute th agreement of the Proposer to these terms, if selected as a Successful Proposer, The Underwriting Team will consist of tie following Positions and bond allocations: A. Two (2) Firms to serve as Senic: ` anagers. On any given bond transaction, the City will designate one firm as Senior IMonager and the other as Co -Senior Manager as deemed appropriate by the City. Targ t bond allocation for the Senior Manager will 45% of the issue size and for Co-SenN Manager, 25% of the issue size. Firms interested in a Senior Manag: Position shall demonstrate . national underwriting experience, strong bond distr. . ,tion capabilities, and an expertise in municipal tax-exempt financings. B. Three (3) Firms to serve as Co -Managers. On any given bond transaction, the City w assign all three firms as Co -Managers at a target Aland allocation of 10% each of the issue size. Firms interested in a Co -Manager position shall demonstrate at le ,: regional underwriting experience and strong bond distribution capabilities. Firms submitting a Proposal for consideration must clearly indicate in the Phnoosal if they are seeking consideration as: (1) Senior Manager, and/or (2) Co -Manager, and !shall follow the requirements in the RFQ for addressing the qualifications for both. Firms sul 'Z-tting for both (Senior Manager and Co -Manager) shall be first consiUered and ranked for Senior Manager. The City of Miami will be selecting the first two highest tanked firms under the category of Senior Manager as its Senior Manager and Co -Senior Manager. oth Senior Manager and Co -Senior Manager will be used based on a rotational method. However, 'n a situation where a conflict of interest exists, the rotational method will be vacated, and the other firm will I ; selected to provide said services. 13 SUBSTITUTED finn electing to submit for both categories, Senior Manager and Co -Manager, and failing to be cted as one of the firms to be the City's Senior Manager or Co -Senior Manager, will then be cons., ered for the category of Co -Manager. The City of Miami will then select the three (3) highestanked firms to serve as Co -Managers. Each of those firms will be allocated a target bond of %. The City will •egotiate suitable compensation for any given bond trar:>U. rtion with the selected Senior Manager ■!fore the transaction is priced. The remaining members of the Underwriting Team agree to acc„•t the compensation negotiated between The Senior Manager and the City. 3.2. SCOPE OF WO A. SENIOR MAN 'ER The services IQ, be provided by a Senior Manager assigned to a particular transaction shall Nclude, but not be limited to, thefollowing: l . Develop the strr.-ture and overall marketing strategy on a bond transaction to which it has beer:, assigned and to work with the Finance Director, the City Attorney's office, b id counsel, financial advisor, rating agencies, trustees and other professiona,involved in the transactions. City of Miami Page 24 RFQ No. 05-06-114 2. Manage the underwriting t m assigned by the City to work with the Senior Manager (as book running m ager). 3. Assist the City, its financial dvisor and bond counsel in drafting the preliminary official statement, t final official statement and any other documents required to authorize, r'grket and sell the Bonds. The City will provide to the Senior Manager its cu toinary financial information and will make every effort to provide the Senior\Manager with all necessary additional information for the specific financing/bond issuance. It shall be the duty of the Senior Manager to thoroughly review and d termine the completeness and accuracy of any material representations set in the preliminary and final official statements. The Senior Manger will be re ponsible to the City in all aspects for the accuracy and completeness of info :nation provided by such Senior Manager with respect to such disclosure docun:nts. 4. Sell Bonds. 5. Provide analyses of market conditions and advise the C't and its financial advisor with regard to market timing and development of a nrketing plan for the Bonds. 6. Assist the City . in developing and presenting information to the rating agencies, bond insurers and investment community. B. CO -SENIOR MANAGERS AND CO -MANAGERS The services to be provided by the underwriting firms assigned to a negoti:=.�d bond transaction when serving as Co -Senior Manager and Co -Manager on transaction shall include, but not be limited to, the following: 14 SUBSTITUTED 1. Assist the Senior Manager in providing the prima: and secondary market support for the City's financing endeavors. 2. Assist the Senior Manager in providing the analyses of market conditions and advise the City and its financial advisors with regard to market timing and development of a marketing plan for the Bonds. 3 Sell Bonds. 15 SUBSTITUTED ATTACHMENT B Copy of RFQ and Provider's Response To be attached at time of document execution 16