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HomeMy WebLinkAboutExhibit 1 SUBitebsniule Jena-i Ord (. doevkrerlt Form I(a) SERVICES AGREEMENT OR PROFESSIONAL SERVICES AGREEMENT This Agreement is entered into this day of , 2011 (but effective as of ) by and between the City of Miami, a municipal corporation of the State of Florida ("City"), and Ernst & Young, LLP, a Florida limited liability partnership ("Provider"). RECITAL A. The City has issued a Request for Proposals ("RFP") for the provision of External Auditing services ("Services") and Provider's proposal ("Proposal"), in response thereto, has been selected as the most qualified proposal for the provision of the Services. The RFP 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. The Commission of the City of Miami, by Resolution No. 11-0318, adopted on July 28, 2011, 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. 6-0- II -03 2. TERM: The term of this Agreement shall be three (3) years commencing on the effective date hereof. 3. OPTION TO EXTEND: The City Manager shall have two (2) option(s) to extend the term hereof for a period of one (1) year each, subject to availability and appropriation of funds. 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 performance of the Services; (ii) it is not delinquent in the payment of any sums due the City, including payment of permit fees, occupational licenses, etc., nor in the performance of any obligations to the City; (iii) all personnel assigned to perform the Services are and shall be, at all times during the term hereof, fully qualified and trained to perform the tasks assigned to each; and (iv) the Services will be performed in the manner described in Attachment "A". 5. COMPENSATION: A. The amount of compensation payable by the City to Provider shall be based on the rates and schedules described in Attachment "B" hereto, which by this reference is incorporated into this Agreement; provided, however, that in no event shall the amount of compensation exceed $ 550,000 annually. In the absence of a duly executed amendment to this Agreement, The City shall have no liability for payment of any compensation beyond the limitations expressed in this Section. 2 KLG: 284622: com:284622. docx B. Unless otherwise specifically provided in Attachment "B", payment shall be made within forty five (45) days after receipt of Provider's invoice, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should City require one to be performed. 6. OWNERSHIP OF DOCUMENTS: Except for Provider's work papers or administrative records, which shall remain the property of Provider, 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 information, document, report or material for any other purpose whatsoever without the written consent of the City Manager, 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 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 3 KLG: 284622: com:284622. docx 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 applicable provisions of Chapter 18 of the Code of the City of Miami, Florida, as same may be amended or supplemented, from time to time. 8. AWARD OF AGREEMENT: Provider represents and warrants to the City that it has not employed or retained any person or company employed by the City to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the award of this Agreement. 9. PUBLIC RECORDS: Provider understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. Provider's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. 10. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Provider understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. City and Provider agree to comply with and observe all applicable laws, codes and ordinances as they may be amended from time to time. 11. INDEMNIFICATION: Provider shall indemnify, defend, save 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 4 KLG: 284622: com:284622. docx (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"), (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 or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. This indemnification provision shall control over the Indemnification provision in the RFP and shall survive the termination or the expiration of this Agreement for the limitations period prescribed by Florida law. This Indemnification provision shall obligate the Provider to defend (at its own expense) to and through appellate, supplemental or bankruptcy proceedings, or to provide for such defense, at the Cit Attorney's option, any and all claims of liability and all suits and actions of every name and description covered by this Section 11, which may be brought against the City whether performed by Provider, or persons employed or utilized by the Provider. 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. Prior to 5 KLG: 284622: com:284622. docx termination of this Agreement for default, the City shall notify the Provider in writing of its intent to terminate the Agreement for default, identify the alleged deficiencies in performance giving rise to the intent to terminate, and shall give the Provider thirty (30) days to cure such deficiencies. Upon the occurrence of a default hereunder the City, in addition to all remedies available to it by law, may following thirty (30) days from the date of the 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 under this section 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 6 KLG: 284622: com:284622. docx dispute, accompanied by all supporting documentation (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. 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 which, in the opinion of the City Commission or City Manager, is of sufficient gravity that it is necessary to protect the interests of public health, safety or general welfare. 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 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 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 7 K LG : 284622: co m:2 84622. d o cx hereunder, provided, however, that Provider 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 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. All references to the City in Section 15 shall mean the City of Miami Risk Management Administrator. 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. ASSIGNMENT: This Agreement shall not be assigned by Provider, in whole or in part, without the prior written consent of the City Commission, which may be withheld or conditioned, in the City's sole discretion. 18. NOTICES: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return 8 KLG: 284622: com 284622. docx 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: Gracelyn F. Hodge, Partner Ernst & Young, LLP 201 South Biscayne Blvd Suite 3000 Miami, FL 33134 Diana Gomez, Finance Director Finance Department City of Miami 444 SW 2"d Ave Suite 618 Miami, FL 33130 Johnny Martinez, P.E., City Manager City of Miami 3500 Pan American Drive Miami, FL 33133 Julie O. Bru, City Attorney City of Miami Office of the City Attorney 444 SW 2"d Ave, 9th Floor Miami, FL 33130 19. MISCELLANEOUS PROVISIONS: A. This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue in any civil action between the parties shall be in Miami -Dade County, Florida. In order to expedite the resolution or conclusion of any civil action between the parties, the parties voluntarily and knowingly waive their right to demand a jury trial or to file a permissive counterclaim in any action between them. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 9 KLG: 284622: com:284622. docx 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. 20. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 21. INDEPENDENT CONTRACTOR: Provider has been procured and is being engaged to provide services to the City as an independent contractor, and not as an agent or employee of the City. Accordingly, Provider shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Provider further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Provider, and agrees to provide workers' compensation insurance for any employee 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 10 KLG: 284622: com:284622, docx 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. 26. AMENDMENT: The City Manager shall have the sole authority to amend this agreement under the conditions set forth in the Resolution. 27. SPECIAL INSURANCE AND INDEMNIFICATION RIDER: Please see attached Insurance Exhibit attached hereto and made part of this Agreement and any extension hereof. 11 KLG: 284622:com:284622.docx 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 Johnny Martinez, P.E., City Manager APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Julie O. Bru Calvin Ellis City Attorney Director Risk Management "Provider" ATTEST: Ernst & Young, LLP, a Florida limited liability partnership corporation By: By: Print Name: Print Name: Title: Title: 12 KLG: 284622: com:284622. docx SERVICES AGREEMENT OR PROFESSIONAL SERVICES AGREEMENT/ This Agreement is entered into this day of / , 2011 (but effective as of ) by and between the City of Miami, a; fnunicipal corporation of the State of Florida ("City") and Ernst & Young, LLP, a .. , limited liability partnership, ("Provider"). RECITAL . A. The City has issued a Request for'Proposals ("RFP") for the provision of External Auditing services ("Services") and Provides proposal ("Proposal"), in response thereto, has been selected as the most qualified prop9`s 1 for the provision of the Services. The RFP and the Proposal are sometimes referred to herein, collectively, as the Solicitation Documents, and are by this reference incorporated into an 4made a part of this Agreement. B. The Commissio /of the City of Miami, by Resolution No. .adopted on July 28, 20.1.1, ap i roved the selection of Provider and authorized the City Manager to execute a contract, under tl2e terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, Provider an the City agree as follows: TERMS ] . RECITALS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. 2. TERM: The term of this Agreement shall be one (1) year commencing on the effective date hereof. L 3. OPTION TO EXTEND: The City Manager shall have four (4) option(s) to e end the term hereof for a period of one (1) year each, subject to availability and approprlation of funds. 4. SCOPE OF SERVICE: A. Provider agrees to provide the Services as specifically d scribed, and under the special terms and conditions set forth in Attachment "A" hereto,,hick 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 F qualifications, licenses and expertise required under/the Solicitation Documents for the /P performance of the Services; (ii) it is not delinquent in the payment of any sums due the City, icenses, etc., nor in the performance of any to perform the Services are and shall be, at all including payment of permit fees, occupational: obligations to the City; (iii) all personnel assigned times during the term hereof, fully qualified and trained to perform the tasks assigned to each; and (iv) the Services will be performed in the manner described in Attachment "A". 5. COMPENSATION: A. The amount of .compensation payable by the City to Provider shall 'be based on the rates and schedules described in Attachment "B" hereto, which by this .reference is incorporated into this Agreement; provided, however, that in no event shall the amount of compensation exceed/$ 550,000 annually. In the absence of a duly executed amendment to this Agreement, The „City shall have no liability for payment of any compensation beyond the limitations expressed in this Section. 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 com:279633.docx 2 sufficient supporting documentation and contain sufficient detail, to allow a proper aud/t 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 1.12.061, Florida Statutes. 6. OWNERSHIP OF DOCUMENTS: Except for Provider's work papers or administrative records, which shall remain the property of Provider, Provider understands and agrees that any information, document, report or any 'other matefrial whatsoever which is given r by the City to Provider or which is otherwise obtained or piepared by Provider pursuant to or under the terms of this Agreement is and shall at all tifnes remain the property of the City, Provider agrees not to use any such information, doument, report or material for any other purpose whatsoever without the written consent ofithe City Manager, which may be withheld or conditioned by the City in its sole discretion. 7. AUDIT AND INSPECTION RIGH4S: A. The City may, at reasonAle 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 recolyds of Provider which are related to Provider's performance under this Agreement. Provide:°agrees to maintain all such books and records at its principal place of business for a peri,6d of three (3) years after final payment is made under this Agreement. B. The City may, at reasonable times during the ten' 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 com:279633.docx 3 terms hereof and/or the terms of the Solicitation Documents, if applicable. Provider shill make. available to the City all reasonable facilities and assistance to facilitate the perforrp(nce of tests or inspections by City representatives. All tests and inspections shall be subjeyt/to, and made in / accordance with, the applicable provisions of Chapter 18 of the Code/0 the City of Miami, Florida, as same may be amended or supplemented, from time to time/ s 8. AWARD OF AGREEMENT: Provider represents rid warrants to the City that it has not employed or retained any person or company emplo ed 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 aid• kind contingent upon or in connection with, the award of this Agreement. 9. PUBLIC RECORDS: Provider derstands that the public shall have access, at all reasonable times, to all documents and inf ation pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statut s, 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 t ,is section shall result in the immediate cancellation of this Agreement by the City. 10. COMPLIANCE W H FEDERAL STATE AND LOCAL LAWS: Provider understands that agreeme is between private entities and local governments are subject to certain laws and regulations, }deluding laws pertaining to public records, conflict of interest, record keeping, etc. City an/ll Provider agree to comply with and observe all applicable laws, codes and ordinances as they of ay be amended from time to time. 11. INDEMNIFICATION: Provider shall indemnify, defend, save and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnitees") and com:279633.docx 4 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 gay 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 thcrservices f, 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 activ or passive) of Provider or its employees, agents or subcontractors (collectively referred to as "Provider"), (ii) the failure of the Provider to comply with any of the paragraphs here 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 peformance of this Agreement. Provider expressly agrees to indemnify and hold harmless the 1, demnitees, or any of them, from and against all liabilities which may be asserted by an emplo ee or former employee of Provider, or any of its subcontractors, as provided above, for hick the Provider's liability to such employee or former employee would otherwise bejimited to payments under state Workers' Compensation or similar laws. This indemnification provision shall control over the Indemnification provision in the RFP and shall' survive the termination or the expiration of this f Agreement for the limitations period prescr'17ed by Florida law, This Indemnification provision shall obligate the Provider to defend (at,.fs own expense) to and through appellate, supplemental or bankruptcy proceedings, or to provide for such defense, at the City Attorney's option, any and all claims of liability and all suits, and actions of every name and description covered by this Section 11, which may be brought against the City whether performed by Provider, or persons employed or utilized by the Provider. com:279633.docx 5 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. Prior to termination of this Agreement for default, the City shall notify the Provider in writing ofj {s intent to terminate the Agreement for default, identify the alleged deficiencies in perfoiy ance 1 giving rise to the intent to terminate, and shall give the Provider thirty (30) days t9/ ure such deficiencies. Upon the occurrence of a default hereunder the City, in addition ,tb all remedies available to it by law, may following thirty (30) days from the date of th;.iwritten notice to Provider, terminate this Agreement whereupon all payments, advances,,,6r other compensation paid by the City to Provider while Provider was in default shall bee�`1 mediately returned to the City. Provider understands and agrees that termination of this Agrdement under this section shall not release Provider from any obligation ation 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 d foregoing, Pg g, 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 dages. 13. RESOLUTION OF CONTRACT DISPUTES: Provider understands and agrees that all disputes between Provider and he 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 under this section 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 com;279633,docx 6 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 i sole discretion, at any time, by giving written notice to Provider at least five (5) business day prior to the effective date of such termination. In such event, the City shall pay to Provider ompensa tion for services rendered and expenses incurred prior to the effective date of terms ation. In no event shall the City be liable to Provider for any additional compensation, other han that provided herein, or for any consequential or incidental damages. B. The City shall have the right to terms ate this Agreement, without notice to Provider, upon the occurrence of an event of default hereunder which, in the opinion of the City Commission or City Manager, is of sufficient g avity that it is necessary to protect the interests of public health, safety or general welfare/di/such event, the City shall not be obligated to pay p any amounts to Provider and Provider hall reimburse to the City all amounts received while Provider was in default under this A reement. 15. INSURANCE: Pr . vider shall, at all times during the term hereof, maintain such insurance coverage as may bb 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 notbe canceled duringthe performance of the services under 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 thc/ dispute, accompanied by all supporting documentation (90 days if City Manager's decisipfi is subject to City Commission approval); or (iii) City has waived compliance with the procedure f / com:279633.docx 7 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 rvices hereunder, provided, however, that Provider shall at any time upon request file dupl,j4'ate copies of the policies of such insurance with the City. If, in the judgment of the City, prevailing conditions warrant the provisi'on 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 t 6 requirements shall take effect. Should the Provider fail or refuse to satisfy the requiremet of changed coverage within thirty (30) days following the City's written notice, this Cont fact shall be considered terminated on the date that the required change in policy coverage wp ld otherwise take effect. All references to the City in Section 15 shall mean the City of Mia zi Risk Management Administrator. 16. NONDISCRIMINATION: Provide represents and warrants to the City that Provider does not and will not engage in discrimin/a my 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 nafional origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement, 17. ASSIGNMENT: This Agreement shall not be assigned by Provider, in whole or in part, without the prior written consent of the City Commission, which may be withheld or conditioned, in the City's sole discretion. com:279633.docx 8 18. NOTICES: All notices or other communications required under this Agreement shall A be in writing and shall be given by hand -delivery or by registered or certified U.S. Ma;l, 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: 19. MISCELLANEOUS PROVISIONS: A. This Agreement sha1J/ e construed and enforced according to the laws of the State of Florida. Venue in any civil/action between the parties shall be in Miami -Dade County, Diana Gomez, Finance Director Finance Department City of Miarzii 444 SW 2"dAve Suite 618 Miami, FL 33130 Johnn Martinez, P.E., City Manager City/off Miami 35p0 Pan American Drive I hami, FL 33133 f lJulie O. Bru, City Attorney /` City of Miami Office of the City Attorney 444 SW 2"d Ave, 9th Floor Miami, FL 33130 Florida. In order to expedite the resolution or conclusion of any civil action between the parties, the parties voluntarily and knowingly waive their right to demand a jury trial or to file a permissive counterclaim in any action between them. comm279633.docx B. Title and paragraph headings are for convenient reference and are not a part 9f this Agreement, C. No waiver or breach of any provision of this Agreement shall constitute a rsfaiver 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 cphtained in this Agreement be determined by a court of competent jurisdiction to be invalid,/llegal 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 e tent 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. 20. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives,,§uccessors, or assigns. 21. INDEPENDENT CONTRACTOR: ;r` Provider has been procured and is being engaged to provide services to the City ,,/an independent contractor, and not as an agent or employee of the City. Accordingly, P,fovider 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, com:279633.docx 10 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 ail 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 w/h, when taken together, shall constitute one and the same agreement. / 26. AMENDMENT: The City Manage shall have the sole authority to amend this agreement under the conditions set forth in the esolution. 27. SPECIAL INSURANCE AND INDEMNIFICATION RIDER: Please initial if applicable: IN WITNESS WHERE9t, 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 com:279633.docx 11 By: Priscilla A. Thompson, City Clerk Johnny Martinez, P.E., City Manager ATTEST: "Provider" a corp, ration i By: l Print Name: Print Name: ,f Title: Corporate Secretary Title: Presider{ APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS : Julie 0. Bru City Attorney com:279633.docx Cal .n Ellis A inistrator Rik Management l2