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HomeMy WebLinkAboutExhibit - AgreementRevised Draft PROFESSIONAL SERVICES AGREEMENT This Professional Services Agreement ("Agreement") is entered into this day of , 201_ (but effective as of , being the "Effective Date") by and between the City of Miami, a municipal corporation of the State of Florida, whose principal address is 3500 Pan American Drive, Miami, Florida 33133 ("City") and , an corporation, whose principal address is ("Provider"). RECITAL A. The City has issued a Request for Qualifications and all Addenda thereto No. 414312 ("RFQ") for the provision of Municipal Bond Underwriting Services (collectively, "Services") and Provider's proposal ("Proposal"), in response thereto, has been selected as one of the most qualified proposals for the provision of the Services as may be needed from time to time by the City. The RFQ, including all Addenda thereto, 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. The order of precedence whenever there is conflicting or inconsistent language between documents is as follows: (1) Professional Services Agreement with the Scope of Work and all Exhibits and other relevant Agreements expressly referenced and identified herein Exhibits; (2) Addenda/Addendurn to the Request for Proposals; (3) Request for Proposals; and (4) Provider's response to the Request for Proposals. ijj: Revised Draft 498497 1 B. After review, consideration, and recoinmendation by the Evaluation Conunittee, Provider was one of the Municipal Bond Underwriting Firms ("Underwriting Finns") recommended by the City Manager and accepted and approved by the City Commission by Resolution No. - , adopted on , 2014 ("Authorizing Resolution"). C. The Authorizing Resolution also authorized the City Manager from time to time on an as -needed to execute one or more Professional Services Agreement(s), in a form substantially as attached to the Authorizing Resolution, with the Underwriting Finns, and the City now desires to enter into this Agreement with Provider under the terns and conditions and for the particular municipal bond financed project(s) related Services as 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 particular project(s) related Services are hereby incorporated into, made a 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". The Authorizing Resolution is hereby incorporated into, made a part of this Agreement, and attached hereto as "Attachment C". Provider's corporate resolution or other corporate authorization to enter into this Agreement with the City is hereby incorporated into, made a part of this Agreement, and attached hereto as Attachment "D". ijj: Revised Draft 498497 2 2. TERM: The term of this Agreement shall be for three (3) years with an option for two (2) additional one (1) year periods commencing on the Effective Date. 3. OPTION TO EXTEND: The City shall have two (2) option(s) to extend the terra hereof for a period of one (1) year each, subject to availability and appropriation of funds. City Commission approval shall not be required as long as the total extended term does not exceed five (5) years and additionally as long as the amount of compensation does not exceed any municipal bond financing parameters set forth in the City's related bond issuance authorization resolution(s). 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; (iv) the Services will be performed in the manner described in Attachment "A"; (v) each person executing this Agreement on behalf of Provider has been duly authorized to so execute the same and fully bind Provider as a party to this Agreement; and (vi) throughout the term of this Agreement and any ijj: Revised Draft 498497 3 renewal(s) hereof, Provider shall conduct its Services to the City in accordance with good faith and fair dealing. 5. COMPENSATION: A. The amount of compensation payable by the City to Provider shall be based upon Provider's proposed competitive rates at the time that the as -needed related Services are solicited by the City; provided, however, that in no event shall the amount of compensation for any particular Services exceed any amount(s) set forth in the bond authorizing resolution for any particular municipal bond financing as set forth in Attachment "E", attached, incorporated hereby and made a part hereof. B. Unless otherwise specifically provided in Attachment "E" for any particular municipal bond financing Services, payment shall be made within forty-five (45) days after receipt of Provider's proper invoice, as that term is defined by the Local Government Prompt Payment Act, Section 218.70, et. seq., Florida Statutes, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should City require one to be performed. If Provider is entitled to reimbursement of travel expenses (i.e., Attachment "E" includes travel expenses as a specific item of compensation), then all bills for travel expenses shall be submitted in accordance with Section 112.061, Florida Statutes. 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 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 ijj: Revised Draft 498497 4 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 place of business for a period of three (3) years after final payment is made under this Agreement. All audits shall be subject to and made in accordance with the provisions of the Code of the City of Miami, Florida, as same may be amended or supplemented from time to time ("City Code"). B. The City may, at reasonable times during the tern 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 terns 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 the City Code. 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 it Revised Draft 498497 5 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 shall additionally comply with Section 119.0701, Florida Statutes, including without limitation : (1) keep and maintain public records that ordinarily and necessarily would be required by the City to perform this Service; (2) provide the public with access to public records on the same terms and conditions as the City would at the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that public records that are exempt or confidential and exempt from disclosure are not disclosed except as authorized by law; (4) meet all requirements for retaining public records and transfer, at no cost, to the City all public records in its possession upon termination of this Agreement and any renewals hereof, and destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements; and (5) provide all electronically stored public records to the City in a format compatible with the City's information technology systems. Provider's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement and any renewal(s) hereof 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, codes, rules and regulations, including, without rjj: Revised Draft 498497 6 limitation, laws pertaining to public records, conflicts 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, and hold harmless the City and its officials, employees and agents (collectively referred to as "Indernitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney fees) or liabilities (collectively referred to as "Liabilities") arising out of, resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this Agreement and any renewal(s) hereof 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 its is, or is alleged to be, caused in whole or in part (whether joint, concurrent, or contributing) by any act, omission, default, or negligence (whether active or passive) of the Indemiitiees, or any of them, or (ii) when the services provided contain professional error(s), omission(s), or negligence on the part of the Provider or its employees, agents or subcontractors (collectively referred to as "Provider") or (iii) the failure of the Provider to comply with any of the paragraphs herein or to conform to statutes, ordinances, legal codes, contract requirements, other regulations of any governmental authority, federal, municipal or state, in connection with the performance of this Agreement and any renewal(s) hereof. Provider expressly agrees to indemnify, defend, and hold harmless the Indemnities, or any of them, from and against all liabilities which may be asserted by any o.f Provider's employees or former employees, or any of Provider's subcontractors for ijj: Revised Draft 498497 7 which Provider's liability to such employee, former employee, or subcontractor would otherwise be limited under state law, including Workers' Compensation or similar laws. 12. DEFAULT: If Provider fails to comply with any term or condition of this Agreement including any renewal(s) hereof, or fails to perform any of its obligations hereunder or thereunder, then Provider shall be in default. Upon the occurrence of a default hereunder or thereunder, the City, in addition to all remedies available to it by law, may immediately, upon written notice to Provider, terminate this Agreement or any renewal(s) hereof, 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 and of any renewal(s) hereof 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 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 terns of this Agreement or of any renewal(s) hereof 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 rjj: Revised Draft 498497 8 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 (a period of ninety (90) days shall apply, however, if the City Manager's decision is subject to City Commission approval); or (iii) City has waived compliance with the procedure set forth in this section by written instruments, signed by the City Manager. 14. CITY'S TERMINATION RIGHTS: A. The City shall have the right to terminate this Agreement and any renewal(s) hereof, 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, or expenses, other than that provided herein, or for any consequential or incidental damages. Provider shall have recourse against the City for a termination under this Section except to be paid any compensation for services incurred and due prior to the date of termination. B. The City shall have the right to terminate this Agreement and any renewal(s) hereof, 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 or any renewal(s) hereof. rjj: Revised Draft 498497 9 15. INSURANCE: Provider shall, at all times during the term of this Agreement and any renewal(s) hereof, maintain insurance coverage(s) and limits of insurance in accordance to Insurance Exhibit C. All such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage(s) 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 Agreement and any renewal(s) hereof 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. If, in the judgment of the City, prevailing conditions warrant the provision by Provider of additional liability insurance coverage(s) 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 kinds 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(s) within thirty (30) days following the City's written notice, this Agreement and any renewal(s) hereof 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 rjj: Revised Draft 498497 10 account of race, color, sex, religion, age, disability, marital status, sexual orientation, or national origin. Provider further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, disability, marital status, sexual orientation, 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, to any other Underwriting Finn selected pursuant to the City's Authorizing Resolution for the RFQ 414312 process without the prior review of the form of Assignment by the City Manager and City Attorney and the prior written consent of the City Manager, which may be withheld or conditioned, in the City Manager's sole discretion. This Agreement shall not be assigned at r all to any Underwriting Finn not selected pursuant to the City's Authorizing Resolution for the RFQ 414312 process. 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 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: Daniel J. Alfonso City Manager 3500 Pan American Drive Miami, Florida 33133 ijj: Revised Draft 498497 11 Victoria Mendez City Attorney 444 SW 2nd Avenue, 91h Floor Miami, Florida 33130 Jose M. Fernandez Finance Director City of Miami 444 SW 2nd Avenue, 6th Floor Miami, Florida 33130 19. MISCELLANEOUS PROVISIONS: A. This Agreement and any renewal(s) hereof shall be construed and enforced according to the laws of the State of Florida. Venue in all proceedings shall be in Miami -Dade County, Florida and the parties agree to the use of this venue. In any civil action or other proceedings between the parties arising out of the Agreement or any renewal(s) hereof, each party shall bear its own attorney's fees, costs, and expenses including those related to paralegals.. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement and any renewal(s) hereof. C. No waiver or breach of any provision of this Agreement or any renewal(s) hereof 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 or any renewal(s) hereof, as applicable, 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 rjj: Revised Draft 498497 12 laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement or any renewal(s) hereof, as applicable, 'shall remain umnodified and in full force and effect or limitation of its use. E. This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto. 20. SUCCESSORS AND ASSIGNS: This Agreement and any renewal(s) hereof, as applicable, 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 or any renewal(s) hereof, as applicable,. 22. CONTINGENCY CLAUSE: Funding for this Agreement or any renewal(s) hereof, as applicable, is contingent on the availability of funds and continued authorization for program activities and the Agreement and any renewal(s) hereof, as applicable, are subject to amendment or termination due to lack of allocated and available rjj: Revised Draft 498497 13 funds, reduction or discontinuance of funds or change in laws, codes, rules, policies or regulations, upon thirty (30) days notice. 23. REAFFIRMATION 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 and any renewal(s) hereof may be executed in three (3) or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. 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: Todd Hannon, City Clerk Daniel J. Alfonso, City Manager "Provider" ATTEST: , a corporation Print Name: Title: Company Secretary By: Print Name: Title: President ijj: Revised Draft 498497 14 APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez City Attorney Ann -Marie Sharpe, Director Risk Management APPROVED BY FINANCE DEPARTMENT: Jose M. Fernandez, Director ijj: Revised Draft 498497 15 ATTACHMENT A Reference Sections 1 and 4 of Agreement and Section 3 of RFQ No. 414312 PARTICULAR PROJECT SERVICES REQUIREMENTS (From RFQ No. 414312 and as needed for specific project) Specific Services required to be attached and incorporated at time of Agreement execution. ijj: Revised Draft 498497 16 ATTACHMENT B The Solicitation Documents are hereby incorporated into, made a part of this Agreement upon execution. ijj: Revised Draft 498497 17 ATTACHMENT C City's Authorizing Resolution No. R- , adopted , 2014 to be attached upon Agreement execution. ijj: Revised Draft 498497 18 ATTACHMENT D Provider's corporate resolution or other corporate authorization to enter into this Agreement to be attached with Agreement execution. rjj: Revised Draft 498497 19 ATTACHMENT E Compensation for particular project(s) Services to be determined in connection with particular project at time of as -needed municipal bond financing and in accordance with related bond issuance authorizing resolution ijj: Revised Draft498497 20 ATTACHMENT F Insurance Requirements to be included upon document execution ijj: Revised Draft 498497 21 Example: CORPORATE RESOLUTION WHEREAS, ("Provider") wishes to enter into a Professional Services Agreement ("Agreement") with the City of Miami ("City"); WHEREAS, the Board of Directors, at a duly held meeting of the Provider has considered the matter in accordance with the By -Laws of the Corporation; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS that this corporation is authorized to enter into the Agreement with the City, and the President and the Secretary are hereby authorized and directed to execute the Agreement in the name of this Corporation and to execute any other document and perform any acts in connection therewith as may be required to accomplish its purpose. IN WITNESS WHEREOF, this day of , 20_. , ("Provider") An (State) Corporation By: (sign) Print Name: TITLE: (sign) Print Name: Corporate Secretary rjj: Revised Draft 498497 22