Loading...
HomeMy WebLinkAboutExhibitPROFESSIONAL SERVICES AGREEMENT This Agreement ("Agreement") is entered into this day of , 2014 (but effective as of , being the "Effective Date") by and between the City of Miami, a municipal corporation of the State of Florida whose address is 444 SW 2" d Avenue, 10th Floor, Miami, Florida 33130 ("City") and BMG Money, Inc. ("BMG" or "Provider").), a Delaware corporation authorized to transact business in Florida, whose address is 1221 Brickell Avenue, Suite 1170, Miami, Florida 33131. RECITALS: A. The City has issued a Request for Proposal ("RFP") No, 391314 for the provision of an Employee Voluntary Loan Program ("Services") and Provider's proposal ("Proposal"), in response thereto, has been selected as the most qualified proposal for the provision of the particular services under the Specifications/Scope of Work (hereinafter collectively referred to as 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. In the event of a conflict between this Agreement and the Solicitation Documents this Agreement will prevail. B. After review and consideration by the Evaluation Committee, Provider's proposal was recommended by the Evaluation. Committee and the City Manager, the Commission of the City of Miami, by Resolution No, , adopted on , 2014, 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, 10 / C. The Effective Date as stated above, unless otherwise communicated by the City to Provider, shall be on the first day of the calendar month following the month in which this Agreement was approved and executed. 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 be two (2) years commencing on the effective date hereof. 3. OPTION TO EXTEND: The City shall have one (1) 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 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. S. COMPENSATION: A. The amount of $0.00 in compensation shall be payable by the City to Provider. There shall be no compensation, fee, charge, cost or expenditure of any kind to the City arising or connected to this Agreement. 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 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 thereafter the expiration/termination of 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 thereafter expiration/termination of this Agreement. All audits shall be subject to, and made in accordance with, the provisions of Section 18--102 of the Code of the City of Miami, Florida, as same may be amended or supplemented, from time to time, 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 18-101 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. 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 destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements ; (5) All electronically stored public records must be provided to the City in a format compatible with the City's information technology systems 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 Fair Credit Reporting Act., consumer protection, 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 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 . in 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, codes, 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, 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 subinitting 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 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, for convenience, by giving written notice to Provider at least five (5) business days prior to the effective. date of such 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, The Provider shall have no recourse from such a termination. B. The City shall have the right to terminate this Agreement, with notice to Provider, as set forth in Section 12, upon the occurrence of an event of default hereunder. 15. INSURANCE: Provider shall, at all times during the term hereof, maintain such insurance coverage in accordance to Attachment C. 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. 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. 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 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: • Thomas C. McCormick Chief Operating Officer BMG Money, Inc. 1221 Brickell Avenue, Suite 1170 Miami, FL 33131 19. MISCELLANEOUS PROVISIONS: A. of Florida. B. TO THE CITY: City Mana er 444 SW 2" Avenue, 10th Floor Miami, Florida 33130 With copies to: City Attorney 444 SW 2" d Avenue, Suite 945 Miami, Florida 33130 This Agreement shall be construed and enforced according to the laws of the State Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use, E. This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto. 20. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 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 is subject to amendment or termination due to lack of funds, reduction of funds and/or change in laws, ordinances, codes, regulations, upon thirty (30) days notice to Provider. The Provider shall have ' no recourse from such a termination. 23. REAFIRMATION OF REPRESENTATIONS: Provider hereby reaffirms all of the representations contained in the Solicitation Documents. 24. ENTIRE AGREEMENT: This instrument an.d 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. CITY NOT LIABLE FOR DELAYS: Provider hereby understands and agrees that in no event shall the City be liable for, or responsible to Provider or any subcontractor, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) in work herein provided for, or any damages whatsoever related thereto, because of any injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over which the City has no control. 27. USE OF NAME: Provider understands and agrees that the City is not engaged in advertising, sales promotion, or other publicity purposes relative to this Agreement, The Provider is an independent contractor not related or affiliated with the City. No advertising, sales promotion, or other publicity materials containing information obtained in connection with the RFP or this Agreement are to be mentioned by Provider or its employees providing Services related to this Agreement, or imply the name , municipal palm tree logo, likeness or other symbol of the City, without prior express written permission of the City Commission. 28. SPECIAL INSURANCE AND INDEMNIFICATION RIDER: Please initial if applicable: ATTACHMENT A SPECIFICATIONS / SCOPE OF WORK Provider agrees to provide the Services as specifically described, and under the same terms and conditions, as set forth immediately below: 1. Provider shall charge a fixed interest rate of 23 .99% hereby replacing the potential interest rates reflected in Provider's proposal.. Additionally, Provider's initial one-time processing fee shall not exceed the amount of $25,00. 2. Provider shall provide all employee applicants with FDIC issued financial education concerning debt management and instruction on responsible borrowing as a prerequisite for consideration for a loan and, upon the City's request, will need to provide proof of the same, 3. Provider shall not conduct any marketing of any kind targeted at the City's employees. Additionally, the only information Provider shall make available to the City's employees shall be at the City's request and pursuant to the City's prior consent. 4. When processing a loan application, Provider shall verify the employee applicant's employment with the City (inclusive of date of employment or salary/gross pay) using a City communicated census file and payroll calendar, or the City's Human Resources Department ("HR") shall confirm the employment for the Provider using a list of enrollees, whichever the City deems in its best interest. 5. Once the employee applicant is approved, the Provider shall provide the approved loan amount in the form of a check sent via U.S. mail or a direct deposit. In no event, shall Provider request the employee applicant's bank account information. 6. Provider shall provide the City with signed payroll deduction authorizations ("PDAs") for each and every employee applicant granted a loan. 7. Upon an employee applicant's resignation/termination from employment with the City, the Provider shall have no rights to the final benefits the City may owe that employee applicant. 8. The City shall bear absolutely no cost, liability, or risk, from the Provider's implementation or operation of this employee voluntary loan program. The City shall not be a guarantor or secondarily liable in any manner for the repayment of Provider's loans, and responsibility for all such loans shall be strictly and solely the Provider's and the employee applicant's. Provider shall assume any and all liability associated with all such loans, inclusive of loans pertaining to employee applicants no longer in the City's employment, whether due to resignation, termination, or otherwise. All such other terms and conditions and specifications/scope of work not expressly addressed above shall remain the same as reflected herein the Solicitation Documents in Attachment B. ATTACHMENT B SOLICITATION DOCUMENTS Included herein are the following: 1, Request for Proposals (RFP) No. 392314 for an Employee Voluntary Loan Program 2. BMG Money, Inc. proposal 3. BMG Money, Inc, Payroll Deduction Promissory Note 4. BMG Money, Inc. Payroll Deduction Authorization Form 5, BMG Money, Inc, Participant Guide ATTACHMENT C INSURANCE REQUIREMENTS -PROFESSIONAL SERVICES AGREEMENT EMPLOYEE VOLUNTARY LOAN PROGRAM I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence . General Aggregate Limit Personal and Adv. Injury Products/Completed Operations B. Endorsements Required City of Miami listed as additional insured Contingent & Contractual Liability Premises and Operations Liability Primary Insurance Clause Endorsement II. Business Automobile Liability $1,000,000 $ 2,000,000 $ 1,000,000 $ 1,000,000 A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Owned/Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit IV. Professional Liability/Errors and Omissions Coverage Combined Single Limit Each Claim $1,000,000 General Aggregate Limit $1,000,000 Retro Date Included The above policies shall provide the City of Miami with written notice of cancellation or material change from th.e insurer in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 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 B. Hannon, City Cleric Daniel J. Alfonso, City Manager "Provider" ATTEST: BMG Money, Inc., a corporation authorized to do business in Florida Print Name: Title: Corporate Secretary By: Print Name: Title: President or other Authorized Corporate Officers APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez City Attorney Ann -Marie Sharpe Risk Management Attach Corporate Resolution authorizing the signatory of Provider to sign this Agreement and bind Provider.