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HomeMy WebLinkAboutExhibit - AgreementPROFESSIONAL SERVICES AGREEMENT This agreement ("Agreement") entered into as of the day of 2015, by and between the Bayfront Park Management Trust ("Trust"), a limited agency and instrumentality of the City of Miami, and Sanson, Kline, Jacomino, Tandoc & Gamarra, LLP, (the "Auditor"). RECITAL WHEREAS, the Trust desires to retain Auditor's services ("Services"), defined herein, and Auditor desires to be the independent auditor of the Trust. WHEREAS, the City of Miami Purchasing Department issued on behalf of the Trust a Request for Proposal ("RFP") No. 496326, on June 24, 2015, to seek a qualified provider for external auditing services and Auditor submitted the most qualified response ("Proposal") and was selected 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 expressly incorporated into and made a part of this Agreement as if set forth in full; and, WHEREAS, the Trust at its board meeting of September 22, 2015, approved the selection of the Auditor and authorized the Trust's Executive Director (the "Executive Director") to enter into a professional services agreement. NOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations herein contained and subject to the terms and conditions herein stated, the parties hereto understand and agree as follows: 1. TERMS: The term of the Agreement shall be for three (3) year with an option to renew for an additional two (2) one-year periods. 2. SCOPE OF SERVICES: Auditor agrees to provide the Services as specifically described and subject to the terms and conditions set forth in RFP, which by this reference is incorporated into and made a part of this Agreement. At the written request of the Trust, Auditor shall perform such additional services as may reasonably be required ("Additional Services"). BPMT/2015 SKJT&G, LLP, PSA 3. COMPENSATION: 1. The amount of compensation payable by the Trust to the Auditor for the Services shall not exceed $18,000 in year one, $18,500 in year two and $19,000 for each of years three, four, and five, respectively, including fees, cost and expenses. Payment shall be made within thirty (30) days after receipt of Auditor's invoice, detailing the charges incurred during the immediately preceding month and accompanied by sufficient supporting documentation and contain sufficient detail to allow a proper audit of expenditures should the Trust require one to be performed. The Trust shall not be responsible for any of Auditor's fees, costs or expenses above each respective year as aforementioned, unless approved in advance by the Trust or its designee. 2. Compensation to the Auditor for Additional Services, if any, shall be based on an amount agreed -upon in writing at the time the Services are requested. 3. If the Auditor is entitled to reimbursement of travel expenses, then all bills for travel expenses shall be submitted in accordance with Section 112.061, Florida Statutes. 4. TRUST INSPECTION RIGHTS: For a period of three (3) years after completion of the Services authorized under this Agreement, Auditor shall make available to its successor, the Trust and the City of Miami ("City"), including its designees, the work papers, records and other evidence and documents relating to Auditor's Services and Additional Services. The Trust and the City, including its designees, shall be entitled, at any reasonable time during such three (3) year period, to inspect such documents and to reproduce the same, at its expense, and Auditor will make the provisions at the time the need for reproduction arises. 5. AWARD OF AGREEMENT: Auditor represents and warrants to the Trust that it has not employed or retained any person or company employed by the Trust 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. 6. OWNERSHIP OF DOCUMENTS: Subject to the provisions of Chapter 119, Florida Statutes, and state public records laws, the work papers for the audit engagement(s) are the property of Auditor and shall constitute confidential information. However, pursuant to Government Auditing Standards, the Auditor is required to make certain work papers available to federal and state regulatory agencies upon request for their reviews of audit quality and will provide audits and the use of their Auditors. Auditor's personnel will allow access to supervise these regulatory agencies' review the work papers. BPMT/2015 SKJT&G, LLP, PSA 7. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Auditor understands that agreements between private entities and local government are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest records keeping, etc. The Auditor agrees to comply with and observe all applicable federal, state and local laws, rules, regulations, codes and ordinances, as they may be amended from time to time. 8. INDEMNIFICATION: Auditor shall indemnify, defend and hold harmless the City of Miami and the Trust and its officials, employees and agents (collectively referred to as "Indemnities") and each of them from and against all loss, costs, penalties, fines, damages, claims, liabilities or expenses, including attomey's fees (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 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 Auditor or its employees, agents or subcontractors (collectively referred to as "Auditor"), or (ii) the failure of the Auditor to comply with any of the paragraphs herein, or (iii) the failure of the Auditor 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, or (iv) the failure of any representations or warranties of Auditor hereunder. Auditor expressly agrees to indemnify and hold harmless the Indemnities, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Auditor, or any of its subcontractors, as provided above, for which the Auditor's liability to such employee or for-rner employee would otherwise be limited to payments under state Workers' Compensation or similar laws. 9. INSURANCE: During the term of this Agreement, Auditor shall carry limits of insurance pursuant the attached Insurance Exhibit A. 10. CONFLICT OF INTEREST: A. Auditor is aware of the conflict of interest laws of the City of Miami (City of Miami Code, Chapter 2, Article V), Dade County Florida (Dade County Code, Section 2-11.1 et. seq.) and of the State of Florida as set forth in the Florida Statutes and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. B. Auditor covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Agreement, has any personal financial interests, direct or indirect with Trust. Auditor further covenants that, in the performance of this Agreement, no person or entity having such conflicting interests shall be BPMT/2015 SKJT&G, LLP, PSA utilized in respect to Services provided hereunder. Any such conflict of interest(s) on the part of Auditor, its employees or associated persons or entities must be disclosed in writing to the City. 11. DEFAULT: If Auditor fails to comply with any term or condition of this Agreement or fails to perform any of its obligations hereunder, then Auditor shall be in default. Upon the occurrence of a default hereunder, the Trust, in addition to all remedies available to it by law, may immediately, upon written notice to Auditor, terminate this Agreement. Whereupon all payments, advances or other compensation paid by the Trust to Auditor while Auditor was in default shall be immediately returned to the Trust. Auditor understands and agrees that termination of this Agreement under this section shall not release Auditor from any obligation accruing prior to the effective date of termination. 12. TRUST'S TERMINATION RIGHTS: The Trust shall have the right to terminate this Agreement, in its sole discretion, at any time, by giving written notice to Auditor at least five (5) business days prior to the effective date of such termination. In such event, the Trust shall compensate Auditor for the Services rendered and expenses, fees and cost incurred prior to the effective date of termination. In no event shall the Trust be liable to Auditor for any additional compensation, other than that provided herein, or for any consequential or incidental damages. Additionally, the Trust shall have the right to terminate this Agreement, without notice or liability to Auditor, upon the occurrence of an event of default. In such event, the Trust shall not be obligated to pay any amounts to Auditor and Auditor shall reimburse to the Trust all amounts received for Services provided while Auditor was in default under this Agreement. 13. ASSIGNMENT: Auditor shall not assign this Agreement, in whole or in part, without the prior consent of the Trust, which may be withheld or conditioned, in the Trust's sole discretion. 14. NOTICE: 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 below 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. BPMT/2015 SKJT&G, LLP, PSA AS TO TRUST: Timothy F. Schmand Executive Director Bayfront Park Management Trust 301 N. Biscayne Boulevard Miami, Florida 33132 WITH A COPY TO: Victoria Mendez City Attorney City of Miami 444 SW Second Avenue, 9t1i Floor Miami, Florida 33132 AUDITOR: Richie C. Tandoc Partner Sanson, Kline, Jacomino, Tandoc & Gamarra LLP 5805 Blue Lagoon Drive, Suite 220 Miami, Florida 33126 15. MISCELLANEOUS PROVISIONS: A. This Agreement shall be constructed and enforced according to the laws of the State of Florida B. Title and paragraph heading 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 City of Miami or State of Florida, such provisions, 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. 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. The Auditor may ask the Trust to sign an Engagement Letter, which may/will be known as Exhibit B. F. 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 representative of the parties hereto. G. In the event of a conflict between the terms of the Agreement and the exhibits, interpretation of the Agreement shall control. BPMT/2015 SKJT&G, LLP, PSA 16. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 17. INDEPENDANT CONTRACTOR: Auditor has been procured and is being engaged to provide Services to the Trust as an independent contractor and not as an agent or employee of the Trust. Accordingly, Auditor understands that Florida Workers' Compensation benefits available to employees of the Trust are not available to Auditor and agrees to provide workers' compensation insurance for any employee or agent of Auditor rendering Services to the Trust under this Agreement. 18. 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 this date. Any prior agreements, promises, negotiations, or representations, not expressly set forth in this Agreement, are of no force or effect. 19. 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. 20. NONDISCRIMINATION: Auditor hereby represents and warrants that all of its employees are treated equally during employment without regard to race, color, sex, religion, creed, ancestry, national origin, age, disability, marital status or sexual orientation. 21. AUTHORITY TO PRACTICE: Auditor hereby represents and warrants that it has and will continue to maintain all licenses and approvals required to conduct its business, and that it will at all times conduct its business in a reputable manner. Proof of such licenses and approvals shall be submitted to the Trust's representative upon request. (Signature page follows) BPMT/2015 SKJT&G, LLP, PSA 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. Witness: For Auditor Sanson, Kline, Jacomino, Tandoc & Gamarra. LLP Name Richie C. Tandoc, Partner Witness: For Bayfront Park Management Trust Jose Gell Timothy F. Schmand Administrative Officer Executive Director Approved as to Insurance Approved as to Form and: Requirements: Correctness Anne Marie Sharpe, Director, Risk Management Victoria Mendez City Attorney BPMT/2015 SKJT&G, LLP, PSA PARTNERSHIP RESOLUTION Whereas, Sanson, Kline, Jacomino, Tandoc & Gamarra, LLP, desires to enter into an Agreement with the Bayfront Park Management Trust substantially in the form of the agreement to which this Resolution is attached; Whereas, the Partners of Sanson, Kline, Jacomino, Tandoc & Garnarra, LLP, at a duly held meeting has considered the matter in accordance with the By -Laws of the Partnership; NOW, THEREFORE, BE IT RESOLVED BY THE PARTNERS that this partnership is authorized to enter into the Agreement with the Bayfront Park Management Trust and Richie C. Tandoc is hereby authorized and directed to execute the Agreement in the name of this Partnership and to execute any other documents and perform any acts in connection therewith as may be required to accomplish its purpose. BY: IN WITNESS WIIEREOF, this day of 2015. BY: BPMT/2015 SKJT&G, LLP, PSA EXHIBIT A INSURANCE REQUIREMENTS -PROFESSIONAL SERVICES AGREEMENT SHARPTON, BRUNSON & COMPANY I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit S 2,000,000 Personal and Adv. Injury S 1,000,000 Products/Completed Operations $ 1,000,000 B. Endorsements Required City of Miami listed as additional insured Bayfront Park Management Trust listed as an additional insured Contingent & Contractual Liability Premises and Operations Liability Primary and non contributory liability endorsement II. Business Automobile Liability 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 Bayfront Park Management Trust listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation Employer's Liability BPMT/2015 SKJT&G, LLP, PSA 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 51,000,000 Retro Date Included The above policies shall provide the City of Miami with written notice of cancellation or material change from the 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. BPMT/2015 SKJT&G, LLP, PSA