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HomeMy WebLinkAboutBack-Up DocumentsErica Paschal Finance Director City ofMiami, Florida 444GVV2"«Avenue, 8mFloor Miami, FL33130 Dear Ms. Paschal: We are enthusiastic about the prospect of serving you and City of Miami, Florida The purpose ofthis engagement letter ("EngogementLetter")istodocument yo US LLP, an Iowa limited liability partnership ("RSM," "we," "us" or "our") to con consulting services. Services and Scope mfWork The scope of our services (the ^Sarvices")will be boaccounting orother consulting services aomn work (each a "Statement of Work" or "SOW"),-0 quest and, described i Our work will be to assist and advise yo,! h'it project; as does Client doovouoh�pe�onnany en functi- s.rn perform mocapacity equivalent to that ofonemployee m The procedures bnbeperformed will not constitute financial statements orany part thereof, nor thae concerning the effectiveness u/the Client's /nzer lawo.regulationa.orothermatteno.According8 expression ofanopinion orany other form ,,of99,§ thereof, nor anexternal opinion orany utk-"-~~ dacomp|iononwithlaxws,nagulabuno. Client Acceptance ofWork ' ` hedbelow aft. �amanaO�md er of Client.' RSMUsLLP Kirk Rogers Punner N�m8 a�gmmue�m T+1 571 3414142 �"you" or "your"). and assist you with d relates tement of wnw�|not.nor ^'�� . � ��ecmmno.oromenwmm pompilation of the Client's _nngementeaaoertionn r tro examination u[compliance with �-performar%f the procedures will not result in the rance on t rit's financial statements or any part ofaoourmn`,cztheClient's internal control systems or �d�0�motb»rs. ji � Atthe conclusion ofeach 'wewill nd deliverables set out in this c t ondth'�e8 expectations. If you days ofreceiving the delivera s that they dotime, based upon its sel before acceptance o deliverables wiKAc �|examinet'As. hbyou the intended scope ofwork and OWs to confirm we have met the defined project briform, you will notify us in writing within thirty (30) conform. VVawill then have oreasonable period nf itvand complexity, tocorrect the nonconformity. |fyou use the deliverables 'fail to notify us of the nonconformance within the thirty (30) day period, the erodaccepb*d. THE POWER OF BEING UNDERSTOOD AUDIT I TAX I CONSULTING Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 2 of 18 Staffing Kirk Rogers will be responsible for overseeing the engagement and the delivery of all services to you. Other professionals at the necessary skill and experience levels may be called upon to assist in this project as appropriate. While we will attempt to comply with your requests for certain individuals, we retain the right to assign and reassign our personnel, as appropriate, to perform the services. Our personnel shall observe your confidentiality, code of conduct, or other reasonable policie working conditions and business hours, to the extent our personnel are made aware of s responsibility for the refusal of any personnel to observe such policies shall be our atte with replacement personnel. If for any reason any of our personnel are unable to compl period or his/her performance does not meet your expectations, we will attempt to provide replacement. Engagement Assumptions and Client Responsibilities Our services, fees and work schedule are based upon the following assum information supplied by you. Client will determine the extent of services it wish to provide to key people and data. If circumstances arise relating to the availabil o'ufficient, our professional judgment, prevents us pleting the take any course of action permitted to u":, `ding withdrawal In the event we are requested or authorized by Client subpoena or other legal process to produce our doc our engagements for Client, Client will, so long as information is sought, reimburse us for our prof expenses of our counsel, incurred in respondi You agree to furnish personnel, facilities a Engagement Letter. You also agree to cad fully and timely with us. You will desi! who will make or obtain all manage also agree that all assumptions with such further information we will be entitled to rely on al obligated to evaluate, advi adequacy and results of, ing s. Our ish you service suitable epresentatns and ure our com as access t evidence gement, w m the e quired by go or our per not a part time and e uch requ rmation which, in unilateral right to ent regulation, el as witnesses with respect to proceeding in which the s, including the fees and ake the responsibilities set forth in this ployees and contractors to cooperate loyees within your senior management ect to this engagement on a timely basis. You Letter are accurate and agree to provide us can rely on to be accurate and complete. We ovals made independently, and we will not be ch decisions and approvals. You will evaluate the ow immediately of any problems or issues you perceive in our personnel, servic or deliverables. We will also let you know where we feel we are not getting the appropriate coopers + ` . irection and advise you of any other issues related to this engagement. The success of this , gay -,,-nt is dependent upon full openness, communications, cooperation and timely direction. The f " ent of these responsibilities is critical to the success of this engagement. The successful delivery ° f our services, and the fees charged, are also dependent on your timely and effective completion of your responsibilities, the accuracy and completeness of the assumptions, and timely decisions and approvals by your management. You will be responsible for any delays, additional costs, or other liabilities caused by or associated with any deficiencies in the assumptions or in carrying out your responsibilities. ervi ources, and levels of n employ ecisions wi in this En eed and w ecisionsan� onfirm or and will let us Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 3 of 18 In connection with the performance of these services, Client agrees to make all management decisions and perform all management functions; designate an individual who possesses suitable skills, knowledge, and/or experience, preferably within senior management, to oversee such services; evaluate the adequacy and results of the services performed; accept responsibility for the results of the services; establish and maintain internal controls, including monitoring ongoing activities. We will not pe management functions, make management decisions, or otherwise perform in a capacity equi that of an employee or officer of Client. Additional Understanding Arising from the Performance of Attest Services by RS Government Auditing Standards (GAS) require that the auditor maintain independence so opinions, findings, conclusions, judgments and recommendations will be impartial and viewed partial by reasonable and informed third parties. Before we agree to provide a non -audit se you, we determine whether providing such a service would create a significant threat to off. -pendence for GAS audit purposes, either by itself or in aggregate with other non -audit servi•e :vided. Another critical component of our determination is consideration of management's c effectively •versee the non -audit services to be performed. Client agrees to designate an individu •;•e document °i� each Statement of Work, who possesses suitable skill, ; n ledge or experie • that the i understands the Services to be performed suffici ° versee the GAS further requires that we establish an undi with governance, the objectives of the non -au acceptance of its responsibilities, the a services. We believe this letter combine ing with Cli ices, th ponsibiliti ach Statement n °W nagemen to be perfo d any Iimita Work do rn is those charged he entity's e non -audit at understanding. In connection with the performance of these Services, grees to ma management decisions and perform all management functions; and establis aintain int F-1 controls, including monitoring ongoing activities. We will not perform any manag unctions m - anagement decisions, or otherwise perform in a capacity equivalent to tit employee =r of Client. In the event we obtain any nonpublic, perso during this engagement, we will use such it Engagement Letter and will keep such in Section 1 of the General Business T protect against the loss, misuse, alt (which safeguards include policie notify you after learning of any Fees and Expenses Unless otherwise agre upon in the applicable tatement of Work, the fees for our services described in this Engagement Let ~ - any applicable Statement of Work will be based upon actual time and materials at the ens .sourly rate as presented in the separately executed Statement of Work. In addition to our yo ` will be billed for (a) directly billed expenses, including report processing, travel, meals, fees and a nses for services from other professionals, and for services provided by our subcontractors, as well as (b) a charge of 5% of fees for all other expenses, including indirect administrative expenses such as technology, research and library databases, communications, photocopying, postage and clerical assistance. entifiable in tion, if at al ion confide e have inld or destruct e disposa breach tha tion regarding any of your customers or the purposes described in this accordance with the provisions of ed commercially reasonable safeguards to or unauthorized access to such information c n of such information), and will promptly omises such information. Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 4 of 18 You acknowledge that this is our good faith estimate based upon our understanding of the engagement assumptions and the facts and circumstances we are aware of at this time. If the basis of our estimates is inaccurate, the fees and expenses may be different from those we each anticipate. Fees for services of this type are always difficult to estimate. If circumstances are encountered that ect our ability to proceed according to the plan outlined above, such as major scope changes, Toss Client personnel, unavailable information, or undetermined or requested scope changes durin scoping efforts, we will inform you promptly and seek your approval for any changes in scop #irrig or fees that may result from such circumstances. We will bill our fees and expenses monthly. Those fees and expenses do not include taxe . ou will be responsible for and will pay all applicable sales, use, excise, value-added and other s associated with the provision or receipt of the services and deliverables, excluding taxes on our in � enerally. Our invoices are payable upon presentation. We reserve the right to charge interest . = invoice that is not paid within 30 days of the invoice date. If you object to any portion of an invoi will notify us of your objection within 10 days of the date of the invoice, and the parties will prom e a good f-ith effort to settle the disputed portion of the invoice. You will in any event, pay the po f the invoice is not in dispute within such 30-day period. We reserve th t to suspend or t - e services oices are not timely paid, in which event we will not be I a any resulting damage or connected with such suspension or termination. General Business Terms and Project A The General Business Terms apply to t indicate your agreement to these arrange Engagement Letter. gement and ar.. n Integra of°ur agreement. Please s by signinid returning me enclosed copy of this We appreciate the opportunity to be of service to y You will receive our closest attention. If at anyim services, billings or anything else related to o Sincerely, RSM US LLP By: Kirk Rogers Partner Attachments: Gen-:,°_siness Terms look forwar have que r ice, please call orking with you on this project. ncerns, or issues with our t +1 571 341 4142. This Engagemen ` tter and the General Business Terms correctly set forth our understanding and acceptance of this agreement. Acknowledged and accepted: Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 5 of 18 City of Miami, Florida By: Date: Erica Paschal, Finance Director FEIN/TAX ID Number: ACKNOWLEDGED BY: By: Bob Feldman, Lead Audit Partner ACKNOWLEDGED BY THOS WITH GOVERNANCE: GED Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 6 of 18 General Business Terms These General Business Terms (the "Terms") will govern the services provided by RSM as described in the Engagement Letter executed by Client and RSM in which these Terms are included. These Ter s, together with the Engagement Letter and any of its attachments or related Statements of Work, cons Lute the entire understanding and agreement between Client and RSM with respect to the services in the Engagement Letter (collectively, the "Agreement"), supersede all prior oral and written communications, and may be amended, modified or changed (including changes in scop services or fees) only in writing when signed by both parties. If there is a conflict betwe and the terms of the Engagement Letter, these Terms will govern. RSM and Client are herein referred to as a "Party" and collectively, the "Parties." 1. The Services 1.1. Scope. RSM will furnish to Client the Services described in the scope of work section of the Engagement Letter executed by RSM and Client in which these terms are included and incorporated or a Statement of Work which refers to and incorporates these terms. AIL references to Statement of Work hereu also include the Scope of Work containe separately executed Engagement Letters. -ch Statement of Work will specify, as may be appropriate under the circumstances: (i) the specific Services to be furnished by RSM; (ii) the scope and approach to the Services; (iii) a description of any actions, input or obligation Client upon which RSM's performance of t Services is dependent; (iv) a mutually agree upon performance schedule relating tosu Services; (v) the applicable fees relax (vi) staffing and, if applicable, use of subcontractors; and (vii) any ode cable terms and conditions. In eac nt of Work, each Party will desi at roject Manager/Lead" who will be incipal poi' contact between the Par:. relating to the Services Statement of Work. designated "Pr notice to the oth arty. les fo all matters vided under such arties may change the ger/Lead" upon written 1.2. Timetable. Each Party will use commercially reasonable efforts to adhere to the time table set forth in the applicable Statement of Work. Each Party will promptly notify the other Party of any circums be anticipated or may lead to a ma .3. additiona reques ch RS of the eat erms times s that may reasonably iefi it become. aware that delay. Chi rders. Clie t quest or modif t s 'the rvices by de a written or request to a3 In the event that ceives a chm r request, RSM will term the co arrdr schedule impact, if of the requ ted ange, and provide to lint a proposal change order ("Change der"). Eac ange Order will be effective when sig4 Both Parties. RSM will not be obligatedi'orm the requested changes unle, i) the artiespagree on the terms of a Cha er and (ii) the applicable Change Or . r his been executed by the Parties. standing the requirement for signature in aragraph, Change Orders communicated email correspondence will be deemed tive if (i) the communication clearly references that the message is intended to constitute a Change Order and (ii) the communication is clearly or unequivocally confirmed by individuals in writing or via email with the authority to execute a written Change Order for each Party. 1.4. Use of Third -Party Contractors. RSM may retain qualified third parties and service providers to furnish services to it in connection with its Services ("Third -Party Contractors"). Each member of the RSM International network (an "RSM Network Firm") is an independent Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 7 of 18 accounting and advisory firm each of which practices in its own right. The RSM International network is not itself a separate legal entity of any description in any jurisdiction. RSM will be responsible to Client for the performance of its Affiliates, RSM Network Firms, and any other Third -Party Contractors solely as related to their services performed under this Agreement; subject to the limitations set forth herein. Notwithstanding the foregoing, nothing in this Agreement shall be construed to create the relationship of principal and agent, employer and employee, partners or joint venturers between RSM and any Third -Party Contractor or RSM Network Firm. Client agrees that it will not bring any claims against an RSM Network Firm for matters solely arising from or related to the services provided by such firm under this Agreement. RSM may share Confidential Information with Third -Party Contractors on the same basis as RSM would be permitted to shE information with RSM partners, principals an employees; provided, that such Third-P Contractor is bound by written obligatio confidentiality that are as protective of Clie Confidential Information as the Confidentiality terms set forth herein. 1.5. Client Responsibilities. Client shall responsible for cooperating with RSM in its provision of the Services as set forth in eac Statement of Work. Without limiting the generality of the foregoing, in connection the performance of the Services, Clie_ 1.5.1. Assign a Client Project M for each specific Statement of Wor ossesses suitable skills, knowledge fence to oversee the Services and i _ ed suffici authority from Client to ke . cisions regarding the Services timely and effective manner; 1.5.2. Evaluat ,e adequacy and results of the Services in acc.rdance with the timetable(s) set forth in the applicable Statement of Work, subject to any warranty obligations contained herein; 1.5.3. Agree that Client's Project Manager and other appropriate personnel shall participate in regular project status and assessment meetings with the RSM Project Manager or other RSM designee, and if applicable, in accordance `s ith a schedule specified in the applicable t of Work; and 1.5.4. Provide or assist in ga personnel, staff or other resou reasonably required by RSM to p Services. ss to orm the 1.5.5. In connection t performance of the Services, Client . • sto: 1.5.5.1. make all perform all m 1.5.5.2. d, suitabl pr ove gement deci ment functio n indivi knowledge Within senior such servk and ossesses r experience, ement, to a equacy and results of ponsibility for the results of ablish and maintain internal controls, monitoring ongoing activities. RSM will not perform any management tions, make management decisions and, x ept as explicitly provided in an applicable Statement of Work, perform in a capacity equivalent to that of Client's personnel. 1.6. Affiliates. This Agreement may be extended to any Affiliate of Client, under the same terms and conditions of this Agreement; in which case the term "Client" shall include any Affiliate that executes any Statement(s) of Work or obtains any Services under this Agreement. "Affiliate" means any entity which directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 8 of 18 control with a Party to this Agreement. For the purposes of this Section 1.6, "control" means (i) in the case of corporate entities, direct or indirect ownership of greater than fifty percent (50%) or more of the stock or shares entitled to vote for the election of the board of directors or other governing body of the entity; and (ii) in the case of non -corporate entities, direct or indirect ownership of greater than fifty percent (50%) or greater of the equity interest. Execution of any Statement of Work by an Affiliate shall be deemed acceptance of all terms and conditions of this Agreement by such Affiliate. 2. Client Acceptance of Services 2.1. Acceptance. At the conclusion of each phase of the Services under each Statement of Work, RSM will review with Client the intended scope of work and Deliverables (defined in section 4.1) to confirm compliance with the defined project expectations. If Client reason. believes the Deliverables do not confor project expectations, it will notify RSM o nonconformity in writing within thirty (30) business days of receiving the Deliverables. RSM will then have a reasonable period of time to correct the nonconformity, as mutually agreed to by the Parties based upon severity and complexity of the necessary correction. If Clie uses the Deliverables before acceptance or to notify RSM of the nonconformance withi above -referenced thirty (30)-day period Deliverables will be considered acce 3. Compensation 3.1. Fees. Unless oth , fsgfeed upo the applicable Statement o' or, fees for t Services described in th' Agr =ment and any applicable Statement o ork will be based upon actual time, pl v I time at RSM's standard rates i e the time the Services are rendered, di out-of-pocket expenses, and the fees and a 'enses of RSM's subcontractors as specified in the applicable Statement of Work. Fees are not dependent upon a successful closing or completion of any transaction contemplated by a specific Statement of Work. Each Statement of Work will provide the applicable standard rates. 3.2. Expenses. RSM will be entitled to reimbursement of its reasonable expenses incurred in connection with the State Work for travel -related expenses, for ems and expenses of its subcontractors p vided by the applicable Statement of • ' d for such other items as the Partie gree upon in writing. Expenses will be items • in RSM's monthly invoice. Upon Clie ritten request, RSM will produce docurr a t n of such expenses. 3.3. Payment, an invoice to Clie expenses and e due and Client's rec onth, RS its reimburs able fees. within thirt e invoic will submit oices will ays of ied in the ement of Iivoicing and RSM's Sery iII be in nce with s -dules set forth If Clientto any portion of an ce, Client wi;i pro a written notice of its ction to RSMten (10) days of the date eceives th, plicable invoice, including a *detailed de i t n of the basis for Client's contentio a e fees are incorrect and any appli le s porting documentation. Client will be r ible for payment of the portion of the inv ce fat is not in dispute within thirty (30) he date it received the applicable oite. If Client and RSM cannot resolve the puted fees within ten (10) days thereafter, the ute shall be escalated to the senior management of each respective Party, who shall engage in good faith efforts to promptly resolve such dispute. If it is determined that Client owes all or part of any amount subject to dispute, Client shall remit such amount to RSM within five (5) days of such determination. RSM reserves the right to charge interest on any invoice that is not paid within thirty (30) days of the invoice date. In the event that Client fails to pay any undisputed fees within sixty (60) days of their due date, RSM shall have the right to suspend its Services until such time as Client pays its fees in full. RSM will not be liable for Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 9 of 18 any resulting loss, damage or expense connected with such suspension. The foregoing does not limit RSM from pursuing any other rights available at law or in equity and is in addition to, not in lieu of, RSM's termination rights under Section 7 herein and/or under an applicable Statement of Work. 3.4. Taxes. The fees set forth herein are exclusive of taxes. Client will be responsible for all taxes, levies and assessments, excepting taxes based on the income of RSM. 4. Use and Ownership 4.1. Deliverables. "Deliverables" means those custom -developed documents, data, reports, analyses, recommendations and other materials authored or prepared by RSM specifically for Client pursuant to a Statement of Work. For avoidance of doubt, Deliverables d not include RSM's administrative communications, records, files, method gib, processes and working papers relating t Services which remain the sole and exclusi property of RSM. In the event that a Statement of Work for outsourced services provides that Client acquires ownership of working papers, RSM will be entitled to retain copies of all suc working papers subject to the confidentiality obligations herein. 4.2. Ownership of Deliverables. S the limitations set forth herein, upon full for the Services in connection wi applicable Statement of Work,ll title and interest in the Deliverables s-t.ff the Statement of Work will tra - • d become the sole and exclusive prop- •f Client, e as set forth below. 4.3. RSM Infor " otwithstanding any other provision et herein, RSM reserves all rights in and II proprietary works of authorship created, eveloped or purchased by RSM or any third party under contract to RSM that have not been created specifically for Client and/or have general applicability to RSM's business, whether they were created prior to or during the term of this Agreement, including without limitation, methodologies, templates and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge or data, nd any derivatives thereof (collectively, Information"). 4.4. Limited License to U Information. To the extent thaS incorporates any RSM Informati•''to the Deliverables upon paymen II for the Services and Deliverabl n. =r the applicable Statement of Work, RS a by grants to Client a nonexclusive, nont _ able license to use such RSM Informely for internal purposes and sol connection i lient's use of the Del • es in accor. ith any imitations s t in the applic • .; atement of Work. I t m not reus .. 3 :r disclose the RS r ation to a parties. Fu , i t is expressly .'hibited from dis egating the mation from the Delive ` bles. Sole Ben iand Use. Client knowledg d agrees that any advice, informati n• k product provided to Client by RSM in c e ion with this Agreement is for the sole . - efit d use of Client and may not be relie or used by any third party; provided, hove, at Client may share any advice, ion or work product provided to it by with Client's regulators, auditors and visors in the ordinary course of business as essary. Upon Client's explicit request and if contemplated by the applicable Statement of Work, RSM will promptly provide copies of its applicable workpapers to Client's regulators. Client further agrees that if it will not make any such advice, information or work product available to any other third party except as expressly permitted by the applicable Statement of Work or Section 8 below, unless Client first obtains from the third party and provides to RSM an executed non -reliance and release letter in RSM's form with respect to such disclosed information. In no event will RSM's advice, information or work product be referred to or Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 10 of 18 quoted, in whole or in part, in any registration statement, prospectus, public filing, loan agreement or other document without RSM's prior written approval. 5. Warranty and Disclaimers 5.1. Mutual. Each Party represents and warrants that: (i) it is a legal entity duly organized, validly existing and in good standing; (ii) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) it will comply with all laws and regulations applicable to the performance of its obligations hereunder; (iv) it will avoid deceptive, misleading or unethical practices that could adversely affect the performance of the other Party's obligations under this Agreement or damage the reputation of the other Party; (v) it is not a party to any agreement with a third party, the performance which is reasonably likely to adversely affect ability or the ability of the other Party to fully its respective obligations hereunder, (vi) its performance of its obligations under is Agreement will not knowingly violate any other agreement between such Party and any third party. 5.2. Warranty of Services. RSM warrant that the Services shall be performed with reasonable care in a diligent and compete manner. If Client believes RSM has br a the foregoing warranty in connection... y Statement of Work, Client shall prov ritten notice of such breach within sixty : ys after the performance of such Servic w. ch notice shall include specific detai re g such breach. RSM's sole obliga w be to cor any nonconformance wi this arranty. RSM and Client will agree to easonable amount of time, based on its s nd complexity, within which RS i rrect the nonconformanc the event RSM cannot correct the nonconformance within the agreed upon time period, RSM shall refund to Client the amount paid to RSM for the nonconforming portion of the Services or Deliverables. 5.3. Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE DELIVERABLES AND THE SERVICES ARE PROVIDED "AS IS" AND RSM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATIO IMPLIED WARRANTIES OF TITLE, INFRINGEMENT AND MERCHANTTY OR FITNESS FOR ANY PARTICU POSE; OR (II) ANY WARRANTY TH DELIVERABLE IS FREE FRO OR. NO WRITTEN OR ORAL INF TION OR ADVICE GIVEN BY RS L CREATE ANY WARRANTY. 5.4. Non-Reli - _ lent ackno ledges and agrees that ` ; as not mad is not making any re e ations or whatsoever e" w ng the sub'e a er of this Agreeme t, pr s or implt as provide i i; Section 5 n at it is not re l a as not relie ny re ntations or regargag the su mess or impli� sentations a whatsoever at t" r of this Agreement, t for the rranties in this Section 5. 5.5. Li ti of Liability. CLIENT AND RSM HA D CUSSED THE RISKS AND REW DS SOCIATED WITH THIS AG NT AS WELL AS RSM'S FEES FOR SE .. I CLIENT AND RSM AGREE TO ATE CERTAIN OF THE RISKS SO ,TO THE FULLEST EXTENT MITTED BY LAW, THE TOTAL OOREGATE LIABILITY OF CLIENT AND RSM (AND THEIR RESPECTIVE PARTNERS, PRINCIPALS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, CONTRACTORS, AGENTS OR REPRESENTATIVES) TO EACH OTHER FOR ALL CLAIMS WHATSOEVER RELATED TO THE DELIVERABLES, THE SERVICES PROVIDED HEREUNDER OR THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF THE FEES PAID OR PAYABLE TO RSM BY CLIENT DURING THE Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 11 of 18 IMMEDIATELY PRECEDING TWELVE (12) MONTHS UNDER THE STATEMENT OF WORK AND/OR ENGAGEMENT LETTER THAT GAVE RISE TO SUCH LIABILITY. IN NO EVENT WILL CLIENT OR RSM (OR THEIR RESPECTIVE PARTNERS, PRINCIPALS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, CONTRACTORS, AGENTS OR REPRESENTATIVES) BE LIABLE FOR. ANY LOST PROFITS OR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR SIMILAR SUCH DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY CONTAINED IN THIS SECTION 5.5 SHALL NOT APPLY TO INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 HEREIN. 6. Indemnification 6.1. Client's Indemnification of RS;M Client will indemnify and hold RSM harm against all costs, fees, expenses, damageshd liabilities (including reasonable attorneys' fees and costs) associated with (i) any third -party claim arising from or relating to any Services, Deliverables or other work product from RSM that Client uses or discloses to others in a manner other than that expressly permitted this Agreement or (ii) any claim brought b Affiliate of Client contrary to the terms of Agreement. 6.2. RSM's Indemnification will indemnify and hold Client he all costs, fees, expenses, (including reasonable attor s' ees and cc associated with third-pa4y clai s arising from RSM's infringement of tif f -party intellectual property rights, or R ud or willful misconduct. t. RSM against and liabiie`: 6.3. Applicatio of Indemnification Terms. The terms of this Section 6 shall apply regardless of the nature of any claim asserted (including those arising from contract law, statutes, regulations or any form of negligence terminate this A. 8-nt for a mat which remain cured for thirty the breachi- receives wr' such bre om e non-bL' failure to make f imely mann of this Agree ement feat amounts t whether of Client, RSM or others whether arising out of tort, strict liability or otherwise) and whether or not RSM was advised of the possibility of the damage or loss asserted. Such terms shall also continue to apply after an termination of this Agreement by eitho and during any dispute between the P 7. Term and Terminatio 7.1. Term. This Agreement ommence on the Effective Date and-•ntinue until it is terminated by either Pa a ordance with this Section 7. 7.2. Material`'::. cam: Either Pa may reach ys after tice of party. The ent of any and stitutes a material on termination of son, in addition to any e due pursuant to this gement, Clien pay RSM for all Services r&ndered an liverables delivered prior to the effective d of rmination. RSM will not be liable to t or any resulting Toss, damage or expep cocted with a termination for mate ach under this provision. Termination without Cause. Unless se set forth in a Statement of Work or a rvices rider, either Party may terminate this eement for any reason upon fifteen (15) days prior written notice to the other Party; provided, however, that if Client terminates pursuant to this Section 7.3, it must pay all outstanding fees and expenses for Services actually performed and Deliverables provided, or portions thereof performed or provided (in each case, even if such Services or Deliverables are incomplete) as of the effective date of termination. RSM shall have no further responsibility for any Deliverables provided that are identified as incomplete as of the date of termination. If any Statement of Work hereunder contains payment terms on any basis other than fees and Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 12 of 18 expenses paid on time and materials basis, then this Section 7.3 shall not govern such Statement of Work unless such Statement of Work expressly provides otherwise. If a Statement of Work contains a longer notice period for termination without cause than that set forth herein, then the notice period in the applicable Statement of Work will govern. 7.4. Additional RSM Termination Right. If circumstances arise that would cause RSM's continued performance to violate a professional, regulatory, legal or contractual obligation, RSM reserves the right to take any course of action permitted to it to cure such violation, including but not limited to terminating this Agreement or any applicable Statement of Work. 7.5. Survival. The following Sections will survive the termination of this Agreement as applicable: 3.3. (Payment), 4 (Use and Ownership), 5 (Warranty and Disclaimers) 6 (Indemnification), 7.5 (Survival), 8 (Confidentiality) and 10 (General Provis"r together with accrued payment obligations; provided, however, that Section 8 (Confidentiality) shall survive the termination or expiration of this Agreement as provided in Section 8.13. 8. Confidentiality 8.1. Use of Confidential Informatio Parties may, from time to time, disci Confidential Information (as defined I ) to one another. Accordingly, each P " rees as the recipient (the "Receiving Pa keep strictly confidential all Con : ®ewl formatio provided by the other Party'e. I isclosing. Party"). The Receiving P rty f her agrees to use the Confidential Inf ation of the Disclosing Party sol .I a purpose of exercising its ri ' s lfilling its obligations under this Agre nt or applicable Statement of Work. The Receivin Party may not use for its own benefit or otherwise disclose any of the Confidential Information of the Disclosing Party for any other purpose. Without Clients prior written consent, RSM will not disclose the fact that it is providing Services to Client nor disclose to any third party any details concerning this Agreement, including the subject of Services. 8.2. Definition of Confidential Inform;ion. "Confidential Information" means, su Section 8.3 herein, information in an •rm oral, graphic, written, electronic, machindegable or hard copy consisting of (i) any c information provided by the Di' losi Party, including but not limited to, all o nventions, designs, data, source and ; t code, programs, program inte -s,now-how, trade secrets, techniques, ide .°scoveries, marketing and busin -ns, pricing, profit margins and/or si i ormation; ii any information which Disclosing P entifies as confidentia any infor at, by its ery nature, +-. on in the sa miler circumst w. Id under ffi,s Id be treated s idential. W' •limiting the ge i the foregoi lent acknowledges an ' rees that RSll;n _ -how constitutes Confidentialtial lnfor e term "Confidential ormation" of include information that: (i) is publicly w _ le at the time of disclosure by the Disc! arty; (ii) becomes publicly avail . e by . blication or otherwise after disci , e y the Disclosing Party, otherthan by bre(ch this Section 8 by the Receiving Party; lawfully in the Receiving Party's ssion, without restriction as to nfidentiality or use, at the time of disclosure by -Disclosing Party; (iv) is provided to the Receiving Party without restriction as to confidentiality or use by a third party without violation of any obligation to the Disclosing Party; or (v) is independently developed by the Receiving Party without reference to or use of the Confidential Information. 8.4. Protection of Confidential Information. The Receiving Party will inform its partners, principals, employees and representatives who have access to the Confidential Information of the Disclosing Party that such information is confidential and Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 13 of 18 proprietary information of the Disclosing Party. The Receiving Party agrees to disclose the Confidential Information to its partners, principals, employees and representatives solely for the purpose of exercising the Receiving Party's rights and fulfilling the its obligations under this Agreement or a Statement of work, who are under subject to written obligations of confidentiality no Tess restrictive than those set forth herein. The Receiving Party will be responsible for any breach of confidentiality obligations hereunder by its partners, principals, employees or representatives. The Receiving Party will treat the Disclosing Party's Confidential Information with the same degree of care as the Receiving Party treats its own confidential and proprietary information, but in no event will such standard of care be less than a reasonable standard of care. The Receiving Party will promptly notify the Disclosing Party if it becomes aware that any Confidential Information of the Disclosing Party has been used or disclosed in violation of this Agr 8.5. Return of Confidential Information Promptly upon the written request of the Disclosing Party or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy all tangible copies 63 the Disclosing Party's Confidential Informatio RSM will, however, maintain a copy of any Confidential Information necessary to sup work product under this Agreement for re and archive purposes and in accorda. applicable professional standards. th respect to Confidential Information corm " d through email or which has beef c ned or otherwise stored electroni e Receiv Party, such Party will make m ercially reasonable efforts to delte s information from its active storage dium. Notwithstanding the preceding, the P cknowledge that, in the case of Con ' en ' formation communicated gh email or which has been scanned or otherwr stored electronically by Receiving Party, Receiving Party's deletion of (i) email messages from individual mailboxes or (ii) documents from network or individual hard drives will not result in the removal of all copies of such information from Receiving Party's back- up or archival systems. Any Confidential Information retained will remain subject to the confidentiality obligations of this Agreement, will be maintained in a secure environment, an will be destroyed in accordance with the Party's document retention policies. Receiving Party's retention of archi cpies nor failure to remove fr copies '; p = k-up or archival systems will be deem a b ach of this Agreement. 8.6. Com . elled Dis In the event that the Receiving Part � Ames legally compelled to disclos, "f the Confidential Information of the I ing Party, t e Receiving Party I p 'vide the Di I tog Party with prompt n - .r the extent, otice is egally per ' , so that the eling Party may, at it a ense an. r, seek a protective er or other riate remedy. 8. the of r Party rr dy in the el r , isions of this nfidential may suffer such eve non-•rwachi other.' ap ._ Remedy. " acknowledges that h e an adequate it breaches the ment regarding mation and that such Party able damage and injury in breaching Party agrees that the Party, in addition to seeking any ble rights and remedies as may ay seek an injunction restraining the g Party from committing or continuing iolation. Pre -Existing Nondisclosure Agreements. In the event that the Parties have executed a separate nondisclosure agreement, such agreement is incorporated by reference herein. In the event of a conflict between the provisions of the pre-existing agreement and the provisions of Sections 8.1 through 8.7, except for 8.5, the more restrictive provision shall govern. 8.9. Record Retention. RSM maintains a record retention policy for documents, including documents in electronic form, in its possession from Client and otherwise. Documents tendered Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 14 of 18 to RSM in tangible form may be stored solely in electronic form. A summary of RSM's record retention policy is available to Client upon request. RSM will exert commercially reasonable efforts to follow its record retention policy and will destroy documents in accordance with its policy, unless otherwise instructed by the Client or as otherwise agreed to by the Parties in writing. 8.10. Personally Identifiable Information. The term "Personal Information" includes non- public personally identifiable information such as Social Security numbers, driver's license numbers or state -issued identification card numbers, credit or debit card numbers with or without any required security code, number or passwords, health information and other personal information as defined by applicable laws and regulations, whether of Client or Client's customers. Client agrees that it will no transmit to RSM, in any manner, Personal Information that is not needed to render. Services hereunder. Client also confirms has obtained any necessary consent that be required under applicable privacy legislation for the collection, use and disclosure to RSM of such Personal Information. RSM will use such Personal Information, if at all, only for the purposes described in the Statement of Work RSM agrees to maintain appropriate securi measures to protect such Personal Inform in accordance with applicable laws and regulations. 8.11. Unauthorized Access. I becomes aware of an unauthori. dgquisition or use of Confidential Infor r such Personal Information or a c`:of securit affecting either, it will pr ptly form Client of such acquisition or bre as required by law, and take reasonable s fo prevent further disclosure or us . R ill also reasonably cooperate with `'t in support of any breach notification require nts as imposed upon Client by applicable laws and regulations. 8.12. Limited Disclosure of Information for Evaluating Independence. This Section 8.12 applies if Client (i) has any international operations, (ii) owns more than 10 percent of any class of securities issued by a foreign corporation or entity, or (iii) has a foreign corporation or entity as an owner of more f'n 10 percent of any class of its securiti- a member of RSM International, a ne ;of independent accounting firms. New: ro ssional rules require RSM to evaluate r independence taking into con RSM's services to Client and Clii and any services to Client performed by other me International. To permit these independence RSM may disclos International and of any corpor iability corn performs relation hi pa oth nature • mation will ev, iating the in 'SM Interna n both rs affiliates lient's affiliates sofRSM to comply with lient agrees that discuss wi h RSM mber firms name rtnership, tiited other entit .m RSM (ii) any o een that trust, limite tity and any). f the Se a ion, ty company, or ity; and (iii) the a -RSM performs. This olely for the purpose of dence of RSM and other al firms. 8.13. i This Section 8 of the Agre ent s all survive the termination or expi[ f this Agreement for a period of one (1) ' ear provided, however, that with respect to fidential Information that has been nated by the Disclosing Party as "trade ret" information, or with respect to Personal nt rmation, the confidentiality obligations under this Section 8 shall remain in effect for so long as such Confidential and Personal Information retains its status under applicable law. 9. Insurance During the term of this Agreement, RSM shall maintain the following insurance coverages: 9.1. Worker's Compensation and Employers' Liability. Workers' Compensation coverage with statutory limits as required by the state in which the Services are performed and Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 15 of 18 Employers' Liability coverage with a limit of liability of $1 million each accident for bodily injury, $1 million each employee for bodily injury by disease, and $1 million policy limit for bodily injury by disease. 9.2. Commercial General Liability. A Commercial General Liability policy with a limit of $1 million per occurrence and $2 million in the annual aggregate. 9.3. Automobile Liability. An Automobile Liability policy with a combined single limit of liability of $1 million. 9.4. Professional Liability. A Professional Liability policy with a limit of liability of $1 million per claim and in the annual aggregate. 9.5. Privacy and Security Risk (Cyber coverage). A Privacy and Security Risk Liabil policy with a limit of liability of $1 million p claim and in the annual aggregate. 9.6. Crime (Employee Theft, Premises and Computer Fraud). A Crime policy with a limit of liability of $1 million per claim and in the annual aggregate. 9.7. Umbrella/Excess Coverage. Umbre liability coverage of $3 million per event sh above the Workers Compensation, Com Automobile policies. Client shall be granted additional i s (or Loss Payee status under Crin p via a blanket endorsement for ap licies. Upon Client's written requ will prov Client with a certificate or c i tes of insurance evidencing pr f of overage for the above -referenced polici RSM's insurers maintain an A.M. Be''. s sting of at least A- / VII. 10. General) ovisions 10.1. Transfer or Assignment. Neither Party may transfer or assign this Agreement, or any rights granted under it, except in connection with (i) the sale of all or substantially all of the Party's assets or a line of business sale; (ii) the sale of a majority of the capital stock of the Party; or (iii) the merger of the Party with another entity. In each such instance, the Party may transfeiie Agreement to the acquirer or surviving in the case of a merger. Any such tra assignment will become effective o s ifnd when the transferee or assign :.e in writing to be bound by the to Agreement. 10.2. Force Maieure. responsible for any dela performance resultin Party's control ("F will include, but n government o ires, floods may term] delaye M is rende Party will be failure in acts beyond such jeure"). Fore Majeure limited to, a lots or strik sters. At its o Stateme an sixty ( t(s); provid cused fro and ive ination of the not extend a n fifteen (k f God, emics, Client that is ys by a Force wever, that Client SM for all Services provided prior to the Agreement. Force Majeure rayment obligation by more 10.3. li' . Nothing in this Agreement will provi.- to R any license or other right to use Clie t : •emarks or service marks except in co ecton with the provision of the services. tanding the foregoing, unless notified ise by Client, during the term RSM may ude Client's name in any client list that it ides to individual prospective clients for marketing purposes; however, this sentence will not authorize RSM to include Client's name in any advertisements or publications, even as part of a client list. 10.4. Electronic Communications. The Parties acknowledge that they may correspond or convey documentation via various forms of electronic transmission, including, but not limited to, e-mail, FTP and cloud -based sharing and hosting applications, and that neither Party has control over the performance, reliability, availability or security of these electronic Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 16 of 18 transmission methods. Therefore, neither Party will be liable for any loss, damage, expense, harm, disclosure or inconvenience resulting from the loss, delay, interception, corruption, disclosure or alteration of any electronic transmission where the Party has used commercially reasonable efforts to protect such information. RSM may offer its clients the opportunity to use a secure internet portal for the exchange of confidential information using commercially standard encryption protocols. Use of this portal may require acceptance of a customary end user license agreement. 10.5. Nonsolicitation. During the term of this Agreement and for a period of one (1) year following its expiration or termination, neither Party will actively solicit, employ or otherwise engage any of the other Party's partners, principals or employees, including former partners, principals or employees, who were involved in providing or receiving Services un a Statement of Work. In the event that ei Party breaches this provision, the breac Party agrees to pay to the aggrieved Party'vithin thirty (30) days after demand an amount equal to the greater of $50,000 or 100 percent of the annual base salary of any such partner, principal or employee. For avoidance of doubt, the • foregoing does not prohibit either Party from employing individuals who (i) were not involy in a Statement of Work or (ii) who apply fo positions in response to public postings, employment advertisements or other solicitations of employment not targ individuals, whether such applica or after the term of this Agreem 10.6. No Agency. RSM` n depender contractor. Neither Party' pa ers, principals nor employees will be OS idered employees of the other Party for a . rose. Nothing in this Agreement shal e.. rued to create the relationship of p 'pal and agent, employer and employee, partners r joint venturers between RSM and Client, and neither Party has the authority to bind the other Party to any third party. 10.7. No Third -Party Beneficiaries. Neither Party intends that there be any third -Party beneficiaries to this Agreement, except with respect to RSM Network Firms under Sections 1.4 and 5.5 herein. 10.8. Notices. Any notice to be gi hereunder will be in writing and ad Party and address stated belo address as the Party may des time by written notice. Except as expressly provided in this hereunder will be deem if personally delivered, by overnight rapid-d capabilities, upon ffi-i (iii) if sent or electronic mail, ch time as t sent the notic es confirm y the appli a ethod of tra sent by c d ` Tegistere upon r Not gQ; o Client will providl in the ices Agree ssi to the other rom time to erwise r; ment, notices and effective: (i) elivery; (ii) if sent yservice with tracking facsimile irty that receipt I; or (iv) if tates mail, the address t Letter, Master pplicable Statement of otice to R I be sent to Office of the General - , RSM US LLP, 200 South Wac Driv-, Suite 3900, Chicago, IL 60606. 10. overninq Law. This Agreement will be d and construed in accordance with the f the state of Illinois, without regard to the nflicts of laws or principles thereof and licable US federal law. Any and all disputes, claims or litigation arising from or related in any way to this Agreement or any provisions herein will be resolved exclusively in the state and federal courts located therein. The Parties hereby waive any objections against and expressly agree to submit to the personal jurisdiction and venue of such state or federal courts. 10.10. Time to Bring Claims. No claim or action by either Party, regardless of whether the claim is in contract, in tort, at law or in equity, arising out of or relating to any matter under this Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 17 of 18 Agreement may be brought by either Party more than 24 months after the Party first knows or has reason to know that the claim or cause of action has accrued, but in no event more than 36 months following the completion of the Services under the applicable Statement of Work. This Section 10.10 may shorten, but in no event will it extend, any period of limitation on actions otherwise provided by applicable law. 10.11. Legal Action Requiring Disclosure. In the event RSM is requested or authorized by Client or is required by regulation, law, subpoena or other legal process to produce its documents or its personnel as witnesses with respect to its Services for Client, Client will, so long as RSM is not a Party to the proceeding in which the information is sought, reimburse RSM for its professional time and expenses, including the reasonable fees and expenses of counsel, incurred in responding to such requests. 10.12. Entire Agreement; Amendme Agreement constitutes the entire agree between the Parties and supersedes all pri agreements and understandings, whether written or oral, relating to the subject matter of this Agreement. This Agreement may be amended or modified only by a written instrument executed by both Parties. 10.13 Miscellaneous. No delay or omis by either Party in exercising any right u i Agreement will operate as a waiver any other right. A waiver or consent either Party on any one occasn effective only in that instance a construed as a bar or waiv other occasion. This Agree Iot be nrright on ay be executed in one or more counterparts, each of which will be deemed to be an original, but all of which taken together will constitute one and the same instrument. Signatures to this Agreement transmitted by facsimile, electronic mail in portable document format form (".pdf other electronic means intended to p the original graphic and pictorial appea e f a document, will have the same °' as physical delivery of the paper documen•eark g the original signature and shall be . e'fred an original signature. If any pr ' 'on of this Agreement is found to b v by any court or arbitrator having compe urisdiction, the invalidity of such pro.' mill not affect the validity of the rem a' rovisions. It 11. Equal unity Ems >n„of *_ rotected \e = , . s and Indiv $ with Disabiliti Thereto shande by the ments of 4=1.4(a), 60-300.5(a) 741.5(a). rgulations prohibit irimination ain qualified individuals d on their s as protected veterans o individua = ith disabilities, and prohibit discrimin i u . ainst all individuals based on their e, olor, religion, sex, gender iden 't se al orientation, or national orig' .. o eover, these regulations require tha coffered prime contractors and ractors take affirmative action to oy and advance in employment qualified ividuals without regard to race, color, eltgion, sex, gender identity, sexual orientation, national origin, protected veteran status or disability. Th re and 6 Erica Paschal Finance Director City of Miami, Florida April X, 2020 Page 18 of 18 EXHIBIT A ACKNOWLEDGEMENT AND RELEASE LETTER [to be placed on third -party recipient's letterhead] (SPECIMEN ONLY— DO NOT EXECUTE) [Date] [Client Name and Address] Dear [Client Representative]: [Client Complete Legal Name] (Company") has informed [third -party recipient] (" Re t") that RSM US LLP ("RSM") has performed certain consulting and professional services for Com & y connection with the [engagement letter between Company and RSM dated 20_ (th gement Letter")] [Statement of Work between Company and RSM dated , 20_ (the aVment of Work")]. Recipient understands that any advice, recommendations, information, rep ►work produ (collectively, the "Work") provided to Company by RSM in connection with ngagement r] [Statement of Work] was performed exclusively f • pany's sole be nd use, and he benefit or use of Recipient or any other third party" Company has requested that RSM provide R l ►'access to [ P IFY — report ing papers] that were developed by RSM in connection wit t Work. Recipientwledges that Work was prepared at the direction of Company a m t include a ocedures or f n deemed necessary for the purposes of Recipient, d. at certain fipdin and info "� at may have been communicated to Company that are not refl cted in any t le Work pr ided o Company. Recipient to the sufficie accuracy, completeness further acknowledges that RSM makes no representatCb or appropriateness of the Work for Recipient's purpos In consideration of Company allowing Recipient s to the Wo; ,'if requested by Recipient and approved by Company, discussing the Work brit cipient, R 'pient agrees that it does not acquire any rights as a result of such access that it would totherwise h and acknowledges that RSM does not assume any duties or obligations to eoii, nt in connects n with such access. Recipient further agrees that it will not disclose or make availabl other parties, except to the extent required by law, regulation, subpoena-o er legal p Recipient agrees to release, irie wand hold h le `• M and its affiliates and their respective partners, principals, officers, •ir or , employees, actors and representatives from and against any and all claims, actions, lia•, li ie mages, ' s sts or expenses (including reasonable attorneys' fees) incurred or suffered bserted ag as a result of Company permitting Recipient access to the Work or Rcipie's breach of they reements herein. Further, Recipient agrees that RSM is an intended third -party eneficiary to this release letter, and that RSM will have a direct right of action to enforce the terms onditions of this release letter against Recipient. RECIPIENT: By: (SPECIMEN ONLY — DO NOT EXECUTE) Date: [Name, Title] 1 iev -orkstreai Develop a project management plan to implementthe rew standard I identify and inventory known lease as -well as !Rases embedded -within other contracts GASB 87 Identify Man- 10 IeveI technoloay solution requirements e: OWW !dent' I Create data Implement , 1 abstraction and configure 1 1 strategy to the chosen 1 I input detailed technology 1 ' lease data into solution 1 1 technoloay solution i Develop ne-w controls, process procedures, and -workflows required to confirm -with GASB 87 pare calculations, adjustments, disclosures required with transition to the new standard; paration of memos sucn as policies, transition memo etc, - w - Assess exi Assess sji VI I tie c1de: stirg rwertories of known leases ns for pot 1" leases (andiot racts aivsis ve. equirenerts and " olo v solutions ienertaUon roIect ! stens for successful • ent ecnnologv solu - EstdetaIled eqirenerts, - Conduct vendoi= !emonstrations ienert Comoie fu.D iease nvertory oei data abstraction a statements, cal umentation