HomeMy WebLinkAboutAgreement_General_11/1/2020_Hilltop SecuritiesFINANCIAL ADVISORY SERVICES AGREEMENT
THIS CONTRACT is entered into by and between the VILLAGE OF TEQUESTA
(VILLAGE), a municipal corporation and HILLTOP SECURITIES (CONTRACTOR), as follows
WITNESSETH:
WHEREAS, pursuant to RFP #2020-130/01 (the RFP) the VILLAGE accepted competitive
proposals for Financial Advisory Services (the Services); and
WHEREAS, the Services are delineated in the RFP; and
WHEREAS, this Contract, the RFP and the CONTRACTOR's Response constitute the
entire Contract and describe the Services to be provided; and
WHEREAS, after evaluation of price and other evaluation criteria specified in the RFP, the
evaluation committee and the Village Council of the Village of Tequesta, Florida, the VILLAGE
has determined that the most responsive and responsible proposal was submitted by
CONTRACTOR and that CONTRACTOR has the necessary resources, experience and ability to
perform the contract at a competitive price; and
WHEREAS, the VILLAGE has awarded the contract to CONTRACTOR for the Services on
October 8, 2020.
NOW THEREFORE, be it agreed by and between the parties as follows:
ARTICLE I
INTRODUCTION AND SCOPE OF SERVICES
1.1 The above referenced Whereas clauses are true and correct and made a part hereof.
1.2 This Contract, the RFP, together with the response to the RFP of CONTRACTOR shall
constitute the entire Contract, except to the extent specifically modified on Attachment "A"
Additional Terms and Conditions. The parties agree that the scope of services is a
description of CONTRACTOR's obligations and responsibilities and is deemed to include
preliminary considerations and prerequisites, and all labor, materials, equipment, and
tasks which are such an inseparable part of the work described that exclusion would
render performance by CONTRACTOR impractical, illogical, or unconscionable.
1.3 Except as specifically modified herein, CONTRACTOR shall be bound by the terms and
conditions and prices as set forth in the RFP and the CONTRACTOR'S Response to the
RFP. When the terms and conditions of this Contract may be read as consistent with the
RFP, then and in that respect, the terms of both the RFP and this Contract shall be read
as being consistent and shall be binding on both parties. Where terms and conditions of
this Contract contradict anything as set forth in the RFP or the response to
the RFP, then the terms and conditions of this Contract shall be binding and in full force
and effect to the extent of any inconsistency.
1.4 This is a non-exclusive contract. The VILLAGE may, in its sole and absolute discretion,
utilize other parties to provide any of the services listed in the RFP, or any aspect of the
Services if the VILLAGE deems it to be in the best interest of the VILLAGE.
1.5 CONTRACTOR acknowledges and agrees that the Contract Administrator has no
authority to make changes that would increase, decrease, or otherwise modify the Scope
of Services to be provided under this Contract.
ARTICLE 2
TERM AND TIME OF PERFORMANCE
21 The initial term of the Contract shall be three (3) years, beginning November 1, 2020 and
ending October 31, 2023. The Village reserves the right in its sole discretion, and upon
mutual consent of both parties, to renew the contract for two (2) additional one (1) year
renewal terms.
22 Time shall be deemed to be of the essence in performing the duties, obligations and
responsibilities required by this Contract.
ARTICLE 3
COMPENSATION
3.1 The VILLAGE shall compensate the CONTRACTOR for services provided by the
CONTRACTOR, VILLAGE agrees to pay CONTRACTOR, in the manner specified in the
RFP, the amounts set forth in CONTRACTOR's Response for work actually performed
and completed pursuant to this Contract, which amount shall be accepted by
CONTRACTOR as full compensation for all such work. It is acknowledged and agreed by
CONTRACTOR that this amount is the maximum payable and constitutes a limitation upon
VILLAGE's obligation to compensate CONTRACTOR for its services related to this
Contract. This amount, however, does not constitute a limitation, of any sort, upon
CONTRACTOR's obligation to perform all items of work required by or which can be
reasonably inferred from the Scope of Services. No amount shall be paid to
CONTRACTOR to reimburse its expenses.
32 The CONTRACTOR and the VILLAGE shall abide by the Local Government Prompt
Payment Act, FL SS. 218.70-218.80.
2
ARTICLE 4
TERMINATION OR SUSPENSION
4.1 This Contract may be terminated for convenience by the VILLAGE. Termination for
convenience by the VILLAGE shall be effective on the termination date stated in written
notice provided by VILLAGE, which termination date shall be not less than thirty (30) days
after the date of such written notice. This Contract may also be terminated by the Village
Manager upon such notice as the Village Manager deems appropriate under the
circumstances in the event the Village Manager determines that termination is necessary
to protect the public health or safety. The parties agree that if VILLAGE erroneously,
improperly or unjustifiably terminates for cause, such termination shall be deemed a
termination for convenience, which shall be effective thirty (30) days after such notice of
termination for cause is provided.
42 This Contract may be terminated for cause for reasons including, but not limited to,
CONTRACTOR's repeated (whether negligent or intentional) submission for payment of
false or incorrect bills or invoices, failure to suitably perform the work; or failure to
continuously perform the work in a manner calculated to meet or accomplish the objectives
as set forth in this Contract.
4.3 Notice of termination shall be provided in accordance with the "NOTICES" section of this
Contract except that notice of termination by the Village Manager, which the Village
Manager deems necessary to protect the public health, safety, or welfare may be verbal
notice that shall be promptly confirmed in writing in accordance with the "NOTICES"
section of this Contract.
4.4 In the event this Contract is terminated for convenience, CONTRACTOR shall be paid for
any services properly performed under the Contract through the termination date specified
in the written notice of termination. CONTRACTOR acknowledges and agrees that it has
received good, valuable and sufficient consideration from VILLAGE, the receipt and
adequacy of which are, hereby acknowledged by CONTRACTOR, for VILLAGE's right to
terminate this Contract for convenience.
4.5 In the event this Contract is terminated for any reason, any amounts due CONTRACTOR
shall be withheld by VILLAGE until all documents are provided to VILLAGE pursuant to
Section 6.2 of Article 6.
4.6 Should at any time during the term of this contract, including any option terms, the
CONTRACTOR is in violation of any of the terms and conditions of this contract, the Village
shall have the right to suspend the CONTRACTOR until the violation is resolved to the
satisfaction of the Village. If the violation is not promptly resolved or is of such serious
nature that the Village determines that suspension is not adequate, the Village reserves
the right to terminate for cause.
4.6.1 In the event a CONTRACTOR is terminated, the Village may assign the contract to
another CONTRACTOR, or seek a new CONTRACTOR, until the contract is re -
let, or until the end of the contract term then in effect, at its sole option and shall
reserve all legal remedies for damages and other relief.
3
ARTICLE 5
EEO AND ADA COMPLIANCE
5.1 CONTRACTOR shall not unlawfully discriminate on the basis of race, color, national
origin, sex, religion, age, political affiliation or disability in the performance of this Contract,
the solicitation for or purchase of goods or services relating to this Contract, or in
subcontracting work in the performance of this Contract. CONTRACTOR shall include the
foregoing or similar language in its contracts with any subcontractors or subconsultants,
except that any project assisted by the U.S. Department of Transportation funds shall
comply with the non-discrimination requirements in 49 C.F.R. Parts 23 and 26, as
amended. Failure to comply with the foregoing requirements is a material breach of this
Contract, which may result in the termination of this Contract or such other remedy as
VILLAGE deems appropriate.
5.2 CONTRACTOR shall not unlawfully discriminate against any person in its operations and
activities or in its use or expenditure of funds in fulfilling its obligations under this Contract.
CONTRACTOR shall affirmatively comply with all applicable provisions of the Americans
with Disabilities Act (ADA) in the course of providing any services funded by VILLAGE,
including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability),
and all applicable regulations, guidelines, and standards. In addition, CONTRACTOR shall
take affirmative steps to ensure nondiscrimination in employment against disabled
persons.
ARTICLE 6
MISCELLANEOUS
6.1 RIGHTS IN DOCUMENTS AND WORK
Any and all reports, photographs, surveys, and other data and documents provided or
created in connection with this Contract are and shall remain the property of VILLAGE;
and, if a copyright is claimed, CONTRACTOR grants to VILLAGE a non-exclusive license
to use the copyrighted item(s) indefinitely, to prepare derivative works, and to make and
distribute copies to the public. In the event of termination of this Contract, any reports,
photographs, surveys, and other data and documents prepared by CONTRACTOR,
whether finished or unfinished, shall become the property of VILLAGE and shall be
delivered by CONTRACTOR to the Contract Administrator within seven (7) days of
termination of this Contract by either party. Any compensation due to CONTRACTOR shall
be withheld until all documents are received as provided herein.
6.2 AUDIT RIGHT AND RETENTION OF RECORDS
VILLAGE shall have the right to audit the books, records, and accounts of CONTRACTOR
and its subcontractors that are related to this Project. CONTRACTOR and its
subcontractors shall keep such books, records, and accounts as may be necessary in
order to record complete and correct entries related to the Project. All books, records, and
accounts of CONTRACTOR and its subcontractors shall be kept in written form, or in a
form capable of conversion into written form within a reasonable time, and upon request
to do so, CONTRACTOR or its subcontractor, as applicable, shall make same available at
no cost to VILLAGE in written form.
4
CONTRACTOR and its subcontractors shall preserve and make available, at reasonable
times for examination and audit by VILLAGE, all financial records, supporting documents,
statistical records, and any other documents pertinent to this Contract for the required
retention period of the Florida Public Records Act, Chapter 119, Florida Statutes, as may
be amended from time to time, if applicable, or, if the Florida Public Records Act is not
applicable, for a minimum period of three (3) years after termination of this Contract. If any
audit has been initiated and audit findings have not been resolved at the end of the
retention period or three (3) years, whichever is longer, the books, records, and accounts
shall be retained until resolution of the audit findings. If the Florida Public Records Act is
applicable to CONTRACTOR's and its subcontractors' records, CONTRACTOR and its
subcontractors shall comply with all requirements thereof; specifically to:
a Keep and maintain public records that ordinarily and necessarily would be required by
the public agency in order to perform the service.
b. Provide the public with access to public records on the same terms and conditions that
the public agency would provide the records and at a cost that does not exceed the
cost provided in Chapter 119 or as otherwise provided by law.
a Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law.
d Meet all requirements for retaining public records and transfer, at no cost, to the public
agency all public records in possession of the contractor upon termination of the
contract and destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. All records stored electronically
must be provided to the public agency in a format that is compatible with the
information technology systems of the public agency.
e. If Contractor does not comply with this section, the Village shall enforce the contract
provisions in accordance with the contract and may unilaterally cancel this contract in
accordance with state law.
No confidentiality or non -disclosure requirement of either federal or state law shall be
violated by CONTRACTOR or its subcontractors. Any incomplete or incorrect entry in such
books, records, and accounts shall be a basis for VILLAGE's disallowance and recovery
of any payment upon such entry.
CONTRACTOR shall, by written contract, require its subcontractors to agree to the
requirements and obligations of this Section 6.2.
6.3 COMPLAINTS AND DISPUTES:
All complaints concerning misconduct on the part of the Contractor or disputes between
Village staff and the Contractor are referred to the Village Manager or his designee, who
shall conduct investigations and inquiries, including discussions with the Contractor and
involved staff. The determinations of the Village Manager or designee shall be binding
upon the parties, and failure of the CONTRACTOR to follow any such determination could
be considered a material breach and subject the CONTRACTOR to termination for cause.
The CONTRACTOR agrees that any complaints received by the Village concerning
misconduct on the part of the CONTRACTOR, such as excessive charges, poor business
practices etc., will be
5
referred to the Office of the Village Manager for appropriate action. The CONTRACTOR
agrees to make any complaints concerning the Village of Tequesta available to the Office
of the Village Manager for action as required.
6.3.1 INDEMNIFICATION: The Contractor shall at all times indemnify, hold harmless and, at Village
Attorney's option, defend or pay for an attorney selected by Village Attorney to defend the
Village of Tequesta, its officers, agents, servants, and employees from and against any and all
causes of action, demands, claims, losses, liabilities and expenditures of any kind, including
attorney fees, court costs, and expenses, caused or alleged to be caused by intentional or
negligent act of, or omission of the Contractor, its employees, agents, servants, or officers, or
accruing, resulting from, or related to the subject matter of this Contract including, without
limitation, any and all claims, losses, liabilities, expenditures, demands or causes of action of
any nature whatsoever resulting from injuries or damages sustained by any person or property.
In the event any lawsuit or other proceeding is brought against the Village by reason of any
such claim, cause of action or demand, the Contractor shall, upon written notice from the
Village, resist and defend such lawsuit or proceeding by counsel satisfactory to the Village or,
at Village's option, pay for an attorney selected by the Village Attorney to defend Village. The
provisions and obligations of this section shall survive the expiration or earlier termination of
this Contract. To the extent considered necessary by the Contract Administrator and the
Village Attorney, any sums due Contractor under this Contract may be retained by Village
until all of Village's claims for indemnification pursuant to this Contract have been settled or
otherwise resolved; and any amount withheld shall not be subject to payment of interest by
Village.
6.4 THIRD PARTY BENEFICIARIES
Neither CONTRACTOR nor VILLAGE intends to directly or substantially benefit a third
party by this Contract. Therefore, the parties agree that there are no third party
beneficiaries to this Contract and that no third party shall be entitled to assert a right or
claim against either of them based upon this Contract.
6.5 NOTICES
Whenever either party desires to give notice to the other, such notice must be in writing,
sent by certified United States Mail, postage prepaid, return receipt requested, or sent by
commercial express carrier with acknowledgement of delivery, or by hand delivery with a
request for a written receipt of acknowledgment of delivery, addressed to the party for
whom it is intended at the place last specified. The place for giving notice shall remain the
same as set forth herein until changed in writing in the manner provided in this section.
For the present, the parties designate the following:
FOR VILLAGE:
Village of Tequesta
Hugh Dunkley, Finance Director
345 Tequesta Drive
Tequesta, FL 33469
FOR CONTRACTOR:
Hilltop Securities, Inc.
Matthew Sansbury, Managing Director
450 S. Orange Avenue, Suite 460
Orlando, FL 32801
6.6 MATERIALITY AND WAIVER OF BREACH
VILLAGE and CONTRACTOR agree that each requirement, duty, and obligation set forth
herein was bargained for at arms -length and is agreed to by the parties in exchange for
quid pro quo, that each is substantial and important to the formation of this Contract and
that each is, therefore, a material term hereof.
VILLAGE's failure to enforce any provision of this Contract shall not be deemed a waiver
of such provision or modification of this Contract. A waiver of any breach of a provision of
this Contract shall not be deemed a waiver of any subsequent breach and shall not be
construed to be a modification of the terms of this Contract.
6.7 SEVERANCE
In the event a portion of this Contract is found by a court of competent jurisdiction to be
invalid, the remaining provisions shall continue to be effective unless VILLAGE or
CONTRACTOR elects to terminate this Contract. An election to terminate this Contract
based upon this provision shall be made within seven (7) days after the finding by the
court becomes final.
6.8 JOINT PREPARATION
Each party and its counsel have participated fully in the review and revision of this
Contract and acknowledge that the preparation of this Contract has been their joint effort.
The language agreed to expresses their mutual intent and the resulting document shall
not, solely as a matter of judicial construction, be construed more severely against one of
the parties than the other. The language in this Contract shall be interpreted as to its fair
meaning and not strictly for or against any party.
6.9 WAIVER OF JURY TRIAL
By entering into this contract, CONTRACTOR, and VILLAGE hereby expressly waive any
rights either party may have to a trial by jury of any civil litigation related to this contract.
6.9.1 VENUE: CHOICE OF LAW
The parties waive the privilege of venue and agree that all litigation between them in the state
courts shall take place in Palm Beach County, Florida and that all litigation between them in
the federal courts shall take place in the US District Court for the Southern District of Florida.
This RFP, any contract that results therefrom and any other matter associated herewith shall
be governed by the laws of the State of Florida.
6.10 AMENDMENTS
No modification, amendment, or alteration in the terms or conditions contained herein shall
be effective unless contained in a written document prepared with the same or similar
formality as this Contract and executed by the Board and CONTRACTOR or others
delegated authority to or otherwise authorized to execute same on their behalf.
6.11 PRIOR CONTRACTS
This document represents the final and complete understanding of the parties and
incorporates or supersedes all prior negotiations, correspondence, conversations,
Contracts, and understandings applicable to the matters contained herein. The parties
agree that there is no commitment, Contract, or understanding concerning the subject
matter of this Contract that is not contained in this written document. Accordingly, the
parties agree that no deviation from the terms hereof shall be predicated upon any prior
representation or Contract, whether oral or written.
7
6.12 REPRESENTATION OF AUTHORITY
Each individual executing this Contract on behalf of a party hereto hereby represents and
warrants that he or she is, on the date he or she signs this Contract, duly authorized by all
necessary and appropriate action to execute this Contract on behalf of such party and
does so with full legal authority.
6.13 MULTIPLE ORIGINALS
Multiple copies of this Contract may be executed by all parties, each of which, bearing
original signatures, shall have the force and effect of an original document.
6.14 OFFICE OF THE INSPECTOR GENERAL
Pursuant to Article XII of the Palm Beach County Charter, the Office of the Inspector
General has jurisdiction to investigate municipal matters, review and audit municipal
contracts and other transactions, and make reports and recommendations to municipal
governing bodies based on such audits, reviews or investigations. All parties doing
business with the Village shall fully cooperate with the inspector general in the exercise of
the inspector general's functions, authority and power. The inspector general has the
power to take sworn statements, require the production of records and to audit, monitor,
investigate and inspect the activities of the Village, as well as contractors and lobbyists of
the Village in order to detect, deter, prevent and eradicate fraud, waste, mismanagement,
misconduct and abuses.
6.15 PUBLIC RECORDS
In accordance with Sec. 119.0701, Florida Statutes, Contractor must keep and maintain
this Agreement and any other records associated therewith and that are associated with
the performance of the work described herein and in Contractor's proposal. Upon request
from Village's custodian of public records, Contractor must provide Village with copies of
requested records, or allow such records to be inspected or copied, within a reasonable
time in accordance with access and cost requirements of Chapter 119, Florida Statutes.
Should Contractor fail to provide the public records to Village, or fail to make them
available for inspection or copying, within a reasonable time, Contractor may be subject
to attorney's fees and costs pursuant to Sec. 119.0701, Florida Statutes, and other
penalties under Sec. 119.10, Florida Statutes. Further, Contractor shall ensure that any
exempt or confidential records associated with this Agreement or associated with the
performance of the work described herein and in Contractor's proposal are not disclosed
except as authorized by law for the duration of the Agreement term, and following
completion of the Agreement if Contractor does not transfer the records to the Village.
Finally, upon completion of the Agreement, Contractor shall transfer, at no cost to the
Village, all public records in possession of Contractor, or keep and maintain public records
required by the Village. If Contractor transfers all public records to the Village upon
completion of the Agreement, Contractor shall destroy any duplicate public records that
are exempt or confidential and exempt from public records disclosure requirements.
Contractor shall be entitled to retain a copies of documents it creates for record purposes,
pursuant to the requirements of this Article and Chapter 119, Florida Statutes. If Contractor
keeps and maintains public records upon completion of the Agreement, Contractor shall
meet all applicable requirements for retaining public records. Records that are stored
electronically must be provided to Village, upon request from Village's custodian of public
records, in a format that is compatible with Village's information technology systems.
IF CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, PLEASE CONTACT THE
VILLAGE CLERK, RECORDS CUSTODIAN FOR THE VILLAGE,
AT (561) 768-0685, OR AT Imcwilliams@tequesta.org, OR AT 345
TEQUESTA DRIVE, TEQUESTA, FLORIDA 33469.
Pursuant to Article XII of the Palm Beach County Charter, the Office of the Inspector
General has jurisdiction to investigate municipal matters, review and audit municipal
contracts and other transactions, and make reports and recommendations to municipal
governing bodies based on such audits, reviews, or investigations. All parties doing
business with the Village shall fully cooperate with the inspector general in the exercise of
the inspector general's functions, authority, and power. The inspector general has the
power to take sworn statements, require the production of records, and to audit, monitor,
investigate and inspect the activities of the Village, as well as contractors and lobbyists of
the Village in order to detect, deter, prevent, and eradicate fraud, waste, mismanagement,
misconduct, and abuses.
"The Village of Tequesta strives to be an inclusive environment. As such, it is the Village's
policy to comply with the requirements of Title II of the American with Disabilities Act of
1990 ("ADA") by ensuring that the Contractor's [ agreement /bid documents and
specifications ] are accessible to individuals with disabilities. To comply with the ADA, the
Contractor shall provide a written statement indicating that all [ agreement /bid documents
and specifications], from Contractor, including files, images, graphics, text, audio, video,
and multimedia, shall be provided in a format that ultimately conforms to the Level AA
Success Criteria and Conformance Requirements of the Web Content Accessibility
Guidelines 2.0 (Dec. 11, 2008) ("WCAG 2.0 Level AN'), published by the World Wide Web
Consortium ("WK"), Web Accessibility Initiative ("WAI"), available at
www.w3.or.q/TRNVCAG/."
E
IN WITNESS WHEREOF the parties have caused these presents to be executed.
Witnesses:
ATTEST:
VILLAGE OF TEQUES
i_ i
ABIGAI BREN N, MAYOR
Date: 11141 &)W
LORI MCWILLIAMS, MMC, VILLAGE CLERK
10
THE CONTRACTOR MUST EXECUTE THIS CONTRACT AS INDICATED BELOW.
ATTEST:
(Secretary)
(Corporate Seal)
HILLTOP SECURITIES INC.
By:
Matthew Sansbury, Managing Director
Date: 10116 % ao a Q
10