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Professional Services AgreementPROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND ECONOMICS RESEARCH ASSOCIATES (ERA) THIS AGREEMENT made and entered into this:~th day of ~ ~~sL , 2003, by and between the CITY OF MIAMI BEACH, FLORIDA (hereinafter referred to as City), having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and ECONOMICS RESEARCH ASSOCIATES (ERA) (hereinafter referred to as Consultant), whose address is 388 Market Street, San Francisco, California, 94111. SECTION 1 DEFINITIONS Agreement: This Agreement between the City and Contractor. City Manager: The Chief Administrative Officer of the City. Contractor: For the purposes of this Agreement, Contractor shall be deemed to be an independent contractor, and not an agent or employee of the City. Services: All services, work and actions by the Contractor performed pursuant to or undertaken under this Agreement, as described in Section 2. Fee: Amount paid to the Contractor to cover the costs of the Services. Risk Manager: The Risk Manager of the City, with offices at 1700 Convention Center Drive, Third Floor, Miami Beach, Florida 33139, telephone number (305) 673-7000, Ext. 6435, and fax number (305) 673-7023. SECTION 2 SCOPE OF WORK The scope of work to be performed by Contractor is set forth in Exhibit "A," entitled "Scope of Services" (Services). SECTION 3 COMPENSATION 3.1 FEE Consultant shall be compensated by the City for the Services to be provided herein, pursuant to the Schedule of Payments set forth in Exhibit "A", attached hereto. The City's contribution fee for Services satisfactorily performed by Consultant shall not exceed the total sum of One Hundred Thousand and 00/100 Dollars ($100,000). Notwithstanding the foregoing, however, the City may reimburse Consultant for additional expenses incurred by Consultant, in an amount equal to 15% of the City's portion of the total Agreement cost 0100,000). However, any such reimbursable expenses must be approved in writing by the City prior to Consultant incurring costs for same. The City shall have no duty or responsibility to reimburse Consultant for any unapproved expenses. 3.2 INVOICING Contractor shall submit an invoice, which includes the purchase order number and a detailed description of the Services provided. 3.3 METHOD OF PAYMENT Payments shall be made within thirty (30) days of the date of invoice, in a manner satisfactory to and as approved and received by, the City. Contractor shalt mail all invoices to: City of Miami Beach Accounts Payable 1700 Convention Center Drive 3`d Floor Miami, Florida 33139 SECTION 4 GENERAL PROVISIONS 4.1 RESPONSIBILITY OF THE CITY The City in requesting advertisement services should provide to Contractor a "camera ready' advertisement by the deadline specified in Exhibit "A." 4.2 A State of Florida Form PUR 7068, Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes shall be filed with the City's Procurement Division, prior to commencement of the Services herein. 4.3 DURATION AND EXTENT OF AGREEMENT The term of this Agreement shall commence upon execution of this Agreement, by all parties hereto, and shall terminate on 4.4 TIME OF COMPLETION The Services to be rendered by the Contractor shall be commenced upon receipt of a written Notice to Proceed from the City subsequent to the execution of the Agreement, and Contractor shall adhere to the schedule as referenced by Exhibit "A" hereto. A reasonable extension of time shall be granted in the event the work of the Contractor is delayed or prevented by the City of by any circumstances beyond the reasonable control of the Consultant, including weather conditions or acts of Cod render performance of the Consultant's duties impracticable. 4.5 INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City of Miami Beach and its officers, employees and agents, from and against any and all actions, claims, liabilities, losses, and expenses, including, but not limited to, attomeys' fees, for personal, economic or bodily injury, wrongful death, loss of or damage to property, at law or in equity, which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other wrongful conduct of the Contractor, its employees, agents, sub-consultants, or any other person or entity acting under Consultant's control, in connection with the Contractor's performance of the Services pursuant to this Agreement; and to that extent, the Contractor shall pay all such claims and losses and shall pay all such costs and judgements which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys' fees expended by the Ciry in the defense of such claims and losses, including appeals. The parties agree that one percent (1 %) of the total compensation to the Contractor for performance of the Services under this Agreement is the specific consideration from the City to the Contractor for the Contractors Indemnity Agreement. The Contractor's obligation under this Subsection shall not include the obligation to indemnify the City of Miami Beach and its officers, employees and agents, from and against any actions or claims which arise or are alleged to have arisen from negligent acts or omissions or other wrongful conduct of the City and its officers, employees and agents. The parties each agree to give the other party prompt notice of any claim coming to its knowledge that in any way directly or indirectly affects the other party. 4.6 TERMINATION. SUSPENSION AND SANCTIONS 4.6.1 Termination for Cause If the Contractor shall fail to fulfill in a timely manner, or othervvise violate any of the covenants, agreements, or stipulations material to this Agreement, the City shall thereupon have the right to terminate the Services then remaining to be performed. Prior to exercising its option to terminate for cause, the City shall notify the Contractor of its violation of the particular terms of this Agreement and shall grant Contractor seven (7) days to cure such default. If such default remains uncured after seven (7) days, the City, upon three (3) days' notice to Contractor, may terminate this Agreement and the City shall be fully discharged from any and all liabilities, duties and terms arising out of/or by virtue of this Agreement. Notwithstanding the above, the Contractor shall not be relieved of liability to the City for damages sustained by the City by any breach of the Agreement by the Consultant. The City, at its sole option and discretion, shall additionally be entitled to bring any and all legal/equitable actions that it deems to be in its best interest in order to enforce the City's right and remedies against the defaulting party. The City shall be entitled to recover all costs of such actions, including reasonable attorneys' fees. To the extent allowed by law, the defaulting party waives its right to jury trial and its right to bring permissive counter claims against the City in any such action. 4.6.2 Termination for Convenience of City THE CITY MAY ALSO, FOR ITS CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE SERVICES THEN REMAINING TO BE PERFORMED AT ANY TIME DURING THE TERM HEREOF BY GIVING WRITTEN NOTICE TO CONTRACTOR OF SUCH TERMINATION, WHICH SHALL BECOME EFFECTIVE FORTY-FIVE (45) DAYS FOLLOWING RECEIPT BY THE CONTRACTOR OF THE WRITTEN TERMINATION NOTICE. IN THAT EVENT, ALL FINISHED OR UNFINISHED DOCUMENTS AND OTHER MATERIALS, AS DESCRIBED IN SECTION 2 AND IN EXHIBIT "A" SHALL BE PROPERLY ASSEMBLED AND DELIVERED TO THE CITY AT CONTRACTOR'S SOLE COST AND EXPENSE. IF THE AGREEMENT IS TERMINATED BY THE CITY AS PROVIDED IN THIS SUBSECTION, CONTRACTOR SHALL BE PAID FOR ANY SERVICES SATISFACTORILY PERFORMED, AS DETERMINED BY THE CITY AT ITS DISCERTION, UP TO THE DATE OF TERMINATION. 4.6.3 Termination for Insolvency The City also reserves the right to terminate the remaining Services to be performed in the event the Contractor is placed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit of creditors. In such event, the right and obligations for the parties shall be the same as provided for in Section 4.6.2. 4.6.4 Sanctions for Noncompliance with Nondiscrimination Provisions In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the City shall impose such sanctions as the City or the State of Florida may determine to be appropriate, including but not limited to, withholding of payments to the Contractor under the Agreement until the Contractor complies and/or cancellation, termination or suspension of the Services. In the event the City cancels or terminates the Services pursuant to this Subsection the rights and obligations of the parties shall be the same as provided in Section 4.6.2. 4.7 Changes and Additions Changes and additions to the Agreement shall be directed by a written amendment signed by the duly authorized representatives of the City and Consultant. No alteration, change, or modification of the terms of this Agreement shall be valid unless amended in writing, signed by both parties hereto, and approved by the City Commission of the City. 4.8 AUDIT AND INSPECTIONS At any time during normal business hours and as often as the City may deem necessary, there shall be made available to the City and/or such representatives as the City may deem to act on its behalf, to audit, examine and make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. Contractor shall maintain any and all records necessary to document compliance with the provisions of this Agreement. 4.9 ACCESS TO RECORDS Contractor agrees to allow access during normal business hours to all financial records to the City and/or such authorized representatives as it may deem to act on its behalf, and agrees to provide such assistance as may be necessary to facilitate financial audit by the City or its representatives when deemed necessary to insure compliance with applicable accounting and financial standards. Contractor shall allow access during normal business hours to all other records, forms, files, and documents which have been generated in performance of this Agreement, to those personnel as may be designated by the City. 4.10 ASSIGNMENT. TRANSFER OR SUBCONTRACTING The Contractor shall not subcontract, assign, or transfer any work under this Agreement without the prior written consent of the City. 4.11 SUB-CONTRACTORS The Contractor shall be liable for the Consultant's services, responsibilities and liabilities under this Agreement and the services, responsibilities and liabilities of sub-contractors, and any other person or entity acting under the direction or controls of the Contractor. When the term "Contractor" is used in this Agreement, it shall be deemed to include any sub-contractors and any other person or entity acting under the direction or control of Contractor. All sub-contractors must be approved of in writing prior to their engagement by Contractor. 4.12 EQUAL EMPLOYMENT OPPORTUNITY In connection with the performance of this Agreement, the Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, sex, age, and national origin, place of birth, marital status, or physical handicap. The Contractor shall take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, color, religion, ancestry, sex, age, national origin, place of birth, marital status, disability, or sexual orientation. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or termination; recruitment or recruitment advertising; layoff or termination; rates of pay, or other forms of compensation; and selection for training, including apprenticeship. 4.13 CONFLICT OF INTEREST The Contractor agrees to adhere to and be governed by the Metropolitan Miami-Dade County Conflict of Interest Ordinance (No. 72-82), as amended; and by the City of Miami Beach Charter and Code, which are incorporated by reference herein as if fully set forth herein, in connection with the Agreement conditions hereunder. The Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirectly which should conflict in any manner or degree with the performance of the Services. The Contractor further covenants that in the performance of this Agreement, no person having any such interest shall knowingly be employed by the Consultant. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Agreement or to any benefits arising therefrom. 4.14 PATENT RIGHTS• COPYRIGHTS: CONFIDENTIAL FINDINGS Any patentable result arising out of this Agreement, as well as all information, design specifications, processes, data and findings, shall be made available to the City for public use. No reports, other documents, articles or devices produced in whole or in part under this Agreement shall be the subject of any application for copyright or patent by or on behalf of the Contractor or its employees or subcontractors. 4.15 NOTICES All notices and communications in writing required or permitted hereunder may be delivered personally to the representatives of the Contractor and the City listed below or may be mailed by registered mail, postage prepaid (or airmailed if addressed to an address outside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be addressed as follows: TO CONSULTANT: Economics Research Associates Attn: Steven E. Spickard 388 Market Street, Suite 1580 San Francisco, California 94111 TO CITY: City of Miami Beach Attn: City Clerk 1700 Convention Center Drive Miami Beach, Florida 33139 (305) 673-7411 WITH COPIES TO: Office of the City Attorney Attn: Murray H. Dubbin City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Notices hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. 4.16 LITIGATION JURISDICTIONNENUE This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. 4.17 ENTIRETY OF AGREEMENT This writing and the Services embody the entire Agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written with reference to the subject matter hereof that are not merged herein and superceded hereby. The Services and the Proposal Documents are hereby incorporated by reference into this Agreement. 4.18 LIMITATION OF CITY'S LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of $1,000. Contractor hereby expresses its willingness to enter into this Agreement with Consultant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $1,000. Accordingly, and notwithstanding any other term or condition of this Agreement, Contractor hereby agrees that the City shall not be liable to the Contractor for damages in an amount in excess of $1,000 for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Section 768.28, Florida Statutes. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first entered above. FOR CITY: ATTEST: ~~i ~ '~' ' I City Cferk CITY OF MIAMI BEACH, FLORIDA City Manager FOR CONSULTANT: ATTEST: BY i' --- - i __ ~- I /~i~ ~'_lc~_ PRc~D ~~ (TITLE) APPROVED A3 TD FORM & LANGUAGE l FOR EXECUTION ` -L/-d Corporate Seal EXHIBIT "A" The Scope of Services presented below in eight steps describes the sequence of tasks the Contractor will perform in order to produce all the desired study outputs. Task 1: Project Orientation At the outset of the consulting assignment, and in preparation for the initial trip to Miami Beach, the ERA Team will request and review a variety of written documents, plans, statistics and websites. ERA staff will also work with the City to identify potential stakeholders and schedule a week's worth of interviews. Base Information Needed The ERA Team will solicit help from CMB Staff, GMCVB Staff, and others throughout Tasks i and 2 to collect an initial data base that includes, but is not limited to: • GMCVB Current Annual Work Plan and Goal Statement; • GMCVB organization chart, board composition, and other indicators of existing structure; • Budget information from CMB and GMCVB including summary data on key measures from the past three to five years; • Identification of current partnership arrangements and outside firms involved in advertising and marketing; • Hotel inventory data for Miami Beach and the Greater Miami area, including trends in transient occupancy tax collections; and • Current status and any output to date from the Market Assessment. Task 2: Stakeholder Interviews Three key staff (Steve Spickard, Trudy McNulty, and one of ERA's Associates) will then spend a week in the greater Miami region conducting interviews with stakeholders (approximately 15 person-days). The ERA Team will start with CMB staff, and will include multiple interviews with key staff of the Greater Miami Convention and Visitors Bureau (GMCVB). Interviews will be held with other stakeholders as well; including for example, hoteliers, staff of other cities, convention center management, and (if appropriate) selected city commissioners and bureau board members. During this initial trip, the ERA Team will seek to gain a thorough understanding of all issues, the existing structures of the GMCVB and the relationship of the Bureau with the City, the marketing programs in place, existing partnership arrangements in place, etc. We will expect to collect additional documents and materials beyond those briefly reviewed in Task 1. 10 DELIVERABLE 1: Issues Identification Upon returning from our meetings in Miami Beach and the greater Miami area, the ERA team will submit Working Memorandum #1 to City staff describing what we heard in the stakeholder interviews. A central focus of this memorandum will be identification of issues to be addressed by the remainder of the study. Task 3: Benchmarking other Bureaus Among the many topics discussed during the ERA Team's week in the Miami area will be the similarity of the Greater Miami situation to other metro areas with a significant convention and tourism draw. After returning to our respective offices, the ERA Team will initiate a "benchmarking" research effort to gather and format information describing other major metro marketing efforts to compare wkh that of the GMCVB. ERA will discuss the applicability of European examples with the tourism development staff in our London office, and may include one or more European metropolitan areas in the mix of comparable cities for benchmarking. The majority, however, will be other major US metro areas for which individual city vs. metro area marketing is a potential issue. This research effort will establish industry standards, as well as suggest alternative structures and strategies that are currently working well in other locations (along with lessons learned from failed experiments elsewhere). DELIVERABLE 2: Draft Benchmarking Findings The benchmarking data collected from other destinations wilt be presented to the City in draft form as Working Memorandum #2. A refined version of the benchmarking findings will also appear as a section in the final report document. Task 4: Initial Analysis of the GMCVB All insights and material collected in the Greater Miami area in Tasks 1 and 2 will be compared with the industry information gained in Task 3, and analyzed with the goal of addressing every point requested in the RFP Scope of Services. The ERA Team will develop initial findings on all points, but before proceeding with preparation of a formal report, the ERA Team will again visit Miami Beach (in Task 5). Task 5: Initial FindingslAdditional Interviews The two senior analysts (Steve Spickard and Trudy McNulty) will meet with City staff to present initial findings from the research and analysis conducted to date. The ERA Team will budget for a couple days in the Miami area, presenting an opportunity to meet with other stakeholders who could not be available during the initial visit. If deemed appropriate by City staff, the consultants could also present selected initial findings to the GMCVB allowing them to correct any misperceptions or explain extenuating circumstances during this visit. Specific Approach to Managing Conflicting Opinions and Obtaining Consensus One objective of this interim trip wilt be to help build credibility and acceptance for the final report. The experience of the consulting team has taught us that in situations such as these, there is the potential for such a divergence of interests that consensus on final recommendations maybe unobtainable. We have found the best methodology is to conduct many individual and small group interviews allowing specific and sensitive issues to be adequately aired and factored into the analysis, and to stay away from °workshops"and other open forums. The role of the consultants is to provide the City of Miami Beach with the best objective advice in the interests of the Miami Beach community. !n the end, some individuals in the greater Miami area may, or may not, be happy with the ultimate findings and recommended direction of the report, but the goal of our study process is to have consensus agreement that the study process and report itself were fair, inclusive, comprehensive, accurate, responsible, and reasonable. The third deliverable in the study process will be a draft outline of the study report along with Working Memorandum #3 which we will bring with us when presenting our initial findings. fn our meetings in Miami Beach, the consultants will also have preliminary drafts of specific tables, graphs, and some other written material that wilt ultimately appear in the final. Issues addressed in draft outline bullet form in the initial assessment will include: • The measurement of the Bureau's performance against stated goals and work plan. • A comparison of the Bureau's operation against other comparable organizations. • An evaluation of the Bureau's strengths, weaknesses, opportunities and challenges in the context of its market competition. • An identification of areas where productivity can be improved. • An assessment of the Bureau's key processes in sales, marketing, customer service, administration and support services. An evaluation of the research conducted by the Bureau, including prioritization of initiatives and concentration of resources. • An assessment of the effectiveness of the Bureau's measurement system for evaluating performance. Task 6: Formulate Draft Report Upon returning from the Task 5 trip, the ERA Team will formulate all draft recommendations and prepare a formal written report. Each of the five topics in the RFP Scope of Services will be specifically addressed. The report will be delivered in draft form to the City for review. DELIVERABLE 4: Drag Report In addition to covering the findings reported in Task 5, the report will recommend strategic approaches to the following: Targeting -the current and future markets. Positioning - to accentuate differentiation of destination. Communications -ranging from public relations and advertising to community relations and government affairs. The draft report wilt address all of the questions raised in Section !1 of the RFP Scope of Services, including the fundamental issue of continuing to market the Greater Miami area versus Miami Beach alone. Task 7: Present Draft Report to Staff The ERA Team principal analyst (Steve Spickard) will meet with City staff to discuss the draft report. If deemed appropriate by City staff, some or all of the draft report recommendations and conclusions could be presented to others (e.g., the GMCVB) during the same trip. Task 8: Finalize Report The ERA Team will respond to comments on the draft and refine the analysis as necessary to produce a final report. Fifteen bound copies and an electronic copy in pdf format will be delivered. DELIVERABLE 5: Final Report The final report will address all of the concerns in the RFP Scope of Services. In summary, these will include: 1. Assessment of the current GMCVB governance, strucfure, processes and operations. 2. Recommendation of an ideal governance, structure, and operating model for the future of Miami Beach as it no marketing organization currently existed in the region. 3. Benchmarking of the GMCVB relative to other comparable major metro marketing organizations and industry standards. 4. Recommended strategic approaches for meeting the objectives of the upcoming Market Assessment. 5. Assessment of whether continuing to participate in the Greater Miami marketing effoR is more or less effective than focusing on Miami Beach alone in meeting the objectives of the Miami Beach City and community. Additional services The key staff on the ERA Team will remain available for other services on a time and expenses basis as requested by the City. For example, the key ERA staff could make a presentation of the final report to the City Commission if needed. SCHEDULE OF PAYMENTS: Payments to the Contractor would be tied to submission of deliverables as follows: Milestone: Working Memorandum #1 Working Memorandum #2 Working Memorandum #3 Upon submission of Draft Report Upon submission of Final Report Project Totals Amount: $25,000 + any expenses to date $25,000 + any expenses to date 520,000 + any expenses to date $20,000 + any expenses to date $10 000 + any expenses to date $100,000 + expenses 14