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Professional Services Agreement with Willdan Financial Servicesaoo 9- a~a.~3 ~~~ PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND WILLDAN FINANCIAL SERVICES FOR A GENERAL FUND REVENUE ENHANCEMENT STUDY PURSUANT TO REQUEST FOR PROPOSALS NO. 12-09/10 This Professional Services Agreement ("Agreement") is entered into this ~ day of :I,a2(1ua(9~f.T , 2010, between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation organized and existing under the laws of the State of Florida (City), having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and WILLDAN FINANCIAL SERVICES, INC. (Consultant), a Florida corporation, whose address is 7380 Sand Lake Road, Suite 500, Orlando, FL 32819. SECTION 1 Agreement: This Agreement between the City and Consultant, including any exhibits and amendments thereto. City Manager: The Chief Administrative Officer of the City. Consultant: For the purposes of this Agreement, Consultant 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 Consultant performed pursuant to or undertaken under this Agreement. Fee: Amount paid to the Consultant as compensation for Services. Project: Project shall mean the General Fund Revenue Enhancement Study, as contemplated in this Agreement and the Proposal Documents, including, without limitation, all Services to be performed by Consultant. The "Project", as defined herein, may also be referred to as the "Study". Proposal Documents: Proposal Documents shall mean City Request for Proposals No. 12- 09110 for A GENERAL FUND REVENUE ENHANCEMENT STUDY, together with all amendments thereto, issued by the City in contemplation of this Agreement (the RFP), and the Consultant's proposal in response thereto (Proposal), all of which are hereby incorporated by reference and made a part hereof; provided, however, that in the event of an express conflict between the Proposal Documents and this Agreement, the following order of precedent shall prevail: this Agreement; the RFP; and the Proposal. 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. 1 SECTION 2 SCOPE OF SERVICES (SERVICES) 2.1 PROJECT SCOPE (Overview) The objective of this Project is for the Consultant to conduct a revenue enhancement study that includes an inventory of City General Fund revenue sources (with the exception of property taxes and building development process related fees); a comparison of a subset of these sources with other national and local entities; identification of existing City sources for which the City is "below market'; recommendations for new revenue sources; and cost analyses for new or increased cost-based fees the City decides to study further. Results of the study and recommendations would be presented by the Consultant to City staff, the City Manager, City Commission Committees, and the City Commission. Further, the Consultant will provide written guidelines (process and procedures) for the implementation of revenue enhancements that the City determines to pursue. To allow a reasonable timeframe for incorporation of the results in the Fiscal Year (FY)2010/11 proposed City budget, the results of Consultant's study shall be provided to the City no later than June 30, 2010 (Outside Date), provided however that the Phase 4 Deliverable will be provided to the City no later than May 14, 2010. 2.1.1 REQUIRED SERVICES /Specifically) During the term of this Agreement, and in any event by no later than the (Outside Date) set forth in subsection 2.1 above, Consultant shall provide and complete the following Services: Phase 1 -Pre-planning and Project Kick-off 1. Consultant shall schedule a teleconference with City staff members to review and refine the Project methodology, benchmark jurisdictions, and Project timelines, and to develop, in conjunction with City, a list of City liaisons (by department) that will work with the Consultant throughout the Project. 2. Consultant shall review the following references: . Florida Statutes regarding revenues reserved to the State or Miami-Dade County, and revenues allowed to be collected by the City (i.e. by municipalities) (including both fees and taxes); and . Local codes and ordinances regarding fees and taxes, including enabling resolutions and ordinances to be provided by the City. Any available technical or financial study that precedes the enabling legislation should also be included in what is provided by City staff 3. Consultant shall provide the City with a list of desired data and information to be used for the Study, subject to availability 4. Consultant shall conduct an "all hands" meeting at City offices to discuss the various elements of the project, and develop an initial strategy and course of action to address the City's needs. This meeting will include all City staff members that will be directly involved in the Project, as well as key Consultant Team 2 members (also referred to herein as the "Full Team and as identified in Exhibit "A" hereto). No Consultant team member identified in Exhibit "A" shall be replaced or otherwise taken off the Project without the prior written consent of the City Manager; provided, further, however that, should the City Manager, in his sole and reasonable discretion determine that one (or more) of Consultant's team members is not qualified and/or not meeting the City's expectations with regard to his/her required duties pursuant to this Agreement then, upon written notice to Consultant, Consultant (also as further provided in subsection 2.2.5 hereof) shall be required to replace that member(s) with a qualified individual(s), who shall also be subject to the reasonable prior approval of the City Manager. . The primary objective of this meeting is to review and confirm the City's goals and priorities for the Study; identify major considerations; City organizational structure; the available information and data requested by the Consultant and which portions of it have been received by the Consultant: and overall Project timelines. • This meeting will also establish effective lines of communication and set a schedule for completion of data requests to various City staff members from the Consultant. 11tleefo~gs: One (1) teleconference to set up the kickoff meeting, and one (1) "all hands" kickoff meeting to organize an initial course of action to collect data and review City revenues. I3etiverables: None Phase 2 -Documentation of Existins~ Revenue Sources and Potential for New Sources 1. Consultant shall complete an analysis of existing fees and rates, policies, and administrative costs of collection for the City's present General Fund revenue streams which, at a minimum, includes: • Prepare a written inventory, based on information provided by City in Phase 1, of City revenue sources, including schedules for current fees and rates; the enabling legislation for their adoption; and procedures for updating. . Note for each current revenue source an estimate of administrative costs associated with the collection and expenditure of same. 2. Based upon discussions with and input from City staff regarding functional areas of work performed in Phase 1, Consultant shall identify an inventory of potential areas for new or increased revenue sources. The information will be confirmed via conference calls with each designated City liaison member. greet/rzs. None t3eleverataTes: Memorandum documenting the City's existing revenue sources; fee and rate schedules; protocol for updating the fees and rates; administrative costs of collecting and expending funds; and enabling legislation. The memorandum 3 shall also include staff observed areas that are potential new revenue sources. Phase 3 -Inventory and Comparison of Revenue Sources and Structures Consultant shall develop an inventory and comparison of revenue sources from as many as thirty (30) comparison cities, to be identified by the City, in its sole and reasonable discretion. The number of comparison cities will vary with the type of revenue compared (e.g., marina fees and revenues will only be compared across jurisdictions with marinas). The inventory and comparison will be in two categories: The first category will be to inquire if the city has a fee similar to that which is collected by the City. If so, what is the amount of the fee; how it is administered; what is the enabling legislation; and what is the annual revenue generated. The Consultant will focus on up to 30 existing City of Miami Beach revenue sources across these 30 cities to ensure an "apples-to-apples" comparison of fee and rate schedules between the City and comparison cities. The second category is to explore with the 30 comparison cities what General Fund revenue mechanisms they currently use that the City does not have. There will be no limit to the number of these mechanisms located and catalogued for discussion and review with the City. • Survey General Fund revenue sources in each comparison city to understand the method of calculating the amount owed to the city; annual revenue potential; enabling authority; elasticity and effectiveness of each fee and rate. Each fee or rate maybe be used or could be potentially used, in the City. • For each specific revenue source, improve survey results by defining a "prototype" activity requiring the payment of a fee, charge, or tax. Base prototype definitions on typical activities occurring in the City. • Identify any significant differentials in fee or rate levels, including leases and franchise revenues, and conduct further investigation in an effort to identify the likely cause. To the extent available, the Consultant will use financial data from a fiscal year comparable to the City fiscal year. 2. Consultant shall compare General Fund revenue sources with the data from the comparison cities using the following metrics: • Total annual revenue for each fee or rate; and • Uses of revenues to offset costs in a particular department, expressed where data is available as a percent of General Fund department expenditures. 3. Consultant shall present collected data in a concise, logical and complete memorandum, including tables and charts providing, at a minimum, the comparison between the fees and rates documented in the comparison cities and the current City General Fund fee and rate structures. Document data sources and confirm any unusual findings with key contacts in each comparison city. 4. Upon review, the City, in its discretion may request an in-person meeting with Consultant to provide a compiled set of written comments for the Consultant to consider. 4 5. In addition to the memorandum and meeting with City staff, consultant may also be requested to hold additional meetings with key departments to identify applicable functional units and service types that could be supported by new or additional cost-based fees or market-based rates. Meetings referenced in paragraphs 4 and 5 must take place during time period in which a meeting is already scheduled. nlleefia~gs: One (1) meeting to review and discuss results of memorandum. ~edi~rer'abfes: One (1) Revenue Inventory and Comparison Survey memorandum that fully documents the fees and rates from the comparison cities Memorandum, at a minimum, shall document the comparison Cities' existing revenue sources; fee and rate schedules; authority; protocol for updating the fees or rates; administrative costs of collecting and expending funds; and enabling legislation. At the end of Phase 3, the City, in its sole discretion, through its City Manager, will determine whether to proceed with Phases 4 through 6. The Consultant will not begin work on Phase 4 until authorized by the City Manager, in writing. The City and Consultant agree that any delay in authorization to proceed to Phase 4 may affect the Project timeline. Accordingly, in that event, City and Consultant will mutually agree on a revised timeline. Should the City decide not to proceed with Phase 4, or any other Phase under this Agreement, the City may terminate this Agreement for convenience and without cause. In that event, the City's only obligation shall be to compensate Consultant for all Services satisfactorily performed for Phases 1 through 3; following which the City shall have no further obligation and/or liability to Consultant, (financial or otherwise) under the Agreement. Phase 4 - Identify Potential Actions to Enhance Revenues 1. Consultant shall, based on survey data in Phase 3, input from the Full Team, and discussions with City staff, identify revenue sources with the greatest potential to generate significant additional General Fund revenue in the City. • Explain in detail why certain comparison cities' fees and rates are (or are not) applicable to the City. • Target revenue sources with potential for the City to use in enhancing its General Fund, including those currently contributing to the General Fund and others that the City has not yet established. • Address the following factors when refining a list of potential diversification or enhancement strategies: • Economic competitiveness of the City in light of new or expanded public revenues; ^ Amount of potential increase to General Fund revenues compared to the effort involved such as, or cost of service delivery and revenue administration; • Reliability or volatility of new or expanded revenue type based on economic cycles and market conditions.; and ^ Enabling legislation for implementing the new revenue alternative. 5 2. Prepare an administrative draft report for staff that recommends revenue options for the City of Miami Beach, based on survey data, Full Team observations, City staff observations and consultant experience. Meet with the staff to discuss draft document, and receive a single set of complied comments from the City. Meefier~s: One (1) meeting with staff to review and comment on recommendations. Included in the meeting will be a discussion of a program of meetings with additional staff, members of the public, and/or the City Commission. t7elivera~les: One (1) Draft Report containing an inventory of existing revenues, survey data, and recommended revenue diversification and enhancement actions for the City. Phase 5 -Prepare User Fee Cost Studies 1. Prepare supporting analyses for up to ten (10) cost based fee options selected by the City in Phase 4. Focus on revenue sources that generate significantly less revenue in the City than in comparable jurisdictions on a per unit basis. For each cost based fee study, the City-will provide Consultant with its available data regarding average hourly rate per productive hour, and the distribution of available productive hours across functional service units for the department that is or will be responsible for administration of the fee program. 2. Project estimated revenue increases by year for five (5) years using acceptable rates of growth in activities for each of the identified fees and rates. ~Jfeefpn~s: One (1) conference call with the Full Team and City staff to review the proposed cost analysis methodology. t3efivera~Ies: One (1) set of cost analyses (i.e. Draft Report) for review and comment by the City prior to incorporating into the Final Report. Phase 6 -Attend Meetings, Present Alternatives, and Train Staff 1. Consultant shall issue a Final Report containing (at a minimum) the following: ^ Comparison of City revenue sources, and fee or rate schedules with those in comparison cities; • Enabling legislation necessary to enhance revenues; • Recommendations of revenue enhancements available to the City; User fee studies for up to ten (10) cost based fee or rate changes; and • Five-year projection of revenue potential of enhanced or new revenue sources. 2. Consultant shall present the recommendations in its Report at the appropriate City Commission Committee meeting. Following its presentation to the appropriate Commission Committee, Consultant 6 shall present the Final Report to the City Commission. Consultant's presentation shall also, at a minimum, include a PowerPoint presentation with hand-outs, as deemed necessary by the City to make the Report clear, concise and understandable to the City Commission and the viewing general public. 3. Consultant shall provide the City with the model and methodologies to update the recommended fees or rental rates on an annual basis, and during one of the visits for a meeting, train City staff in using the model. • Provide Microsoft Excel software models with training as part of one of the Consultant's attendance of Commission Committee meetings or Commission meetings. Show City staff how to accomplish annual changes (or when circumstances dictate) using the same methodology as the original recommendations. Meeti~r~s: Two (2) Meetings, which include one (1) meeting with a City Commission Committee, and one (1) meeting with the City Commission. ~e/iverables: One (1) Final Report containing the survey information and comparative revenue analysis; identification of revenue sources potentially available to the City; recommended actions; five (5) year new revenue projections, if the recommended actions are adopted; and user fee cost study. Report to be issued both in PDF format and 12 hard copies. An appendix (in PDF format and 1 printed copy) will contain the final versions of all models used. Consultant may also be required to make one (1) re-vision of the report containing appropriate amendments to the Final Report, between the City Commission Committee meeting and the City Commission meeting, to incorporate the Committee's comments/recommendation (if any). 2.2 CONSULTANT'S RESPONSIBILITIES 2.2.1 Consultant shall use its best efforts to maintain a constructive, professional, cooperative working relationship with the City Manager, and City Staff on the project. 2.2.2 The Consultant shall perform its duties under this Agreement in a competent, timely and professional manner, and shall be responsible to the City for any failure in its performance, except to the extent that acts or omissions by the City make such performance impossible. 2.2.3 The Consultant shall be responsible for the professional quality, technical accuracy, completeness, performance and coordination of all work/services required under the Agreement (including the work/services performed by sub-consultants), within the specified time period and specified cost. The Consultant shall perform the work/services utilizing the skill, knowledge, and judgment ordinarily possessed and used by a proficient consultant with respect to the disciplines required for the performance of the work/services, and shall conform to City's requirements, as set forth in the Agreement. The Consultant shall be and remain liable to the City for all damages to the City caused by the Consultant's negligent acts or errors or omissions in the performance of the work/services. In addition to all other rights and remedies, which the City may have, the Consultant shall, at its expense, re-perform all or any portion of the Services to correct any inconsistent with standards, decisions, or 7 approvals provided by the City under this Agreement. Consultant will use reasonable care and skill, in accordance and consistent with customary professional standards. Consultant shall address comments forwarded to it in a timely manner. The term "timely" shall be defined to mean as soon as possible under the circumstances, taking into account the timeliness of the Project timeline. 2.2.4 Consultant agrees that when any portion of the Services relates to a professional service which, under Florida Statues, requires a license, certificate of authorization, or other form of legal entitlement to practice and/or perform such Service(s), it shall employ and/or retain only qualified duly licensed certified personnel to provide same. 2.2.5 Consultant agrees to designate, in writing, within five (5) calendar days after execution of the Agreement by the parties hereto, a qualified professional to serve as its Project manager (hereinafter referred to as the "Project Manager"). The Project Manager shall be authorized and responsible to act on behalf of Consultant with respect to directing, coordinating and administrating all aspects of the Services. Replacement (including reassignment) of appointed the Project Manager, as shown in Exhibit A, shall not be made without the prior written approval of the City Manager. Consultant agrees, within fourteen (14) calendar days of receipt of written notice from the City Manager (which notice shall state the cause therefore), to promptly remove and replace a Project Manager, or any other personnel employed members or otherwise retained by Consultant for the Project (including, without limitation, any Full Team sub-consultants). 2.2.6 Consultant agrees not to divulge, furnish or make available to any third party(ies), any non-public information concerning the Services or the Project, without the prior written consent of the City Manager, unless such disclosure is incident to the proper performance of the Services; or the disclosure is required pursuant to Florida Public Records laws; or, in the course of judicial proceedings, where such information has been properly subpoenaed. Consultant shall also require its employees and sub- consultants to comply with this subsection. 2.2.7 The City shall make available to Consultant all City information, required under this Agreement that the City has in its possession pertinent to the Project. Consultant hereby agrees and acknowledges that, in making any such information available to Consultant, the City makes no express or implied certification, warranty, and/or representation as to the accuracy or completeness of such information City understands that the Consultant shall rely on the information provided by the City without the obligation to verify such information. SECTION 3 TERM/PROJECT TIMELINE 3.1 TERM The Term of this Agreement shall commence upon execution of this Agreement by all parties hereto, and shall terminate twelve (12) months after execution. Notwithstanding the preceding, the Consultant shall adhere to the Project timeline in subsection 3.2 (for performance/delivery/and completion of the Services}. In any event, Consultant's Final 8 Report shall be due no later than June 30, 2010, provided however that the Phase 4 Deliverable will be provided to the City no later than May 14, 2010.. 3.2 PROJECT TIMELINE The Project timeline is presented in the following table: City of Miami Beach's Revenue EnhancemenlSlutly Project Timeline Week 1 2 3 4 5 6 7 6 9 10 11 12 13 14 15 16 17 16 19 20 21 Phase 1-Pn~plannirp mtl ProjeM KlckcR (meeting) Pluae P -DOCUmenhtlan of Eaiaenp Revenue Sources and PobMUI for New Sources Phase 3-InwnOOryand Compadaon of Ravanue Sousa and Stmowres (meetirg) Phase a-Ide~y Pohntlsl Aeeons to Enluna Revenues (meeting) Phsu 6 - Pnpen Uwr Fee Coat Stutlles Phaae 6 -A10and Meetlnes, PruenlAlbmatlves, and Train SfaN imee0ngs) L d: ~Meedng The Services shall be performed in a manner that shall conform to the approved Project timeline. The Consultant may submit requests for an adjustment to the Project timeline, if made necessary because of undue delays resulting from untimely review taken by the City (or other governmental authorities having jurisdiction over the Project) to approve the Consultant's submissions, or any other portion of the Services requiring approval by the City (or other governmental authorities having jurisdiction over the Project). Consultant shall immediately provide the City manager with written notice stating the reason for the particular delay; the requested adjustment (i.e. extension) to the Project timeline; and a revised anticipated schedule of completion. Upon receipt and review of Consultant's request (and such other documentation as the City Manager may require), the City Manager may, in his/her reasonable judgment and discretion, grant a reasonable extension of time for completion of the particular work/services involved, and authorize that the appropriate adjustment be made to the Project timeline. The City Manager's approval (if granted) shall be in writing. SECTION 4 COMPENSATION FOR SERVICES 4.1 COST OF SERVICES The cost charged by the Consultant for those Services (or portions thereof), satisfactorily performed pursuant to this Agreement shall be as follows; provided, however, that, as set forth in Phase 3 hereto, the City Manager may (in his/her sole discretion) elect not to proceed with Phases 4 through 6 of the project. 9 Phase Phase Name ?Cost of Services 1 Pre-Planning and Project Kickoff $2,400 2 Documentation of Existing Revenue Sources and Potential for New Sources $17,500 3 Inventory of Potential Revenue Sources and Structures $35,000 4 Identify Potential Actions to Enhance Revenues $7,500 5 Prepare User Fee Cost Studies See below 6 Attend Meetings, Present Alternatives, and Train Staff $7,640 TOTAL (not including User Fee Analysis in Phase 4) $70,040 The Consultant will charge $2,000 for each fee analyzed as part of the user cost study in Phase 5, up to a maximum of ten (10). Additional Services Additional services may only be authorized by the City Manager, in writing, prior to commencement of same. If so authorized, Additional Services will be billed at Consultant's current hourly rates, based on the hourly rates below: ', Carc~u~ Manager $ 21 (? f Principal Consultant 20G~ I Senior Project Manager 166 Proiect Manager ~ 145 Senior Proioc Analytst ? 3L~ Senior AnaEyst 1213 Anaiyst li 1JE3 Ar~aiyst i 1©C~ Assistant Analyst 76 Support Staff, F;ose Institute 5C} 4.2 INVOICING Payments shall be made on a lump sum basis, upon completion of each Phase Consultant's invoice shall include, at a minimum, a detailed description of the manner in which each task was completed (for the Phase being invoiced). All Invoices shall be mailed to: City of Miami Beach 1700 Convention Center Drive City Manager's Office - 4"' Floor Miami Beach, Florida 33139 Attn: Kathie G. Brooks, OBPI Director 10 4.3 METHOD OF PAYMENT Within thirty (30) days of approval by the City of an appropriately submitted, complete; invoice, the City shall provide Consultant with a check for payment of the approved amount. Payments shall only be made on approved invoices for Services (or portions thereof) satisfactorily performed. SECTION 5 TERMINATION. SUSPENSION AND SANCTIONS 5.1 TERMINATION FOR CAUSE If the Consultant shall fail to fulfill in a timely manner, or otherwise violates 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 Consultant of its violation of the particular terms of this Agreement and shall grant Consultant (7) days to cure such default. If such default remains uncured after (7) days, the City, may terminate this Agreement without further notice to Consultant, and the City shall thereafter be fully discharged from any and all liabilities(whether financial or otherwise), duties and terms arising out of/or by virtue of this Agreement. Notwithstanding the above, the Consultant 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. 5.2 TERMINATION FOR CONVENIENCE OF THE 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 CONSULTANT OF SUCH TERMINATION, WHICH SHALL BECOME EFFECTIVE FIFTEEN (15) DAYS FOLLOWING RECEIPT BY THE CONSULTANT OF THE WRITTEN TERMINATION NOTICE. IF THE AGREEMENT IS TERMINATED BY THE CITY AS PROVIDED IN THIS SUBSECTION, CONSULTANT SHALL BE PAID FOR ANY SERVICES SATISFACTORILY PERFORMED, AS DETERMINED BY THE CITY, AT ITS DISCRETION, UP TO THE DATE OF TERMINATION. THEREAFTER, THE CITY SHALL BE FULLY DISCHARGED FROM ANY AND ALL LIABILITIES (WHETHER FINANCIAL OR OTHERWISE), DUTIES AND TERMS ARISING OUT OF, OR BY VITUE OF, THIS AGREEMENT. AS A CONDITION TO ANY FINAL PAYMENT DUE TO CONSULTANT PURSUANT TO A TERMINATION FOR CONVENIECE, CONSULTANT SHALL, UPON RECEIPT OF THE CITY'S NOTICE, PROMPLTLY ASSEMBLE AND DELIVER TO CITY ANY REPORTS, RESEARCH, DATA, STUDIES, TABLES, CHARTS, AND/OR ANY OTHER DOCUMENTS THAT CONSULTANT WAS WORKING ON FOR CITY PURSUANT TO THIS AGREEMENT, AND/OR THE PROJECT, WHETHER COMPLETE OR INCOMPLETE AND/OR IN DRAFT OR FINAL FORM. 11 5.3 TERMINATION FOR INSOLVENCY The City also reserves the right to terminate the Agreement in the event the Consultant 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 5.2. 5.4 SANCTIONS In the event of the Consultant'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 Consultant under the Agreement until the Consultant 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 5.2. SECTION 6 INDEMNIFICATION AND INSURANCE REQUIREMENTS 6.1 INDEMNIFICATION Consultant 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, attorneys' fees and costs, 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 Consultant, its employees, agents, sub-Consultant, or any other person or entity acting under Consultant's control, in connection with the Consultant performance of the Services pursuant to this Agreement; and to that extent, the Consultant shall pay all such claims and losses and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys' fees expended by the City in the defense of such claims and losses, including appeals. The parties agree that one percent (1%) of the total compensation to the Consultant for performance of the Services under this Agreement is the specific consideration from the City to the Consultant for the Consultant's Indemnity Agreement. This subsection 6.1 shall survive the expiration and/or earlier termination of this Agreement. The Consultant'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 6.2 INSURANCE REQUIREMENTS The Consultant shall not commence any work/services pursuant to this Agreement until all insurance required under this Section has been obtained and such insurance has been 12 approved by the City's Risk Manager. The Consultant shall maintain and carry in full force during the Term the following insurance: 1. Consultant General Liability, in the amount of $1,000,000. 2. Consultant Professional Liability, in the amount of $200,000. 3. Workers Compensation & Employers Liability as required pursuant to Florida statutes. All insurance policies must be issued by companies authorized to do business under the laws of the State of Florida. The companies must be rated no less than "B+" as to management and not less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by A. M. Best Company, Oldwick, New Jersey, or its equivalent, and subject to the approval of the City's Risk Manager. Original certificates of insurance for the above coverage must be submitted to the City's Risk Manager for approval prior to any work commencing. These certificates will be kept on file in the office of the Risk Manager, 3rd Floor, City Hall. The Consultant is solely responsible for obtaining and submitting all insurance certificates for its sub-consultants. Compliance with the foregoing requirements shall not relieve the Consultant of the liabilities and obligations under this Section or under any other portion of this Agreement, and the City shall have the right to obtain from the Consultant specimen copies of the insurance policies in the event that submitted certificates of insurance are inadequate to ascertain compliance with required overage. 6.2.7 Endorsements All of Consultant's required insurance certificates shall contain endorsements providing that written notice shall be given to the City at least thirty (30) days prior to, cancellation ten (10) days notice if cancellation is due to nonpayment of premium. 6.2.2 Certificates Unless directed by the City otherwise, the Consultant shall not commence any work/services pursuant to this Agreement until the City has received and approved, in writing, certificates of insurance showing that the requirements of this Section (in its entirety) have been met and provided for. SECTION 7 LITIGATION JURISDICTIONNENUE/JURY TRIAL WAIVER 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. By entering into this Agreement, Consultant and the City expressly waive any rights either party may have to a trial by jury of any civil litigation related to or arising out of this Agreement. Consultant shall specifically bind its employees, sub-consultants, and agents to the provisions of this Agreement. This Agreement shall be construed in accordance with the laws of the State of Florida. 13 SECTION 8 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, except for non-payment of Services provided by Consultant as a result of the City's request, 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 Consultant's Fee, as set forth subsection 4.1, less any sums actually paid by City to Consultant. Consultant 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 Consultant's Fee, as set forth subsection 4.1, less any sums actually paid by City to Consultant. Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby agrees that the City shall not be liable to the Consultant for damages in an amount in excess of Consultant's Fee, as set forth subsection 4.1, less any sums actually paid by City to Consultant 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, except for non-payment of services provided by Consultant as a result of the City's request. 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. SECTION 9 ATTORNEY'S FEES In the event that any party to this Agreement should seek legal or administrative recourse to enforce the terms of this Agreement, the breaching party shall be obligated to pay the prevailing party the reasonable attorney's fees and costs incurred by the prevailing party. SECTION 10 GENERAL PROVISIONS 10.1 AUDIT AND INSPECTIONS At any time during normal business hours, and as often as the City Manager may deem necessary, in his/her reasonable discretion, there shall be made available to the City and/or such representatives as the City Manager 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. Consultant shall maintain any and all records necessary to document compliance with the provisions of this Agreement. 10.2 ACCESS TO RECORDS Consultant agrees to allow access during normal business hours to all financial records related to this Agreement to the City and/or such authorized representatives as the City Manager may deem to act on the City's 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 14 standards. Consultant 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 Manager. 10.3 ASSIGNMENT. TRANSFER OR SUBCONSULTING The Consultant shall not sub-consult, assign, or transfer any work under this Agreement without the prior written consent of the City. Neither this Agreement nor any term nor provision hereof or right hereunder shall be assignable unless as approved pursuant to this section, by any parties and any attempt to make such assignment (unless approved) shall be void. 10.4 PUBLIC ENTITY CRIMES Prior to commencement of the Services, the Consultant shall file a State of Florida Form PUR 7068, Sworn Statement under Section 287.133(3) (a) Florida Statute on Public Entity Crimes with the City's Procurement Division. 10.5 EQUAL EMPLOYMENT OPPORTUNITY In connection with the performance of this Agreement, the Consultant 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, sexual orientation, gender identify, or physical handicap. The Consultant 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, physical handicap, or sexual orientation, or gender identity. 10.6 CONFLICT OF INTEREST The Consultant herein agrees to adhere to and be governed by all applicable Miami-Dade County Conflict of Interest Ordinances and Ethics provisions, as set forth in the Miami-Dade County Code, and as may be amended from time to time; and by the City of Miami Beach Charter and Code; both of which are incorporated by reference herein as if fully set forth herein. The Consultant 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 Consultant 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 there from. [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] 15 SECTION 11 NOTICES All notices and communications in writing required or permitted hereunder, except for those of cancellation of assignments which are governed by subsection 2.2, may be delivered personally to the representatives of the Consultant and the City listed below or may be mailed by U.S. Certified Mail, return receipt requested, postage prepaid, or by a nationally recognized overnight delivery service. Until changed by notice in writing, all such notices and communications shall be addressed as follows: TO CONTRACTOR: Willdan Financial Services, Inc. Attn: Lee Evett 7380 Sand Lake Road, Suite 500 Orlando, FL 32819 (407)352-3958 TO CITY: City of Miami Beach Office of Budget and Performance Improvement Attn: Kathie G. Brooks, Director 1700 Convention Center Drive Miami Beach, Florida 33139 (305) 673-7000 ext. 6249 Notice may also be provided to any other address designated by the party to receive notice if such alternate address is provided via U.S. certified mail, return receipt requested, hand delivered, or by overnight delivery. In the event an alternate notice address is properly provided, notice shall be sent to such alternate address in addition to any other address which notice would otherwise be sent, unless other delivery instruction as specifically provided for by the party entitled to notice. Notice shall be deemed given on the day on which personally served, or the day of receipt by either U.S. certified mail or overnight delivery. SECTION 12 ENTIRE AGREEMENT, AMENDEMENT. SEVERABILITY 12.1 ENTIRETY OF AGREEMENT The City and the Consultant agree that this is the entire Agreement between the parties. This Agreement supersedes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein, and there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this document. Title and Paragraph headings are for convenient reference and are not intended to confer any rights or obligations upon the parties to this Agreement. 16 12.2 CHANGES AND ADDITIONS This Agreement cannot be modified or amended without the express written consent of the parties. No modification, amendment, or alteration of the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 12.3 SEVERABILITY If any term or provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall not be affected and every other term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 12.4 COUNTERPARTS This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 12.5 Attachments: -Exhibit "A" -Consultant Team ("Full Team") - Request for Proposal No. 12-09/10; - Addendums 1 and 2; - Willdan's Proposal dated November 23, 2009; - Commission Memo dated December 9, 2009; and - Resolution No. 2009- 17 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: CITY OF MIAMI BEACH, FLORIDA ATTEST L By: ' l.Ul L By: • Robert Parcher ~I a i He ra ow r City Clerk Mayor STATE OF FLORIDA ) SS COUNTY OF MIAMI-DADE ) On his ~ day of /~q ~'G~ 2010, before me personally appeared, ~q ~-j ~ • -~ as J1.~0./u~ of the City of Miami Beach, wh`o i~ personally know to me or produced as identification and who did take an oath and deposes and says, that t /b~he executed the above instrument and tl~lj/b~/she acknowledged to me that theq/J~/sueexecuted the same. n ~ r `" - Ln L,drvS ,4~iR~fti^~rr rvV MY COMMISSION EXPIRES: I~ ',,~ _ NAY ~ 1' ' "~ ~'~" ~ ~ ~'° ~ ~ifit , ~ )1' ~, la!5 6onn ~ ~ °~ 5 FOR CONSULTANT: ATTEST: By: ~ Sign2 ure ~-e l~ ~,~' Vvt u ~l0h~l Print Name itl Corporate Seal STATE OF FLORIDA ) ~14,hqq~ ~ ) SS COUNTY OF MFAMkDftBE ) e.r~° On this 2 day of h'~nCG~ 2010, before m nalTiv eared, L4 Q F've ~ as I Ce ,teS r~ +.-f- who i t~rsonally know to or produced as identification and who didldid not take an oath and deposes and says, that he/she executed the above instrument and he/she acknowledged to me that he/she executed the same with lawful authority to do MY COMMISSION EXPIRES: 7Jie/ ~~012 'rrrrrrrLAMYRArN ~AUGUSTUSrrrrrrre ,~,.~~oYOOhy Cotnm#pp0805705 e =~F%~~~' E~s7f14i2012 oyy~ (g Fbrlda -,IpA~y Asan., irtc = ~~h111R ~ ` i~r uv r rr r •re:r rvr+eeuurrerrrgrrrnruuvr~ 18 so. ,--_ ~~: v ~~ , I ~~~~ - OT RY PUBLIC APPROVED AS TO FORM & LANGUAGE ts< FOR.EXECUTION ~- I-~u Date WILLDAN FINANCIAL SERVICES EXHIBIT A Evaluation criterion "Qualifications of individuals assigned to work with the City" is addressed in this section WILLDAN Financial Services Willdan Team Members' Qualifications Our selection of project team management and seasoned consultants is very simple: staff every position with experienced, capable personnel in sufficient numbers to deliver a superior product, on time and within budget. With that philosophy in mind, we have selected Mr. Lee Evett as our project manager. Although overall firm credentials and experience are important, the key to success on any assignment is the caliber and depth of experience, as well as the overall professionalism of the specific individuals assigned to the project team. A successful partnership for the type of service being requested by the City of Miami Beach involves choosing the appropriate project manager and team with diverse capabilities. Team members need the experience and knowledge to quickly resolve challenges and issues as they arise, but they also need excellent communications skills to interact with the various parties involved. The Willdan project team meets these requirements! An organizational chart of identifying the Willdan team members and their respective roles is also presented below; r~sum~s of these key personnel begin on page 12. o,i< ~I/~~tt~t k .r .~c.,.. ~N ?,r 'fi~~w '"YSn r o- .Ye`a rr4£m .s{w~h %s ,~',n Qualifications of Proposer _._ _ _ __ ____. ____ _.__-__~.___-__P_rnposal_to~Qnduct.a~enecal_F_und_f3evEnue~nhancement.Study_fDr_the~ity~f.Miami~each.._ ~ ~_ -__.