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Agreement „ 18 &ULXA4%1- PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA 2-02 —9-7140 AND MCGLADREY, LLP FOR INDEPENDENT-AUDITING SERVICES THIS AGREEMENT made and entered into this day of C�o r', 2012, by and between the CITY OF MIAMI BEACH, FLORIDA (hereinafter referred to as City), a municipal corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and MCGLADREY, LLP (hereinafter referred to as Auditor or Consultant), a limited liability partnership authorized to do business in the State of Florida, whose address is 100 NE 3rd Ave., Ste. 300 Fort Lauderdale, Fl. 33301-1155. SECTION 1 DEFINITIONS Agreement: This Agreement between-the City and Auditor/ Consultant. City Manager: The Chief Administrative Officer of the City. Auditor: 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, as described in Section 2 and Exhibit "A” hereto. Fee: Amount paid to the Consultant to cover the costs of the Services. Term: The Term of this agreement is for the audits of the fiscal years ending September 30, 2012 and September 30, 2013. The fiscal year begins on October. 1 and ends on September 30. 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. Proposal Documents: "Proposal Documents" shall mean City Request for Proposals No. 34-11/12 for Auditing Services to examine the City's Basic Financial "' 1 Statements included in the City's Comprehensive Annual Financial Report (CAFR), Federal Grant Programs and State Projects (OMB A-133 Single Audit), the Miami Beach Redevelopment Agency's (RDA) Financial Statements, the Parking System Fund's (PSF) Financial Statement,the Miami Beach Visitor and Convention Authority's (VCA) Financial Statement, the Miami Beach Convention Center Financial Statements, The Building Better Communities Bond Program (BBC), The Children's Trust Program (CT), and the Safe Neighborhood Parks and Bond Program (SNP), together with all amendments thereto, issued by the City in contemplation of this Agreement, and the Consultant's proposal in response thereto (Proposal); all of which are incorporated as Exhibit "A" to this Agreement and made a part hereof; provided, however that in the event of an express conflict between the Proposal Documents and this Agreement, this Agreement shall prevail. CAFR: Comprehensive Annual Financial Report RDA: Miami Beach Redevelopment Agency PSF: Miami Beach Parking System Fund VCA: Miami Beach Visitors Convention Authority BBC: Building Better Communities CT: Children's Trust SNP: Safe Neighborhood Parks Bond Program [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK) 2 SECTION 2 SCOPE OF SERVICES (SERVICES) 2.1 GENERAL The Consultant agrees to provide the City with those certain independent auditing services, as set forth in the Proposal Documents (Exhibit "A" hereto), and as further described in this Section 2. 2.2 MIAMI BEACH A. CAFR — The Auditor will prepare and issue an auditor's opinion and conduct an audit of the City's CAFR in accordance with Generally Accepted Auditing Standards (GAAS) and the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States (GAGAS). The examination must be made in accordance with the guidelines prepared by the Governmental Finance Officers Association (GFOA) in order for the City to apply for the Certificate of Achievement for Excellence in Financial Reporting. The examination will include the governmental activities, the business- type activities, the aggregate discretely presented component units, each major fund, and the aggregate remaining funds of the City, except for the City of Miami Beach Retirement System for Firefighters and Police Officers, the City of Miami Beach Retirement System for General Employees, the City of Miami Beach Retirement System for Unclassified Employees and Elected Officials, the Firemen's Relief and Pension Fund, and the Policemen's Relief and Pension Fund, which are audited by other auditors. Throughout the Term of this Agreement, the Auditor shall issue an audit opinion to the City no later than 180 days following the end of the City's fiscal year ends during the Term herein. For the purpose of this Agreement, a City's fiscal year shall commence on October 1St, and end on September 30th of the following year. In order to comply with the delivery dates outlined above and throughout this Agreement, prior to the start of each year's audit, the Auditor shall meet with the City to mutually agree upon and establish dates for which the City will close its books and records, including the recording of all significant journal entries, and making available its books and records for audit. The Auditor shall issue an Independent Auditors' Report on Internal Control over Financial Reporting and on Compliance. The Auditor will provide guidance with the implementation of 3 Governmental Accounting Standard Board (GASB) statements, as necessary. B. OMB A-133 Single Audit — The Auditor shall perform an audit in accordance with OMB Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations, and Chapter 10.550, Rules of the Auditor General of the State of Florida. In addition to the Auditor's report described in Section 2.2 (A), the Auditor will issue an Independent Auditors' Report on Compliance and Internal Control over Compliance Applicable to each major Federal program and State project, and Schedule of Findings and Questioned Costs. The City will prepare the Schedule of Expenditure of Federal Awards and State Financial Assistance. The Auditor shall issue the single audit report and data collection form to the City no later than 210 days following the end of the City's fiscal year end during the Term of this agreement. This is condition upon the City closing its books and records, including the recording of all significant journal entries, and preparing a complete and accurate schedule of expenditures of Federal awards and State financial assistance, and making available its books and records to Auditor for audit by December 1St, of each year of the Term of this Agreement, as noted in Section 4.3. Any delays in the City's closing of its books and records will extend the delivery date, referred to above, proportionately. C. Management Letter in Accordance with the Rules of the Auditor General of the State of Florida - The Auditor shall issue a management letter to address the following and any subsequent amendments made by the Auditor General: • The City's compliance and internal controls or schedule of findings and questioned costs, whether or not inaccuracies, shortages, defalcations, fraud and/or violations laws, rules, regulations, and contractual provisions reported in the preceding annual financial audit report have been corrected. • The City's compliance and internal controls or schedule of findings and questioned costs, whether or not recommendations made in the preceding annual financial audit report have been followed. • Provisions of Section 218.415, Florida Statutes, regarding the City's investment of public funds. • The City's compliance and internal controls or schedule of findings and questioned costs: (1) violations of laws, rules, regulations, and contractual provisions that have occurred, or are likely to have 4 occurred; (2) improper or illegal expenditures; (3) improper or inadequate accounting procedures (for example, the omission of required disclosures from the financial statements); (4) failures to properly record financial transactions; and (5) other inaccuracies, shortages, defalcations, and instances of fraud discovered by, or that come to the attention of, the Auditor. • Section 218.503(1), Florida Statutes, regarding financial emergencies. • The annual financial report for the City filed with the Department of Financial Services pursuant to Section 218.32, Florida Statutes. • The name or official title and legal authority for the primary government and each component unit of the reporting entity be disclosed in the management letter, unless disclosed in the notes to the financial statements. The Auditor firm shall issue a management letter to the City no later than 210 days following the end of the City's fiscal year ends during the Term of this Agreement. D. RDA — The City issues stand-alone basic financial statements for the RDA, a blended component unit of the City. The Auditor will prepare and issue an auditor's opinion and conduct an audit of the RDA basic financial statements in accordance with GAAS and the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States. The financial statements, footnotes and supplementary information are to be prepared by the City. The Auditor shall issue the RDA auditor's report and the RDA basic financial statements to the City no later than 180 days following each fiscal year end for the Term of this agreement. E. PSF — The City issues stand-alone financial statements for the PSF, a major enterprise fund of the City. The Auditor will prepare and issue an auditor's opinion and conduct an audit of the PSF financials statements in accordance with GAAS and the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States. The financial statements, footnotes and supplementary information are to be prepared by the City. The Auditor shall issue the Auditor's report and PSF basic financial statements to the City no later than 210 days following the end of the PSF fiscal year ends, during the Term of this Agreement. F. VCA — The City issues stand-alone basic financial statements for the VCA, a discretely presented component unit of the City. The Auditor will prepare and issue an auditor's opinion and conduct an audit of the VCA financial statements in accordance with GAAS and the standards applicable to financial audits contained in Government Auditing 5 Standards, issued by the Comptroller General of the United States. The financial statements, footnotes and supplementary information are to be prepared by the City. The Auditor shall issue the VCA basic financial statements to the City no later than 90 days following the end of each of the City's fiscal years during the Term herein. G. Special Purpose Financial Statements — The City issues special purpose financial statements for the Miami Beach Convention Center. The Auditor will prepare and issue an auditor's opinion and conduct an audit of the special purpose financial statements in accordance with GAAS and the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States. The financial statements, footnotes and supplementary information are to be prepared by the City. The Auditor shall issue the special purpose financial statements to the City no later than 90 days following the end of each of the City's fiscal year during the Term herein. - 15 _ 1 H. SNP — The SNP governing Miami Dade County Ordinance No. 96 requires that an annual independent audit of the schedule of expenditures of the Safe Neighborhood Parks Bond Projects of the City of Miami Beach, Florida, be conducted in accordance with GAAS and GAGAS. The schedule of expenditures and the related notes are to be prepared by the City. The Auditor shall issue the independent auditor's report to the City no later than 90 days following the end of each City fiscal year during the Term herein. I. BBC — The BBC governing Miami-Dade County Ordinance No. 05-047 requires that an annual independent audit of the schedule of expenditures of the Building Better Communities Bond Projects of the City of Miami Beach, Florida, be conducted in accordance with GARS and GAGAS. The schedule of expenditures and the related notes are to be prepared by the City. The Auditor shall issue the independent auditor's report to the City no later than 90 days following the end of each City fiscal year during the Term herein. �. CT — The Children's Trust grant agreements requires that an annual independent audit of the schedule of expenditures of the Children's Trust Grant Program of the City of Miami Beach, Florida, be conducted in accordance with GAAS and GAGAS. The schedule of expenditures and the related notes are to be prepared by the City. The Auditor shall issue the independent auditor's report to the City no later than 90 days following the end of each City fiscal year during the Term herein. 6 SECTION 3 COMPENSATION 3.1 FEE Consultant shall be compensated for the Services, as set forth in the Proposal Documents, and more specifically Section 2 and Exhibit"A" herein. Auditor shall only be compensated for work performed and completed pursuant to the terms of this Agreement, in accordance with the Fee Compensation Schedule, attached and incorporated as Exhibit "B" hereto. 3.2 EQUAL BENEFITS FOR DOMESTIC PARTNERS Consultant acknowledges that is required to complywith all applicable provisions of the City Ordinance No. 2005-3494, which requires certain City consultants to provide equal benefits for domestic partners (the Ordinance). This Ordinance applies to all employees of a consultant who work within the City limits of the City of Miami Beach, Florida, and the consultant's employees located in the United States, but outside of the City of Miami Beach limits, who are directly performing work on a contract within the City of Miami Beach. A copy of the City's Ordinance is attached as Exhibit "C" hereto. Notwithstanding the preceding, it shall be Consultant's sole responsibility and obligation to familiarize itself with this Ordinance, as well as any subsequent amendments thereto. 3.3 ADDITIONAL SERVICES TO BE SPECIFICALLY REQUESTED BY THE CITY In the event that, during the Term of the Agreement,the City, in its sole discretion and judgment, determines that there is a need for additional services not contemplated within this Agreement, such services will be performed at the following hourly billing rates, which will be adjusted each year, commensurate to each year's compensation increase as set forth in Exhibit "B": Hourly Billina Rates Partner $300 Director 250 Manager 200 Senior 140 Staff 100 Additional services will only be performed by the Consultant following receipt of written o to from the City, which authorization must be secured prior commencement of said service(s). 3.4 INVOICING The Auditor shall be entitled to invoice monthly for the portion(s) of Services completed. Upon review and approval of the invoice by the City, the City will make its best efforts to pay the Auditor within thirty (30) days of the receipt of invoice. 7 SECTION 4 GENERAL PROVISIONS 4.1 RESPONSIBILITY OF THE CONSULTANT With respect to the performance of the Services, the Consultant shall exercise that degree of skill, care, efficiency and diligence normally exercised by recognized professionals with respect to the performance of comparable Services. In its performance of the Services, the Consultant shall comply with all applicable laws, ordinances, and regulations of the City, Miami-Dade County, State of Florida, and Federal Government. 4.2 PUBLIC ENTITY CRIMES 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 TERM OF AGREEMENT (TERM) The term of this Agreement shall be for a term of two (2)years, commencing with the City Fiscal Year ending on September 30, 2012, and ending with the Fiscal Year ending on September 30, 2013. 4.4 INDEMNIFICATION The Auditor shall protect, defend, reimburse, indemnify, and hold harmless the City and the City's officers, agents, and employees free and harmless from and against any and all claims, losses, penalties, damages, settlements, costs, charges, attorneys' or other professional fees, or other expenses or liabilities of every kind and character arising out of or relating to any and all claims, liens, demands, obligations, actions, or proceedings directly or indirectly arising out of or resulting from the mistakes or negligence, gross negligence, willful, and wanton acts and the performance of this Agreement by the Auditor, or its respective officers, employees, agents, servants, partners, or principals. The Auditor agrees to investigate, respond, adjust, and provide a defense for any such claims, demands, and actions, at the Auditor's sole expense and agrees to bear and remain liable for all such other costs and expenses relating thereto, even if such claim is groundless, false, orfraudulent. Notwithstanding the foregoing,the Auditor's indemnity shall not extend to liability for damages to persons or property to the extent such damage was caused by the sole and/or gross negligence of the City. 4.5 TERMINATION, SUSPENSION AND SANCTIONS 4.5.1 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 8 thereupon have the right to.terminate this Agreement for cause. 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 ten (10)days to cure such default. If such default remains uncured after ten (10) days, the City, upon three (3) days' notice to Consultant, 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. 4.5.2 Termination for Convenience of City The City may also, for its convenience and without cause, terminate this Agreement at any time during the Term hereof, by giving written notice to Consultant of such termination, which shall become effective thirty (30) days following receipt by the Consultant of the written termination notice. Upon being notified of the City's election to terminate, the Auditor shall refrain from performing further Services or incurring additional expenses under the terms of this Agreement. In that event, all finished or unfinished documents and any and all other materials, work, etc., prepared and/or maintained by Consultant as a result of its Services pursuant to this Agreement, shall be properly assembled and delivered to the City, at Consultant's sole cost and expense. 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 and at its discretion, up to the date of termination, provided, however, that as a condition precedent to such payment, Consultant shall deliver any and all documents, materials, etc. to the City, as required herein. 4.5.3 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 4.5.2. 4.5.4 Sanctions for Noncompliance with City Ordinances and/or Nondiscrimination Provisions of Agreement In the event of the Consultant's noncompliance with any City ordinance and/or the nondiscrimination provisions of this Agreement, the City shall impose such sanctions as the City, Miami-Dade County, and/or the State of Florida, deem applicable and 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 Agreement. 4.6 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, as necessary, as approved by the City Manager and/or City Commission (as required). 9 4.7 INSURANCE REQUIREMENTS Consultant shall obtain, provide and maintain during the term of the Agreement the following types and amounts of insurance which shall be maintained with insurers licensed to sell insurance in the State of Florida and have a B+ or higher rating in the latest edition of AM Best's Insurance Guide. (Any exceptions to these requirements must be approved by the City's Risk Management Department prior to implementation of same): 1. Commercial General Liability: A policy including, but not limited to, comprehensive general liability including bodily injury, personal injury, property damage in the amount of a combined single limit of not less than $1,000,000 Coverage shall be provided on an occurrence basis. The City of Miami Beach must be named as certificate holder and additional insured on policy. 2. Worker's Compensation: A policy of Worker's Compensation and Employers Liability Insurance in accordance with State worker's compensation laws as required per Florida Statutes. 3. Professional Liability: A policy including but not limited to error and omissions with a limit of not less than $1,000,000. Said policies of insurance shall be primary to and contributing with any other insurance maintained by the Consultant or City, and shall name the City of Miami Beach and its officers, agents and employees as an additional insured. Policies cannot be cancelled without thirty (30) days prior written notice to the City. The Consultant shall file and maintain certificates of all insurance policies with the City's Risk Management Department showing said policies to be in full force and effect at all times during the Term of the Agreement. No work shall be done by Consultant during any period when it is not covered by insurance as herein required. Such insurance shall be obtained from brokers or carriers authorized to transact insurance business in Florida and satisfactory to City. If any of the required insurance coverages contain aggregate limits, or apply to other operations of the Consultant outside the Agreement, Consultant shall give City prompt written notice of any incident, occurrence, claim settlement or judgment against such insurance which may diminish the protection such insurance affords the City. The Consultant shall further take immediate steps to restore such aggregate limits or shall provide other insurance protection for such aggregate limits. 4.7.1 Failure to Procure Insurance Consultant's failure to procure or maintain required insurance coverage shall constitute a material breach of Agreement under which City may, at its sole option, immediately terminate the Agreement. 4.8 ASSIGNMENT TRANSFER OR SUBCONTRACTING The Consultant shall not subcontract, assign, or transfer any work under this 10 Agreement in whole or in part, without the prior written consent of the City. 4.9 SUB-CONSULTANTS The Consultant shall be liable for the Consultant's services, responsibilities and liabilities under this Agreement and the services, responsibilities and liabilities of any and all sub-consultants, and any other person or entity acting under the direction or control of the Consultant including without limitation, any and all temporary personnel provided in the City pursuant to the terms and conditions of the Agreement. When the term "Consultant" is used in this Agreement, it shall be deemed to include any sub- consultants and any other person or entity acting under the direction or control of Consultant. 4.10 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, physical handicap, or sexual orientation. 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, and national origin, place of birth, marital status, disability, or sexual orientation. 4.11 CONFLICT OF INTEREST The Consultant 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 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 therefrom. 4.12 NOTICES All notices and communications in writing required or permitted hereunder may be delivered personally to the representatives of the Consultant 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: 11 I TO CONSULTANT: McGladrey & Pullen, LLP Attn: Bob Feldmann 100 N.E. Third Avenue, Suite 300 Fort Lauderdale, FL 33301 (954) 462-6300 TO CITY: City of Miami Beach Attn: Patricia Walker Chief Financial Officer 1700 Convention Center Drive Miami Beach, Florida 33139 (305) 673-7574 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. 4.13 LITIGATION JURISDICTIONIVENUE 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, THE CONSULTANT AND 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. 4.14 ENTIRETY OF AGREEMENT This Agreement and all exhibits hereto including, without limitation, the Proposal Documents, shall 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 Proposal Document and the Auditor's engagement letter, included in Exhibit"A"and "D', are hereby incorporated by reference into this Agreement provided, however, that in the event of an express conflict between the Auditor's engagement letter and this Agreement, the Agreement shall prevail. 4.15 COMPLIANCE WITH APPLICABLE LAWS The Consultant, its subConsultants, agents and employees, including with out limitation, any and all temporary personnel assigned to the City pursuant to this Agreement, shall h all comply with all applicable Federal, State, Miami-Dade County and City laws, and with applicable rules and regulations promulgated by local, state and national boards, bureau 12 and agencies as they relate to the Agreement and /or the provision of Services hereto. [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] 13 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, commencing on the last date of execution of the agreement by the parties hereto. FOR CITY: CITY OF MIAMI BEACH, FLORIDA ATTEST: By: Rafael E. Granado Ma i Herrera over City Clerk Mayor Date to FOR AUDITOR: =INCORP ORq GLADREY , LLP ATTEST: im 94A Secretary Partner Print Name Print Name ` b - to( - I-2° Date Date Attachments: Exhibit A — Request for Proposals No. 34-11/12, Addendum No. 1 thereto, and.Consultant's response thereto Exhibit "B" — Fee Compensation Exhibit "C" — City Ordinance No. 2005-3494, entitled "Requirement for City Consultants to Provide Equal Benefits for Domestic Partners Exhibit "D" —Auditor's Engagement Letter APPROVED AS TO FORM &LANGUAGE &FOR EXECUTION t tomey � Date 14