PSA with ETC Institute Inc. 20 S-Z. 9 L2�
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH, FLORIDA
AND
ETC INSTITUTE INC.
TO CONDUCT THE CITY'S 2016 COMMUNITY SATISFACTION SURVEYS
This Professional Services Agreement ("Agreement") is entered into this 9th day of December,
2015, between the City of Miami Beach, Florida, a municipal corporation organized and existing
under the laws of the State of Florida, having its principal offices at 1700 Convention Center
Drive, Miami Beach, Florida, 33139 ("City"), and ETC Institute Inc., a Kansas corporation
authorized to conduct business in Florida, whose address is 725 W. Frontier Circle, Olathe,
Kansas, 66061 ("Consultant").
SECTION 1
DEFINITIONS
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 or undertaken
pursuant to the Agreement.
Fee: Amount paid to the Consultant as compensation for 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 SERVICES
2.1 In consideration of the Fee to be paid to Consultant by the City, Consultant shall provide
the work and services described in Exhibit"A"hereto(the"Services").
2.2 Consultant's Services, and any deliverables incident thereto, shall be completed in
accordance with the timeline and/or schedule in Exhibit"A"hereto.
SECTION 3
TERM
The term of this Agreement ("Term") shall commence upon execution of this Agreement by all
parties hereto, and shall have a.term of two(2)years.
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Notwithstanding the Term provided herein, Consultant shall adhere to any specific timelines,
schedules, dates, and/or performance milestones for completion and delivery of the Services,
as set forth in the timeline and/or schedule referenced in Exhibit"An hereto.
SECTION 4
FEE
4.1 In consideration of the Services to be provided, Consultant shall be compensated on a
fixed fee basis, in an amount not to exceed $85,572.00. The breakdown of Consultant's fee is
set forth in Exhibit"A".
4.2 INVOICING
Upon receipt of an acceptable and approved invoice, payment(s)shall be made within thirty(30)
days for that portion (or those portions) of the Services satisfactorily rendered (and referenced
in the particular invoice).
Invoices-shall include a detailed description of the Services (or portions thereof) provided, and
shall be submitted to the City at the following address:
John Woodruff, Budget Director
Office of Budget and Performance Improvement
1700 Convention Center Dr.
Miami Beach, FL 33139
SECTION 5
TERMINATION
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, through its
City Manager, shall 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 may terminate this Agreement without further notice to Consultant. Upon
termination, 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 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 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 Consultant. The City shall be entitled to recover all costs of such
actions, including reasonable attorneys'fees.
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5.2 . TERMINATION FOR CONVENIENCE OF THE CITY
THE CITY MAY ALSO, THROUGH ITS CITY MANAGER, AND FOR ITS
CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT ANY
TIME DURING THE TERM BY GIVING WRITTEN NOTICE TO CONSULTANT OF
SUCH TERMINATION, WHICH SHALL BECOME EFFECTIVE WITHIN THIRTY (30)
DAYS FOLLOWING RECEIPT BY THE CONSULTANT OF SUCH NOTICE. IF THE
AGREEMENT IS TERMINATED FOR CONVENIENCE BY THE CITY, CONSULTANT
SHALL BE PAID FOR ANY SERVICES SATISFACTORILY PERFORMED UP TO THE
DATE OF TERMINATION, FOLLOWING WHICH THE CITY SHALL BE DISCHARGED
FROM ANY AND ALL LIABILITIES, DUTIES, AND TERMS ARISING OUT OF, OR BY
VIRTUE OF,THIS AGREEMENT.
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.
SECTION 6
INDEMNIFICATION AND INSURANCE REQUIREMENTS,
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6.1 INDEMNIFICATION
Consultant agrees to indemnify and hold harmless the City of Miami Beach and its officers,
employees, agents, and contractors, from and against any and all actions (whether at law or in
equity), claims, liabilities, losses, and expenses, including, but not limited to, attorneys'fees and
costs, for personal, economic, or bodily injury, wrongful death, or loss of or damage to property,
which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other
wrongful conduct of the Consultant, its officers, employees, agents, contractors, or any other
person or entity acting under Consultant's control or supervision, in connection with, related to,
or as a result of the Consultant's performance of the Services pursuant to this Agreement. 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 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. The provisions of this Section 6.1 and
of this indemnification shall survive termination or expiration of this Agreement.
6.2 INSURANCE REQUIREMENTS
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; and
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3.Workers Compensation& Employers Liability, as required pursuant to Florida Statutes.
The insurance must be furnished by insurance companies authorized to do business in the
State of Florida. All insurance policies must be issued by companies 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.
All of Consultant's certificates shall contain endorsements providing that written notice shall be
given to the City at least thirty (30) days prior to termination, cancellation or reduction in
coverage in the policy. The insurance certificates for General Liability and Professional Liability
shall include the City as an additional insured and shall contain a waiver of subrogation
endorsement.
Original'certificates of insurance must be.submitted'to the City's Risk Manager for approval
I rior to work and/or services commencing) and will be kept on file in the Office of the Risk
(prior any
Manager. 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 coverage.
The Consultant is also solely responsible for obtaining and submitting all insurance certificates
for any 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.
The Consultant shall not commence any work and or services pursuant to this Agreement until
all insurance required under this Section has been obtained and such insurance has been
approved by the City's Risk Manager.
SECTION 7
LITIGATION JURISDICTIONNENUE/JURY TRIAL WAIVER
This Agreement shall be construed in accordance with the laws of the State of Florida. 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 this Agreement 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.
SECTION 8
LIMITATION OF CITY'S LIABILITY
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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 the
compensation/fee to be paid to Consultant pursuant to this Agreement, less any amounts
actually paid by the City as of the date of the alleged breach. Consultant hereby expresses its
willingness to enter into this Agreement with Consultant's recovery from the City for any
damages arising out of any action for breach of contract to be limited to a maximum amount of
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the compensation/fee to be paid to Consultant pursuant to this Agreement, less any amounts
actually paid by the City as of the date of the alleged breach.
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 the compensation/fee to be paid to Consultant pursuant to this Agreement, less any
amounts actually paid by the City as of the date of the alleged breach,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 section 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.
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SECTION 9
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SECTION 10
GENERAL PROVISIONS
10.1 AUDIT AND INSPECTIONS
Upon reasonable verbal or written notice to Consultant, and at any time during normal
business hours (i.e. 9:00 am — 5:00 pm, Monday through Friday, excluding nationally
recognized holidays), and as often as the City Manager may, in his/her reasonable discretion
and judgment, deem necessary, there shall be made available to the City Manager, and/or
such representatives as the City Manager may deem to act on the City's behalf, to audit,
examine, and/ or inspect, any and all other documents and/or records relating to all matters
covered by this Agreement. Consultant shall maintain any and all such records at its place of
business at the address set forth in the"Notices"section of this Agreement.
10.2 [INTENTIONALLY DELETETD]
10.3 ASSIGNMENT.TRANSFER OR SUBCONSULTING
Consultant shall not subcontract, assign, or transfer all or any portion of any work and/or
service under this Agreement without the prior written consent of the City Manager, which
consent, if given at all, shall be in the Manager's sole judgment and discretion. Neither this
Agreement, nor any term or provision hereof, or right hereunder, shall be assignable unless as
approved pursuant to this Section, 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.
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10.5 EQUAL EMPLOYMENT OPPORTUNITY
In connection with the performance of the Services, the Consultant shall not discriminate
against any employee or applicant for employment because of race, color, national origin,
religion, sex, intersexuality, gender identity, sexual orientation, disability, marital and familial
status, or age.
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, as may be amended from .time to.time; both .of which are hereby
• incorporated by reference as if fully'set forth herein.
The Consultant covenants that it presently has no interest and shall not acquire any interest,
directly or indirectly, which could conflict in any manner or degree with the performance of the
Services. The Consultant further covenants that in the performance of this Agreement,
Consultant shall not employ any person having such interest. 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.
SECTION 11
NOTICES
All notices and communications in writing required or permitted hereunder, shall 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 CONSULTANT: Chris Tatham,CEO
ETC Institute Inc.
725 W. Frontier Circle
Olathe, KS 66061
TO CITY: John Woodruff, Budget Director
Office of Budget and Performance Improvement
City of Miami Beach
1700 Convention Center Dr.
Miami Beach, FL 33139
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.
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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
MISCELLANEOUS PROVISIONS
12.1 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.
12.2 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.
12.3 ENTIRETY OF AGREEMENT,
The City and 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.
12.4 CONSULTANT'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW
Pursuant to Section 119.0701 of the Florida Statutes, if the Consultant meets the definition of
"Contractor" as defined in Section 119.0701(1)(a),the Consultant shall:
(a) Keep and maintain public records that ordinarily and necessarily would be required by
the public agency in order to perform the service;
(b) Provide the public with access to public records on the same terms and conditions that
the public agency would provide the records and at a cost that does not exceed the cost
provided in this chapter or as otherwise provided by law;
(c) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law; and
(d) Meet all requirements for retaining public records and transfer to the City, at no cost to
the City, all public records created, received, maintained and/or directly related to the
performance of this Agreement that are in possession of the Consultant upon
termination of this Agreement. Upon termination of this Agreement, the Consultant shall
destroy any duplicate public records that are exempt or confidential and exempt from
• public records disclosure requirements. All records stored electronically must be
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provided to the City in a format that is compatible with the information technology
systems of the City.
For purposes of this Article, the term "public records"shall mean all documents, papers, letters,
maps, books, tapes, photographs, films, sound recordings, data processing software, or other
material, regardless of the physical form, characteristics, or means of transmission, made or
received pursuant to law or ordinance or in connection with the transaction of official business of
the City.
Consultant's failure to comply with the public records disclosure requirement set forth in Section
119.0701 of the Florida Statutes shall be a breach of this Agreement.
• - In the-event the Consultant does not comply with the public.records disclosure requirement set
forth in Section 119.0701.of the Florida Statutes,the City may, at the City's sole discretion, avail
itself of the remedies set forth under this Agreement and available at law.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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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:
By:
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ael Gran Philip 'evinft/ �'�
City Clerk . • .. Ma ,.r , -
Date: 12—)2.4 ........... li Date:
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TA' i.: ,''��wo • S ETC INSTITUTE INC.
FOR CONSUL � ,
INCORP ORATED:
ATTEST: .,%-. '▪40 I
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Chris Tatham
CEO
Gregory S. Emas,CFO
Print Name/Title
Date:
12/22/2015 Date: 12/22/2015
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APPROVED AS TO
FORM&LANGUAGE
erc FO EX CUTION• .
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City Attorney Date
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