2022-214-WG P3 Advisors Prequalification Pool 21.01.10.pdf

INVITATION TO BID (ITB) 2022-214-WG

PUBLIC-PRIVATE PARTNERSHIPS (P3) CONSULTING SERVICES

TABLE OF CONTENTS

SECTIONS:

0100 GENERAL INFORMATION & SCOPE OF WORK

APPENDICES:

APPENDIX A PREQUALIFICATION APPLICATION

APPENDIX B GENERAL TERMS AND CONDITIONS OF AGREEMENT

APPENDIX C SAMPLE SERVICE ORDER

SECTION 0100: GENERAL INFORMATION & SCOPE OF WORK

1. PURPOSE. Section 255.065, Florida Statutes, allows private entities to submit unsolicited proposals to public entities for the development or improvement of public facilities and infrastructure. The City of Miami Beach, Florida (the “City”) recognizes that properly structured public-private partnerships ("P3") may: promote the development of City assets; encourage efficiencies and innovation in design, construction, operations, and maintenance; and yield sources of revenue or other financial benefits to the City.

In order to properly evaluate any unsolicited proposal that may be received, the City may require assistance, from time to time, from firms with strong qualifications and proven experience in providing consulting services to public entities for public-private partnership (“P3”) projects. Services may include but not limited to: feasibility studies, cost benefit analysis, life cycle costs analysis, potential public benefits, maximizing revenue, and other Consultant services regarding unsolicited and competing proposals received by the City.

In anticipation of future unsolicited proposals, the City is seeking applications from highly qualified P3 consulting firms who wish to be included in a pool of prequalified firms from which the City may select a firm to assist with any P3 project. While it is anticipated that the majority of the services will be required as a result of unsolicited or competing proposals received, the City reserves the right to utilize any prequalified firm on any development project to which the City is a party.

Accordingly, through this ITB, the City invites firms with proven experience in P3 projects to submit applications for the City’s consideration. Approved applicants will be added to the pool of prequalified P3 firms. The City, in its sole discretion, reserves the right to approve or reject any application for prequalification, and to add or remove firms to the pool in the future.

Firms must submit a completed Prequalification Application (Appendix A). The Prequalification Application (Appendix A) is a required document and no firm will be considered without it. Submittal instructions are included in Appendix A, Section 2.

2. SCOPE OF WORK. The nature of the work may include assisting the City in the evaluation, negotiation and completion of selected P3 projects as mutually agreed upon in the Service Order between the City and the selected consultant, which may include, but not be limited to the services described herein.

2.1. Preparation of P3 Project Plan. The Consultant shall prepare a financially and commercially viable and implementable P3 Project Plan for selected projects. Services shall include the following:

A. Develop criteria for the City selected asset or project to be considered for a City P3 project and meet with City staff to discuss the possible use of a P3 for transaction.

B. Review and evaluate all unsolicited proposals for inclusion as a P3 project and meet with City staff to discuss the possible use of a P3 for an unsolicited proposal that utilizes a P3.

C. Determine if project is "Financially Viable for P3" by:

a. Comparing financing options, including comparisons to bonds and other forms of City debt, to market structures for P3s for like assets or projects;

b. Identifying constraints and offer mitigating solutions for:

i. revenue;

ii. availability of private partners;

iii. timeframes;

iv. risks to the City; and

v. other relevant matters.

D. Reviewing existing City debt, debt legislation, tax regulations and their respective impacts; and provide written recommendation for inclusion of project in P3 transaction, inclusive of:

a. economic comparison of different financing structures and the risks associated with each;

b. estimated market size and P3 private partnerships; and

c. recommended structure.

E. Provide new P3 financing structures to the attention of City staff, including:

a. presenting to City staff new P3 financing structure(s) and demonstrate how the City could use said financing structure(s);

b. explaining the benefits and risks associated with the new P3 financing structures; and

c. meeting with City staff, including the Miami-Dade City Board of City Commissioners, to discuss and explain the P3 structures.

2.2. Procurement Assistance. The Consultant shall provide technical assistance to the City in developing the scope of services, questionnaire, evaluation criteria and pricing for Requests for Proposals (RFP) to include the following:

A. Develop structure for P3 project and solicit marketplace for possible requirements based on market trends or industry models;

B. Assist City staff with the development of contract language inclusive of all performance milestones and contract requirements specific to P3 project;

C. Recommend any minimum requirements of firms for P3 project;

D. Develop list of appropriate P3 firms that meet the requirements established and can provide proposed scope of services for P3 project based on Consultant's market research;

E. Participate in Proposal evaluation meetings to provide technical support. Activities may include the following:

a. Analyzing proposals for qualifications and the proposed models for financial viability for P3 project to include:

i. assessing the Proposers' financial resources;

ii. Assessing the allocation of risk amongst partners and report potential financial consequence;

iii. completing financial analysis based on; financing sources of debt, equity and term, weighted average cost of capital (public vs. private), and City benefit level comparison to private partner;

iv. optimizing, on the City's behalf, the financial structure for the P3 project;

and

v. creating a financial model to mirror private partner's proposed model to ensure that the financial terms of the project are fair and comparable to market.

b. Participate with City representatives on negotiations to include the developing of negotiation strategy and communicating said strategy to City negotiations team.

2.3. Reporting. The Consultant shall prepare and present the following reports to City representatives:

A. Proposed financial viability of P3 project explaining the financing options, comparisons of various forms of City debt, etc.

B. Proposed P3 financing structures explaining the benefits and risks associated with new P3 financing structures and market research conducted.

C. Recommended structure of solicitation, including a draft contract, for P3 project.

D. Summary of the results of the evaluation meetings and negotiations during the procurement process.

E. Summary of selected firm and its respective workforce.

F. Short monthly reports to City staff, summarizing issues and constraints for the duration of the P3 project.

2.4. Training. The Consultant may be required to facilitate training of City staff who are involved in the P3 project and hold a workshop(s) introducing project-specific lessons learned upon project completion.

2.5. Process for Awarding Service Order. The City anticipates establishing an initial Pool of Consultant(s) through this ITB prequalification process.

Pursuant to Sub-section 10, Binding Agreement, bidder agrees that, if its application is accepted, the ITB (inclusive of all attachments, appendixes, exhibits and addenda) and the Proposal (Application) shall constitute a binding Agreement, and all work shall be performed in accordance with the Agreement. The selected Consultant may not include terms or conditions that are additional to this ITB without the written consent of the City. The agreement will be supplemented, upon specific project need, only by individual Service Orders specifying project scopes and payments. Selection into the Pool does not guarantee work and does not provide for exclusive rights to provide these services to the City.

Inclusion in the P3 Consultant Pool is a prerequisite for having an opportunity to submit proposals and obtain work through this Pool. However, there is no guarantee that any or all prequalified firms will obtain Service Orders through this Pool. When a project arises, the City will prepare a scope of work and provide prequalified firms with information regarding the selection process and response requirements, which may include written proposals and oral presentations.

At the City's discretion, Consultants may be dropped from the Pool for: lack of participation, which shall include failure over a reasonable time to propose on Service Order Proposal Requests offered through the Pool; poor performance on a Service Order; being in arrears in obligations to the City; delays in completion of work on a prior Service Order; or for any other reason deemed to be in the City’s best interest. Consultant(s) shall maintain the qualifications of the firm and proposed personnel at a standard consistent and equivalent to the qualification submissions submitted in Consultant's Proposal.

A. Adding Firms to the Prequalified Pool. After the initial pool of firms is established, the City reserves the right to continue to receive prequalification applications and prequalify additional consultants. The City may also limit the number of firms prequalified and, in doing so, shall select the firm(s) it deems, in its sole discretion, through its City Manager, to be best qualified.

2.6. Award of Additional Services. The City reserves the right to award additional related services for and updates to a previously awarded Service Order to the same Pool member that was awarded the original Service Order.

3. OVERVIEW OF PREQUALIFICATION PROCESS. The figure below is a general overview of the process that the City will utilize to award work pursuant to the prequalification process.

4. PROCUREMENT CONTACT. Any questions or clarifications concerning this solicitation shall be submitted to the Procurement Contact noted below. The Bid title/number shall be referenced on all correspondence.

Procurement Contact: Telephone: Email:

William Garviso, CPPB 305-673-7000 x26650 WilliamGarviso@miamibeachfl.gov

The City Clerk is to be copied on all communications via e-mail at:

RafaelGranado@miamibeachfl.gov; or via facsimile: 786-394-4188.

5. E-PROCUREMENT REGISTRATION REQUIREMENT. The City utilizes Bidnet Direct (www.Bidnet Direct.com) for automatic notification of solicitation opportunities and document fulfillment. Any prospective bidder who has received this ITB by any means other than through Bidnet Direct is solely responsible for registering immediately with Bidnet Direct to assure it receives any addendum issued to this ITB. Additionally, prior to submittal of the bid, bidder shall verify that it has received and complied with all addenda issued. Failure to receive an addendum, or comply with an addendum requirement, may result in disqualification of bid submitted.

6. APPROVAL OF PREQUALIFIED STATUS. Following the review of applications, the responsive, responsible bidder(s) meeting all terms and conditions of the ITB will be recommended for award, as deemed in the best interest of the City, to the City Manager for his consideration. After considering the staff recommendation for award, the City Manager shall exercise his due diligence and recommend to the Mayor and City Commission the bid that the City Manager deems to be in the best interest of the City. The City Commission shall consider the City Manager’s recommendation(s) and, may approve or reject the City Manager’s recommendation(s). The City Commission may also reject all bids received. In addition to the criteria established in the application, pursuant to Section 2-369 of the City Code, the City may consider the following:

• The ability, capacity and skill of the bidder to perform the Contract.

• Whether the bidder can perform the Contract within the time specified, without delay or interference.

• The character, integrity, reputation, judgment, experience and efficiency of the bidder.

• The quality of performance of previous contracts.

• The previous and existing compliance by the bidder with laws and ordinances relating to the Contract.

PREQUALIFIED STATUS IS VALID FOR FIVE (5) YEARS FROM DATE OF THE NOTICE

OF PREQUALIFICATION ISSUED BY THE CITY, OR AS OTHERWISE APPROVED BY

THE CITY MANAGER.

7. SERVICE DELIVERY EXPECTATIONS. The City places an emphasis on excellent customer service delivery and expects the prequalified bidder to provide the best possible customer service to any and all awarded projects throughout the term of the contract. The prequalified bidder’s project manager is responsible for monitoring the customer service provided to City by prequalified bidder’s staff, sales and support teams, and employing, as necessary, corrective measures, to ensure that the prequalified bidder will provide and maintain the highest quality of customer service possible during completion of the project(s).

Project-specific deliverables and expectations shall be defined on a project-by-project basis, as specified in each ITQ.

mailto:RafaelGranado@miamibeachfl.gov http://www.bidsync.com/

8. VOLUME OF WORK TO BE RECEIVED BY BIDDER. No promise of work is given, or should be understood, as a result of a prequalification. The City reserves the right to purchase any goods and/or services awarded from any resulting agreement, or another governmental contract, or on an as-needed basis through the City’s spot market purchase provisions.

9. STANDARD TERMS AND CONDITIONS. The City’s Standard Terms and Conditions for Services General (available at https://www.miamibeachfl.gov/city- hall/procurement/standard-terms-and-conditions/) (Version dated 4.13.2020) are referenced and incorporated herein.

10. BINDING AGREEMENT. By virtue of submitting an application for the City’s consideration, the bidder agrees that the application shall be considered an offer on the part of the bidder, which offer shall be deemed accepted upon approval of bidder’s prequalification status by City Manager or City Commission. Further, bidder agrees that, upon approval of the bidder’s application by the City Manager or City Commission, a binding Agreement shall be established between the City and the approved Consultant. The Agreement shall be comprised of the following documents, and in the following order:

First, the Purchase Order issued by the City; then, Second, the signed Service Order; then, Third, the Invitation to Quote (ITQ) awarded to the vendor; then, Fourth the ITB, including all documents released in connection with the ITB, including but not limited to all appendixes, exhibits, attachments, and addenda, whether included herein or released under separate cover.

In case of default on the part of the Successful Bidder, after said award, the City may take such action as it deems appropriate, including legal action, for damages or specific performance.

https://www.miamibeachfl.gov/city-%20hall/procurement/standard-terms-and-conditions/ https://www.miamibeachfl.gov/city-%20hall/procurement/standard-terms-and-conditions/

APPENDIX A

PREQUALIFICATION

APPLICATION

PROCUREMENT DEPARTMENT

1755 Meridian Avenue, 3rd Floor

Miami Beach, Florida 33139

2022-214-WG P3 Consulting Services Prequalification Pool

Prequalification Application Instructions

Section 1. ELECTRONIC RESPONSES (ONLY). Electronic responses shall only be considered for this ITB and are to be submitted through Bidnet Direct until the date and time as indicated in this document. It is the sole responsibility of the Bidder to ensure its application reaches Bidnet Direct before the Solicitation closing date and time. There is no cost to the Bidder to submit an application in response to a City of Miami Beach solicitation via Bidnet Direct. Electronic application submissions may require the uploading of electronic attachments. The submission of attachments containing embedded documents or proprietary file extensions is prohibited. All documents should be attached as separate files (proposal format indicated below). All applications received and time stamped through Bidnet Direct, prior to the submittal deadline shall be accepted as timely submitted. Applications will be opened promptly at the time and date specified. The City will in no way be responsible for delays caused by technical difficulty or caused by any other occurrence.

Section 2. SUBMITTAL INSTRUCTIONS. The Prequalification Application will not be considered until it has been electronically submitted completed and executed by a principal of the bidder. Incomplete applications cannot be processed. If requested information is not applicable, please indicate ''N/A'' or ''None. '' If answers to questions are lengthier than the spaces that are provided in the application, the answers may be provided on additional pages, which must be attached to the electronic application. All requested documents must also be attached to the electronic application submittal via the “Line Items” tab in Bidnet Direct. Failure to attach all requested documents will delay review and approval of the application.

Submit one (1) electronic copy of the application to Marie Duvivier at marieduvivier@miamibeachfl.gov.

The City reserves the right to request clarifications or additional information as deemed necessary to evaluate a bidder’s qualifications. When clarifications or additional information is requested by the City, bidder will have three (3) business days to provide, in full, all the requested information. Failure to provide the information within the prescribed time will delay the review process and may result in denial of prequalification.

Section 3. DEADLINE FOR SUBMITTAL. There is no deadline for the submittal of applications. However, the initial review of applications shall take place 21 days after issuance of this ITB. Applications submitted after this date will be reviewed periodically on an on-going basis. The City will endeavor to complete the review of each application within 60 days of receipt.

Part A – General Bidder Information.

FIRM NAME:

NO. OF YEARS IN BUSINESS:

NO. OF YEARS IN

BUSINESS LOCALLY:

NO. OF

EMPLOYEES:

OTHER NAME(S) BIDDER HAS OPERATED UNDER IN THE LAST 10 YEARS:

FIRM PRIMARY ADDRESS (HEADQUARTERS):

CITY:

STATE:

ZIP CODE:

TELEPHONE NO.:

TOLL FREE NO.:

FAX NO.:

FIRM LOCAL ADDRESS:

CITY:

STATE:

ZIP CODE:

PRIMARY ACCOUNT REPRESENTATIVE FOR THIS SOLICITATION:

ACCOUNT REP TELEPHONE NO.:

ACCOUNT REP TOLL FREE NO.:

ACCOUNT REP EMAIL:

FEDERAL TAX IDENTIFICATION NO.:

BIDDER IS:

_____CORPORATION / _____PARTNERSHIP / _____SOLE PROPRIETORSHIP /

_____OTHER (If other, specify:________________________)

1. Proof of Past Experience (General). Submit at least three (3) P3 projects for which the applicant has provided consulting services (similar to the services defined herein) as prime consultant to a public entity within the last five (5) years.

This is a minimum eligibility requirement. For the purposes of this minimum eligibility requirement, P3 consulting services provided as a subconsultant shall not be acceptable.

Project Location Project Value

Entity Contact Person Contact Information

Email:

Tel #:

Project Description:

Additional references may be attached separately.

2. Proof of Past Experience (Local). Submit at least two (2) P3 projects for which the applicant has provided consulting services (similar to the services defined herein) as prime consultant to a public entity within the State of Florida within the last five (5) years. For the purposes of this minimum eligibility requirement, P3 consulting services provided as a subconsultant shall not be acceptable.

3. Proof of Past Experience (Other). Attach other references that demonstrate the applicant’s broad experience relating to P3 projects.

4. Main Account Representative. Attach any other references that demonstrate the applicant’s experience

5. Principals. Provide the names of each owner (stockholder, sole proprietor, and partner), director, or officer of the company, below. Submit additional names on a separate sheet if required.

Owner Ownership percentage Directorship/Office type

6. Is the bidder currently barred by a governmental agency, from bidding as a prime or subconsultant?

YES NO

If yes, state debarment period and the reason(s) for debarment?

7. Has the bidder or any of its owners, directors, officers, or agents been convicted of a crime or had a claim that was filed in a court and mediated or arbitrated during the last five (5) years?

11. YES NO

If yes, why?

8. Is an affiliate of the bidder prequalified by the City of Miami Beach for any work?

If yes, state the name of the affiliate?

9. Is the bidder a parent, subsidiary, or holding company for another company?

If the answer is "yes," identify the company and type of relationship(s), below:

Company Type of affiliation (parent or subsidiary) Period of affiliation

10. Is an owner, director, officer, or agent of the bidder affiliated with another company?

12. YES NO

If the answer is "yes," provide the following information for each individual and the affiliated company.

Individual´s name Affiliated company´s name Period of affiliation

Type of affiliation (e.g.

officer, director, owner or employee)

11. Is the bidder currently the debtor in a bankruptcy case or file for bankruptcy during the last five (5) years?

If yes, explain and attach, as applicable, the relevant case and court documents, including (but not limited to): the original petition, including the case number and the date that the petition was filed; a copy of the bankruptcy court's discharge order, and any other document that ended the case, if no discharge order was issued.

12. Has any owner, director, officer, or agent for the bidder, or has any business organization in which any such person was an owner, director, officer, or agent filed for or been discharged in bankruptcy within the past five (5) years?

If yes, explain and attach a copy of the discharge order, order confirming plan and if a Corporate Chapter 7 case, a copy of the notice of commencement.

13. Has any owner, director, officer, or agent of the bidder owned or managed a company under any other name in the last five (5) years?

If yes, explain.

14. Has the bidder been assessed or paid any fines on any contract during the past five (5) years, whether the project was publicly or privately owned?

15. Are there currently any liens, suits, or judgments of record pending against any owner, director, officer, or agent for the company that is related to the business activities of a business organization?

16. Has the bidder or any of its owners, officers, or partners ever been convicted (criminal) or found liable (civil) for making either a false claim or material misrepresentation to any public agency or entity?

17. Has the bidder or any of its owners, officers, or partners ever been convicted of any a federal or state crime?

12. YES NO

18. Is any officer, director, employee or agent, or immediate family member (spouse, parent, sibling, and child) of any officer, director, employee or agent, an employee of the City of Miami Beach?

YES NO

If yes, state name, title and share of ownership

Name Title Share (%) of Ownership

19. Has the bidder, or any officer, director, employee or agent, contributed to the campaign either directly or indirectly, of a candidate who has been elected to the office of Mayor or City Commissioner for the City of Miami Beach?

If yes, provide details.

20. Equal Benefits for Employees with Spouses and Employees with Domestic Partners. Purchases hereunder are subject to the requirements of Equal Benefits for Domestic Partners Ordinance 2005-3494 that requires bidders with more than 51 employees and City volume greater than $100,000 to provide “Equal Benefits” to their employees with domestic partners, as they provide to employees with spouses. The Ordinance applies to all employees of a bidder who works 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 the contract within the City of Miami Beach.

A. Does your company provide or offer access to any benefits to employees with spouses or to spouses of employees?

B. Does your company provide or offer access to any benefits to employees with

(same or opposite sex) domestic partners* or to domestic partners of employees?

C. Please check all benefits that apply to your answers above and list in the “other” section any additional benefits not already specified. Note: some benefits are provided to employees because they have a spouse or domestic partner, such as bereavement leave; other benefits are provided directly to the spouse or domestic partner, such as medical insurance.

BENEFIT Company Provides for

Employees with Spouses

Company Provides for

Employees with Domestic Partners

Company does not Provide

Benefit

Health

Sick Leave

Family Medical Leave

Bereavement Leave

21. Moratorium on Travel to and the Purchase of Goods or Services from Mississippi.

Pursuant to Resolution 2016-29375, the City of Miami Beach, Florida prohibits the purchase of goods or services sourced in and Mississippi. Are any of the products or services for which the bidder is seeking to be prequalified sourced in Mississippi?

If yes, which brands.

BIDDER AFFIDAVIT

The undersigned agrees that s/he: 1) is a principal of the bidder duly authorized to execute the foregoing Consultant Prequalification Certification Application, and that the contents of said document(s) are complete, true, and correct to the best of his/her knowledge and belief;

2) s/ certifies that the application and supporting documents include all of the material information necessary to validate the status of the company for prequalification purposes;

3) s/ shall notify the Procurement Department within fifteen (15) days and provide a notarized statement whenever a change occurs in the ownership, management, or f inancial condition of the company. Further, any prequalified Consultant, including its principal(s), director(s), and any affiliate, who is a party to any misrepresentation to obtain business or contracts with the City of Miami Beach shall be declared delinquent and have its certificate suspended or revoked and will be subject to debarment and any other penalties prescribed by law.

The undersigned affirms that the bidder agrees: 1) to complete and unconditional acceptance of the terms and conditions of this document, inclusive of attachments, exhibits and appendices; 2) that it has not colluded, nor will collude, with any other bidder; 3) that all information contained herein is part of the public domain as defined by the State of Florida Sunshine and Public Records Laws; 4) that all responses, data and information contained in the bid are true and accurate.

Name:

Title (must be a principal of the bidder):

Signature:

Date:

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APPENDIX B

GENERAL TERMS AND CONDITIONS

SECTION 1

DEFINITIONS

Agreement: This Agreement between the City and Consultant, including the ITB any exhibits and amendments thereto, and the Proposal.

City Manager: The chief administrative officer of the City.

City Manager’s Designee: The City staff member who is designated by the City Manager to administer this

Agreement on behalf of the City. The City Manager’s designee shall be the _________(TBD by City at a later date)_________ Department Director.

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.

Proposal Documents: Proposal Documents shall mean City of Miami Beach ITB No. 2022-

2014-WG for P3 CONSULTING SERVICES, together with all amendments thereto, issued by the City in contemplation of this Agreement, and the Consultant’s application for prequalification in response thereto (“Proposal”), all of which are hereby incorporated 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 ITB; and the Proposal.

Service Order: A Service Order (see sample in Appendix C) is the document that specifies the scope, costs and schedule (as applicable) of each specific engagement. The Service Order shall detail the required services and deliverables for each engagement. No work may commence without a fully executed Service Order.

SECTION 2

SCOPE OF SERVICES

2.1 The Consultant shall provide the work and services as described in each fully executed Service Order (the “Services”). The Services will be commenced by the Consultant upon receipt of a written Service Order signed by the City Manager or designee. Consultant shall countersign the Service Order upon receipt and return the signed copy to the City.

Although Consultant may be provided with a schedule of the available hours to provide its Services, the City shall not control nor have the right to control the hours of the Services performed by the Consultant; where the Services are performed (although the City will provide Consultant with the appropriate location to perform the Services); when the Services are performed, including how many days a week the Services are performed; how the Services are performed, or any other aspect of the actual manner and means of accomplishing the

Services provided. Notwithstanding the foregoing, all Services provided by the Consultant shall be performed in accordance with the terms and conditions set forth herein and to the reasonable satisfaction of the City Manager. If there are any questions regarding the Services to be performed, Consultant should contact the individual named in the Service Order as City Project Administrator.

SECTION 3

TERM

The term of this Agreement (“Term”) shall commence upon execution of this Agreement by all parties hereto (the Effective Date set forth on p. 1 hereof), and shall have an initial term of five

(5) years.

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 same is/are set forth in the timeline and/or schedule referenced in Exhibit [XXX] hereto.

SECTION 4

FEE

4.1 In consideration of the Services to be provided, Consultant shall be compensated on a negotiated fixed fee basis, per deliverable, as stipulated in the Service Order.

4.4 INVOICING

Upon receipt of an acceptable and approved invoice, payment(s) shall be made within forty-five (45) 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:

Accounts Payable: payables@miamibeachfl.gov

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 term(s) 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 mailto:payables@miamibeachfl.gov that it deems to be in its best interest in order to enforce the City’s rights and remedies against Consultant. 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, 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.

ADDITIONALLY, IN THE EVENT OF A PUBLIC HEALTH, WELFARE OR SAFETY

CONCERN, AS DETERMINED BY THE CITY MANAGER, IN THE CITY

MANAGER’S SOLE DISCRETION, THE CITY MANAGER, PURSUANT TO A

VERBAL OR WRITTEN NOTIFICATION TO CONSULTANT, MAY IMMEDIATELY

SUSPEND THE SERVICES UNDER THIS AGREEMENT FOR A TIME CERTAIN,

OR IN THE ALTERNATIVE, TERMINATE THIS AGREEMENT ON A GIVEN DATE.

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

6.1 INDEMNIFICATION

Consultant agrees to indemnify, defend 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, 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 Consultant expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the Consultant shall in no way limit the Consultant’s responsibility to indemnify, keep and save harmless and defend the City or its officers, employees, agents and instrumentalities as herein provided.

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 [NOTE: INSURANCE TYPES AND LIMITS BELOW

SHOULD ALWAYS BE SAME AS WHAT WAS SPECIFICED IN BID DOCUMENTS]

6.3 The Consultant shall maintain the below required insurance in effect prior to awarding the agreement and for the duration of the agreement. The maintenance of proper insurance coverage is a material element of the agreement and failure to maintain or renew coverage may be treated as a material breach of the contract, which could result in withholding of payments or termination of the Agreement.

A. General Liability, in the amount of $1,000,000 combined single limit, for bodily injury and property damage. The City of Miami Beach must be endorsed as an Additional Insured as their interest may appear.

B. Consultant Professional Liability, in the amount of $1,000,000; and

C. Workers Compensation & Employers Liability, as required pursuant to Chapter 440, Florida

Statutes. A waiver of subrogation endorsement must be provided.

6.4 Additional Insured - City of Miami Beach must be included by endorsement as an additional insured with respect to all liability policies (except Professional Liability and Workers’ Compensation) arising out of work or operations performed on behalf of the Consultant including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired or borrowed in the form of an endorsement to the Consultant’s insurance.

6.5 Notice of Cancellation - Each insurance policy required above shall provide that coverage shall not be cancelled, except with notice to the City of Miami Beach c/o EXIGIS Insurance Compliance Services.

6.6 Waiver of Subrogation – Consultant agrees to obtain any endorsement that may be necessary to affect the waiver of subrogation on the coverages required. However, this provision applies regardless of whether the City has received a waiver of subrogation endorsement from the insurer.

6.7 Acceptability of Insurers – Insurance must be placed with insurers with a current A.M.

Best rating of A:VII or higher. If not rated, exceptions may be made for members of the Florida Insurance Funds (i.e. FWCIGA, FAJUA). Carriers may also be considered if they are licensed and authorized to do insurance business in the State of Florida.

6.8 Verification of Coverage – Consultant shall furnish the City with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this contract. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.

CERTIFICATE HOLDER ON ALL COI MUST READ:

CITY OF MIAMI BEACH

c/o EXIGIS Insurance Compliance Services P.O. Box 947 Murrieta, CA 92564

Kindly submit all certificates of insurance, endorsements, exemption letters to our servicing agent, EXIGIS, at:

Certificates-miamibeach@riskworks.com

6.9 Special Risks or Circumstances - The City of Miami Beach reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

Compliance with the foregoing requirements shall not relieve the vendor of his liability and obligation under this section or under any other section of this agreement.

SECTION 7

LITIGATION JURISDICTION/VENUE/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 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.

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, 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 $10,000. 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 $10,000.

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 $10,000 for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement.

Nothing contained in this 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.

SECTION 9

DUTY OF CARE/COMPLIANCE WITH APPLICABLE LAWS/PATENT RIGHTS;

COPYRIGHT; AND CONFIDENTIAL FINDINGS

9.1 DUTY OF CARE

With respect to the performance of the Services contemplated herein, Consultant shall exercise that degree of skill, care, efficiency and diligence normally exercised by reasonable persons and/or recognized professionals with respect to the performance of comparable work and/or services.

mailto:Certificates-miamibeach@riskworks.com

9.2 COMPLIANCE WITH APPLICABLE LAWS

In its performance of the Services, Consultant shall comply with all applicable laws, ordinances, and regulations of the City, Miami-Dade County, the State of Florida, and the federal government, as applicable.

9.3 PATENT RIGHTS; COPYRIGHT; CONFIDENTIAL FINDINGS

Any work product arising out of this Agreement, as well as all information specifications, processes, data and findings, are intended to be the property of the City and shall not otherwise be made public and/or disseminated by Consultant, without the prior written consent of the City Manager, excepting any information, records etc. which are required to be disclosed pursuant to Court Order and/or Florida Public Records Law.

All reports, documents, articles, devices, and/or work produced in whole or in part under this

Agreement are intended to be the sole and exclusive property of the City, and shall not be subject to any application for copyright or patent by or on behalf of the Consultant or its employees or sub-consultants, without the prior written consent of the City Manager.

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. 9AM – 5PM, Monday through Fridays, 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 INSPECTOR GENERAL AUDIT RIGHTS

(A) Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has established the Office of the Inspector General which may, on a random basis, perform reviews, audits, inspections and investigations on all City contracts, throughout the duration of said contracts. This random audit is separate and distinct from any other audit performed by or on behalf of the City.

(B) The Office of the Inspector General is authorized to investigate City affairs and empowered to review past, present and proposed City programs, accounts, records, contracts and transactions. In addition, the Inspector General has the power to subpoena witnesses, administer oaths, require the production of witnesses and monitor City projects and programs. Monitoring of an existing City project or program may include a report concerning whether the project is on time, within budget and in conformance with the contract documents and applicable law. The Inspector General shall have the power to audit, investigate, monitor, oversee, inspect and review operations, activities, performance and procurement process including but not limited to project design, bid specifications, (bid/proposal) submittals, activities of the

Consultant, its officers, agents and employees, lobbyists, City staff and elected officials to ensure compliance with the contract documents and to detect fraud and corruption. Pursuant to Section 2-378 of the City Code, the City is allocating a percentage of its overall annual contract expenditures to fund the activities and operations of the Office of Inspector General.

(C) Upon ten (10) days written notice to the Consultant, the Consultant shall make all requested records and documents available to the Inspector General for inspection and copying. The Inspector General is empowered to retain the services of independent private sector auditors to audit, investigate, monitor, oversee, inspect and review operations activities, performance and procurement process including but not limited to project design, bid specifications, (bid/proposal) submittals, activities of the

Consultant its officers, agents and employees, lobbyists, City staff and elected officials to ensure compliance with the contract documents and to detect fraud and corruption.

(D) The Inspector General shall have the right to inspect and copy all documents and records in the Consultant’s possession, custody or control which in the Inspector General's sole judgment, pertain to performance of the contract, including, but not limited to original estimate files, change order estimate files, worksheets, proposals and agreements from and with successful subcontractors and suppliers, all project-related correspondence, memoranda, instructions, financial documents, construction documents, (bid/proposal) and contract documents, back-change documents, all documents and records which involve cash, trade or volume discounts, insurance proceeds, rebates, or dividends received, payroll and personnel records and supporting documentation for the aforesaid documents and records.

(E) The Consultant shall make available at its office at all reasonable times the records, materials, and other evidence regarding the acquisition (bid preparation) and performance of this Agreement, for examination, audit, or reproduction, until three (3) years after final payment under this Agreement or for any longer period required by statute or by other clauses of this Agreement. In addition:

i. If this Agreement is completely or partially terminated, the Consultant shall make available records relating to the work terminated until three (3) years after any resulting final termination settlement; and

ii. The Consultant shall make available records relating to appeals or to litigation or the settlement of claims arising under or relating to this Agreement until such appeals, litigation, or claims are finally resolved.

(F) The provisions in this section shall apply to the Consultant, its officers, agents, employees, subcontractors and suppliers. The Consultant shall incorporate the provisions in this section in all subcontracts and all other agreements executed by the Consultant in connection with the performance of this Agreement.

(G) Nothing in this section shall impair any independent right to the City to conduct audits or investigative activities. The provisions of this section are neither intended nor shall they be construed to impose any liability on the City by the Consultant or third parties.

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.

10.5 NO DISCRIMINATION

In connection with the performance of the Services, the Consultant shall not exclude from participation in, deny the benefits of, or subject to discrimination anyone on the grounds of race, color, national origin, sex, age, disability, religion, income or family status.

Additionally, Consultant shall comply fully with the City of Miami Beach Human Rights Ordinance, codified in Chapter 62 of the City Code, as may be amended from time to time, prohibiting discrimination in employment, housing, public accommodations, and public services on account of actual or perceived race, color, national origin, religion, sex, intersexuality, gender identity, sexual orientation, marital and familial status, age, disability, ancestry, height, weight, domestic partner status, labor organization membership, familial situation, or political affiliation.

10.6 CONFLICT OF INTEREST

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, 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 incorporated by reference as if fully set forth herein.

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.