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PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH, FLORIDA
AND ARTS FOR LEARNING/MIAMI, INC.
FOR MIAMI BEACH ARTS EDUCATION SERVICES
THIS AGREEMENT made and'entered into this /~~ day of /I~evb-~ c~L, 2009, by
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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 ARTS FOR LEARNING/MIAMI, INC. (hereinafter referred to as
Consultant), a Florida corporation, whose address. is 1900 Biscayne Blvd., Suite 201,
Miami, Florida, 33132. j
;SECTION 1
DEFINITIONS
Agreement: This Agreement between the City and Consultant.
City Manager: The Chief Administrative Officer of the City.
Consultant: For the purposes. of this Agreement, Consultant shall be deemed to
be an independent Consultant, 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.
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.
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SECTION 2
SCOPE OF WORK
The scope of work to be performed by Consultant is set forth in Exhibit "A,"entitled "Scope
of Services" (Services).
'SECTION 3
COMPENSATION
3.1 FIXED FEE
Consultant shall be compensated by the City for those Services provided and
satisfactorily performed as set forth in Section 2 and Exhibit "A,"during the term herein, for
a fee not to exceed one hundred five thousand dollars ($105,000.00), inclusive of
Reimbursable Expenses and any other consultants necessary to complete the Scope of
Work described herein. Reimbursable Expenses shall include out-of-pocket costs which
include long-distance phone calls, photocopies, transportation, mailings, and other ancillary
costs. However, any Reimbursable Expenses must be approved in writing by the City prior
to Consultant incurring. costs for same. The City shall have no duty or responsibility to
reimburse Consultant for any unapproved expenses.
3.2 INVOICING
Consultant shall submit a detailed invoice each quarter for one-fourth of the annual
fee, to include a report of quarterly activities, number of students served, costs and billing
for the portion of the Services provided as set forth in Exhibit "A."
3.3 METHOD OF PAYMENT
Payments shall be made for Services satisfactorily rendered within thirty (30) days of
the date of invoice, in a manner satisfactory to, and as approved and received by, the City.
Consultant shall mail all invoices to:
City of Miami Beach Department of Tourism and Cultural Development
Cultural Affairs Program
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Mary Heaton, Grants and Operations Administrator
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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 DURATION AND EXTENT OF AGREEMENT
This Agreement shall be only effective upon approval by the City and execution by
the parties hereto. The term of this Agreement shall be retroactive to commence on
October 1, 2009, and terminate on September 30, 2010. The term of this Agreement may
be extended for one year, in writing, at the sole discretion of the City.
A reasonable extension of time shall be granted in the event the work of the
Consultant is delayed or prevented by the City or by any circumstances beyond the
reasonable control of the Consultant, including weather conditions or Acts of God, which
render performance of the Consultant's duties impracticable.
4.4 TIME OF COMPLETION
The Services to be rendered by the Consultant shall be commenced upon execution
of the Agreement, and Consultant shall complete the scope of work presented in Section 2
by no later than September 30, 2010. A Timeline for Services is attached as Exhibit "B."
4.5 INDEMNIFICATION
Consultant agrees to indemnify and hold harmless the City of Miami Beach and its
officers, employees and agents, from and against any and all actions, claims, liabilities,
losses, and expenses, including, but not limited to, attorneys' fees, for personal, economic
or bodily injury, wrongful death, loss of or damage to property, at law or in equity, which
may arise or be alleged to have arisen from the negligent acts, errors, omissions or other
wrongful conduct of the Consultant, its employees, agents, sub-consultants, or any other
person or entity acting under Consultant's control, in connection with the Consultant's
performance of the Services pursuant to this Agreement; and to that extent, the Consultant
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shall pay all such claims and losses and shall pay all such costs and judgments which may
issue from any lawsuit arising from such claims and losses, and shall pay all costs and
attorneys' fees expended by the City in the defense of such claims and losses, including
appeals. The parties agree that one percent (1 %) of the total compensation to the
Consultant for performance of the Services under this Agreement is the specific
consideration from the City to the Consultant for the Consultant's Indemnity Agreement.
The Consultant's obligation under this Subsection shall not include the obligation to
indemnify the City of Miami Beach and its officers, employees and agents, from and
against any actions or claims which arise or are alleged to have arisen from negligent acts
or omissions or other wrongful conduct of the City and its officers, employees and agents.
The parties each agree to give the other party prompt notice of any claim coming to its
knowledge that in any way directly or indirectly affects the other party.
4.6 TERMINATION, SUSPENSION AND SANCTIONS
4.6.1 Termination for Cause
. If the Consultant shall fail to fulfill in a timely manner,. or otherwise violate,any
of the covenants, agreements, or stipulations material to this Agreement, the City 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 seven (7) days to cure such
default. If such default remains uncured after seven (7) 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.
Notwithstanding the above, the Consultant shall not be relieved of liability to
the City for damages sustained by the City by any breach of the Agreement by the
Consultant. The City, at its sole option and discretion, shall additionally be entitled to
bring any and all legal/equitable actions that it deems to be in its best interest in order to
enforce the City's right and remedies against the defaulting party. The City shall be
entitled to recover all costs of such actions, including reasonable attorneys' fees. To the
extent allowed by law, the defaulting party waives its right to jury trial and its right to bring
permissive counter claims against the City in any such action.
4.6.2 Termination for Convenience of City
NOTWITHSTANDING SECTION 4.6.1, THE CITY MAY ALSO, FOR ITS
CONVENIENCE AND WITHOUT CAUSE, TERMINATE AT ANY TIME DURING THE
TERM HEREOF BY GIVING WRITTEN NOTICE TO CONSULTANT OF SUCH
TERMINATION, WHICH SHALL BECOME EFFECTIVE SEVEN (7) DAYS FOLLOWING
RECEIPT BY THE CONSULTANT OF THE WRITTEN TERMINATION NOTICE. IN
THAT EVENT, ALL FINISHED OR UNFINISHED DOCUMENTS AND OTHER
MATERIALS, AS DESCRIBED IN SECTION 2 AND IN EXHIBIT "A", SHALL BE
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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 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 CITY, AS REQUIRED
HEREIN.
4.6.3 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 4.6.2.
4.6.4 Sanctions for Noncompliance with Nondiscrimination Provisions
In the event-of the Consultant's noncompliance with the nondiscrimination
provisions of this Agreement, the City shall impose such sanctions as the City, Miami-
Dade County, and / or the State of Florida, as applicable, 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. In the event the City cancels or terminates the
Agreement pursuant to this Subsection the rights and obligations of the parties shall be
the same as provided in Section 4.6.2.
4.7 CHANGES AND ADDITIONS
Changes and additions to the Agreement shall be directed by a written
amendment signed by the duly authorized representatives of the City and Consultant. No
alteration, change, or modification of the terms of this Agreement shall be valid unless
amended in writing, signed by both parties hereto, and approved by the City.
4.8 OWNERSHIP OF DOCUMENTS
All documents prepared by the Consultant pursuant to this Agreement are
related exclusively to the Services described herein, and are intended or represented for
ownership by the City. Any reuse, distribution, or dissemination of same by Consultant,
other than to the City, must be first approved in writing by the City.
4.9 INSURANCE REQUIREMENTS
The Consultant shall not commence any work pursuant to this Agreement
until all insurance required under this Section has been obtained and such insurance has
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been approved by the City's Risk Manager. The Consultant shall maintain and carry in full
force during the term of this Agreement the following insurance:
1. Consultant General Liability in the amount of $1,000,000, naming the City of Miami
Beach, Florida, as an additional insured.
2. Consultant Professional Liability in the amount of $200,000, naming the City of
Miami Beach, Florida, as an additional insured.
3. Workers Compensation & Employers Liability as required pursuant to Florida
statute.
4. The insurance must be furnished by insurance companies authorized to do
business in the State of Florida and approved by the City's Risk Manager.
5. Original certificates of insurance for the above coverage must be submitted to the
City's Risk Manager for approval prior to any work commencing. These certificates
will be kept on file in the office of the Risk Manager, 3rd Floor, City Hall.
6. The Consultant is solely responsible for obtaining and submitting ail insurance
certificates for its sub-consultants.
All insurance policies must be issued by companies authorized to do business under the
laws of the State of Florida. The companies must be rated no less than "B+" as to
management and not less than "Class VI" as to strength by the latest edition of Best's
Insurance Guide, published byA.M. Best Company, Oldwick, New Jersey, or its equivalent,
subject to the approval of the City's Risk Manager. Compliance with the foregoing
requirements shall not relieve the Consultant of the liabilities and obligations under this
Section or under any other portion of this Agreement, and the City shall have the right to
obtain from the Consultant specimen copies of the insurance policies in the event that
submitted certificates of insurance are inadequate to ascertain compliance with required
overage.
4.9.1 Endorsements
All of Consultant's certificates, above, 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.
4.9.2 Certificates
Unless directed by the City otherwise, the Consultant shall not commence any
services pursuant to this Agreement until the City has received and approved, in writing,
certificates of insurance showing that the requirements of this Section (in its entirety) have
been met and provided for.
4.10 ASSIGNMENT. TRANSFER OR SUBCONTRACTING
The Consultant shall not subcontract, assign, or transfer any work under this
Agreement in whole or in part, without the prior written consent of the City.
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4.11 SUB-CONTRACTORS
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-contractors, and any other person or entity acting under the direction or
control of the Consultant. When the term "Consultant" is used in this Agreement, it shall
be deemed to include any sub-contractors and any other person or entity acting under
the direction or control of Consultant. All sub-contractors must be approved in writing by
the City prior to their engagement by Consultant.
4.42 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, national
origin, place of.birth,,marital status, disability, or sexual orientation. .
4.13 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, as amended; all which are incorporated by
reference herein as if fully set forth herein.
The Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirectly which should conflict in any manner or degree
with the performance of the Services. The Consultant further covenants that in the
performance of this Agreement, no person having any such interest shat! knowingly be
employed by the Consultant. No member of or delegate to the Congress of the United
States shall be admitted to any share or part of this Agreement or to any benefits arising
therefrom.
4.14 PATENT RIGHTS: COPYRIGHTS; CONFIDENTIAL FINDINGS
Any patentable result arising out of this Agreement, as well as all
information, specifications, processes, data and findings, shall be made available to the
City for public use.
No reports, other documents, articles or devices produced in whole or in
part under this Agreement shall be the subject of any application for copyright or patent
by or on behalf of the Consultant or its employees orsub-contractors, without the prior
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written consent of the City.
4.15 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:
TO CONSULTANT: Arts for Learning/Miami, Inc.
1900 Biscayne Blvd., Suite 201
Miami, Florida 33132
Tel/fax 305-576-1212/305-576-1193
Attn: Sheila Womble, Executive Director
TO CITY: City of Miami Beach Department of
Tourism and Cultural Development
1700 Convention Center Drive
Miami Beach, Florida 33139
Tel/fax 305-673-7577/305-673-7262
Attn: Gary Farmer, Cultural Affairs Program Manager
Notices hereunder shall be effective:
If delivered personally, on delivery; if mailed to an address in the city of dispatch, on
the day following the date mailed; and if mailed to an address outside the city of dispatch
on the seventh day following the date mailed.
4.16 LITIGATION JURISDICTIONNENUE
This Agreement shall be enforceable in Miami-Dade County, Florida, and if
legal action is necessary by either party with respect to the enforcement of any or all of
the terms or conditions herein, exclusive venue for the enforcement of same shall lie in
Miami-Dade County, Florida.
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.
4.17 ENTIRETY OF AGREEMENT
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This writing, the Services, and any corresponding exhibits hereto, 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.
4.18 LIMITATION OF CITY'S LIABILITY
The City desires to enter into this Agreement only if in so doing the City can place a
limit on the City's liability for any cause of action for money damages due to an alleged
breach by the City of this Agreement, so that its liability for any such breach never
exceeds the sum of $1,000. 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 $1,000. .
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 $1,000 for any action or claim for breach of contract arising out of
the performance or non-performance of any obligations imposed upon the City by this
Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any
way intended to be a waiver of the limitation placed upon the City's liability as set forth in
Section 768.28, Florida Statutes.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY 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:
n. .
By:
~"~~
Ci Clerk Ma or
FOR CONSULTANT:
ATTEST:
By:
EX~cu~~@ ~~~~f~r
~f1 P ~ /a ,Gy~~r .6/.y_
Print Name '
Attachment: Exhibit "A"
Exhibit "B"
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ARTS FOR LEARNING/MIAMI, INC.
Pres' ent
~~Gt ih~ ~adi :r
Print Name
APPROVED A3 TO
FORM 8~ LANGUAGE
~ FQR EXECUTION
EXHlBlT "A"
Arts for Learning/Miami Scope of Work for
City of Miami Beach Department of Tourism and Cultural Development
Cultural Affairs Program
October 1, 2009 through September 30, 2010
Arts for Learning/Miami (A4L) is prepared to enter into a contract with the City of Miami Beach to
provide the following services:
Scope of Services:
Arts for Learning will provide arts integrated services at Miami Beach schools, preschools and
after-school/summer sites to reach 475 participants.
Early Childhood
Arts for Learning's early childhood programming has been shown to increase the acquisition of
vocabulary in preschoolers. The ability to contextualize vocabulary is fundamental to future
academic success. For this program, A4L's visual and performing artists conduct 16-visit
residencies. The residencies teach teachers how to use arts-based learning in their classrooms, and
teach Miami Beach's youngest children to think creatively, love learning, and connect words with
meaning.
Arts for Learning will provide its early childhood program to 13 preschool classrooms (12 typical
classrooms and 1 classroom serving students with cognitive and physical disabilities). Sites
benefiting from services include Mt. Sinai Young President's Club Child Care Center, St. Patrick
Preschool, Temple Menorah Early Childhood Program, and Happy Kids.
GET smART
Since its inception, GET smART, A4L's hallmark school-based program, which was first
pioneered on Miami-Beach, has consistently increased student engagement, academic
achievement, and life-skill development. Through the GET smART program, teams of teachers
leverage school and personal resources to effectively bring the arts into K-12 classrooms. For
this initiative, teachers develop inter-disciplinary (art, language arts, and at least one other
academic area) learning units around a big idea. Past ideas have ranged from The Everglades and
the Renaissance to Gaudi's Vision, a restoration project at Fienberg-Fisher K-8 Center. .GET
smART brings art, teachers, learning, and the community together to ensure that children stretch
their thinking, make connections between the arts and other subjects, and most importantly that
they think BIG.
Arts for Learning will provide the GET smART program to one team of teachers at Feinberg
Fisher K-8 Center.
After-School/Summer
Arts for Learning's after-school and summer programs have demonstrated that when children
participate in high-quality after-school programming, they increase their artistic abilities as well as
develop self-confidence and self-esteem. For this program, A4L teaching artists conduct 9-week
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residencies at schools, parks, and other community settings, such as museums. Each class is
customized to complement the goals of the selected location. Through after-school initiatives,
children and youth learn to use the arts to communicate their ideas, work as a team, and find their
own voice.
Arts for Learning will provide 368 after-school/summer camp classes across four Miami Beach
locations including Feinberg-Fisher K-8 Center and Biscayne Elementary School.
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EXHIBIT "B"
Arts for Learning/Miami Timeline for Services for
City of Miami Beach Department of Tourism and Cultural Development
Cultural Affairs Program
October 1, 2009 through September 30, 2010
2009 2010
Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep
Early Childhood
Residencies (16 artist visits per classroom) ~On„",g.~,x :x,
GET smART
On-site Coaching and Professional Development Ongoing ~ - ' ~ .~
Unit Implementation at schools O..ngomg~ ~>r ;~'~;~ ,~
GET smART Summer Institute : , $°
After-SchoollSummer .. ~ _
After-school/Summer classes Ongoing ~ ' _ - ~ _ _: j _ _ ~~ _ _ ,
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Page 1 of 1
Hernandez, Kerry
From: Parcher, Robert
Sent: Thursday, November 12, 2009 9:56 AM
To: Sklar, Max
Cc: Hernandez, Kerry
Subject: Arts for Learning/Miami
Max, in processing the professional services agreement with Arts for learning/Miami, Kerry found that the
agreement was initially authorized via 2007-26724, for 10/07 - 9/08 and for two additional years, which would be
for 10/08 - 9/09 and 10/09 - 9/10. The problem is in the agreement, Section 4.3, the last sentence states `"fhe
term of this Agreement may be extended for one year, in writing, at the sole discretion of the City."
Max, !want to let you know that for 10/10 - 9111, should the City wish to execute a similar agreement, it will
require City Commission actions.
Kerry, thanks for the research; terrific job! Please file this email with the agreement.
Thanks
Bob
MIAMIBEACH
Robert Parcher, City Clerk
CITY CLERK'S OFFICE
1700 Convention Center Drive, Miami Beach, FL 33139
Tel: 305-673-7411 /Fax: 305-673-7254 / www.miamibeachfl~gov
We are committed to providing excellent public service and safety to all who live, work and play in our vibrant, tropical, historic community.
11/12/2009