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Professional Services Agreement with Brookhart Jonquil, LLC DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E1OFE 202 1 J I j DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND BROOKHART JONQUIL, LLC. FOR ARTISTIC SERVICES FOR ASPEN IDEAS: CLIMATE CONFERENCE 5/5/2022 I 4:13 EDT This Professional Services Agreement ("Agreement") is entered into this day of , 20 ("Effective Date"), between the CITY OF MIAI_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 (the "City"), and BROOKHART JONQUIL, LLC, a Florida limited liability company, whose address is 5900 NW 2nd Ave Miami, FL 33127 ("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. 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 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. 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 DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E1OFE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 Although Consultant may receive 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 in Exhibit "A" and to the reasonable satisfaction of the City Manager. If there are any questions regarding the Services to be performed, Consultant should contact the following person: Brandi Reddick Cultural Affairs Manager 1755 Meridian Avenue, 5th Floor Miami Beach, FL 33139 BrandiReddick@miamibeachfl.gov or(305)673-7577 x26256 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 (the Effective Date set forth on p. 1 hereof), and shall have an initial term of 60 days with no renewal options, to be exercised at the City Manager's sole option and discretion, by providing Consultant with written notice of same no less than thirty (30) days prior to the expiration of the initial term. 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 A hereto. SECTION 4 FEE 4.1 In consideration of the Services to be provided, Consultant shall be compensated on a fixed fee basis, in the amount of$9,000.00, for a total annual amount not to exceed $9,000.00 4.2 NO REIMBURSABLES WILL BE AUTHORIZED UNDER THIS AGREEMENT. THE AGREEMENT IS EXECUTED ON A FIXED FEE BASIS OF $9,000.00. 4.3 100% LUMP SUM PAYMENT, IN THE AMOUNT OF $9,200.00, WITHIN 30 DAYS FROM THE EFFECTIVE DATE; 3 DocuSign Envelope ID:15DEF776-9381-4F55-AC8C-OFDOA10E10FE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 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; Brandi Reddick Cultural Affairs Manager 1755 Meridian.Avenue, 5th Floor Miami Beach, FL 33139 BrandiReddick@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 for 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 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 4 DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E10FE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 • Updated 09/22/2021 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 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 3. Workers Compensation& Employers Liability, as required pursuant to Florida Statutes. 5 DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E1OFE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 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. Timely renewal certificates will be provided to the City as coverage renews. The insurance certificates for General Liability shall include the City as an additional insured and shall contain a waiver of subrogation endorsement. Consultant's insurance shall be primary and not contributory for direct claims arising out of the Agreement under the Commercial General Liability policy. If the Professional Liability coverage is provided on a claims made basis, then such insurance shall continue for (3) years following the expiration or termination of the Agreement. Original certificates of insurance must be submitted to the City's Risk Manager for approval (prior to any work and/or services commencing) and will be kept on file in the Office of the Risk 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 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 6 DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFD0A10E1OFE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 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. 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. 7 DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E1OFE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 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. 8 DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E10FE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 (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: 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. 9 DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E10FE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 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. Consultant further covenants that in the performance of this Agreement, Consultant shall not employ any person having any 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 therefrom. 10.7 CONSULTANT'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW (A) Consultant shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may be amended from time to time. (B) The term "public records" shall have the meaning set forth in Section 119.011(12), which means 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. (C) 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: 10 DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E1OFE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 (1) Keep and maintain public records required by the City to perform the service; (2) Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes or as otherwise provided by law; (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law, for the duration of the contract term and following completion of the Agreement if the Consultant does not transfer the records to the City; (4) Upon completion of the Agreement, transfer, at no cost to the City, all public records in possession of the Consultant or keep and maintain public records required by the City to perform the service. If the Consultant transfers all public records to the City upon completion of the Agreement, the Consultant shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Consultant keeps and maintains public records upon completion of the Agreement, the Consultant shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. (D) REQUEST FOR RECORDS; NONCOMPLIANCE. (1) A request to inspect or copy public records relating to the City's contract for services must be made directly to the City. If the City does not possess the requested records, the City shall immediately notify the Consultant of the request, and the Consultant must provide the records to the City or allow the records to be inspected or copied within a reasonable time. (2) Consultant's failure to comply with the City's request for records shall constitute a breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally terminate the Agreement; (2) avail itself of the remedies set forth under the Agreement; and/or(3)avail itself of any available remedies at law or in equity. (3) A Consultant who fails to provide the public records to the City within a reasonable time may be subject to penalties under s. 119.10. (E) CIVIL ACTION. (1) If a civil action is filed against a Consultant to compel production of public records relating to the City's contract for services, the court shall assess and award against the Consultant the reasonable costs of enforcement, including reasonable attorneys'fees, if: a. The court determines that the Consultant unlawfully refused to comply with the public records request within a reasonable time; and b. At least 8 business days before filing the action, the plaintiff provided written notice of the public records request, including a statement that the Consultant has not complied with the request, to the City and to the Consultant. (2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of public records and to the Consultant at the Consultant's address listed on its contract with the City or to the Consultant's registered agent. Such notices must be sent by common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and 11 DocuSign Envelope ID:15DEF77B-9381-4F55-ACSC-OFDOA10E1OFE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 with evidence of delivery, which may be in an electronic format. (3) A Consultant who complies with a public records request within 8 business days after the notice is sent is not liable for the reasonable costs of enforcement. (F) IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, OR AS TO THE CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY OF MIAMI BEACH ATTENTION: RAFAEL E. GRANADO, CITY CLERK • 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 E-MAIL: RAFAELGRANADO(a MIAMIBEACHFL.GOV PHONE: 305-673-7411 10.8 FORCE MAJEURE (A) A"Force Majeure" event is an event that(i) in fact causes a delay in the performance of the Consultant or the City's obligations under the Agreement, and (ii) is beyond the reasonable control of such party unable to perform the obligation, and (iii) is not due to an intentional act, error, omission, or negligence of such party, and (iv) could not have reasonably been foreseen and prepared for by such party at any time prior to the occurrence of the event. Subject to the foregoing criteria, Force Majeure may include events such as war, civil insurrection, riot, fires, epidemics, pandemics, terrorism, sabotage, explosions, embargo restrictions, quarantine restrictions, transportation accidents, strikes, strong hurricanes or tornadoes, earthquakes, or other acts of God which prevent performance. Force Majeure shall not include technological impossibility,. inclement weather, or failure to secure any of the required permits pursuant to the Agreement. (B) If the City or Consultant's performance of its contractual obligations is prevented or delayed by an event believed by to be Force Majeure, such party shall immediately, upon learning of the occurrence of the event or of the commencement of any such delay, but in any case within fifteen (15) business days thereof, provide notice: (i) of the occurrence of event of Force Majeure, (ii) of the nature of the event and the cause thereof, (iii) of the anticipated impact on the Agreement, (iv) of the anticipated period of the delay, and (v) of what course of action such party plans to take in order to mitigate the detrimental effects of the event. The timely delivery of the notice of the occurrence of a Force Majeure event is a condition precedent to allowance of any relief pursuant to this section; however, receipt of such notice shall not constitute acceptance that the event claimed to be a Force Majeure event is in fact Force Majeure, and the burden of proof of the occurrence of a Force Majeure event shall be on the requesting party. (C) No party hereto shall be liable for its failure to carry out its obligations under the Agreement during a period when such party is rendered unable, in whole or in part, by 12 DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E10FE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 Force Majeure to carry out such obligations. The suspension of any of the obligations under this Agreement due to a Force Majeure event shall be of no greater scope and no longer duration than is required. The party shall use its reasonable best efforts to continue to perform its obligations hereunder to the extent such obligations are not affected or are only partially affected by the Force Majeure event, and to correct or cure the event or condition excusing performance and otherwise to remedy its inability to perform to the extent its inability to perform is the direct result of the Force Majeure event with all reasonable dispatch. (D) Obligations pursuant to the Agreement that arose before the occurrence of a Force Majeure event, causing the suspension of performance, shall not be excused as a result of such occurrence unless such occurrence makes such performance not reasonably possible. The obligation to pay money in a timely manner for obligations and liabilities which matured prior to the occurrence of a Force Majeure event shall not be subject to the Force Majeure provisions. (E) Notwithstanding any other provision to the contrary herein, in the event of a Force Majeure occurrence, the City may, at the sole discretion of the City Manager, suspend the City's payment obligations under the.Agreement, and may take such action without regard to the notice requirements herein. Additionally, in the event that an event of Force Majeure delays a party's performance under the Agreement for a time period greater than thirty (30) days, the City may, at the sole discretion of the City Manager, terminate the Agreement on a given date, by giving written notice to Consultant of such f termination. If the Agreement is terminated pursuant to this section, 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. In no event will any condition of Force Majeure extend this Agreement beyond its stated term. 10.9 E-VERIFY (A) To the extent that Consultant provides labor, supplies, or services under this Agreement, Consultant shall comply with Section 448.095, Florida Statutes, "Employment Eligibility" ("E-Verify Statute"), as may be amended from time to time. Pursuant to the E-Verify Statute, commencing on January 1, 2021, Consultant shall register with and use the E- Verify system to verify the work authorization status of all newly hired employees during the Term of the Agreement. Additionally, Consultant shall expressly require any subconsultant performing work or providing services pursuant to the Agreement to likewise utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by the subconsultant during the contract Term. If Consultant enters into a contract with an approved subconsultant, the subconsultant must provide the Consultant with an affidavit stating that the subconsultant does not employ, contract with, or subcontract with an unauthorized alien. Consultant shall maintain a copy of such affidavit for the duration of the contract or such other extended period as may be required under this Agreement. (B) TERMINATION RIGHTS. (1) If the City has a good faith belief that Consultant has knowingly violated Section 448.09(1), Florida Statutes, which prohibits any person from knowingly employing, hiring, recruiting, or referring an alien who is not duly authorized to 13 DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E1OFE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 { Updated 09/22/2021. work by the immigration laws or the Attorney General of the United States, the City shall terminate this Agreement with Consultant for cause, and the City shall thereafter have or owe no further obligation or liability to Consultant. (2) If the City has a good faith belief that a subconsultant has knowingly violated the foregoing Subsection 10.9(A), but the Consultant otherwise complied with such subsection, the City will promptly notify the Consultant and order the Consultant to immediately terminate the contract with the subconsultant. Consultant's failure to terminate a subconsultant shall be an event of default under this Agreement, entitling City to terminate the Consultant's contract for cause. (3) A contract terminated under the foregoing Subsection (B)(1) or (B)(2) is not in breach of contract and may not be considered as such. (4) The City or Consultant or a subconsultant may file an action with the Circuit or County Court to challenge a termination under the foregoing Subsection (B)(1) or (B)(2) no later than 20 calendar days after the date on which the contract was terminated. (5) If the City terminates the Agreement with Consultant under the foregoing Subsection (B)(1), Consultant may not be awarded a public contract for at least 1 year after the date of termination of this Agreement. (6) Consultant is liable for any additional costs incurred by the City as a result of the termination of this Agreement under this Section 10.9. 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: Brookhart Jonquil, LLC 5900 NW 2nd Ave Miami, FL 33127 brook.jonquil@gmail.com TO CITY: Brandi Reddick Cultural Affairs Manager 1755 Meridian Avenue, 5th Floor Miami Beach, FL 33139 BrandiReddick@miamibeachfl.gov 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 14 DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E1OFE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 sent to such alternate address in addition to any other address which notice would otherwise be sent, unless other delivery instruction as specifically provided for by the party entitled to notice. Notice shall be deemed given on the date of an acknowledged receipt, or, in all other cases;on the date of receipt or refusal. 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 WAIVER OF BREACH A party's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A party's waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement. 12.4 JOINT PREPARATION The parties hereto acknowledge that they have sought and received whatever competent advice and counsel as was necessary for them to form a full and complete understanding of all rights and obligations herein and that the preparation of this Agreement has been a joint effort of the parties,, the language has been agreed to by parties to express their mutual intent and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than the other. 12.5 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. [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] 15 i DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E1OFE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated '09/22/2021 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: CDocuSigned by: lra1A4/6 ,City elrk£4CF... Manager 5/5/2022 l 4:13 EDT Date: FOR CONSULTANT: Brookhart Jonquil, LLC. ATTEST: c—DocuSigned by:C1 �''""lthvt>. fro&�IIu,arf jo A,otiC By: A339E473706E4F8... Print Name,and Title Print Name and Title Date: APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION 0! �.a ', 1 co I(b- ,,,,, City Attorney I Da e F:ATT.O/TORG/Agreements/Professional Services Agreement 2021 modified 01-12-2021 16 DocuSign Envelope ID:15DEF77B-9381-4F55-AC8C-OFDOA10E10FE DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 Updated 09/22/2021 Exhibit A All venues shall be subject to the mutual agreement of the parties.All installations shall be subject to review and approval by the City Manager's designee. In conjunction with the Aspen Ideas:Climate conference taking place on Miami Beach May 9- 12, 2022 the Miami-Dade County Department of Cultural Affairs and City of Miami Beach will present a series of temporary site specific public art commissions,film screenings, and performances highlighting issues related to climate change and sea level rise. Fourteen (14) Miami-based artists will present work, including visual artists Franky Cruz,Cara Despain, Morel Doucet, Brookhart Jonquil, and Lauren Shapiro. Performances and will include works by artists Dale Andree, Brigid Baker, Michelle Grant-Murray, and an audio-work by Gustavo Matamoros. The film program will include artists A.S.T. (Alliance of the Southern Triangle), Dale Andree, Domingo Castillo,Houston Cypress, Hattie Mae Williams, and Lee Pivnik. In addition,The City of Miami Beach will also highlight works from their permanent public art collection with thematically related commissions by Bill Fontana, Ellen Harvey,and mobile App-based project by Olafur Eliasson. Aspen Ideas:Climate is presented by The Aspen Institute, a global nonprofit organization committed to realizing a free,just, and equitable society. In collaboration with the City of Miami Beach, Miami-Dade County and a diverse group of partner institutions in and beyond South Florida,the Aspen Institute is enlisting global and local policymakers, scientific experts, corporate leaders, inventors and innovators, artists,young leaders, influencers, and engaged members of the public to participate in Aspen Ideas: Climate 2022. Paradise by Brookhart Jonquil is a large-scale sculpture in which a live tropical ecosystem is situated inside of a saltwater-filled prism.The sculpture points to the growing precariousness of the relationship between ocean and land. A second participatory work, Offering, requires participants to labor for the benefit of a small plant.The plant is multiplied metaphorically by an array of mirrors as the participant turns a crank generator to provide light for the plant, a very small but concrete action for its benefit. These artworks by Brookhart Jonquil will be installed and displayed in the Miami Beach Botanical Garden ahead of the Aspen Ideas: Climate conference (May 9 through May 12, 2022) and will be deinstalled by May 15, 2022 unless an extension is granted in writing. 17 DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71 FE591 AA AM I B EAC H �^� J Co tr cfi/i�ocumeD#'RoutiDg'Form s ,� • +� via t W _:lab ;CotitractalloF , , ,'� v� °Tftle �•;• ,�n,'� „: ' • d 1, ., . ,; • .,� PSA Between The City of Miami Beach and artist Brrookhart Jonquil for temporary public art installation at the Miami Beach Botanical Garden during Aspen Ideas:Climate(May 9-12) CContractbr' =,h� w `?, '. i, 5•e•uestingiDep. ti$erits. ° a: b, Brookhart Jonquil,LLC Tourism&Culture:Brandi Reddick De•artment„Dir'eefcfi Na e, 'S♦I:nature,,:`"' .' a s•' ':CM Name& is iiatu,e .° Lissette Garcia Arrogante Marcia,Monserrat CMarY,ia Meusutiaf FU5,00112M2110.. 0F1005.000100. '. 7a . N"ta'• bror8....y,a>;n,Dticument'7 pe`i Se er:i=Dne a• li ..•'} :ti'', Type 1—Contract,amendment,change order or task order resulting from a procurement-issued competitive solicitation. — x Type 2—Other contract,amendment,change order or task order not resulting from a procurement-issued competitive solicitation, Type 3—Independent Contractor Agreement(ICA) Type 6—Tenant Agreement Type 4-Grant agreements with the City as the recipient Type 7—Inter-governmental agency agreement Type 5—Grant agreements with the City as the grantor Other: ,iBrief'Su 'lilhry/81iP.ui`:ose attachimerrio ffa'ddit(onals•aceaisneces`sar In conjunction with the Aspen Ideas:Climate conference taking place on Miami Beach May 9-12,2022 the Miami-Dade County Department of Cultural Affairs and the City of Miami Beach will present a series of temporary site specific public art commissions,film screenings,and performances highlighting issues related to climate change and sea level rise. According to Florida Statue, 287.057 and Citywide Procedure 16.02; Section (A) (9), Artistic services are exempt from competitive requirements;therefore,pursuant to procedure 03.02 section C,this PSA requires the City Manager's approval.. Ina Mon, _, ."^a a: • erleiNa'Perin•s�` ' J o'Offer '(OrI Thal+ ene .a s March 31-May 15,2022 n/a March 31-May 15,2022 • '° P , 2-• °'.Fuhdfn:'Infbrrnation, °'` r 4`° Grant Funded: Yes X No State Federal Other: .r• z J of dgN�y a, T f 'Cost&FunJ gti50„urce ° ,, ✓ F+ Tr. Rem ,A nuai.Cost. '", ,;Acddun, , s. 1 $9,000 160-4300-000349-00-406-555-00-00-00- Yes X No 2 Yes No 3 Yes No 4 Yes No 5 Yes No 1.For contracts longer than five years,contact the Procurement Department. 2.Attach any supporting explanation needed. 3. Budget approval indicates approval for current fiscal year only.Future years are subject to City Commission approval of annual adopted operating budget. "+ ~ ". a ems, ,".Autfior "tot:Il,r ° iaz&?,: • City Commission Approved: Yes X No Resolution No.: CC Agenda Item No.: CC Meeting Date: 2021-31872 If no,explain why CC approval is not required:PSA below$100,000,City Manager has authority to sign.Funds have been previously budgeted,and artistic services are exempt from the Procurement Process. Legal Form Approved: X Yes No If no,explain below why form approval is not necessary:. Fa a� YF,°; ° .':`4, y „Con?•liafice Q .ro iais''se'erat'ache; h : •y • .5 e `o.d' r° ,, Procurem€r$teves For 001Y9Y•000Y: Grants: N/A Alex Denis =1 1/4—Ul101000UF°].. Budget: �W1vYbn.Op Information Technology: N/A ; taRtao.D1fo Sfuuarf �—YF1h14h1Uhh510t.. DocuSign Envelope ID:A4A1C04A-057114E95-AF94-4925E71FE591 Risk Management: Fleet&Facilities: N/A Human Resources: N/A Other: FOS Reviewed by Monica Garcia DocuSign Envelope ID:A4A1C04A-057D-4E95-AF94-4925E71FE591 °Ihstruotia 0f..6 taoRadlig 8 4Iti fi 00..r r?ak Co,9rerShGet 1. Every field must be completed.If requested information is not applicable,enter NA. 2. It is advisable to confirm authority to sign,funding/account information,risk management compliance,and controlled purchases(IT or fleet/facilities)with the appropriate department prior to routing a document. 3. Attach all supporting documentation(e.g.,resolutions,commission memorandums,etc.)when routing. 4. When creating workflow in DocuSign,in addition to the department head and applicable assistant/deputy city manager,make sure the individuals(or designees)indicated in the Required Compliance Approvals section below are included in the approval path. Note that compliance approvers must approve prior to ACM. 5. The City Manager does not need to sign the coversheet. 6. If you have any questions,contact the Procurement Department. R$ a Co aneerA �._�.��. ,�.-a...: �a. � _ � � a�_I" !1p t .;P When routing documents for approval by the city manager,in addition to the department head and applicable city manager, make sure the following individuals (or designees)are included in the approval path depending on each contract type. Type 1—Contract,amendment,or task order for the purchase for the purchase of goods or services resulting from competitive solicitation. • Procurement(Alex Denis) • Budget(Tameka Otto Stewart) • Grants(Judy Hoanshelt)—if the purchase is grant funded • Controlled purchases— o Facilities and Fleet(Adrian Morales)—if the purchase involves a facilities or vehicle item o Information Technology(Frank Quintana)—if the purchase involves a technology item Type 2—Other contract or amendment for the purchase of goods or services not resulting from a procurement- issued competitive solicitation. • Procurement(Alex Denis) • Budget(Tameka Otto Stewart). • Risk Management(Sonia Bridges) • Grants(Judy Hoanshelt)—if the purchase is grant funded • Controlled purchases— o Facilities and Fleet(Adrian Morales)—if the purchase involves a facilities or vehicle item o Information Technology(Frank Quintana)—if the purchase involves a technology item Type 3—Independent Contractor Agreements • Human Resources Director Type 4—Grant agreements when City recipient • Grants(Judy Hoanshelt) Type 5—Grant agreements when City grantor • As appropriate depending on grant type Type 6—Tenant agreements • Facilities and Fleet(Adrian Morales) Type 7—Inter-governmental agency agreement • Marcia Montserrat Any other type:Contact the Procurement Department for assistance. Delete this page before routing coversheet.