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PSA Agreement with Elevation Corporate Health LLC DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelo a ID:3BFF9090-E735-4AA3-9A71-8 P 35COF6EDAC7 SCannediozz_3\ot64,3 Contract No.21-320-01 JAN 2 4 2023 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND ELEVATION CORPORATE HEALTH LLC FOR FITNESS PROGRAMMING AT LUMMUS PARK PURSUANT TO RFQ-2021-320-AY 12/8/2022 1 12:19 EST This Professional Services Agreement ("Agreement") is entered into this If-2- 7/ day of ("Effective Date"), between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation organized and existing under the laws of the State of Florida, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139 (the "City"), and ELEVATION CORPORATE HEALTH, a Maryland limited liability company whose address is 11350 McCormick Blvd. EP 4, Suite LL8, Hunt Valley, Maryland 21031("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 John Reber, Parks and Recreation 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 RFQ, No. 2021- 320-AY for FITNESS PROGRAMMING AT LUMMUS PARK together with all amendments thereto, issued by the City in contemplation of this RFQ, and the Consultant's proposal 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 RFQ,and the Proposal. 1 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1 C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 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 Consultant shall provide Fitness Programming at Lummus Park at the grassy area near 6'h 10th and 14th Street or as approved by the City and as more fully delineated in Exhibit "A" attached hereto(the"Services"). Fitness Programming may be scheduled from Monday through Sunday, sunrise to sunset and shall be offered to residents and non-residents ages 18 and over. Community Events. Consultant shall provide a free event or specialty class to be held once each quarter. 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. Consultant is advised to avoid an overlap of the same service/class being offered simultaneously by other programmers (COFA). The City will notify Consultant when such programming is taking place. 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: Paul Di Mount, CPRP,Athletic manager Parks&Recreation Department 1701 Meridian Avenue, Suite 401 Miami Beach, FL 33139 Ph:305-673-7000 ext. 2347 Email: PaulDiMount at miamibeachfl.gov 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 Two (2) years with Three (3) additional one-year 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. 2 DocuSign Envelope ID:4B6B2D20-F49B-4E93-ABED-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-B35C0F6EDAC7 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 pay the City 12% of the Net Profit on a monthly basis for the first year of the initial term.Any year after, during the initial term or renewal terms, a 1% net profit increase Not to Exceed a total of 15% shall be applied at the anniversary date. 4.2 PAYMENTS Consultant shall submit a monthly report and the agreed upon net profit payment by the 10th day of each month to the Parks&Recreation Department in accordance with Exhibit"A"hereto. 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 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 3 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 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 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. 4 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-B35C0F6EDAC7 A. Worker's Compensation Insurance for all employees of the vendor as required by Florida Statute 440, and Employer Liability Insurance for bodily injury or disease. Should the Vendor be exempt from this Statute, the Vendor and each employee { shall hold the City harmless from any injury incurred during performance of the Contract. The exempt Vendor shalt also submit(i) a written statement detailing the number of employees and that they are not required to carry Workers' Compensation insurance and do not anticipate hiring any additional employees during the term of this contract or(ii)a copy of a Certificate of Exemption. B. Commercial General Liability Insurance on an occurrence basis, including products and completed operations, property damage, bodily injury and personal &advertising injury with limits no less than$100,000 per occurrence. C. Automobile Liability Insurance covering any automobile, if vendor has no owned automobiles, then coverage for hired and non-owned automobiles, with limit no less than$100,000 combined per accident for bodily injury and property damage. 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 do 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 M IAM I BEACH clo EXIGIS Insurance Compliance Services P.O. Box 947 5 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 Murrieta, CA 92564 Kindly submit all certificates of insurance, endorsements, exemption letters to our servicing agent, EXIGIS, at: Certificates-miamibeach{a,riskworks.corn 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. 6 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 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. 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. 7 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 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, ail 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. 8 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835COF6EDAC7 (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 settlemert;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, 9 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 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: (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. 10 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 (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 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, 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: RAFAELGRANADOOMIAMIBEACHFL.GOV PHONE: 305-673-7411 11 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 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 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 12 DocuSign Envelope ID:4B6B2D20-F498-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 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 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) 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 Agreement 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, 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 Agreement 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. 13 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-B35C0F6EDAC7 SECTION 11 NOTICES Until changed by notice, in writing, all such notices and communications shall be addressed as follows: TO CONSULTANT: Angela Nichols Elevation Corporate Health, LLC. 11350 McCormick Rd Hunt Valley, MD 21031 Ph: 720-352-2548/410-771-1200' Email: a.nicholsC')a contactelevation.com TO CITY: John Rebar, Director Parks&Recreation Department City of Miami Beach 1701 Meridian Avenue,Suite 401 Miami Beach, FL 33139 Ph: 306-673-7730 Email: JohnRebaramiamibeachfl.00v_ All notices mailed electronically to either party shall be deemed to be sufficiently transmitted. 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. 14 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 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 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 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: LDocuSigned by: K/4d f. radbRafrado, City Clerk ,/J7 / cecc . Hud , y Manager 12/8/2022 I 12:19 EST Date: FOR CONSULTANT: ELEVATION CORPORATE HEALTH,LLr P By: Man l h(/fzr/$- / I,S/dtA j . Print Name and Title Date: /� Z ZGG Z APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION 9:171, 1 10{.3112? ity Attorney Date 16 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 EXHIBIT A SCOPE APPROACH AND METHODOLOGY The Consultant shall provide the following services: 1. Fitness Programming takes place at Lummus Park: a. Schedule may have some flexibility and selected proposer shall discuss it with the City.The Park is open Monday-Sunday,sunrise to sunset. 2. Programming will be offered to ages 18+ 3. Services/Classes including but not limited to: a. On-Site Personal Group Trainer b. Yoga c. HIIT d. Training Classes,etc. 4. Provide price per class or hourly rate charged to'participants(residents or non-residents) 5. Provide photo and videos to City staff on a weekly basis 6. Provide licensed and insured fitness instructors: a. Include listings of all professional certifications held by staff b. Must obtain First Aid and CPR Certifications(for each involved personnel). • 7. Provide monthly reporting no later than the 5t of the subsequent month detailing: a. Roster of all classes and participants broken'down by residents and non-residents b. Calculation of the revenue percentage split foreach month 8. No selling of merchandise or programs while on site. 9. Provide marketing material to be approved and shared by the City of Miami Beach Marketing and Communications Department 10. Provide and maintain equipment for training classes.Equipment is to be brought to the site by the selected proposer for the training class and cannot be stored on site. 11. Consultant.personnel shall wear appropriate apparel with Consultant's logo such that personnel can easily be identified. 12. Consultant shall obtain,at its sole cost and expense,for each instructor any and all business tax receipts required by law for the proposed uses contemplated in this Agreement. 13. Consultant shall have all program participants sign a waiver before beginning the fitness class. Class Schedule/Class Fees!Proposed Net Revenue Share 11auk1 SSo.IL2 11u4113 SS..h4 Mo.I0S SI..416 Shads 1I..1011 Ma.d9 Stout 10 Mead/u S6ou112 3/1368E11.OF CLASSESOIFE1fMD EACH MONTH 34 sa 24 34 34 14 •9 25 25 IS 15 36 AVERAGEPARIICTPANTS PER CLASS I 13 IF 16 16 I' 17 I IS IS - 19 IS 30 !0 TOTAL MONSIILU'PARTICIPATION .160 360 194 594 403 409 450 450 476 470 RS 500 RESZNYES 510 860$:O.pac4 membm:hr4(SO'.ofpauaemtcm 92.950 S3,SS0 $3.0 2 51.C-2 S3.264 $3.364 53.600 S3.600 53.300 $3.54) 34.COD S4.04 541.333 513 from Amp all pa:;CO'.of puenpau;) SI,065 SLOSO. SI 33! SLIP. 51224 S1.2:4 5:.350 S:110 SI.2! 51 s!5 S1.13) S1.i06 515.463 Pa:aul 7a8oae a al Coxhm- SI.000 S1.110 S1013 SI.030 SI.730 S:.6C0 5:000 53.000 53.150 31660 S!C00 STAG $16.000 TOTALI4COSE. 54.964 54960 .05.214 55124 S0,483 43.488 56956 .16,960. 57,214 57135 07,400 37,500 574.494 OPER3TL\C EXPENSES Canlnit/vemr Tnme, SSOD. SSA SS00 SVC SSA SS00 $900 SS00 5600 5900 5300 5600 39.6C0 Comp Frmr.:lamstor. Si SC67 51 S30 SI9A f1.9_0 53.040 S:A40 S).250 5223C 53.5'S S!.3'S , S1.410 53.500 5:3'70 Pa;41u17ra,ams Caa,mrv0a 5'00 S'OC 5:06 S'00 S-06 S.00 51.4C0 Si100 S1.400 SL400 St 400 S1.400 S13.SGC_ Ecutpmsm S,mate Fu:,..A1.1 5:00 SO?1 5100 S1C6 5100 S:OU SI00 5103 5100 SI00 S100 5100 S:.200 SlarSsaae S:00 S`00 S!0: S`00 S_00 S:00 S�G0 S100 5104 Si00 S:00 5100 Si.900 Techoalon IStemher•.h,P:am,/4) S:00 5100 519, 5100 S10C S100 1100 5100 3100 S100 SS00 5300 S1200 .`.S.=a3amae. r.:iln•. .... 3. 5'•. 57'r. P.) a , TOTAL 03E50.41000.EXPENSES. 11.800 03.500 93920 51930 34.010 54,010 54.830 64.450 54975 14975 59,164 S5.100 053.370 NZTLCCOME 51,160 54,160 51,304 51,301 58446 51.448 S2.100 S!,100 12,130 12130 S3.400 S3,400 021a34 NET PROM SNARE(AT 13%) ( S130 5131 3154 S106 5174 5174 SS! $283 1270 $270 S288 $288 S2.450 { 17 DocuSign Envelope ID:4B6B2D20-F49B-4E93-AB8D-A75A1 C40B345 DocuSign Envelope ID:3BFF9090-E735-4AA3-9A71-835C0F6EDAC7 M I AM I BEACH 'Contract/Document'Routingform Contract•No: , Title 2021-320-01 FITNESS PROGRAMMING AT LUMMUS PARK =Coh"traeto`r $ • •' , r $ L L[41.ulie-°m. ELEVATION CORPORATE HEALTH,LLC. PARKS&RECREATION �D' oau6l6pod by! Qe• rtme . �� 1,� . . ( John Rebar '�" Mark Taxis °'' `-4/2/38UAhSC694UU... —t9AC Ub1UFlAA41A... `Do1:umentcf; •.e SelelaOKe ,>• ., , X Type 1—Contract,amendment,change order or task order resulting from a procurement-issued competitive solicitation. 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: Brief Sum` 'a". &IPur ose'attach"memosifadditionals•ace,is°necessar %" On January 21,2022,the Mayor and City Commission authorized the Administration to enter into negotiations with Beat The Gym,LLC.("BIG")the top-ranked proposer and,if unsuccessful in negotiating an agreement,authorizing the Administration to negotiate with Elevation Corporate Health,LLC("ECH"), the second-ranked proposer,and further execute an agreement upon the conclusion of successful negotiations.On April 13,2022,after months of negotiations,the Administration reached an impasse in the negotiations with BTG due to the desired revenue structure by the City not being financially viable for BTG. Consequently, on June 22, 2022, the Administration engaged ECH, the second-ranked proposer, and has successfully negotiated an agreement.The agreement has been form approved by the City Attorney's Office and executed by the vendor. Pursuant to the authority established in Resolution 2022-31986,this item seeks the City Manager's approval to execute an agreement with ECH. `Ori_inaf•Terrtt 'r .., "'RenewaIPer•iods ;'t ; -; Total Term On inal+Renewals Two(2)years Three,one(1)year Five(5)years r a "Filridi :'information, t' Grant Funded: Yes X No I State I Federal Other: I N/A • €s` / "Cost,&iFtmdin:Source. ISMIN nnual'+Costa ':; • •r Account .- t, ,°'•Re•uiretEnha'cement N/A N/A There is no financial impact to the City.The City will collect a 12% Yes X No of the Net Profit on a monthly basis for the initial term,with a 1% increase each year after,if the contract is renewed. 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. ,y� • h•s': ., ?' +,' W, r">rf ° 1cteA tho}i-. CO.Bi n 1• i "5': k City Commission Approved: X Yes No Resolution No.: CC Agenda Item No.: CC Meeting Date: 2022-31986 C7T 1/20/22 If no,explain why CC approval is not required: Legal Form Approved: X Yes I No I If no,explain below why form approval is not necessary: y s•",+ ..WIMP' ,£Ja 3 ,cs`t.7,,c2 e i9° 't9MVERT Il i r3 .. vte,ltr4- ,'"§'!ii� Procurement: Alex Denis Mew. Dais Grants: N/A .-DocuSi nedby • k_B2U�/t!A/UYtI U. Budget: T tekatOttoth5tpw ac{ ai `information Technology: N/A Risk Management: ��2oa4A610EE14U3... � Fleet&Facilities: N/A • DocuSign Envelope ID:4B6B2D20-F49B-4E93-ABED-A75A1C40B345 DocuSign Envelope ID:SBFF9090-E735-4AA3-9A71-835C0F6EDAC7 DocuSlgned by: Human Resources: N/A 'Other: Krlsty Bada tort, -vi :fie ' �, GF87145FE8248A.