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2009-27286 ResoRESOLUTION NO. 2009-27286 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE CITY MANAGER, ON BEHALF OF THE CITY, TO ENTER INTO CERTAIN INDEPENDENT CONTRACTOR AGREEMENTS FOR PROFESSIONAL AND OTHER SERVICES, AS REQUIRED AND AS THE CITY MANAGER DEEMS IN THE BEST INTEREST OF THE CITY, SUBJECT TO AND CONTINGENT UPON THE FOLLOWING PARAMETERS: 1) THE CITY MANAGER SHALL ONLY ENTER INTO CONTRACTS FOR SUCH PROFESSIONAL AND OTHER SERVICES TO PROVIDE SERVICES AND/OR WORK RELATED TO VACANT BUDGETED POSITIONS, AS IDENTIFIED IN THE CITY'S APPROVED FISCAL YEAR (FY) 2009/2010 ANNUAL BUDGET; 2) THE AMOUNT OF THE FEE AND/OR OTHER COMPENSATION TO BE PAID BY THE CITY UNDER SUCH CONTRACT(S) SHALL NOT EXCEED THE AUTHORIZED AMOUNT FOR THE RESPECTIVE POSITION/CLASSIFICATION, AS SET FORTH, RESPECTIVELY, IN THE CITY'S CLASSIFIED OR UNCLASSIFIED SALARY ORDINANCE (AS THE CASE MAY BE); 3) THE TERM OF ANY INDEPENDENT CONTRACTOR AGREEMENT AUTHORIZED HEREIN SHALL NOT EXTEND BEYOND THE END OF FY 2009/2010 (SEPTEMBER 30, 2010); 4) AT A MINIMUM, THE CITY MANAGER SHALL REQUIRE THAT ANY INDEPENDENT CONTRACTOR AGREEMENT ENTERED INTO PURSUANT TO THIS RESOLUTION SHALL UTILIZE THE CITY'S STANDARD FORM FOR INDEPENDENT CONTRACTORS (AS ATTACHED TO THIS RESOLUTION), PROVIDED THAT THE CITY MANAGER MAY INCORPORATE ADDITIONAL TERMS, WHICH MAY BE MORE STRINGENT THAN THE CITY'S FORM, BUT NOT MORE LENIENT; AND 5) PROVIDING THAT THE AUTHORITY GRANTED TO THE CITY MANAGER PURSUANT TO THIS RESOLUTION SHALL BE BROUGHT TO THE CITY COMMISSION FOR RENEWAL ANNUALLY AS PART OF THE ANNUAL OPERATING BUDGET APPROVALS. WHEREAS, under the City Charter, the City Manager has the authority to appoint an employee into a vacant, budgeted position with a salary within the range established by the City Commission for the classification; and WHEREAS, given current financial realities, the City has had to eliminate positions in its annual budget for each of the last two (2) fiscal years and again for the fiscal year starting on October 1, 2009; and WHEREAS, it has been the City's practice to restrict hiring for vacant positions where practicable; and WHEREAS, all vacant positions identified to be filled are carefully analyzed, and positions that were deemed mission critical have been filled, but others have been held vacant; and WHEREAS, this has been done to try to place employees whose positions may have been eliminated, and also to avoid hiring an employee and then possibly having to lay them off at the end of the fiscal year if their position is eliminated; and WHEREAS, in some instances where positions were held vacant, the City has retained independent contractors to provide the respective services and/or work; and WHEREAS, because the City Code requires contracts in excess $25,000 to be approved by the City Commission, these agreements have typically been limited to that maximum amount; and WHEREAS, on rare occasions, independent contractor agreements for amounts over $25,000 have been brought to the City Commission for approval; and WHEREAS, in an effort to save on both short-term and long-term costs, such as pension and health benefits, the Administration is recommending that the City Commission authorize the City Manager to negotiate, enter into, and execute certain independent contractor agreements, including those having an amount which may exceed $25,000, subject to the following parameters: • the independent contract agreements authorized under this Resolution will be limited to services and/or work related to a vacant, budgeted position, as approved in the City's Fiscal Year (FY) 2009/2010 annual operating budget; • the value of the agreement will not exceed the amount already authorized in the City's Classified and Unclassified Salary Ordinances (as applicable), and will not extend beyond September 30, 2010; and any agreement entered into will contain, at a minimum, the provisions outlined in the City's standard form independent contractor agreement. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the City Manager is authorized, on behalf of the City, to enter into certain independent contractor agreements for professional and other services, as required and as the City Manager deems in the best interest of the City, subject to and contingent upon the following parameters: 1) the City Manager shall only enter into contracts for such professional and other services to provide services and/or work related to vacant budgeted positions, as identified in the City's approved Fiscal Year (FY) 2009/2010 Annual Budget; 2) the amount of the fee and/or other compensation to be paid by the City under such contract(s) shall not exceed the authorized amount for the respective position/classification, as set forth, respectively, in the City's Classified or Unclassified Salary Ordinance (as the case may be); 3) the term of any independent contractor agreement authorized herein shall not extend beyond the end of FY 2009/2010 (September 30, 2010); 4) at a minimum, the City Manager shall require that any independent contractor agreement entered into pursuant to this resolution shall utilize the City's standard form for independent contractors, provided that the City Manager may incorporate additional terms, which may be more stringent than the City's form, but not more lenient; and 5) providing that the authority granted to the City Manager pursuant to this Resolution shall be brought to the City Commission for renewal annually as part of the annual operating budget approvals. PASSED and ADOPTED this 9th A EST: ~/l. CITY CLERK Robert Parcher day Of December ~ e~~ .- ~....,, ~D AS TO FORM & LANGUAGE i_ ,~~FOR EXECUTION T:\AGENDA\2009\December 9\Consent\Independent Contractor Resos.doc u`~ COMMISSION ITEM SUMMARY Condensed Titles: A Resolution authorizing the City Manager to enter into certain independent contractor agreements for professional and other services, subject to and contingent upon the following parameters:1) the City Manager shall only enter into contracts to provide services and/or work related to vacant budgeted positions; 2) the amount of the fee and/or other compensation to be paid shall not exceed the authorized amount for the respective position/classification; 3) the term of any agreement authorized herein shall not extend beyond the end of FY 2009/2010; 4) at a minimum, the City Manager shall require that any agreement entered into pursuant to this Resolution shall utilize the City's standard form for independent contractors; and 5) providing that the Authority granted to the City Manager pursuant to this Resolution shall be brought to the City Commission for renewal annually as part of the annual operating budget approvals. A Resolution authorizing the City Manager to enter into certain independent contractor agreements for the following services: Dance Instruction; Ice Skating Instruction; Athletics Instruction/Coaching; Aerobics Instruction; Fitness Instruction; Literacy, Math and S.A.T. Tutoring; School Liaison Officers; Television Production Services; Videographer Services; Graphic Designer Services; Program Monitor Services; and Auditors; subject to the following minimum parameters: 1) the amount of the fee and/or other compensation to be paid by the City under such agreement(s) shall not exceed the authorized amount for the respective services as set forth in the City's approved FY 2009!2010 Annual Budget; 2) the term of any agreement authorized herein shall not extend beyond the end of FY 2009/2010; 3) at a minimum, the City Manager shall require that any agreement entered into pursuant to this Resolution shall utilize the City's standard form for independent contractors; and 4) providing that the Authority granted to the City Manager pursuant to this Resolution shall be brought to the City Commission for renewal annually as part of the annual operating budget approvals. Ke Intended Outcome Su orted: 1) Increase satisfaction with recreational programs; 2) Enhance external and internal communications from and within the City; 3) Increase resident rating of public safety services; 4) Ensure expenditure trends are sustainable over the Ion term. Supporting Data (Surveys, Environmental Scan, etc.): 2009 Community Satisfaction survey • 84.9% of residents rated Recreation Programs as excellent or good • 79.3% of residents rated the amount of information they receive from the City as excellent or good • 96.3% of residents suggested they feel "very safe" or "somewhat safe" in their neighborhood during the day Issue: Shall the City Manager be granted the authority to enter into certain Independent Contractor and Professional Services Aoreements? Item Summary/Recommendation: Under the City Charter, the City Manager has the authority to appoint an employee into a vacant, budgeted position with a salary within the range established by the City Commission for that classification. Given the current financial realities, the City has had to eliminate positions in its annual budget the past three (3) fiscal years. It has been the City's practice to restrict hiring for vacant positions where practicable. In some instances where positions were held vacant, the City has retained independent contractors to provide the respective services and/or work. The Administration recommends that the City Commission authorize the City Manager to negotiate, enter into, and execute certain independent contractor agreements, including those having an amount which may exceed $25,000, to provide services and/or work related to vacant, budgeted positions, subject to certain parameters. Additionally, the Administration recommends that the City Manager be authorized to negotiate, enter into, and execute independent contractor agreements, including those having an amount greater than $25,000, to provide services related to certain activities typically retained on an annual basis as outlined in the City Commission Memorandum, subject to certain minimum parameters. Adviso Board Recommendation: The Finance and Citywide Projects Committee recommended this item for approval at their October 29, 2009 Financial Information: Source of Amount Account Funds: ~ ~~ 2 OBPI Total Financial Impact Summary: Funds are already included in the FY 2009/2010 Annual Operating Budget, in either Salaries or Professional Services line items in various res ective de artments •~- ~.riy ~,rerK-s vrnce ~eglslative fracKlna: Ramiro Inguanzo, Human Resources Director /Gus Lopez, Procurement Director Sign-Offs: Department Dir or Assistant City Manager City Manager I~ n ~ ~ ~ ~ AGE~ITEM ~~ Y 1 DATE ~?~ -U m MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, vrww.miamibeachfi.gov COMMISSION MEMORANDUM To: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager DATE: December 9, 2009 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE CITY MANAGER, ON BEHALF OF THE CITY, TO ENTER INTO CERTAIN INDEPENDENT CONTRACTOR AGREEMENTS FOR PROFESSIONAL AND OTHER SERVICES, AS REQUIRED AND AS THE CITY MANAGER DEEMS IN THE BEST INTEREST OF THE CITY, SUBJECT TO AND CONTINGENT UPON THE FOLLOWING PARAMETERS: 1) THE CITY MANAGER SHALL ONLY ENTER INTO CONTRACTS FOR SUCH PROFESSIONAL AND OTHER SERVICES TO PROVIDE SERVICES AND/OR WORK RELATED TO VACANT BUDGETED POSITIONS, AS IDENTIFIED IN THE CITY'S APPROVED FISCAL YEAR (FY) 2009/2010 ANNUAL BUDGET; 2) THE AMOUNT OF THE FEE AND/OR OTHER COMPENSATION TO BE PAID BY THE CITY UNDER SUCH CONTRACT(S) SHALL NOT EXCEED THE AUTHORIZED AMOUNT FOR THE RESPECTIVE POSITION/CLASSIFICATION, ASSET FORTH, RESPECTIVELY, IN THE CITY'S CLASSIFIED OR UNCLASSIFIED SALARY ORDINANCE (AS THE CASE MAY BE); 3) THE TERM OF ANY INDEPENDENT CONTRACTOR AGREEMENT AUTHORIZED HEREIN SHALL NOT EXTEND BEYOND THE END OF FY 2009/2010 (SEPTEMBER 30, 2010); 4) AT A MINIMUM, THE CITY MANAGER SHALL REQUIRE THAT ANY INDEPENDENT CONTRACTOR AGREEMENT ENTERED INTO. PURSUANT TO THIS RESOLUTION SHALL UTILIZE THE CITY'S STANDARD FORM FOR INDEPENDENT CONTRACTORS (AS ATTACHED TO THIS RESOLUTION), PROVIDED THAT THE CITY MANAGER MAY INCORPORATE ADDITIONAL TERMS, WHICH MAY BE MORE STRINGENT THAN THE CITY'S FORM, BUT NOT MORE LENIENT; AND 5) PROVIDING THAT THE AUTHORITY GRANTED TO THE CITY MANAGER PURSUANT TO THIS RESOLUTION SHALL BE BROUGHT TO THE CITY COMMISSION FOR RENEWAL ANNUALLY AS PART OF THE ANNUAL OPERATING BUDGET APPROVALS. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE CITY MANAGER, ON BEHALF OF THE CITY, TO ENTER INTO CERTAIN INDEPENDENT CONTRACTOR AGREEMENTS FOR THE FOLLOWING SERVICES, AS REQUIRED AND AS THE CITY MANAGER DEEMS IN THE BEST INTEREST OF THE CITY: DANCE INSTRUCTION; ICE SKATING INSTRUCTION; ATHLETICS INSTRUCTION/COACHING; AEROBICS INSTRUCTION; FITNESS INSTRUCTION; LITERACY, MATH AND S.A.T. TUTORING; SCHOOL LIAISON OFFICERS; TELEVISION PRODUCTION SERVICES; VIDEOGRAPHER SERVICES; GRAPHIC DESIGNER SERVICES; PROGRAM MONITOR SERVICES; AND AUDITORS; PROVIDED FURTHER THAT THE CITY MANAGER SHALL BE AUTHORIZED TO NEGOTIATE, ENTER INTO, AND EXECUTE THE AFORESTATED AGREEMENTS SUBJECT TO THE FOLLOWING City Commission Memorandum December 9, 2009 Independent Contractor Agreements Page 2 of 4 MINIMUM PARAMETERS: 1) THE AMOUNT OF THE FEE AND/OR OTHER COMPENSATION TO BE PAID BY THE CITY UNDER SUCH AGREEMENT(S) SHALL NOT EXCEED THE AUTHORIZED AMOUNT FOR THE RESPECTIVE SERVICES, AS SET FORTH IN THE CITY'S APPROVED FISCAL YEAR (FY) 2009/2010 ANNUAL BUDGET; 2) THE TERM OF ANY SERVICES AGREEMENT AUTHORIZED HEREIN SHALL NOT EXTEND BEYOND THE END OF FY 2009/2010 (SEPTEMBER 30, 2010); 3) AT A MINIMUM, THE CITY MANAGER SHALL REQUIRE THAT ANY AGREEMENT ENTERED INTO PURSUANT TO THIS RESOLUTION SHALL UTILIZE THE CITY'S STANDARD FORM INDEPENDENT CONTRACTOR AGREEMENT (AS ATTACHED TO THIS RESOLUTION), PROVIDED THAT THE CITY MANAGER MAY INCORPORATE ADDITIONAL TERMS, WHICH MAY BE MORE STRINGENT THAN THE CITY'S FORM, BUT NOT MORE LENIENT; AND 4) PROVIDING THAT THE AUTHORITY GRANTED TO THE CITY MANAGER PURSUANT TO THIS RESOLUTION SHALL BE BROUGHT TO THE CITY COMMISSION FOR RENEWAL ANNUALLY AS PART OF THE ANNUAL OPERATING BUDGET APPROVALS. ADMINISTRATION RECOMMENDATION Adopt both Resolutions. BACKGROUND /ANALYSIS The first Resolution pertains to independent contractor agreements, which are for individuals hired to perform a specific function for a temporary period. These individuals are usually compensated at an hourly or project specific rate. Under the City Charter, the City Manager has the authority to appoint an employee into a vacant, budgeted position with a salary within the range established by the City Commission for that classification. Given current financial realities, the City has had to eliminate positions in its annual budget for each of the last two (2) fiscal years and again; for the fiscal year starting on October 1, 2009. It has been the City's practice to restrict hiring for vacant positions where practicable. Alt vacant positions identified to be filled are carefully analyzed. Positions that were deemed mission critical have been filled, but others have been held vacant. This has been done to try to place employees whose positions may haves been eliminated, and also to avoid hiring an employee and then possibly having to lay them off at the end of the fiscal year if their position is eliminated. In some instances where positions were held vacant, the City has retained independent contractors to provide the respective services and/orwork. Because the City Code requires contracts in excess of $25,000 to be approved by;the City Commission, these agreements have typically been limited tothat maximum amount. In an effort to save on both short-term and long-term costs, such as pension and health benefits, the Administration is recommending that the City Commission authorize the City Manager to negotiate, enter into, and execute certain independent contractor agreements, including those having an amount which may exceed $25,000, subject to all of the following parameters: ~, i I l City Commission Memorandum December 9, 2009 Independent Contractor Agreements Page 3 of 4 ~ i I • the independent contractor agreements authorized under this Resolution will be limited to services and/orwork related to a;vacant, budgeted position, as approved in the City's Fiscal Year (FY) 2009/2010 annual operating budget • the value of the agreement will not exceed the amount already authorized in the City's Classified and Unclassified Salary ;Ordinances (as applicable), and will not extend beyond September 30, 2010, and j I • any agreement entered into will contain, at~ a minimum, the provisions outlined in the City's standard form independent contractor agreement(Attachment A). i This Resolution was first heard at the September 24, 2009 City Commission meeting, where it was referred to the Finance and Citywide Projects Committee. At its October 29, 2009 meeting, the Finance and Citywide Projects Committee held a discussion regarding this item. As part of the discussion, the Administration clarified that the purpose of this item was not to replace those employees currently in a position, orto eliminate a position and layoff an employee to then hire an independent contractor to perform the same functions. The independent contractors will be used to perform the functions of vacant, budgeted positions where a previous incumbent employee separated from City of their own choosing, or through termination based on cause. The Administration agreed to monitor the use of the independent contractors contracted under this Resolution and report back to the City Commission via the budget preparation meetings in July, 2010. The Finance and Citywide Projects Committee recommended this item for approval based on the conditions described above. The second Resolution also pertains to independent contractors who will be providing certain specific services and/or work and which were otherwise budgeted in each of the respective departmental budgets. Some of the services budgeted include: Dance Instruction, Ice Skating Instruction, Athletics Instruction/Coaching, Aerobics Instruction, Fitness Instruction, and Literacy, Math and S.A.T. Tutoring for the Parks and Recreation Department; School Liaison Officers for the Police Department; Television Production Services, Videographer Services, and Graphic Designer Services for the Office of Communications; Program Monitor Services for~the Office of Real Estate, Housing and Community Development and Auditor Servicesforthe Office of Budget and Performance Improvement. j In an effort to coordinate the execution of agreements for the kind of services and/orwork referenced in the second Resolution, the Administration also recommends that the City Manager be authorized to negotiate, enter into, and execute such agreements, including those having an amount greater than $25,000, subject toall of the following parameters: • the agreements will only be limited to the the second Resolution; and/orwork specifically listed in • the value of the agreement will not exceed services and/or work, as set forth in the Budget; • the term of the agreement shall not (September 30, 2010); and the authorized amount for the respective City's Approved FY 2009/2010 Annual d beyond the end of FY 2009/2010 City Commission Memorandum December 9, 2009 Independent Contractor Agreements Page 4 of 4 • any agreement entered into will contain, at a minimum, the provisions outlined in the City's standard form agreement for independent contractors (Attachment A). It is the intention of the Administration that both Resolutions herein, granting the specific Authority to the City Manager to enter into these Independent Contractor Agreements, will be brought to the City Commission for renewal anntaally in September of each year as part of the annual operating budget approvals. The Finance and Citywide Projects Committee r (commended this item for approval based on the conditions described above. CONCLUSION The Administration recommends adopting the Attachment T:WGENDA\2009\December 9\Consent\Independent Contractor ATTACHMENT A CITY'S STANDA~2D FORM FOR INDEPENDENT CONTRACTORS INDEPENDENT This Agreement is entered into on this d FULL NAME OF CONTRACTOR) (Contractor), for a period of [ENTER DURATIONITERM OF A of [ 1, and an end date of L 1. Scope of Work/Services. AGREEMENT y of ,between ENTER nd the City of Miami Beach, Florida (City), REEMENTI, with an effective starting date 1 (the Term). This Agreement is for the purpose ~ of providing [PROVIDE BRIEF DESCRIPTION/SUMMARY OF WHAT CONTRACTOR WILL DOl to the City's [ 1 Department. Specifically, throughout the Term of this Agreement, Contractor shall provide and/or perf ~ rm the following minimum services: [INSERT DETAILED AND/OR ITEMIZED ~ ESCRIPTION OF WORK AND/OR ES 2. Fee. Inconsideration of the work and/or services to be provided pursuant to this Agreement, the City agrees to pay Contractor a fee, in the not to exceed amount of [FILL IN TOTAL AMOUN ,which shall be paid as follows: D ETC.1 The total fee paid to Contractor pursuant to this / TO EXCEED AMOUNTt for the Term provided 3. Work Schedule. During the Term of the Agreement, Contractor accordance with the following minimum work sc OF HOURLY reement shall not exceed [FILL IN A NOT rein. provide the work and/or services in le: )AFTER CONSULTATION WITH HUMAN RESOURCES FOR THOSE INDEPENDENT CONTRACTORS WORKING ON THE FUNCTIONS OF A VACANT BUDGETED POSITION INSERT WORK SCHEDULE [EXAMPLE: MON - FRI.9 AM TO 5PM, EXCLUDING RECOGNIZED CITY HOLIDAYS). IF IT'S ANOTHER TYPE OF SCHEDULE SUCH AS ON AN HOURLY BASIS OR ONLY ON S~ECIFIC DAYS BE SPECIFIC AS TO MINIMUM HOURS OR DAYS CONTRACTOR IS EXPECTED TO TH H Contractor's work and/or services shall tie overseen by the following .City Department/Individual: [INSERT TITLE. DEPARTMENT OF CITY (INDIVIDUAL OVERSEEING SERVICES).1 ~ 4. Termination. This Agreement may be terminated for convenier giving written notice to the other party of such t upon fourteen (14) days following receipt by the o Upon termination in accordance with this parag equal to all payments due to him/her up to the d satisfactorily continuing to satisfactorily perform termination. Thereafter, the City shall be fully dis and terms arising out of, or by virtue of, this Agre 5. Indemnification/Hold Harmless. Contractor agrees to indemnify, defend, and holc officers, employees and agents, from and agair losses and expenses, including but not limited to, bodily injury, wrongful death, loss of or damage ~ arise or be alleged to have arisen from the negl conduct of Contractor, and/or any and all subcon person or entity acting under Contractor's con performance of the work and/or services pursuar all such claims and losses and shall pay all costs lawsuit arising from such claims and losses, an expanded by the City in defense of such claims a agree that one percent (1 %) of the total compens work and/or services under this Agreement is tt Contractor for the Contractor's agreement to in provided herein. Contractor and the City hereby provision is intended to and shall survive the 1 Agreement. 6. Limitation of Liability. The City desires to enter into this Agreement onl! City's liability for any cause of action for money c City of this Agreement, so that its liability for any compensation/fee to be paid to Contractor purst actually paid by the City as of the date of the allec his willingness to enter into this Agreement with damage action for breach of contract to be lim compensation/fee to be paid to Contractor purst, actually paid by the City as of the date of notwithstanding any other term or condition of tF that the City shall not be liable to Contractor for compensation/fee to be paid to Contractor purse actually paid by the City as of the date of the al breach of contract arising out of the performanc imposed upon the City by this Agreement. Nc elsewhere in this Agreement is in any way intenc upon City's liability as set forth in Section 768.28 :e of either parry, with or without cause, by rmination, which shall become effective per party of the written termination notice. Kph, the Contractor shall be paid a sum to of termination; provided Contractor is II work and/or services up to the date of harged from any further liabilities, duties, :ment. harmless the City of Miami Beach and its st any and all actions, claims, liabilities, attorney's fees, for personal economic or ~ property, at law or in equity, which may dent acts or omissions or other wrongful tractors, employees, agents, or any other rol, in connection with the Contractor's t to this Agreement. Contractor shall pay and judgments which may arise from any j shall pay all costs and attomey's fees rd losses, including appeals. The parties ~tion to Contractor for performance of the e specific consideration from the City to iemnify and hold the City harmless, as free and acknowledge that this indemnity ~rmination (or earlier expiration) of this if in so doing the City can place a limit on amages due to an alleged breach by the ich breach never exceeds the sum of the ant to this Agreement, less any amounts ;d breach. Contractor hereby expresses ~ntractor's recovery from the City for any ed to a maximum amount equal to the ant to this Agreement, less any amounts he alleged breach. Accordingly, and s Agreement, Contractor hereby agrees lamages in the amount in excess of the ant to this Agreement, less any amounts aged breach, for any action or claim for or non-performance of any obligations hing contained in this subparagraph or ;d to be a waiver of the limitation placed Florida Statutes. 7. Notices. All notices and communications in writing required or permitted hereunder may be delivered personally to the representatives of the Contractor and the City listed below or maybe mailed by registered mail, postage prepaid (or airmailed if addressed to an address outside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be addressed as follows: ~ CONTRACTOR: [INSERT NAME OF CONTRACTOR] [INSERT ADDRESS OF CONTRACTOR] [INSERT PHONE NUMBER] CITY: [INSERT DEPARTMENT DIRECTOR] City of Miami Beach ~ [INSERT DEPARTMENT NAME] 1700 Convention Center Drive Miami Beach, FL 33139 (305) Notices hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. 8. Venue. This Agreement shall be governed by, and cony State of Florida, both substantive and remedial, laws. The exclusive venue for any litigation Miami-Dade County, Florida, if in state court, and Florida, if in federal court. BY ENTERING CONTRACTOR EXPRESSLY WAIVE ANY RIG TRIAL BY JURY OF ANY CIVIL LITIGATION RE AGREEMENT. ued in accordance with, the laws of the rithout regard to principles of conflict of rising out of this Agreement shall be ie U.S. District Court, Southern District of ITO THIS AGREEMENT, CITY AND ITS EITHER PARTY MAY HAVE TO A ATED TO, OR ARISING OUT OF, THIS 9. With respect to the performance of the work and/or service contemplated herein, Contractor 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. In its performance of the work and/or services, Contractor 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. The Contractor agrees to adhere to and be governed by the Miami-Dade County Conflict of Interest Ordinance, as same may be amended from time to time; and by any and all ethics/standards of conducts as referenced in Chapter 2 of the City of Miami Beach Code (as may be amended from time to time). Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirectly which should conflict in any manner or degree with the performance of the work and/or services. Contractor further covenants that in the performance of work and/or services under this Agreement, no person having any such interest shall knowingly be employed by the Contractor. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Agreement or to any benefits arising there from. 10. Ownership of Documents/Patents and'~Coavriahts. Any and all documents prepared by Contractor pursuant to this Agreement are related exclusively to the work and/or services described herein; and are intended or represented for ownership by the City. Any re-use distribution, or dissemination of same by Contractor, other than to the City, shall first be approved in writing by the City Manager, which approval, if granted at all, shall be at the City Manager's sole and absolute discretion. Any patentable and/or copyrightable result arising out of this Agreement, as well as all information, specifications, processes, data and findings, shall be made available to the City, in perpetuity, for public use. No reports, other documents, articles or devices produced in whole or in part under this Agreement shall be the subject of any application'for patent or copyright by or on behalf of the Contractor (or its employees or sub-contractors, (if any) without the prior written consent of the City Manager, which consent, if given at all, shall be at the Manager's sole and absolute discretion. 11. No Assignment/Transfer. Contractor shall not subcontract, assign, or transfer any work and/or services under this Agreement. 12. Liability for Sub-contractors. Contractor shall be liable for its work and/or services, responsibilities and liabilities under this Agreement and the services, responsibilities; and liabilities of any sub-contractors (if any), and any other person or entity acting under. the direction or control of Contractor (if any). When the term "Contractor" is used in this Agreement, it shall be deemed to include any sub-contractors (if any) and/or any other person or entity acting under the direction or control of Contractor (if any). All sub-contractors (if any) must be approved in writing by the City Manager prior to their engagement by Contractor, which approval, if granted at all, shall be at the City Manager's sole and absolute discretion. 13. Independent Contractor/No Joint Venture. THIS AGREEMENT SHALL NOT CONSTITUTE OR MAKE THE PARTIES A PARTNERSHIP OR JOINT VENTURE. FOR THE PURPOSES OF THIS AGREEMENT, THE CONTRACTOR SHALL BE DEEMED TO BE AN INDEPENDENT CONTRACTOR, AND NOT AN AGENT OR EMPLOYEE OF THE CITY, AND SHALL NOT ATTAIN ANY RIGHTS OR BENEFITS UNDER THE CIVIL SERVICE OR PENSION ORDINANCE OF THE CITY, OR ANY RIGHT GENERALLY AFFORDED CLASSIFIED OR UNCLASSIFIED EMPLOYEES INCLUDING ANNUAL AND SICK DAY ACCRUAL. FURTHER, THE CONTRACTOR SHALL NOT BE DEEMED ENTITLED TO FLORIDA WORKER'S COMPENSATION BENEFITS AS AN EMPLOYEE OF THE CITY OR ACCUMULATION OF SICK OR ANNUAL LEAVE. 14. 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. 15. Severance. In the event this Agreement or a portion of this Agreement is found by a court of competent jurisdiction to be invalid, the remaining provisions shall continue to be effective unless City elects to terminate this Agreement. 16. 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. 17. Entire Agreement. This writing and any exhibits and/or attachments incorporated (and/or otherwise referenced for incorporation herein) embody the entire Agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral orwritten, with reference to the subject matter hereof that are not merged herein and superceded hereby. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] ,' i IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed by the respective officials thereunto duly authorized; this date and year first above written. Approved: Department Director Assistant City Manager/Chief Financial Officer i I Office of Budget and Performance Improvement i Human Resources (for those Independent Contractors working on the function of a vacant, budgeted position) FOR CITY: CITY OF MIAMI BEACH, FLORIDA ATTEST: ~ i City Clerk City Manager FOR CONTRACTOR: WITNESS: By: Print Name By: Print Name [INSERT CONTRACTOR NAMEI Signature Print Name /Title • Once fully executed, provide a copy to Human Resources, who will provide a fully executed copy to Procurement and the applicable department.