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2010-27498 Reso Inc.2010-27498 RESOLUTION NO! A RESOLD i ION 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) 2010/2011 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 2010/2011 (SEPTEMBER 30, 2011); 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 three (3) fiscal years and again for the fiscal year starting on October 1, 2010; 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) 2010/2011 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, 2011; and any agreement entered into will contain, at a minimum, the provisions outlined in the City's standard form independent contractor agreement; and WHEREAS, the City Commission granted similar authority to the City Manager on December 9, 2009 for FY 2009/2010, and since that time, only one (1 } agreement was executed pursuant to that authority; and WHEREAS, during the discussions for the initial authority, it was said .that this authority would be brought back for renewal on an annual basis as part of the budget process, as the authority expires at the end of the fiscal year. 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) 2010/2011 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 amo ~ nt 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 2010/2011 (September 30, 2011); 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. ~o/o-- a7yq~ PASSED and ADOPTED this ~ day of 5e,~~-ew~b~~ , 2010. ATTEST: CITY CLERK MAY R T:WGENDA\2010\September 20\Consent\Independent Contractor Resos.doc /~rnt ~RAA ~-~ANGl~~C~ ~ ~~ ~ . 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 2010/2011; 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 certain services, as required and as deemed in the best interest of the City 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, asset forth in the City's approved Fiscal Year (FY) 2010/2011 annual budget; 2) the term of any agreement authorized herein shall not extend beyond the end of FY 2010/2011; 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 family recreational activities; 2) Enhance external and internal communications from and within the City; 3) Control costs of payroll including salary and fringes/ minimize taxes/ 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 Issue: Shall the City Manager be granted the authority to enter into certain Independent Contractor Agreements? Item Summa /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, and again for the one ending on September 30, 2011. 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 amountgreaterthan $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. Advisory Board Recommendation: Financial Information: Source of - Amount Account . Funds: ~~ 2 OBPI :Total . Financial Impact Summary: Funds are already included in the FY 2010/2011 Annual Operating Budget, in either Salaries or Professional Services line items in various res ective de artments ~.~~y ~.~~~n ~ v~~i~~ ~~gis~ative ~racKmq: Ramiro Inguanzo, Human Resources Director /Gus Lopez, Procurement Director Sign-Offs: De a ent Director(s) s'st nt City Manager/CFO Cit Manager m MIAMIBEACH J AOEf-t fTEM C ~~ DATE 9-dv-/~7 m MIAMIBEACH City of Miami Beach, ~ 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: FROM: DATE: SUBJECT: Mayor Matti Herrera Bower and Members of the City Commission Jor~ a M: Gonzalez Ci Mana er 9 ~ ty 9 September 20, 2010 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMIBEACH, 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) .201012011 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 BEYiOND THE END OF FY 2010/2011 (SEPTEMBER 30, 2011); 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 NOTIMORE 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 T;HE ANNUAL OPERATING BUDGET APPROVALS. 30LUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF I BEACH, FLORIDA, AUTHORIZING THE CITY MANAGER, ON BEHALF OF CITY, TO ENTER .INTO CERTAIN INDEPENDENT CONTRACTOR :EMENTS FOR THE FOLLOWING SERVICES, AS REQUIRED AND AS THE MANAGER DEEMS IN THE BEST INTEREST OF 'THE CITY: DANCE tUCTION; ICE SKATING INSTRUCTION; ATHLETICS INSTRUCTION/ :RING; AEROBICS. INSTRUCTION; FITNESS INSTRUCTION; LITERACY, I AND SAT TUTORING; SCHOOL .LIAISON OFFICERS; -RESIDENT ECT REPRESENTATIVES (RPR); COMMUNITY INFORMATION ICES; CONSTRUCTION COST ESTIMATING/CONSULTING SERVICES; VISION PRODUCTION SERVICES; VIDEOGRAPHER SERVICES; GRAPHIC 3NER SERVICES; PROGRAM MONITOR SERVICES; COST ALLOCATION ICE; AND AUDITORS; PROVIDED FURTHER THAT THE CITY MANAGER City Commission Memorandum September 20, 2010 Independent Contractor Agreements Page 2 of 4 SHALL BE AUTHORIZED TO NEGOTIATE, ENTER INTO, AND EXECUTE THE AFORESTATED AGREEMENTS 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 FISCAL YEAR (FY) 20110/2011 ANNUAL BUDGET; 2) THE TERM OF ANY SERVICES AGREEMENT AUTHORIZED HEREIN SHALL NOT EXTEND BEYOND THE END OF ~FY 2010/2011 (SEPTEMBER 30, 2011); 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. STRATTON RECOMMENDATION Adopt both Resolu UND/ 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 CI vacant, budgeted for that classifica~ Given current finan for each of the last .2010. It has.been tl All vacant positions mission critical have try to place employE an employee and tl position is eliminatE rter, the City Manager has the authority to appoint an employee into a ~sition with a salary within the range established by the City Commission al realities, the City has had to eliminate positions in its annual budget Free (3) fiscal years and again for the fiscal year starting on October 1, :City's practice to restrict hiring for vacant positions where practicable. ientified to be filled are carefully analyzed. Positions that were deemed been filled, but others have been held vacant. This has been done to ~s whose positions may have been eliminated, and also to avoid hiring 'n possibly having to lay them off at the end of the fiscal year if their 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 .to that maximum amount. In an effort to save f 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 City Commission Memorandum September 20, 2010 Independent Contractor Agreements Page 3 of 4 parameters: • 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) 2010/2011 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, 2011; -and • any agreement entered into will contain, at a minimum, the provisions outlined in the City's standard form independent contractor agreement (Attachment A). A Resolution requesting the initial .authorization for the City Manager to enter into these agreements was fi Est 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, or to 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 City Commission approved this Resolution at its December 9, 2009 meeting for the fiscal year ending on September 30, .2010. It was agreed that the use of Independent Contractor Agreements would be monitored through quarterly Letters to the Commission (LTC), and that this authority would be brought back for renewal on an annual basis as part of the budget process, as the .authority expires at the end of the fiscal year. As a reminder of the quarterly status reports, only one (1) agreement was executed pursuant to this authority. An agreement for services related to latent fingerprint examination and training in the Police Department, at a rate of $50.00 per hour, was signed. A Crime Scene Technician II position has remained vacant to fund this agreement. Current City employees are being trained so that, once trained, promotion into the -Crime Scene Technician II classification may be possible. This updated resolution, is for the 2010-2011 fiscal year 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 may include: Dance Instruction, Ice Skating Instruction, Athletics Instruction/Coaching, Aerobics Instruction, Fitness Instruction, land Literacy, Math and. SAT Tutoring for the Parks and Recreation Department; School Liaison Officers for the Police Department; Resident Project Representatives (RPR); Community Information Services; Construction Cost Estimating/Consulting Services forthe Capital Improvement Projects (CIP) Office; Television Production Services Videographer Services, and Graphic Designer Services for the Office of Communications; IHomelessOutreach, Housing Services, Tutoring Services and Program Monitor Services ford he Office of Real Estate, Housing and Community Development; Cost Allocation Services for the Finance :Department; and Auditor Services for the Office of City Commission Me September 20, 2010 Independent Contras Page 4 of 4 Budget and r Agreements ce Improvement. In an effort to coordinate the execution of agreements for the kind of services and/or work 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 to all of the following parameters: • the agreements will only be limited to the services and/or work specifically listed in the seconds Resolution; • the value of the agreement will not exceed the authorized amount for the respective services and/or work, as set forth in the City's Approved FY 2010/2011 Annual Budget; • the term of the agreement shall not extend beyond the end of FY 2010/2011 (September 30, 2011); and • any agreement entered into will contain, at a minimum, the provisions outlined in the .City's standard form agreement for independent contractors (Attachment A). The City Commission .also approved this Resolution at its December 9, 2009 meeting for the fiscal .year ending oin_September 30, 2010, subject to the same monitoring through quarterly Letters to the Commission (LTC) as the Resolution above, and that this authority would be .brought back for renewal on an annual basis as part of the budget process, as the authority expires at the end of the fiscal year. As a reminder of the quarterly status reports, only four (4) agreements for School ..Liaison Officers, each for amounts not to exceed .$35,000, were executed pursuant to this authority. It should be noted that other agreements for services .such as athletic coaching, art instruction and auditors have been executed. However, these agreements have not fallen under the purview if this authority, as each vendor has been awarded agreements totaling $25,000 or -less. This updated resolution is for the .2010-2011 fiscal year. CONCLUSION The Administration recommends adopting both Resolutions. Attachment . T:WGENDA12010\September 20\Consent\fndependent Contractor Memo.doc ATTACHMENT A CITY'S STANDARD FORM ~OR INDEPENDENT CONTRACTORS ~ INDEPENDENT CONTRACTOR AGREEMENT This Agreement is entered into on this day of ,between ENTER FULL NAME OF CONTRACTORI (Contractor), and the City of Miami Beach, Florida (City), for a period of [ENTER DURATION/TERM OF AGREEMENTI, with an effective starting date of [ I 1, and an end date of [ 1(the Term). 1. Sco This AgrE DESCRIPTI Agreement, 0 is for the purpose of providing [PROVIDE BRIEF MMARY OF WHAT CONTRACTOR -WILL DOl to the City's Department. Specifically, throughout the Term of this ctor shall provide. and/or perform the following minimum services: ILED AND/OR ITEMIZED DESCRIPTION OF WORK AN SERVICES CONTRACTOR WILL PROVIDEI 2. Fee. In consideration 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 AMOUNT ,which shall be paid as follows: INNSERT, IN DETAIL,. HOW FEE WILL BE PAID INCLUDE WHETHER FEE WILL BE PAID HOURLY, WEEKLY, MONTHLY, ETC.; WHETHER IT'S SUBJECT TO CONTRACTOR PROVIDING TIME SHEETS OR WORK SCHEDULE. ETC.1 The total fee paid to Contractor pursuant to this Agreement shall not exceed FILL IN A NOT TO EXCEED AMOUNTI for the Term. provided herein. - . 3. Work Schedule. During the Term of the Agreement, Contractor shall provide the work and/or services in accordance with the following minimum work schedule: [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 SPECIFIC DAYS. BE SPECIFIC AS TO MINIMUM HOURS OR DAYS CONTRACTOR IS EXPECTED TO WORK IN ORDER TO GET PAID THE FEE SET FORTH HERE.1 Contractor's work and/or services shall be overseen by the following City Department/Individual: jINSERT TITLE, DEPARTMENT OF CITY (INDIVIDUAL OVERSEEING SERVICES).1 4. T This Agreement maybe terminated for convenience of either party, with orwithout cause, by giving written notice to the other party of such termination,. which shalt become effective upon fourteen (14) days following receipt by the other party of the written termination notice. Upon termination ins accordance with this paragraph; the Contractor shall be paid a sum equal to all payments due to him/her up to the date of termination; provided Contractor is satisfactorily continuing to satisfactorily perform all work and/or services up to the date of termination. Thereafter, the City shall be fully discharged from any further liabilities, duties, and terms arising out of, or by virtue of, this Agreement. 5. Indemnification/Hold Harmless. Contractor agrees to indemnify, defend, and hold harmless the City of Miami Beach and its officers, employees and agents, from and against any and all actions, claims, liabilities, losses and expenses, including but not limited to, attorney's fees, for personal economic or bodily injury, wrongful death, loss of or damage to property, at law or in equity, which may arise or be alleged to have arisen from the negligent acts or omissions or other wrongful conduct of Contractor, and/or any and all subcontractors, employees, agents, or any other person or entity acting under Contractor's control, in connection with the Contractor's performance of the work and/or services pursuant to this Agreement. Contractor shall pay all such claims and losses and shalt pay all. costs and judgments which may arise from any lawsuit arising from such claims and losses, and shall pay all costs and attorney's fees expanded by the City in defense of such claims and losses, including appeals. The parties agree that one percent (1 %) of the total compensation to Contractor for performance of the work and/or services under this Agreement is the specific consideration from the City to Contractor for the Contractor's agreement to indemnify and -hold the City harmless, as provided herein. Contractor and the City hereby agree and acknowledge that this indemnity provision is intended to and shall survive the termination (or earlier. expiration) of this Agreement. 6. Limitation !of Liability. The City desires to enter into this Agreement only if in so doing the City can place a limit on 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 the compensation/fee to be paid to Contractor pursuant to this Agreement, less any amounts actually paid by the City as of the date of the alleged breach. Contractor hereby expresses his willingness to enter into this Agreement with Contractor's recovery from the City for any damage action for breach of contract to be limited to a maximum amount equal to the compensation/fee to be paid to Contractor pursuant to this Agreement, less any amounts actually paid by the City as of the date of the alleged breach. Accordingly, and notwithstanding any other term or condition of this Agreement, Contractor hereby agrees that the City shall riot be liable to Contractor for damages in the amount in excess of the compensation/fee to be paid to Contractor pursuant to this Agreement, less any amounts actually paid by the City as of the date of the alleged .breach, 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 subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City's liability as set forth in Section 768.28, Florida Statutes. 7. Notices. e 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: CITY: [INSERT NAME OF CONTRACTOR] [INSERT ADDRESS OF CONTRACTOR] [INSERT PHONE NUMBER] [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 construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in -federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND CONTRACTOR 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. 9. Duty of Care/Compliance with Applicable Laws. 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, a ~ d 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 w I ich 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 an Any and all documents prepared by Contractor pursuant to this. Agreement are related exclusively to the wo Ik 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 Assian This section intentionally left blank. 12. Liabil 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 othe ~ person or entity acting under the direction or control of Contractor (if any). When the tern 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 Contracto~~r (if any). All sub-contractors (if any) must be approved in writing by the City Manager prior Ito 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 AGREEMEh PARTNERSHIP OF THE CONTRACTO AND NOT AN AGE RIGHTS OR BENE THE CITY, OR ANY EMPLOYEES INCt CONTRACTOR SF COMPENSATION E SICK OR ANNUAL 14. Waiver of B T SHALL NOT CONSTITUTE OR MAKE THE PARTIES A .JOINT VENTURE. FOR THE PURPOSES OF THIS AGREEMENT, ~ SHALL BE DEEMED TO BE AN INDEPENDENT CONTRACTOR, NT OR EMPLOYEE OF THE CITY, AND SHALL NOT ATTAIN ANY FITS UNDER THE CIVIL SERVICE OR PENSION ORDINANCE OF RIGHT GENERALLY AFFORDED CLASSIFIED OR UNCLASSIFIED . .UDING ANNUAL AND SICK DAY ACCRUAL. FURTHER, THE TALL NOT BE DEEMED ENTITLED TO FLORIDA WORKER'S ENEFITS AS AN EMPLOYEE OF THE CITY OR CCUMULATION OF LEAVE. A party's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or moodification 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 or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. [RE~MAlNDER OF PAGE LEFT INTENTIONALLY BLANK] 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. ...FOR CITY: CITY OF MIAMI BEACH, FLORIDA ATTEST: By: City Clerk A nT/1r]. WITNESS: By: Print Name By: Print Name Approved: Department Director Office of Budget and Performance .Improvement Human Resources City Manager jINSERT CONTRACTOR NAMEI Signature Print Name /Title