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Resolution 2018-30132RESOLUTION NO. 2018 - 30132 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, RETROACTIVELY 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: ATHLETICS INSTRUCTION/ COACHING /REFEREEING INCLUDING, BUT NOT LIMITED TO THE FOLLOWING CATEGORIES: BASEBALL, SOFTBALL, SOCCER, GYMNASTICS, CHEERLEADING, VOLLEYBALL; ICE SKATING, HOCKEY, BASKETBALL, TENNIS, BOXING, FENCING, ARCHERY, AND SWIMMING; AEROBICS INSTRUCTION; FITNESS INSTRUCTION; ARTS /MUSIC /CULTURAL /DRAMA INSTRUCTION AND OR INSTRUMENT REPAIR; COMPUTER /MEDIA SERVICES INCLUDING, BUT NOT LIMITED TO, INSTRUCTION AND REPAIR; RECREATIONAL PROGRAMMING AND INSTRUCTION; INSTRUCTION AND THERAPY FOR PARTICIPANTS WITH SPECIAL NEEDS INCLUDING, BUT NOT LIMITED TO, EDUCATION, HEALTH AND WELLNESS; INSTRUCTION /TUTORING INCLUDING, BUT NOT LIMITED TO, EDUCATION; COTILLION; SPEECH, DEBATE, SOCIAL SKILLS, LITERACY, MATH AND SAT; FITNESS CLASSES INCLUDING, BUT NOT LIMITED TO, AEROBICS, ZUMBA, WEIGHT ROOM, WEIGHT LOSS, GENERAL FITNESS INSTRUCTION, ADULT, YOUTH, AND BABY BOOT CAMP; CARE COORDINATION SERVICES; MENTAL HEALTH SERVICES; INTAKE (ASSESSMENT) SERVICES; FAMILY GROUP CONFERENCING; MENTORING SERVICES; BEHAVIOR MODIFICATION SERVICES; EMPLOYMENT SESSIONS; FAMILY FUNCTIONAL THERAPY; FAMILY HOME VISITATION SERVICES; PARENTING GROUP SERVICES; ALTERNATIVE SUSPENSION SERVICES; RESTORATIVE JUSTICE TECHNIQUES; ONE -ON -ONE SHADOWS TO WORK WITH YOUTH WITH SPECIAL NEEDS; STEM (SCIENCE, TECHNOLOGY, ENGINEERING AND MATHEMATICS) ACTIVITIES; SCHOOL LIAISONS FOR REFERRAL OF CARE COORDINATION SERVICES; RESIDENT PROJECT REPRESENTATIVES (RPR); REPORTING REQUIREMENTS ASSOCIATED WITH THE PATIENT PROTECTION AND AFFORDABLE CARE ACT; ACTUARIAL SERVICES; COMMUNITY /PUBLIC INFORMATION SERVICES; CONSTRUCTION COST ESTIMATING /CONSULTING SERVICES; VIDEO PRODUCTION SERVICES; PHOTOGRAPHYNIDEOGRAPHY SERVICES; GRAPHIC DESIGNER SERVICES; PROGRAM MONITOR SERVICES; COST ALLOCATION SERVICES; JOB AUDITS; STEP III DISCIPLINARY GRIEVANCE HEARING OFFICER; AUDITORS; HISTORICAL RESEARCHER; LATENT EXAMINER SERVICES; MEDICAL DIRECTOR AND ACCREDITATION SERVICES /SUPPORT; PSYCHOLOGICAL AND TESTING SERVICES; ORGANIZATIONAL DEVELOPMENT MEETING FACILITATION SERVICES; PROFESSIONAL TRAINING SERVICES INCLUDING, BUT NOT LIMITED TO, APPLICATION SYSTEMS INSTRUCTION, METHODOLOGIES FOR APPLICATION SYSTEMS DEVELOPMENT, SEXUAL HARASSMENT, DIVERSITY AND TEAM BUILDING; HOME VISITORS FOR THE PARENT - CHILD HOME PROGRAM; INSTRUCTORS FOR THE MORNINGS ALL -STAR PROGRAMS AND HUD COMPLIANCE; APPLICATION SYSTEMS CONSULTING SERVICES INCLUDING, BUT NOT LIMITED TO, APPLICATION SYSTEMS, ARCHITECTURE, APPLICATION DEVELOPMENT BEST PRACTICES, APPLICATION SECURITY, APPLICATIONS QUALITY ASSURANCE, APPLICATION MONITORING, MOBILE APPLICATION DEVELOPMENT; CONSULTING SERVICES FOR WEBSITE AND DIGITAL MEDIA STRATEGY; WEB DESIGN; GRAPHIC DESIGN; AFTER- ACTION SERVICES; PROVIDED, FURTHER, THAT THE CITY MANAGER SHALL BE AUTHORIZED TO NEGOTIATE, ENTER INTO, AND EXECUTE THE AFORESTATED AGREEMENTS SUBJECT TO THE FOLLOWING PARAMETERS: 1) THE AMOUNT OF THE FEE OR OTHER COMPENSATION 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) 2017/2018 ANNUAL BUDGET; 2) THE TERM OF ANY SERVICE AGREEMENT AUTHORIZED HEREIN SHALL NOT EXTEND BEYOND THE END OF FY 2017/2018 (SEPTEMBER 30, 2018); 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 THE CITY COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION), PROVIDED THAT THE CITY MANAGER MAY INCORPORATE ADDITIONAL TERMS, WHICH MAY BE MORE STRINGENT 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 AS PART OF THE ANNUAL OPERATING BUDGET APPROVAL. WHEREAS, the City budgets for certain services are to be provided each year in its annual operating budget for those respective departments; and WHEREAS, some of the budgeted services include, but are not limited to: dance instruction, ice skating instruction, athletics instruction /coaching, aerobics instruction, fitness instruction, computer (IT) services and literacy, math and SAT tutoring for the Parks and Recreation Department; latent examiner services, medical examiner and accreditation services /support for the Police Department; resident project representatives (RPR); community information services; construction cost estimating /consulting services for the Capital Improvement Projects (CIP) Office; video production services, photography /videography services, and graphic design services for the Office of Communications; Homeless Outreach; Housing Services; tutoring services and program monitoring services; cost allocation services for the Finance Department; auditing services for the Office of Budget and Performance Improvement; job audit /surveys and Step III grievance hearing officer for the Human Resources Department; and historical research services for the Planning Department; and WHEREAS, the City Code requires contracts in excess of $50,000 to be approved by the City Commission and agreements for these services have typically been limited to that maximum amount; and WHEREAS, under very limited circumstances, independent contractor agreements for amounts over $50,000 have been brought to the City Commission for approval; and WHEREAS, in an effort to coordinate the execution of these agreements for those services or work referenced herein, 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 that may exceed $50,000, subject to the following parameters: • The agreements will be limited to the services or work specifically listed in this Resolution; • The value of the agreement will not exceed the authorized amount for the respective services or work, as set forth in the approved FY 2017/2018 annual budget; • The term of the agreement shall not extend beyond FY 2017/2018 (September 30, 2018); and • Any agreement entered into will contain, at minimum, the provisions outlined in the City's standard form agreement for independent contractors (a copy of which is attached to the Memorandum companying this Resolution); and • The City Manager must issue a Letter to Commission ( "LTC ") each fiscal quarter, commencing on January 1, 2018, which delineates those Independent Contractor Agreements that exceed the $50,000; and WHEREAS, the City Commission granted similar authority to the City Manager on September 20, 2010, for FY 2010/2011, and renewed such authority on September 27, 2011, for FY 2011/2012; on September 27, 2012, for FY 2012/2013; on September 30, 2013 for FY 2013/2014; on September 30, 2014 for FY 2014/2015; on September 30, 2015 for FY 2015/2016; on September 30, 2016 for FY 2016/2017; and WHEREAS, during the discussions for the initial authority, it was said that this request for authority would be brought back for renewal on an annual basis as part of the budget process. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby retroactively authorize the City Manager to enter into independent contractor agreements for the following services, as required and as the City Manager deems in the best interest of the City: athletics instruction/ coaching /refereeing including, but not limited to, the following categories: baseball, softball, soccer, gymnastics, cheerleading, volleyball; ice skating, hockey, basketball, tennis, boxing, fencing, archery, and swimming; aerobics instruction; fitness instruction; arts /music /cultural /drama instruction and or instrument repair; computer /media services including, but not limited to, instruction and repair; recreational programming and instruction; instruction and therapy for participants with special needs including, but not limited to, education, health and wellness; instruction /tutoring including, but not limited to, education, cotillion, speech, debate, social skills, literacy, math and SAT; fitness classes including, but not limited to, aerobics, Zumba, weight room, weight Toss, general fitness instruction, adult, youth and baby boot camp; care coordination services; mental health services; intake (assessment) services; family group conferencing; mentoring services; behavior modification services; employment sessions; family functional therapy; family home visitation services; parenting group services; alternative suspension services: restorative justice techniques; one -on -one shadows to work with youth with special needs; STEM (science, technology, engineering and mathematics) activities; school liaisons for referral or care coordination services; resident project representatives (RPR); reporting requirements associated with the Patient Protection and Affordable Care Act; actuarial services; community /public information services; construction cost estimating /consulting services; video production services: photography /videography services; graphic designer services; program monitor services; cost allocation services; job audits; step iii disciplinary grievance hearing officer; auditors; historical researcher; latent examiner services; medical director and accreditation services /support; psychological and testing services; organizational development meeting facilitation services; professional training services including, but not limited to, application systems instruction, methodologies for application systems development, sexual harassment, diversity and team building; home visitors for the parent -child home program; instructors for the mornings all -star programs and HUD compliance; application systems consulting services including, but not limited to, application systems, architecture, application development best practices, application security, applications quality assurance, application monitoring, mobile application development; consulting services for website and digital media strategy; web design; graphic design; after- action services; provided, further, that the City Manager shall be authorized to negotiate, enter into, and execute the aforestated agreements subject to the following parameters: 1) the amount of the fee or other compensation under such agreement(s) shall not exceed the authorized amount for the respective services, as set forth in the City's approved FY 2017/2018 annual budget; 2) the term of any service agreement authorized herein shall not extend beyond the end of FY 2017/2018 (September 30, 2018); 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 the City Commission Memorandum accompanying this Resolution), provided that the City Manager may incorporate additional terms, which maybe more stringent 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 as part of the annual operating budget approval. PASSED and ADOPTED this /7 day of ,./q✓► ('t.G (y , 2017. ATTEST: • • 464 26\ Rafael E. Granad Ci .4414 Dan Gelber, Mayor APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION ,XD Dote City Attorney MIAMI BEACH Resolutions - C7 B COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: January 17, 2018 SUBJECT A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, RETROACTIVELY 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: ATHLETICS INSTRUCTION/ COACHING /REFEREEING INCLUDING, BUT NOT LIMITED TO THE FOLLOWING CATEGORIES: BASEBALL, SOFTBALL, SOCCER, GYMNASTICS, CHEERLEADING, VOLLEYBALL; ICE SKATING, HOCKEY, BASKETBALL, TENNIS, BOXING, FENCING, ARCHERY, AND SWIMMING; AEROBICS INSTRUCTION; FITNESS INSTRUCTION; ARTS /MUSIC /CULTURAL /DRAMA INSTRUCTION AND OR INSTRUMENT REPAIR; COMPUTER /MEDIA SERVICES INCLUDING, BUT NOT LIMITED TO, INSTRUCTION AND REPAIR; RECREATIONAL PROGRAMMING AND INSTRUCTION; INSTRUCTION AND THERAPY FOR PARTICIPANTS WITH SPECIAL NEEDS INCLUDING, BUT NOT LIMITED TO, EDUCATION, HEALTH AND WELLNESS; INSTRUCTION /TUTORING INCLUDING, BUT NOT LIMITED TO, EDUCATION; COTILLION; SPEECH, DEBATE, SOCIAL SKILLS, LITERACY, MATH AND SAT; FITNESS CLASSES INCLUDING, BUT NOT LIMITED TO, AEROBICS, ZUMBA, WEIGHT ROOM, WEIGHT LOSS, GENERAL FITNESS INSTRUCTION, ADULT, YOUTH, AND BABY BOOT CAMP; CARE COORDINATION SERVICES; MENTAL HEALTH SERVICES; INTAKE (ASSESSMENT) SERVICES; FAMILY GROUP CONFERENCING; MENTORING SERVICES; BEHAVIOR MODIFICATION SERVICES; EMPLOYMENT SESSIONS; FAMILY FUNCTIONAL THERAPY; FAMILY HOME VISITATION SERVICES; PARENTING GROUP SERVICES; ALTERNATIVE SUSPENSION SERVICES; RESTORATIVE JUSTICE TECHNIQUES; ONE -ON -ONE SHADOWS TO WORK WITH YOUTH WITH SPECIAL NEEDS; STEM (SCIENCE, TECHNOLOGY, ENGINEERING AND MATHEMATICS) ACTIVITIES; SCHOOL LIAISONS FOR REFERRAL OF CARE COORDINATION SERVICES; RESIDENT PROJECT REPRESENTATIVES (RPR); REPORTING REQUIREMENTS ASSOCIATED WITH THE PATIENT PROTECTION AND AFFORDABLE CARE ACT; ACTUARIAL SERVICES; COMMUNITY /PUBLIC INFORMATION SERVICES; CONSTRUCTION COST ESTIMATING /CONSULTING SERVICES; VIDEO PRODUCTION SERVICES; PHOTOGRAPHY /VIDEOGRAPHY SERVICES; GRAPHIC DESIGNER SERVICES; PROGRAM MONITOR SERVICES; COST ALLOCATION SERVICES; JOB AUDITS; STEP III DISCIPLINARY GRIEVANCE HEARING OFFICER; AUDITORS; HISTORICAL RESEARCHER; LATENT EXAMINER SERVICES; MEDICAL DIRECTOR AND ACCREDITATION SERVICES /SUPPORT; PSYCHOLOGICAL Page 129 of 923 AND TESTING SERVICES; ORGANIZATIONAL DEVELOPMENT MEETING FACILITATION SERVICES; PROFESSIONAL TRAINING SERVICES INCLUDING, BUT NOT LIMITED TO, APPLICATION SYSTEMS INSTRUCTION, METHODOLOGIES FOR APPLICATION SYSTEMS DEVELOPMENT, SEXUAL HARASSMENT, DIVERSITY AND TEAM BUILDING; HOME VISITORS FOR THE PARENT -CHILD HOME PROGRAM; INSTRUCTORS FOR THE MORNINGS ALL - STAR PROGRAMS AND HUD COMPLIANCE; APPLICATION SYSTEMS CONSULTING SERVICES INCLUDING, BUT NOT LIMITED TO, APPLICATION SYSTEMS, ARCHITECTURE, APPLICATION DEVELOPMENT BEST PRACTICES, APPLICATION SECURITY, APPLICATIONS QUALITY ASSURANCE, APPLICATION MONITORING, MOBILE APPLICATION DEVELOPMENT; CONSULTING SERVICES FOR WEBSITE AND DIGITAL MEDIA STRATEGY; WEB DESIGN; GRAPHIC DESIGN; AFTER- ACTION SERVICES; PROVIDED, FURTHER, THAT THE CITY MANAGER SHALL BE AUTHORIZED TO NEGOTIATE, ENTER INTO, AND EXECUTE THE AFORESTATED AGREEMENTS SUBJECT TO THE FOLLOWING PARAMETERS: 1) THE AMOUNT OF THE FEE OR OTHER COMPENSATION 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) 2017/2018 ANNUAL BUDGET; 2) THE TERM OF ANY SERVICE AGREEMENT AUTHORIZED HEREIN SHALL NOT EXTEND BEYOND THE END OF FY 2017/2018 (SEPTEMBER 30, 2018); 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 THE CITY COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION), PROVIDED THAT THE CITY MANAGER MAY INCORPORATE ADDITIONAL TERMS, WHICH MAY BE MORE STRINGENT 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 AS PART OF THE ANNUAL OPERATING BUDGET APPROVAL. RECOMMENDATION The Administration recommends adopting the Resolution. ANALYSIS The first resolution pertains to independent contractor agreements for individuals hired to perform a specific function, who are usually compensated on 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 that falls within the range established by the City Commission for the subject classification. Sometimes, when positions have been vacated the City has retained independent contractors to provide the services or work. In an effort to save on costs, such as pension and health benefits, the Administration is recommending that for FY 2017/18, the City Commission reauthorize the City Manager to negotiate, enter into, and execute independent contractor agreements, including some at an amount exceeding $50,000, subject to all of the following provisions: • The independent contractor agreements authorized under the proposed resolution will be Page 130 of 923 limited to services or work related to a vacant, budgeted position, as approved in the City's FY 2017/18 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, 2018. Any agreement entered into will contain, at a minimum, the provisions outlined in the City's standard form independent contractor agreement, which, among other things, requires the issuance of a purchase order. • The authority granted the City Manage will be subject to monitoring through periodic Letters to the Commission (LTC), identifying any independent contractor agreement that exceeds the $50,000 threshold. A resolution requesting the initial authorization for the City Manager to enter into these agreements was first heard at the September 24, 2009, City Commission meeting, where it was referred to the Finance and Citywide Projects Committee (FCWPC). At its October 29, 2009, meeting, as part of the discussion, the Administration clarified that the purpose of this item was not to replace current employees or eliminate positions and lay off employees to hire independent contractors to perform the same functions. The independent contractors were to be used to perform the functions of vacant, budgeted positions where former employees separated from the City. The City Commission approved the resolution at its December 9, 2009, meeting for the fiscal year ending September 30, 2010; renewed it on September 20, 2010 for the fiscal year ending September 30, 2011; on September 27, 2011 for the fiscal year ending on September 30, 2012; on September 27, 2012 for the fiscal year ending on September 30, 2013, and on September 30, 2014, for the fiscal year ending September 30, 2015, and on September 30, 2015, for the fiscal year ending September 30, 2016, , and on September 30, 2016, for the fiscal year ending September 30, 2017. This matter is presented on an annual basis as part of the budget process, as authorization expires at the end of each fiscal year. This updated resolution is for FY 2017/18. CONCLUSION The City Commission has approved both resolutions on an annual basis since December 9, 2009, with the requirement that the Administration bring back the item on an annual basis as part of the budget process. The authority granted the City Manager is subject to monitoring through periodic Letters to the Commission (LTC), identifying any independent contractor agreement that exceeds the $50,000 threshold. This updated resolution is for FY 2017/18. Legislative Tracking Human Resources ATTACHMENTS: Description o I CA Form Reso- ICA Page 131 of 923 Page 132 of 923 Updated 12 -19 -2017 INDEPENDENT CONTRACTOR AGREEMENT This Agreement is entered into on this day of , 20 between [ENTER FULL NAME OF CONTRACTOR] (Contractor), and the City of Miami Beach, Florida (the City), for a period of [ENTER DURATION /TERM OF AGREEMENT], with an effective starting date of [ ], and an end date of [ ] (the Term). 1. Description of Services. Contractor will provide the services described in Exhibit "A" hereto (the Services). Although Contractor 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 Contractor; where the Services are performed (although the City will provide Contractor with the appropriate location to perform the Services); when the Services are performed (including how many days a week the services are performed); how the Services are performed; or any other aspect of the actual manner and means of accomplishing the Services provided. Notwithstanding the foregoing, all Services provided by the Contractor shall be in accordance with the terms and conditions set forth in Exhibit "A" hereto, and performed to the reasonable satisfaction of the City Manager. If there are any questions regarding the Services to be performed, Contractor should contact the following person: 2. Fee. In consideration of the Services to be provided pursuant to this Agreement, the City agrees to pay Contractor a fee, not to exceed the amount of (the Fee), which shall be paid as described in Exhibit "B" hereto. The Contractor shall issue invoices to the City pursuant to the mutual agreement of the parties and pursuant to the Fee Schedule set forth in Exhibit "B" hereto upon receipt of an acceptable and approved invoice. The City shall remit payment to the Contractor within 45 days of receiving an invoice from the Contractor for that portion (or those portions) of the Services satisfactorily rendered (and referred to in the particular invoice). 3. Termination. This Agreement may be terminated by either party, with or without cause, by giving written notice to the other party of such termination, which shall become effective upon fourteen (14) days following receipt by the other party of the written termination notice. Notwithstanding the foregoing, in the event of a public health, welfare or safety concern, as determined by the City Manager, in the City Manager's sole discretion, the City Manager, pursuant to a verbal or written notification to Contractor, may immediately suspend the Services under this Agreement for a time certain, or in the alternative, terminate this Agreement on a given date. In the event of termination pursuant to 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 Services up to the date of termination. Thereafter, the City shall be fully discharged from Page 133 of 923 any further liabilities, duties, and terms arising out of, or by virtue of, this Agreement. 4. 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 services pursuant to this Agreement. Contractor shall pay all such claims and losses and shall 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 expended 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 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. 5. Limitation of 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. Contractor hereby expresses its 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 of $10,000. Accordingly, and notwithstanding any other term or condition of this Agreement, Contractor hereby agrees that the City shall not be liable to the Contractor 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. 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 may be mailed by U.S. Certified Mail, return receipt requested, postage prepaid, or by a nationally recognized overnight delivery service. Until changed by notice in writing, all such notices and communications shall be addressed as follows: CONTRACTOR: [INSERT NAME OF CONTRACTOR] [INSERT ADDRESS OF CONTRACTOR] [INSERT PHONE NUMBER] Page 2 of 11 Page 134 of 923 CITY: [INSERT DEPARTMENT DIRECTOR] City of Miami Beach [INSERT DEPARTMENT NAME] 1700 Convention Center Drive Miami Beach, FL 33139 (305) Notice shall be deemed given on the date of an acknowledged receipt, and, in all other cases, on the date of receipt or refusal. 7. 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. 8. Duty of Care /Compliance with Applicable Laws /Conflict of Interest. With respect to the performance of the Services 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 services. In its performance of the 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. Without limiting the foregoing, Contractor 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, and 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 herein by referenced, as if fully set forth herein. 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 Services. Contractor further covenants that in the performance of Services under this Agreement, no person having any such interest shall knowingly be employed by the Contractor. Notwithstanding the foregoing, Contractor shall be able to provide similar services to other third parties as long as they do not conflict with the Services to be provided hereunder. 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. 9. No Discrimination. In connection with the performance of the Services, the Contractor 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. Page 3 of 11 Page 135 of 923 Additionally, Contractor shall comply with 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, or public services, on the basis of actual or perceived race, color, national origin, religion, sex, intersexuality, sexual orientation, gender identity, familial and marital status, age, ancestry, height, weight, domestic partner status, labor organization membership, familial situation, political affiliation, or disability. 10. Florida Public Records Law. (A) Contractor 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 Contractor meets the definition of "Contractor" as defined in Section 119.0701(1)(a), the Contractor 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 Contractor 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 Contractor or keep and maintain public records required by the City to perform the service. If the Contractor transfers all public records to the City upon completion of the Agreement, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the Agreement, the Contractor 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. (C) 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 Contractor of the request, and the Contractor must provide the records to the City or allow the records to be inspected or copied within a reasonable time. (2) Contractor's failure to comply with the City's request for records shall constitute a breach of the Agreement, and the City, at its sole discretion, may: (1) unilaterally terminate the Agreement; (2) avail Itself of the remedies Page 4 of 11 Page 136 of 923 (3) set forth under the Agreement; and /or (3) avail itself of any available remedies at law or in equity. A Contractor who fails to provide the public records to the City within a reasonable time may be subject to penalties under s. 119.10. (D) CIVIL ACTION. (1) If a civil action is filed against a Contractor to compel production of public records relating to the City's contract for services, the court shall assess and award against the Contractor the reasonable costs of enforcement, including reasonable attorney fees, if: a. The court determines that the Contractor unlawfully refused to comply with the public records request within a reasonable time; and b. At least eight (8) business days before filing the action, the plaintiff provided written notice of the public records request, including a statement that the Contractor has not complied with the request, to the City and to the Contractor. (2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of public records and to the Contractor at the Contractor's address listed on its contract with the City or to the Contractor'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 Contractor who complies with a public records request within eight (8) business days after the notice is sent is not liable for the reasonable costs of enforcement. (E) IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY OF MIAMI BEACH ATTENTION: CITY CLERK 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 E -MAIL: RAFAELGRANADO • MIAMIBEACHFL.GOV PHONE: 305 - 673 -7411 11. Ownership of Documents /Patents and Copyrights. Any and all documents prepared by Contractor pursuant to this Agreement are related exclusively to the Services described herein shall be deemed to be a "work made for hire ", 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, are hereby assigned to the City, Page 5 of 11 Page 137 of 923 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. 12. Liability for Rent, Supplies, Equipment, Etc. Contractor shall provide all funds necessary to pay all debts, disbursements, and expenses incurred in connection with its performance of the Services hereunder, and shall not be entitled to any reimbursement from the City unless otherwise agreed to by the City. It will also provide all supplies and equipment necessary to provide such Services. If Contractor uses any of the City's facilities, supplies, or equipment to furnish the Services hereunder, Contractor shall pay the City (or such amount shall be deducted from the Fee set forth in Section 2) an amount as mutually agreed by the parties. 13. Liability for Sub - contractors. Contractor shall be liable for its Services, responsibilities and liabilities under this Agreement and the costs, 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). In this regard, Contractor must furnish the City with all information relating to the sub- contractors which is requested by the City. 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 disclosed in writing to the City prior to their engagement by Contractor. 14. 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. The Contractor shall be the sole party responsible for . any and all employment taxes, unemployment compensation taxes or insurance, social security taxes, or other taxes, insurance payments, or otherwise whether levied by any country or any political subdivision thereof. The Contractor shall not, in any way, be considered to be, or be deemed to be, an employee of the City through the Services performed in this Agreement (e.g., including, but not limited to, for purposes of the Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, any state revenue and taxation code relating to income tax withholding at the source of income, the Workers' Compensation Insurance Code and other benefit payments and third party liability claims), and the Contractor shall indemnify and hold the City harmless from all costs, Loss, damages or expenses (including but not limited to taxes, accounting fees, court costs, Page 6 of 11 Page 138 of 923 and attorney fees at all levels of litigation) in the event of any determination to the contrary by any court of competent jurisdiction or governmental authority. The Contractor recognizes and understands that it will receive an Internal Revenue Service Form 1099 statement and related tax statements, and will be required to file corporate and /or individual tax returns and to pay taxes in accordance with all provisions of applicable Federal and state law. The Contractor hereby promises and agrees to indemnify the City for any damages or expenses, including attorney's fees, and legal expenses, incurred by the City as a result of the Contractor's failure to make such required payments. Except as otherwise expressly provided in the Agreement, the Contractor shall in no way hold itself out as an employee, dependent agent, or other servant of the City, its employees or other agents, or as other than a free agent with respect to the City. The Contractor is not granted, shall not have, and acknowledges the absence of any right or authority to assume or create any obligations or responsibility, express or implied, on behalf of or in the name of the City or to bind the latter in any matter or thing whatsoever. 15. 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. 16. 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. 17. 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. 18. Purchase Order Requirement. This Agreement shall not be effective until executed by the parties hereto and until the City has issued a Purchase Order for this Agreement. 19. 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. 20. Force Majeure. Contractor shall not be held responsible for losses, delays, failure to perform or excess costs caused by events beyond the control of the Contractor. Such events may include, but are not restricted to the following: Acts of God; fire, epidemics, earthquake, flood or other Page 7 of 11 Page 139 of 923 natural disaster; acts of the government; riots, strikes, war or civil disorder; unavailability of fuel. 21. Assignment. Contractor shall not assign all or any portion of this Agreement without the prior written consent of the City Manager, and it is agreed that said consent must be sought in writing by Contractor not less than sixty (60) days prior to the date of any proposed assignment. 22. Audit and Inspection Records. Contractor shall permit the authorized representatives of the City to inspect and audit all data and records of the Contractor, if any, relating to performance under this Agreement until the expiration of three years after final payment under this Agreement. Contractor further agrees to include in all his /her subcontracts hereunder a provision to the effect that the sub - contractor agrees that the City or any of their duly authorized representatives shall, until the expiration of three years after final payment to the sub- contractor, have access to and the right to examine any directly pertinent books, documents, papers and records of such sub - contractor, involving transactions related to the sub- contractor. 23. Mutual cooperation. Contractor recognizes that the performance of this Agreement is essential to the provision of vital public services and the accomplishment of the stated goals and mission of the City. Therefore, the Contractor shall be responsible to maintain a cooperative and good faith attitude in all relations with the City and shall actively foster a public image of mutual benefit to both parties. The Contractor shall not make any statements or take any actions detrimental to this effort. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. Page 8 of 11 Page 140 of 923 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: Date: City Clerk City Manager FOR CONTRACTOR: 'INSERT CONTRACTOR NAMET WITNESS: By: Date: Signature Print Name Print Name Approved: Approved as to form & language & for execution. Department Director Office of Budget and Performance Improvement Human Resources City Attorney Date F: ATTO /TORG /Agreements /Independent Contractor Agreement /Independent Contractor Agreement 2017 modified 12 -19 -2017 Page 9 of 11 Page 141 of 923 Exhibit A Description of Services Page 10 of 11 Page 142 of 923 Exhibit B Fee Page 11 of 11 Page 143 of 923