Amendment No.1 to Independent Contractor Agreement with Delio Pacifici DocuSign Envelope ID:AB3021 F7-1340-4642-92BB-AF904F2CDE59 20 Z2 3z I
NA7 `t, Z-1322
AMENDMENT NO. 1
TO INDEPENDENT CONTACTOR AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
DELIO PACIFICI
This Amendment No. 1 (the "Amendment") to the Independent Contractor Agreement (the"Agreement"),
dated October 20, 2021, by and between the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal
corporation, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida 33139, (the
'City") and DELIO PACIFICI, hav'n its principal office at 1000 Island Blvd., #2004, Aventura, FL 33160,
("Contractor") is entered into this 14Lhday of 7u y _�_._... ., 2022("Effective Date").
WITNESSETH:
WHEREAS, the City and Contractor executed the Agreement to administer tennis programming;
and
WHEREAS, during the May 2, 2022 City Commission meeting, Resolution No. 2022-32146 was
passed approving Amendment No. 1 to the Independent Contractor Agreements between(1)the City and
Mr. Manuel Castillo; and (2) the City and Mr. Delio Pacifici, with the total amount authorized for each
agreement not to exceed$125,000.00 during FY 2021-2022, for professional tennis instruction services at
Flamingo Park Tennis Center; and
WHEREAS, in order to complete the Services during the Term, an amendment is necessary to
increase the Fee from $ 50,000.00 to an amount not to exceed $125,000.00, which shall be paid as
described in Exhibit B to the Agreement.
NOW,THEREFORE, in consideration of the mutual promises,covenants, agreements, terms, and
conditions herein contained, and other good and valuable consideration, the sufficiency and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. ABOVE RECITALS
The above recitals are true and correct and are incorporated as part of this Amendment.
2. MODIFICATIONS
a. Section 2 of the Agreement, entitled "Fee," is hereby deleted in its entirety and replaced with the
following:
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 $125,000.00 (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).
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3. RATIFICATION
Except as amended herein, all other terms and conditions of the Agreement shall remain unchanged and
in full force and effect.
IN WITNESS WHEREOF, the City and the Contractor have executed this Amendment No.1 to the
Agreement as of the day and year first written above by their duly authorized representatives.
ATTEST: CITY OF MIAMI BEACH
pDocuSigned by:
14/4fIta artUA 1) i4 Rafael E. Granado, City Clerk ' ,i". udak, City Ma(ilfiCCCiit
alter
8/3/2022 I 3:57 PM EDT
._.__....___.._ -•-- Date
WITNESS: DELIO PACIFIC!
OocuSigned by: OoeuSIgned by:
MAMA, ALI4exta,
•
Alan Alberta Delio
Pacifici
Print Name Print Name
7/14/2022 I 9:51 AM EDT
Date
APPROVED AS TO
FORM & LANGUAGE
&, OR EXECUTION
A, City Attorney f:4:. Oat
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RESOLUTION NO. 2022-32146
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING AMENDMENT NO. 1 TO THE
INDEPENDENT CONTRACTOR AGREEMENTS BETWEEN (1)
THE CITY AND MR. MANUEL CASTILLO; AND (2) THE CITY AND MR.
DELIO PACIFIC!, WITH THE TOTAL AMOUNT AUTHORIZED FOR EACH
AGREEMENT NOT TO EXCEED $125,000.00 DURING FY 2021-2022, FOR
PROFESSIONAL TENNIS INSTRUCTION SERVICES AT FLAMINGO PARK
TENNIS CENTER.
WHEREAS, Mr. Manuel Castillo and Mr. Delio Pacifici are current professional tennis
instructors providing services at the Flamingo Park Tennis Center (the "Center") through
Independent Contractor Agreements with the City (Exhibit A and Exhibit B); and
WHEREAS, as part of each agreement,.the tennis instructors receive a percentage of
the generated revenues for lessons and programming (lessons: 63% - tennis instructor/ 37%
City and programming: 50%-tennis instructor/50% City); and
WHEREAS, both of these instructors are two of the highest producing contracted
professional instructors at the Center, providing more tennis lessons and servicing more tennis
programs than the other tennis instructors at the Center;and
WHEREAS, their production levels contribute to the revenue that is generated at the
Flamingo Park Tennis Center; and
WHEREAS, projections have each of the Contractors exceeding $100,000.00, which
requires City Commission approval, the Parks.and Recreation Department (the "Department")
recommends amending each of the Independent Contractor Agreements to increase the not to
exceed Amendments as follows:
• Mr. Manuel Castillo
o Changing the "not to exceed amount" in Section 2 of the Agreement from
$50,000.00 to$125,000.00
• Mr. Delio Pacifici
o Changing the "not to exceed amount" in Section 2 of the Agreement from
$50,000.00 to$125,000.001 and
WHEREAS, this increase has no impact to the budget, as the Department has
funds dedicated to pay these instructors from the revenues generated via their services.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission approve Amendment No. 1 to the Independent Contractor Agreements for between
the City and Mr. Manuel Castillo and the City and Mr. Delio Pacifici, with the total amount
authorized not to exceed $125,000.00 for each Independent Contractor Agreement during FY
2021-2022,for Professional Tennis Instruction Services at Flamingo Park Tennis Center.
DocuSign Envelope ID:AB3021 F7-1340-4642-92BB-AF9O4F2CDE59
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PASSED AND ADOPTED this y day of 42a22.
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ATTEST:
• . 14:2-2"*".1-'•
MAY t 0 2022
• RAFAEL E. GRANADO, CITY CLERK DAN GELBER, MAYOR
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1 yS
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APPROVED As TO
NCORP ORAED) FORM&LANGUAGE •
• ,i &FOR EXECUTION.
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' , N ��
City Attorney Z Date
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Resolutions-C7 Q
MIAMI BEACH •
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Alina T. Hudak, City Manager
DATE: May 4,2022
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING AMENDMENT NO. 1 TO THE
INDEPENDENT CONTRACTOR AGREEMENTS BETWEEN (1) THE CITY
AND MR. MANUEL CASTILLO; AND (2) THE CITY AND MR. DELIO
PACIFIC!, WITH THE TOTAL AMOUNT AUTHORIZED FOR EACH
AGREEMENT NOT TO EXCEED $125,000.00 DURING FY 2021-2022, FOR
PROFESSIONAL TENNIS INSTRUCTION SERVICES AT FLAMINGO PARK
TENNIS CENTER.
RECOMMENDATION
Approve Amendment No. 1 to the Independent Contractor Agreements for Mr. Manuel Castillo
and Mr. Delio Pacific! not to exceed $125,006.00 each during FY 2021-2022,for professional
tennis instruction services at Flamingo Park Tennis Center.
ti BACKGROUND/HISTORY ,, Co q.
Mr.Manuel Castillo and Mr.Dello Pacifici are current professional tennis instructors employed at
the Flamingo Park Tennis Center (the "Center") through Independent Contractor Agreements
(Exhibit A and Exhibit B).
As part of their agreement,the tennis Instructors receive a revenue split shared with the City for
lessons and programming(lessons:63%-tennis Instructor/37% City and programming:50%-
tennis instructor / 50% City). Both of these instructors are two of the highest producing
contracted professional instructors at the Center. They are performing at a higher level,
providing more tennis lessons and servicing more tennis programs than the other tennis
instructors at the Center. Their production levels'contribute to the revenue that is generated at
the Flamingo Park Tennis Center.
ANALYSIS
Projections have each of the Contactors exceeding $100,000.00, which requires City
Commission approval.
With approval from the City Commission, the Parks and Recreation Department (the
"Department) will work with the City Attomeys Office to issue an amendment to each of the
current Independent Contractor Agreements with the following change:
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• Mr.Manuel Castillo
• o Changing the "not to exceed amount" in Section 2 of the Agreement from
$50,000.00 to$125,000.00
• Mr.Delio Pacifici
o Changing the "not to exceed amount" in Section 2 of the Agreement from
$50,000.00 to$125,000.00
This increase has no impact to the budget,as the Department has funds dedicated to pay these
instructors.
SUPPORTING SURVEY DATA
N/A
FINANCIAL,INFORMATION
N/A
Amoungs)/Ac count(s):
N/A
Applicable Area
Not Applicable
Is this a"Residents Right Does this item utilize G.O.
to Know"Item,pursuant to Bond Funds
City Code Section 2-14?
No No
Strategic Connection
Non-Applicable L o--. 0
Legislative Trackina
Parks and Recreation
ATTACHMENTS:
Description
o Exhibit A-Manuel Castillo FY 22 independent Contractor Agreement
13 Exhibit B-Dello Pacifica FY22 independent Contractor Agreement
a Resolution
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• INDEPENDENT CONTRACTOR AGREEMENT
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•
This Agreement is entered into on this 10 day of OL lei8/ ,2Q Lbetween
•
Delo Pacifist(*Contractor",and the City of Miami Beach,Florida(the"City°),fora pared
• of 12 months with an effective starting date of October 1.2021, and an end date of
September 30.2022(the'Term").
•
•
•• 1. Description of Services.•
•
Contractor wilt provide the services described in Exhibit'X hereto(the`Services".
Although Contractor may receive a schedule of the available hours to provide Its Services,
the City shalt not control nor have the right to control the hours of the Services performed by
the Contractor where the Services am 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 W hereto,end
performed to the reasonable satisfaction of the City Manager. !Mere are any questions
regarding the Services to be performed,Contractor should contact the following person:
Paul DI Mrmnt
Athletic Manager
1701 Meridian Avenue,Suite 401
Miami Beach,FL 33139
Pauldimtmnt@miamibeac hi gov 1
L 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$50,000.00(the Teel,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°B0 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).
S. Tenrtnation.
This Agreement may be laminated by either party.with or without cause.by giving written
notice to the other party of such termination,which shall became 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 orsafety concern,as ••
determined by the City Manager,in the City Managers 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 section. the
Contractor shall be paid a sum equal to all payments due to himiher up to the date of
termination;provided Contractor is continuing to satisfactorily perform all 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 •
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• 4. lndemnlfeationThlotd 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,andlor 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 ail coats and judgments,which may arise from any lawsuit
Ming from such claims and losses end shall pay all costs and attorney's fees expended
by the City in defense of such claims and tosses,including appeals.
The parties agree that one percent(1%) of the total compensation to Contractor for -
performance of the Services under this Agreement's the epee*consideration from the City
to Contractor for the Contractor's agreement to Indemnify end hold the City harmless,as
provided herein. Contractor and the City hereby agree and admowledge thatthls Indemnity
provision Agreement
intended to and shall survive the termination(or earlier expiration)of this
5. )imitation of Liabltity.
The City desires to enter into this Agreement only If in so doing the City can place a Omit on
Citys liability for any cause of action for money damages due to an alleged breach by the
City of this Agreement,so that its llablitty 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
hlslher willingness to enter into this Agreement with Contractor's recovery from the City for
any damage action for breath of contract to be limited to a maximum amount equal to the
compensalionlfee to be paid to Contractor pursuant to this Agreement,less any amounts
actually mkt by+the City essof the date of the alleged breach. ® a :. '
•
Accordingly,and notwithstanding anyother term or condition of this Agreement,Contractor
hereby agrees that the City shall not be liable to Contractor for damages In the amount in
excess of the compensatfonfee 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 •
oblisgations imposed upon the City by this Agreement •
Nothing contained in this section or elsewhere in this Agreement is in any way Intended to
be waiver
Statutes. of the limitation placed upon City's liability as setforth in Section 76828,Florida
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 Mad,return receipt requested,postage prepaid,or by a
natioraihy recognized overnight delivery service. !
Until changed by notice in writing,all such notices and communications shall be addressed
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• CONTRACTOR: Dello Pacific'
1000 Island Blad.#2004
Aveittura,FL,33160
{ (017)751-1447
CITY: John Reber
City of Miami Beach
Parks and Recreation
1700 Convention Center Drive
Miami Beach.FL 33139
(305)673-7000
Notice shall be deemed given on the date of an acknowledged receipt,and.In all other
cases,on the date of receipt or refusal.
T. Venue•
The 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 LRiGATION RELATED TO,OR ARISING OUT OF,THiS
AGREEMENT.
B. party of CarelCom@env with Aoolicable La1Ks/Confdlct of interests
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 ail applicable law&
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 ail applicable Miami-Dade County Coact 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 the Services. Contractor furthercovenant that in the performance of Servicesegree with the underthls
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.
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•• 9. Her Disarlminatlont
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in connection with the performance of the Services.the Contractor shall not exclude from •
• participation In,deny the benefits of,orsub)ect to discrimination anyone on the grounds of
race,color,national origin,sex,age,disabbility,religion,Income or family status.
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 pubtiaservioes,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. Florfda Public Regards 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 tarn°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 win 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(1Xa),the Contractorshatt:
(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,proof( 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,Floricia 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 ll
authorized by law, for the duration of the contract term and following
completion ofthe 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 thatare exemptorconfidential and
exemptfrom public records disclosure requirements.If the Contractorkeaps •
and maintains public records upon completion of tie Agreement. the
Contractor shalt 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
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• 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
set forth under the Agreement and/or (3) avail itself of any available
remedies at law or in equity.
(3) 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) CML 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 attomey's 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 firing the action, the plaintiff
provided written notice of the public records request, including a
statement that the Contractor has not compiled 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 carder delivery service or by registered, Global
Express Guaranteed,or certified mall,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, 0-1 •
(E) IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPUCATION OF CHAPTER 119, FLORIDA STATUTES, TO
THE CONTRACTOR'S DUTY TO PROVIDE PUBUC 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 Copvriohts.
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
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• 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,specifcations,processes,data and findings,are hereby assigned to the City,
In perpetuity.for public use.
No reports,other documents,articles or devices produced in whole or in pert 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 tithe City Manager.which consent,if given at all,shall be at the Manager's sole
and absolute discretion.
•
12. j..labilibr for RenL Sunalllos.Eaulemen!.Etc.
Contractor shall provide all funds necessary to pay ail debts, disbursements. and •
expenses incurred in connection with its performance of the Services hereunder.and shall
not be entityd to any reimbursement from the City unless otherwise agreed to by the City.
It willl 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 shalt 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 far Sub-contractors.
Contractor shall be liable for its Services, resities and liabilities under this
Agreement and the costs,services,responsibilities and liabilties ofany sub-contractors(if
any),and any other person or entity acting under the di ection or control of Contractor(if
any). In this regard,Contractor must furnish the City with all information relating to the
sub-conbactors which Is requested by the City.When the term"Contractcre Is used in this
6 'Agreeraent.It shall be deemed to include any sith contractors(If any)and/or any other a a--•
person or entity acting under the direction or control of Contractor(if any). Ali 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,
711E 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 RIGHTGENERALLYAFFOROED 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 ofany 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
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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 debris),and the Contractor shall indemnify and hold the City harmless from all costs.
foss,damages or expenses(including but not limited to taxes,accounting fees,court costs,
and attomey's fees at all levels of litigation)in the event of any determination to the contrary
by any court of competentjurisdictiorrorgovenunental 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 ail provers of applicable Federal and state law. The
Contructorhereby promises and agrees to indemnify the dly for any damages orespenses,
including attomey'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
orather agents,or as ofherthan a free agentwith respect to the City.The Contractor Is not
granted,shall not have,and acknowledges the absence of any right or authority to assume
cremate any obligations orresponsibility,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. Purchase Order$eaujrement.
This Agreementshau not be effective until executed by the parties hereto and with the City
has Issued a Purchase Order for this Agreement
• 16. Force Vafaure.
(A) A °Force Majeuni event Is an event that (I) in fact causes a delay in the
performance of the Contractor or the Cigrs obligations under the Agreement,and(li)
is beyond the sonable contrrd of such party unable to perform the obligation.and
(B)is notdue to an intentional act.error,omission,or negligence of such party.and
(Iv)could not have reasonably been foreseen and prepared for by such party at any
time prior to the occurrence of the event.Subject to the foregoing criteria.Force
Majeure may include events such as war,civil insurrection. riot,fires,epidemics.
pandemics. terrorism, sabotage, explosions, embargo restrictions, quarantine
restrictions. transportation accidents. strikes, strong hurricanes or tornadoes,
earthquakes.or other acts of God which prevent performance.Force Majeure shall
not include technological impossibility,imdementweather,Walling to secure any of
the required permits pursuant to the Agreement.
(B) lithe City or Conbuctor's performance of Its contractual obligations is prevented or
delayed by an event believed by to be Faroe Majeure,such party shall immediately,
upon teaming of the occurrence of the event or of the commencement of any such
delay.but In any case within fifteen(15)business days thereof.provide notice:(I)of
the occurrence of event of Force Majeure,(t)of the nature of the event and the
cause thereof,(Ill)of the anticipated impact on the Agreement.(iv)of the anticipated
period of the delay,and(v)of what course of action such party plans to take in order
to mitigate the detrimental effects of the event.The timely delivery of the notice of
the occurrence of a Force Majeure event Is a condition precedent to allowance of •
any relief pursuant to this section; however. receipt of such notice shall not
constitute acceptance that the event claimed to be a Force Majeure event Is in fact
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Force Majeure,and the burden of proof of the occurrence of a Force Majeure event
shall be on the requesting party.
(C) No party hereto shall be liable for its failure to cony out its obligations under the
Agreement during a period when such party is rendered unable,in whole or in part,
by Force Majeure to carry out such obligations. The suspension of any of the
obligations under this Agreement due to a Force Majeure event shall be of no
greater scope and no longer dragon than is required. The-party shall use its
reasonable bestefforts to continue to perform its obligations hereunder to the extent •
such obligations are not affected or are only partially affected by the Force Mejeure ••
event and to correct or cure the event or condition excusing performance and •
otherwise to remedy lb inability to perform to the extent Its inability to perform is the
direct result of the Force Majeure event with all reasonable dispatch.
(D) Obligations pursuant to the Agreement that arose before the occurrence of a Force
- Majeure event,causing the suspension of performance,shall not be excused as a
• result of such occurrence unless such occurrence makes such performance not
reasonably possible. The obligation to pay money in a timely manrterforobligatlons
and liabilities which matured priorto the occurrence ofa Force Majeure eventahall
not be subject to the Force Majeure provisions.
(E) Notwithstanding any other provision to the contrary herein,in the event of a Force •
Majeure occurrence. the City may, at the sole discretion of the City Manager,
suspend the Cty's payment obligations under the Agreement,and may take such
action without regard to the notice requirements hearth. Additionally.in the event
that an event of Face Majeure delays a party's performance under the Agreement
fora time period greater than thirty(30)days.the City may,at the sole discretion of
the City Manager,terminate the Agreement on a given date,by giving written notice
to Contractor of such termination. If the Agreement Is terminated pursuant to this
section,Contractor shall be paid for any Services satisfactorily performed up to the
date of termination;following which the City shall be discharged from any and all
• liabilities,duties,and terms arising out of,or by virtuaof; lids Agreement In no
event will any condition of Force Majeure extern!this Agreement beyond its stated
Tenn.
1T. Aftligsmind-
Contractor shall not assign all or any portion of this Agreement without the prior written
consent of the City Manager,and[tie agreed that said consent must be sorghtin writing by
Contractor not lass than sixty(60)days prior to the data of any proposed assignment
18. Audit and Iesoeodon 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 raider this Agreement
until the expiration of three years after final payment under this Agreement
Contractor further agrees to include in all Mother 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 Anal 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,irnrolving transactions related to the
subcontractor.
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19. Insoector General Audit plaits.,
(A) Pursuant to Section 2 256 of the Code of the City of ilia Beads,the City has
established the Office of the Inspector General which may,on a random basis.
perform reviews, audits, inspections and Investigations on all City contracts,
throughout the duration of said contracts. This random audit is separate and distinct
from any other audit performed by or on behalf of the City.
• (B) The Office of the inspector General Is authorized to Investigate City affairs and
empowered to review past,present and proposed City programs,accounts,records,
contracts and trerser:ttons. In addition, the Inspector General has the power to
subpoena witnesses, administer oaths,require the production of witnesses and
monitor City projec sand programs.Monitoring ofan existing City project orprograin
may Includea report concerning whether the project bon time.within budget and in
conformance with the contract documents and applicable law. lime inspector
General shall have the power to audit,investigate,monitor,oversee, inspect and
review operations,activities,performance and procurement process including but
not limited to projectdesign,bid speciffcations.(bid/proposal)submittals.activities of
the Contractor,its officers,agents and employees.lobbyists,City staff end elected
officials to ensure compliance with the contract documents and to detect fraud and
corruption. Pursuant to Section 2.378 of the City Code,the City Is defeating a
percentage of Its overall annual contract expenditures to fund the activates and
operations of the Office of inspector General.
(C) Upon ten(10)days written notice to the Contractor.the Contractor shall make all
requested records and documents available to the inspector
and copying. The inspector General is empowered to retain the services of
a _ independent private sector auditors to audit,investigate,monitor,oversee,inspect a
and review operations activities,perform rent and procurement process including .
but not limited to project design, bid specifications. (bid/proposal) submittals,
activities of the Contractor.its officers,agents and employees,lobbyists,City staff
and elected officials to ensure compliance with the contract documents and to detect
fraud and corruption.
(0). The Inspector General shall have the right to Inspect and copy all documents and
records in the Contractor's possession,custody or control which in the inspector
General's sole judgment,pertain to performance of the contract,including,but not
limited to original estivate dies,change order estimate files,worksheets,proposals
and agreements from and with successful subcontractors and suppliers,ail project-
related correspondence,memoranda.instructions,financial documents,construction
documents,(bid/proposal)and contract documents,back-change documents,all
documents and records which involve cash,trade or volume discounts,insurance
proceeds. rebates, or dividends received, payroll and personnel records and
supporting documentation for the aforesaid documents and records.
(E) The Contractorshall make available at its office at ail reasonable times the records,
materials, and other evidence regarding the acquisition (bid preparation) and
Performance of this Agreement.for examination,audit.or reproduction,until three
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(3)years after final payment under thisAgreement or for any longer period required
by statute or by other clauses of this Agreement In addition:
(1) if this Agreement is completely or partially temdnated.the Contractor shall
make available records relating to the work terminated until three(3)years •
alter any resulting final termination settlement and
(2) The Contractor shall make available records relating to appeals or to
litigation or the settlement of claims arising under or relating to this
Agreement until such appeals,litigation,or dims are finally resolved.
(F) The provisions in this section shall apply to the Contractor. its officers, agents,
employees, subcontractors and suppliers. The Contractor shaft incorporate the
provisions in this section In ail subcontracts and all other agreements executed by
the Contractor in connection with the performance of this Agreement
(G) Nothing in this section shall impair any Independent right to the City to conduct
audits or investigative activities.The provisions of this section are neither Intended
nor s��be construed to impose any liability on the City by the Contractor or
third 20. E-Vertu►,
(A) To the extent that Contractor provides labor. supplies, or services under this
Agreement, Contractor shall comply with Section 448.095. Florida Statutes,
"Employment EligibBlf(`E Verify Statute%as may be amended from time to time.
Pursuant to the E VerifyStatute.commencing on January 1,2021,Contractorshalt
registerwith and use the E Verify system to verify thework authorization status of all
shallnewly red employees during the Term of the Agreement Additionally.Contractor
hiexprlessty require any subcontractor performing work or providing services
. pursuant to Vic went to likewise utilize the U.S. Department of Homeland
Security's E-Verify systemic verify the employment eligibility ad new employees
hired by the subcontractor during the contract Term. if Contractor enters Into a
contract with an approved subcontractor, the subcontractor must provide the
Contractor with an affidavit stating that the subcontractor does not employ,contract
with.orsubcontractwith an unauthorized alien. Contractorshall maintain a copy of
such affidavit for the duration of the subcontract or such other extended parted as
may be required under this Agreement
(B) TERMINATION RIGHTS.
(1) if the City has a good faith belief that Contractor has knowingly violated
Section 448.09(1),Florida Statutes,the City shall terminate this Agreement
with Contractor for cause, and the City shall thereafter have or owe no
further obligation or liability to Contractor.
(2) lithe City has a good faith ballet theta subcontractor has knowingly violated
the foregoing Subsection 20(A),but the Contractor otherwise complied with
such subsection,the City will promptly notify the Contractor and order the
Contractor to immediately terminate the contract with the subcontractor.
Contractor's failure to t rodnate a subcontractor shall bean event of default
under this Agreement,entitling City to terminate the Contractor's contractfor
cause.
(3) A contract terminated under the foregoing Subsection(B)(1)or(BX2)is not
In breach of contract and may not be considered as such.
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(4) The City or Contractor or a subcontractor may hie an action with the Circuit
or County Court to challenge a termination under the foregoing Subsection
• (BX1)or(BX2)no later than 20 calendar days after the date on which the
contract was terminated.
• (5) if the City terminates the Agreement with Contractor under the foregoing
Subsection(Bj(1),Contractor may not be awarded a public contract for at
least 1 year after the date of termination of this Agreement
(6). Contractor is liable for any additional costs incurred byte City as a result of
the termination of this Agreement under this Section 20.
21. Waiver of Breach.
A party's failure to enforce any prevision of this Agreement shall not be deemed a waiverof
such prevision 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.
22. Severance.
in the event this Agreement or a portion of this Agreement is found by a court of competent
jurtsd&dton to be Invalid,the remaining provisions shall continue to be effective unless City
elects to terminate this Agreement
23. atttE/Infigikat
• The parties hereto acknowledge that they have sought and received whatever competent
advice and counsel as was necessary for them to form a MO 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 ages 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.
• O-_• 4 O--• 4
24. Mutual
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 shalt be responsible to maintain a cooperative and good faith
attitude in all relations with the City and shall actively fosters public tillage of mutual benefit
to bath parties. The Contractor shall not make any statements or take any actions
detrimental to this effort.
25. genre Agreement
Thiswrwng and any exhibits andforattachments incorporated(andiorotherwise referenced
for incorporation herein)embody the entire agreement and uundendanding 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 superseded hereby.
26. Badturcund CheckReauiremernt.
In accordance with Sections 943.0542.984.01.39.001 and 1012.465.Florida Statutes and
Chapters 430. 435. and 402. Florida Statutes. as applicable, employees, volunteers,
contractors.and subcontracted personnel who work in direct contact with children or who
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come Into direct contact with children must complete a satisfactory Level 2 background
screening prior to commencing work pursuant to this Agreement.
Level 2 Background screenings must be completed through the City of Miami Beach,
• Human Resources Department Contractor agrees to complete Level 2 Backgrotmd
screening prior to Initiating any work related to this Agreement.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
ai
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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 elk "==' City Manager
•
Date: .�;� �:Y
DEC ri.;:
132021
FOR CONTRACTOR: DELIO PACIFIC'
WITNESS:
Ikamreneaa,r.
L4L-
By: _
Peuo34c4l74ee..
Signature-- {1 )
Paul Di Muont i„,qA‘a / a c'
Print Name Print Name
Date: 10/20/21& - o- a :•
Approved: • Approved as to form&language&
for execution.
.2 11/5/2021 I 8:02 AM EDT Q
Department Director City Attomey0 D to
PO •
L /2021 17:46 AM EST
Office of Budget and Performance Improvement
CF:: s eDr 11/23/2021 1 3:20 PM EST
Human Resources
•
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Exhibit A
•
•
)Resotption of Services
•
•
1. The Contractor shall establish and administer tennis programming for the patrons at the
following tarcllpy:
a. Flamingo Park Tennis Center(the'Centers)(999110 Skeet.Miami Beach,
FL 33139)
{ b. Working hours range from 7:30 am.to 10:00 p.m.
2. Contractor shall perform the following tennis programming at the Center during.facMty
• operating hours(°Tends Programming":
• a. Private Tennis Lessons
b. Youth Programming
c. Adult Programming
d. Summer Camp Programming •
e. Clinics
f. Racquet Stringing
3. Curing the Term.Contractor is not permitted to perform Tennis Programming outside of the
Center including,without limitation,at the(Wowing locations:
a. Palm island
b. Miami Beach Golf Course
c. Polo Park
d. Fairway Park
e. Normandy Shores Golf Course
4. Durig the Temi.Contractor must have a Business Tax Receipt•and current certification
from the United States Professional Tennis Association or Professional Tennis Registry.
5. The contractor during the months of(November—April)to offer a minimum of eight(0)
hours of City Tennis Programming per week. during the months of(October, May-
September)to o0er a minimum of six(6)hours of City Tennis Programing per week,
exclusive of Private Tennis Lessons. If Contractor fails to provide this minimum level of ' •
service,the City reserves the right to terminate the Agreement.without providing Contractor •
with the opportunity to cure the default,upon providing Contractor with written notice of •
termtrrefbn.
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Exhibit B
The City agrees to pay the Contractor as follows:
The City shall pay Contractor a total fee in the amount not to exceed$50,000.00 during
the life of the Agreement
• $10 for every racquet stringing
• $50 for every 1-hour lesson
• $50 for every 1-hour aria
• $75 for every 1.5-hour clinic
• $100 for every 2-hour clinic
• $70 for half day of Summer Camp •
• $140 for full day of Summer Camp
The Chrrbactor shall issue invoices to the City no later than 15 days following services
rendered.City shall remit payment to the Contractor within 46 days of receiving en invoice •
from the Contra ctorfor that portion(orthose portions)of the services satisfactorily rendered
(and referred to In the particular Invoice).
1
{
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