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HomeMy WebLinkAboutExhibitDraft 04/18/06 COCONUT GROVE BUSINESS IMPROVEMENT COMMITTEE . INTERIM EXECUTIVE DIRECTOR AGREEMENT BETWEEN DEPARTMENT OF OFF-STREET PARKING AND DAVID COLLINS THIS AGREEMENT ("Agreement") is made and entered into as of the day of , 2006 by and between the Department of Off -Street Parking, an agency and instrumentality of the City of Miami (hereinafter referred to as the "DOSP"), and DAVID COLLINS, (hereinafter referred to as "Interim Executive Director"), whose address is 3230 Gifford Lane, Miami, Florida 33133, WITNESSETH: WHEREAS, DOSP from time to time retains individuals acting as independent contractors on a contractual basis for a specific term to perform certain specialized defined tasks for DOSP that require knowledge, skills and training not otherwise available to DOSP by temporary or permanent members of the classified or unclassified service and which tasks, by their nature, require independent and autonomous judgment. WHEREAS, the Coconut Grove Business Improvement Committee ("B.LC.") requires the assistance of an Interim Executive Director on a part-time, temporary basis while it undertakes the process of conducting interviews and a selection process for qualified candidates in accordance with Ordinance No. 12781 adopted by the City Commission on March 9, 2006 amending Section 2-1253, City . of Miami Code (hereinafter "City Code"); and WHEREAS, the B.I.C. on February 21, 2006 voted to recommend the hiring of DAVID COLLINS as Interim Executive Director and Resolution No, 06-0162, adopted 1 by the City Commission on March 9, 2006 approved the B.LC.'s recommendation regarding the selection of DAVID COLLINS as Interim Executive Director and authorizing DOSP, on behalf of the B.I.C., to enter into an independent contractor agreement with DAVID COLLINS as Interim Executive Director for compensation and approved expenses not to exceed Twenty -Seven Thousand Dollars and No Cents ($27,000) for approximately twenty-five (25) hours per week for a period from March 9, 2006 to October 1, 2006; and WHEREAS, the B.I.C. on March 21, 2006, determined to . increase the compensation and approved expenses for the Interim Executive Director to an amount not to exceed Forty -Nine Thousand Dollars and No Cents ($49,000) for approximately thirty (30) hours per week for the same period from March 9, 2006 to October 1, 2006; and WHEREAS, pursuant to Sections 2-1251, 2-1253, and 35-221(a) of the Code, the City Commission on April 2006 adopted Resolution No. approving the increased amount not to exceed Forty -Nine Thousand Dollars and No Cents ($49,000) for approximately (30) hours per week for the same period from March 9, 2006 to October 1, 2006; and WHEREAS, the DOS? Board on 2006, reviewed the B.I.C.'s recommendation and authorized the Executive Director of DOSP, in accordance with final City Commission approval of the increased agreement amount and increased number of hours, to enter into the Interim Executive Director Agreement on behalf of the B.I.C.; and WHEREAS, the BIC desires to retain Interim Executive Director on a part-time, temporary basis to perform the Services defined below and described herein, and said 06-63 2 Interim Executive Director agrees to perform the Services on a part-time, temporary basis as defined below and described herein. NOW, THEREFORE, pursuant to Sections 2-1251, 2-1253, and 35-221(a) of the City Code, in consideration of the mutual obligations expressed herein, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, the DOS? and Interim Executive Director hereby agree as follows: Section 1. Recitals. The foregoing recitals are true and correct and hereby incorporated into and made a part of this Agreement. Section 2. Scope of Services. The DOSP shall retain Interim Executive Director as an independent contractor and assign him to the B.I.C. where he shall perform the Scope of Services required by Section 2-1253 of the Code ("Services") outlined in Attachment A hereto, which Attachment A and Code requirements are incorporated by reference and made a part of this Agreement, and such other related tasks as may from time to time be assigned. Section 3. Remuneration; Audit and Inspection. A. The Interim Executive Director shall receive Forty -Six Dollars and Sixty Seven Cents ($46.67) per hour based on an average of six (6) hours per day (approximately thirty (30) hours per week), which is payable on a per diem basis; however, in no event shall the remuneration and any approved travel and business expenses together, for Services as set forth below and in Attachment A hereto, exceed $49,000 for the period from March 9, 2006 to October 1, 2006. Interim Executive Director shall not be entitled to any employment emoluments and as such, Interim Executive Director shall be required to complete Form W-9 at the 06-63 3 time of the execution of this Agreement. Further, Interim Executive Director expressly acknowledges that he shall not acquire status, benefits or rights as a City of Miami ("City") or DOSP employee, temporary or permanent, classified or unclassified, by virtue of this Agreement. B. Unless otherwise specifically provided in Attachment A hereto, pursuant to the Florida Prompt Payment Act payment shall be made within forty-five (45) days after receipt of Interim Executive Director's invoice, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow proper audit of expenditures, should the City or DOSP require one to be performed. C. If the Interim Executive Director is entitled to reimbursement for specifically delineated travel and business expenses, and after approval by the DOSP, (as set forth in Attachment A for any particular Scope of Work or Deliverable), then all bills for travel and business expenses shall be submitted in accordance with Section 112.061, Florida Statutes, and shall be accompanied by sufficient supporting documentation and contain sufficient details, as may be reasonably required by the DOSP, to allow proper audit of Interim Executive Director's travel and business expenses, should the City or the DOSP require an audit to be performed. D. DOSP or the City may, at reasonable times, and for a period of up to three (3) years following the date of final payment by DOSP to Interim Executive Director under this Agreement, 'audit, cause to be audited, inspect or cause to be inspected, those books and records of Interim Executive Director which are related to Interim Executive Director's performance under this Agreement. Interim Executive Director 06-63 4 agrees to maintain such books and records at a location within the City for a period of three (3) years after final payment is made under this Agreement. Section 4. Term. Interim Executive Director shall commence performance of assigned tasks, for the period to commence on March 9, 2006 and terminate these Services on October 1, 2006.. Interim Executive Director shall not commence performance of the Services until such time as this Agreement has been fully executed by all parties and the completed Form W-9 (attached hereto as Attachment C) has been received by the DOSP Section 5. Termination. DOSP, in its sole discretion, may terminate this Agreement at any time. Interim Executive Director may terminate this Agreement at any time upon thirty (30) days' written notice. Section 6. Relationship Between Parties. The DOSP shall provide, at no cost to the Interim Executive Director, a space (office or cubicle) with proper amenities, for the Interim Executive Director's needs to perform him responsibilities. Interim Executive Director has been procured and is being engaged to provide the Services to DOSP and the B.I.C. as an independent contractor and, under the terms and conditions of this Agreement, is an independent contractor and not a DOSP or a City employee. However, all work products developed by the Interim Executive Director in performing the tasks provided for as Services under this Agreement are and shall remain the property of the DOS? and the City. Interim Executive Director shall work with DOSP and the H.I.C. to develop and to undertake the hourly schedule necessary to provide the Services as needed. Interim Executive Director acknowledges that working with DOSP and the B.I.C. regarding the necessary scheduling for the Services does not alter his status as an 06-63 5 independent contractor. Interim Executive Director further acknowledges that access to and use of DOSP or City property does not alter him status as an independent contractor. In the event of termination of this Agreement, Interim Executive Director shall not have recourse to any DOSP or City of Miami Grievance or Disciplinary Procedures nor to any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Section 7. Indemnification. Interim Executive Director shall indemnify, defend and hold harmless the DOSP, the City, the B.I.C., and their respective officials, board members, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees). or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non- performance of the Services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default, or negligence (whether active or passive) of Interim Executive Director, regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default, or negligence (whether active or passive) of the Indemnitees, or any of them or (ii) the failure of the Interim Executive Director to comply with any of the paragraphs herein or the failure of the Interim Executive Director to conform to' statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this. Agreement. Interim Executive Director expressly agrees to indemnify and hold harmless 06-63 6 the Indemnitees, or any of them, from and against all liabilities which may be asserted by Interim Executive Director, as provided above, for which the Interim Executive Director's liability would otherwise be limited to payment under State of Florida Workers' Compensation or similar laws. Interim Executive Director further understands that Florida Workers' Compensation benefits available to employees of the DOSP or of the City are not available to Interim Executive Director under this Agreement. Section 8. Insurance. The Interim Executive Director fully understands and hereby agrees that during the time that Interim Executive Director is performing the Services under this Agreement, it shall be the responsibility of the Interim Executive Director to secure his own insurance coverage(s), to include medical, liability, professional, auto, and such other coverage(s) and in such amounts, as applicable, as set forth by the City's Department of Risk Management in Attachment "B" hereto. Section 9. Nondiscrimination. Interim Executive Director represents and warrants to the DOSP that he does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Interim Executive Director's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Interim Executive Director further covenants that no otherwise qualified individual shall, solely by reason of his/him race, color, sex, religion, age, handicap, marital status, or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. Section 10. Non -Assignment; Successors and As.igns. Interim Executive Director shall not assign, in whole or in part, this Agreement without the DOSP's prior 06-63 written consent. This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors or assigns. Section 11. Ownership of Documents. Interim Executive Director understands and agrees that any information, document, report, plans, budget, or any other material whatsoever which is given by DOSP, the B.I.C., or the City pursuant to or under the terms of this Agreement is and shall at all times remain the property of DOSP, the B.I.C. and the City, as the case may be. Interim Executive Director agrees not to use any such information, document, report, plans, budget or other materials without the written consent of DOSP, the B.I.C., or the City, as the case may be, which consent may be withheld or conditioned by the owner thereof. Section 12. Public Records Interim Executive Director understands that the public shall have access, at all reasonable times, to all documents and information pertaining to the S.I.C., subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the B.I.C., DOSP, and the public to all documents subject to disclosure under applicable law. Interim Executive Director's failure or refusal to comply with the provisions of this section shall result in immediate termination of this_Agreement by DOSP. Section 13. Award of Agreement. Interim Executive Director represents and warrants to DOSP and to the City that he has not employed or retained any person or company employed by DOSP or the City to solicit or secure this Agreement and that he has not offered to pay, paid or agreed to pay any person any fee, commission, percentage, brokerage fee, finders fee, or gift of any kind contingent upon or in connection with, the award of this Agreement. 06-63 8 Section 14. Compliance with Federal. State, and Local Laws. Interim Executive Director understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to open public meetings, public records, conflicts of interest, procurement procedures, record keeping, etc. DOSP and Interim Executive Director agree to comply with and to observe all applicable laws, codes and ordinances as they may be amended from time to time. Section 15. Notices. All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given herein provided. Notice shall be deemed given on the day on which personally delivered; or if by U.S. Mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. To Interim Executive Director; DAVID COLLINS 3230 Gifford Lane Miami, Florida 33133 To DOSP: Arthur Noriega, Executive Director Miami Parking Authority 190 N.E. 3'i Street Miami, Florida 33132 With Cony To: City Attorney City of Miami 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130 Section 16. Contingency Clause, Funding for this Agreement is contingent upon the availability of' funds and continued authorization of B.I.C. activities and the Agreement is subject to (a) amendment due to lack of funds, reduction of funds, and/or 06-63 9 change in regulations or the Code, upon thirty (30) days written notice, or (b) termination pursuant to Section 5 hereof. Section 17. Resolution of Disputes: Interim Executive Director understands and agrees that all disputes between Interim Executive Director and the B.I.0 based upon an alleged violation of the terms of this Agreement by the B.I.0 shall be submitted to the City Manager for his/her resolution, prior to Interim Executive Director being entitled to seek judicial relief in connection therewith. In the event that the amount of compensation hereunder exceeds $4,500, the City Manager's decision shall be approved or disapproved by the City Commission. Interim Executive Director shall not be entitled to seek judicial relief unless: (i) Interim Executive Director has first received City Manager's written decision, approved by the City Commission if the amount of compensation hereunder exceeds $4,500; or (ii) a period of thirty (30) days has expired, after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation (sixty (60) days if City Manager's decision is subject to City Commission approval); or (iii) City has waived compliance with the procedure set forth in this section by written instruments, signed by the _City Manager. Section 18. Miscellaneous. A. This Agreement shall be construed and enforced according to the laws of the State of Florida. The parties hereto agree that venue for all federal, state and local matters, if any, arising under this Agreement shall be in the applicable respective federal, state, and/or local courts located in Miami -Dade. County, Florida. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts 06-63 10 are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. Should any provision, paragraph, sentence, word, or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or not modifiable, then the same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. D. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any otherprpvision hereof, and_ no waiver shall be effective unless made in writing. E. This Agreement constitutes the sole and entire agreement between the Parties hereto relating to the subject matter hereof and °correctly sets forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set in this Agreement, including the Attachments hereto, are of no force and effect. No modification to, supplement of, deletion from, amendment or addition to this 06-63 11 Agreement shall be valid unless in writing and executed by the properly authorized representatives of the parties hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. Signature of Witness Print Name: Signature of Witness Print Name: ATTEST: By: Name: Title: APPROVED AS TO FORM AND CORRECTNESS: Jorge L. Fernandez City Attorney INTERIM EXECUTIVE DIRECTOR David Collins Attachment A — Scope of Services Composite Attachment B- Insurance Requirements Attachment C — Completed Form W-9 DEPARTMENT OF OFF STREET PARKING ("DOSP") Arthur Noriega Executive Director APPROVED AS TO INSURANCE REQUIREMENTS: Dania Carrillo Risk Management Administrator and Independent Contractor Letter 06.63 12