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HomeMy WebLinkAboutReso 2013-2121RESOLUTION NO. 2013 - 212 I A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AUTHORIZING THE CITY NIANAGER TO NEGOTIATE AND ENTER INTO A CONSULTANT AGREEMENT WITH LYNN M. DANNHEISSER, ESQ., FOR THE PROPOSED FORMATION OF A CULTURAL ARTS, CIVIC AND EDUCATION FOUNDATION PROJECT ( "FOUNDATION "), IN AN AMOUNT NOT TO EXCEED SEVENTY -TWO THOUSAND EIGHT HUNDRED FORTY - FOUR DOLLARS (S72,844.00) FOR A PERIOD OF ONE (1) YEAR, PROVIDED SAID AGREEMENT IS APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY THE CITY ATTORNEY; FURTHER PROVIDING THE CITY MANAGER AND CITY ATTORNEY NVITH THE AUTHORITY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City desires to create a Foundation to partner with the City of Sunny Isles Beach in order to accomplish two objectives through charitable and proffered contributions (as opposed to taxpayers dollars): 1) the maintenance of current cultural and quality of life infrastructure; 2) the continuation of the design and implementation of a series of original 2151 century initiatives which will have originated with a set of proposed initiatives to be endorsed by the City Commission: and WHEREAS, the City Commission desires to pursue these objectives; and WHEREAS, the City Manager now seeks the authority to negotiate and enter into a Consultant Agreement in an amount not to exceed Seventy -T3vo Thousand Eight Hundred Forty -Four Dollars ($72,844.00) for a period of one (1) year with Lynn M. Dannheisser, Esq. to be the Project Manager, provided said Agreement is approved as to form and legal sufficiency by the City Attorney. NOW THEREFORE, BE IT RESOLVED BY THE CITY CONIMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORDA, AS FOLLOWS: Section 1. Authorization of City Manager. The City Manager is hereby authorized to negotiate and enter into a Consultant Agreement with Lynn M. Dannheisser, Esq. (Project Manager), for the Foundation Project, in an amount not to exceed Seventy -Two Thousand Eight Hundred Forty -Four Dollars ($72,844.00) for a period of one (l) year, provided said Agreement is approved as to legal form and sufficiency by the City Attorney. The City Manager is also hereby authorized pursuant to Chapter 10 of the City Code to amend the Fiscal Year 2013 -2014 Budget to transfer the aforementioned funds from Personnel Services to Professional Services. R2013- Consultant Agmt Negotiation 1FM Dannheisser (5) Page i of 2 Section 2. Further Authorization of City Manager and Cite Attorney. The Cite Manager and the City Attomey are further authorized to do all things necessary to effectuate this Resolution. Section 3. Effective Date. This Resolution shall take effect immediately upon adoption. PASSED and ADOPTED this ATTEST: Jane A. Hines, MMC, City Clerk APPROVED "AS TO FORM AND LEGAL SUFFICIENCY: Attorney Vote: `t -0-1 Mayor Edelcup Vice Mayor Aelion Commissioner Gatto Commissioner Levin Commissioner Scholl - Moved by: Y t r y C44n r I l nil Seconded by: 00 1,(Yes) (No) (Yes) _(No) (Yes) (No) (Yes) (No) ko50-n�(Yes) _(No) R2013- Consultant Agnu Negotiation t.rnn Dannheisser (5) Pas, 2 of 2 N AGREEMENT BETWEEN THE CITY OF SUNNY ISLES "= BEACH AND LYNN M. DANNHEISSER, LLC CONTRACT NO. C1213-071 THIS CONTRACTUAL AGREEMENT (hereinafter referred to as the "Agreement") is made in duplicate, this 1st day of October, 2013, by and between the CITY OF SUNNY ISLES BEACH, Florida, (hereinafter referred to as "City"), and Lynn M. Dannheisser, LLC, successors or assigns, authorized to do business in the State of Florida (hereinafter referred to as "Consultant" or"Project Manager"). RECITALS WHEREAS, pursuant to Resolution No. 2013-2121 the City authorized the retention of a consultant to assist in the creation of a non-profit foundation to partner and/or be affiliated with the City of Sunny Isles Beach (sometimes referred to as SIB Partners in Progress (PiP) project) in order to accomplish two objectives through charitable and proffered contributions (as opposed to taxpayers dollars): 1) the maintenance of current cultural and quality of life infrastructure; 2) the continuation of the design and implementation of a series of original 21st century initiatives which will have originated with a set of proposed initiatives to be endorsed by the City Commission; and WHEREAS, Consultant has the necessary experience to provide the desired Services; and WHEREAS, Consultant has expressed the ability and desire to provide these Services, subject to the terms and conditions contained herein; and WHEREAS, the City desires to enter into an Agreement with Consultant to provide the Services in a total amount not to exceed Seventy-Two Thousand Eight Hundred Forty-Four Dollars ($72,844.00) for a period of one (1) year and under the specific terms and conditions set forth below: NOW THEREFORE, in consideration of the promises and the mutual covenants herein name, the parties agree as follows: 1. RECITALS. The Recitals set forth above are hereby incorporated into this Agreement and made a part hereof for reference. 2. SERVICES. Consultant shall act as the Project Manager for the purpose of directing, assisting and managing the creation and potential programming of a non-profit foundation to partner and/or be affiliated with the City of Sunny Isles Beach in order to accomplish two 1 C1213- CONSULTANT AGREEMENT-FINAL objectives through charitable and proffered contributions (as opposed to taxpayers dollars): 1) the maintenance of current cultural and quality of life infrastructure; 2) the continuation of the design and implementation of a series of original 21st century initiatives which will have originated with a set of proposed initiatives to be endorsed by the City Commission (hereinafter known as "Services"). 3. TERM. The term of this agreement is for a period of one (1) year subject to provisions in paragraph 7 below. 4. COMPENSATION. As the entire compensation under this Agreement and during the terms of this Agreement, in whatever capacity rendered, the City shall pay Consultant an amount not to exceed Seventy-Two Thousand Eight Hundred Forty-Four Dollars ($72,844.00) for the performance of the stated Services in equal monthly installments. This amount shall include certain benefits that, if provided directly by Project Manager, will be part of and remain included in the aforementioned lump sum amount but, if provided by the City, the amount associated with said City provided benefit shall be deducted from the lump sum on a monthly basis. In no event, however, shall the total compensation exceed the Budgeted lump sum amount. (For illustrative purposes, Consultant fee or salary is $60,000 and FICA/Medicare taxes are $5,049 for a total of $65,049 plus City health benefits cost of$6,060 for a total compensation at this time of$71,109. This amount is subject to change based upon City health benefits cost in the future or Project Manager directly providing health benefits to a max of$72,844.00.) It is understood and agreed by the parties that this compensation is for direction, assistance and management of the set-up and initial programming of the SIB PiP project as stated above and subject to the Subparagraph 4A. below. A. Disbursements. Not included in this lump sum are professional fees, if any, that must be incurred in connection with this 501(c)(3) such as tax lawyers/accountants specializing in the financial structure and the federal/state and local tax exempt status for this non-profit and charitable foundation. Also not included are the costs associated with grant writing and the implementation of specific artistic, cultural, educational or civic projects. Promotional, educational, and entertainment costs associated with the development of funding and programming are the responsibility of the CITY. Consultant will, however, be available to direct, supervise, and manage all work required as the project develops and this is part of the agreed upon compensation to Consultant. Consultant also agrees to utilize the already existing or in-house capacities for these services as may be directed by the City Manager. There are no reimbursable expenses associated with this contract except for those that are reasonably necessary to execute the goals of the project subject to the spending authority of the City Manager and with Commission a pp roval as necessary. B. Payment Schedule. Invoices received from the Consultant pursuant to this Agreement will be reviewed by the City Manager and Mayor. If Services have been rendered in conformity with the Agreement, the invoice will be sent to the Finance Department for payment. Invoices must reference the contract number 2 C1213- CONSULTANT AGREEMENT-FINAL assigned hereto. Invoices will be paid in accordance with the State of Florida Prompt Payment Act. C. Availability of Funds. The City's performance and obligation to pay under this Agreement is contingent upon an annual appropriation for its purpose by the City Commission. D. Final Invoice. In order for both parties herein to close their books and records, the Consultant will clearly state "final invoice" on the Consultant's final/last billing to the City. This certifies that all services have been properly performed and all charges and costs have been invoiced to the City. Since this account will thereupon be closed, any other additional charges, if not properly included on this final invoice, are waived by the Consultant. Subject to Paragraph 4A. above, Consultant shall make no other charges to the City for supplies, labor, taxes, licenses, permits, overhead or any other expenses or costs unless any such expense or cost is incurred by Consultant with the prior written approval of the City. If the City disputes any charges on the invoices, it may make payment of the uncontested amounts and withhold payment on the contested amounts until they are resolved by agreement with Consultant. Consultant shall not pledge the City's credit or make it a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness. The Consultant further warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms of this Agreement. 5. INDEPENDENT CONTRACTOR RELATIONSHIP. The Consultant is an independent contractor and shall be treated as such for all purposes. Nothing contained in this Agreement or any action of the parties shall be construed to constitute or to render the Consultant an employee, partner, agent, shareholder, officer or in any other capacity other than as an independent contractor other than those obligations which have been or shall have been undertaken by the City. Consultant shall be responsible for any and all of its own expenses in performing its duties as contemplated under this Agreement. Except as otherwise provided in this agreement, the City shall not be responsible for any expense incurred by the Consultant. The City shall have no duty to withhold any Federal income taxes or pay Social Security services and that such obligations shall be that of the Consultant, other than those set forth in this Agreement. Consultant shall furnish its own transportation, office and other supplies as it determines necessary in carrying out its duties under this Agreement. 6. OWNERSHIP OF DOCUMENTS AND EQUIPMENT. All documents prepared by the Consultant pursuant to this Agreement and related Services to this Agreement are intended and represented for the ownership of the City only. Any other use by Consultant or other parties shall be approved in writing by the City. If requested, Consultant shall deliver the documents to the City within fifteen (15) calendar days. This provision shall not apply to those documents which are public records under Florida law. 3 C1213- CONSULTANT AGREEMENT-FINAL 7. TERMINATION AND REMEDIES FOR BREACH. A. If, through any cause within reasonable control, the Consultant shall fail to fulfill in a timely manner or otherwise violate any of the covenants, agreements or stipulations material to this Agreement, the City shall have the right to terminate the Services then remaining to be performed. Prior to the exercise of its option to terminate for cause, the City shall notify the Consultant of its violation of the particular terms of the Agreement and grant Consultant ten (10) days to cure such default. If Consultant fails, refuses or is unable to perform any term of this Agreement, City shall pay for services rendered as of the effective date of termination. (i.) In the event of termination, all finished and unfinished documents, data and other work product prepared by Consultant shall be delivered to the City and the City shall compensate the Consultant for all Services satisfactorily performed prior to the effective date of termination, as provided in Paragraph 4 herein. (ii.) Notwithstanding the foregoing, the Consultant shall not be relieved of liability to the City for damages sustained by it by virtue of a breach of the Agreement by Consultant and the City may reasonably withhold payment to Consultant for the purposes of set-off until such time as the exact amount of damages due the City from the Consultant is determined. B. Termination for Convenience of City. The City may, for its convenience and without cause terminate the Services then remaining to be performed at any time by giving Consultant ten (10) days written notice. C. Termination for Insolvency. The City also reserves the right to terminate the remaining Services to be performed in the event the Consultant is placed either in voluntary or involuntary bankruptcy or makes any assignment for the benefit of creditors. 8. ARBITRATION. It is the intention of the parties that whenever possible, if a dispute or controversy arises hereunder then such dispute or controversy shall be settled by arbitration in accordance with the procedures, rules and regulations of the American Arbitration Association. The decision rendered by the Arbitrator shall be final and binding upon the parties and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. Arbitration shall be held in Miami-Dade County, Florida. All costs of arbitration and attorneys' fees incurred by the parties shall be paid by the non-prevailing party or, if neither party prevails on the whole, each party shall be responsible for a portion of the costs of arbitration and their respective attorneys' fees as may be determined by the court on confirmation. 9. CONFIDENTIAL INFORMATION. The Consultant shall not, either during the term of this Agreement or any time for a period of ten (10) years subsequent to that date upon which the Consultant shall leave the employment of the City for any reason whatsoever, disclose to any 4 C1213- CONSULTANT AGREEMENT-FINAL person or entity, other than in the discharge of the duties of the Consultant under this Agreement, any information which the City designates in writing as "confidential." As a violation by the Consultant of the provisions of this Section could cause irreparable injury to the City and there is no adequate remedy at law for such violation, the City shall have the right, in addition to any other remedies available to it at law or in equity, to enjoin the Consultant from violating such provisions. 10. NOTICES. All notices and other communications required or permitted to be given under this Agreement by either party to the other shall be in writing and shall be sent (except as otherwise provided herein) (i) by certified or registered mail, first class postage prepaid, return receipt requested, (ii) by guaranteed overnight delivery by a nationally recognized courier service, or (iii) by facsimile with confirmation receipt (with a copy simultaneously sent by certified or registered mail, first class postage prepaid, return receipt requested or by overnight delivery by traditionally recognized courier service), addressed to such party as follows: If to the City: Christopher J. Russo With a copy to: City Manager Hans Ottinot City of Sunny Isles Beach City Attorney 18070 Collins Avenue City of Sunny Isles Beach Fourth Floor 18070 Collins Avenue Sunny Isles Beach, Florida 33160 Fourth Floor Tel: (305) 792-1701 Sunny Isles Beach, Florida 33160 Tel: (305) 792-1702 If to the Lynn M. Dannheisser LLC Consultant : 3152 Gifford Lane Miami, Florida 33133 Tel: ( 305 ) 441-0222 11. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Venue shall be in Miami-Dade County, Florida. 12. AUDIT. The Consultant shall make available to the City or its representative all required financial records associated with the Agreement for a period of Three (3) years. 13. NON-DISCRIMINATION. The Consultant agrees to comply with all local and state civil rights ordinances and with Title VI of the Civil Rights Act of 1984 as amended, Title VIII of the Civil Rights Act of 1968 as amended, Title 1 of the Housing and Community Development Act of 1974 as amended, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, Executive Order 11063, and with Executive Order 11248 as amended by Executive Orders 11375 and 12086. The Consultant will not discriminate against any employee or applicant for employment because of race, color, creed, religion, ancestry, national origin, sex, disability or other handicap, age, marital/familial status, or status with regard to public assistance. The Consultant will take affirmative action to insure that all employment practices are free from such discrimination. 5 C1213- CONSULTANT AGREEMENT-FINAL Such employment practices include but are not limited to the following: hiring, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the City setting forth the provisions of this non- discrimination clause. The Consultant agrees to comply with any Federal regulations issued pursuant to compliance with Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 708), which prohibits discrimination against the handicapped in any Federally assisted program. 14. CONFLICT OF INTEREST. The Consultant agrees to adhere to and be governed by the Miami-Dade County Conflict of Interest Ordinance Section 2-11.1, as amended, and by Chapter 33 of the City Code of the City Sunny Isles Beach, which are incorporated by reference herein as if fully set forth herein, in connection with the Agreement conditions hereunder. The Consultant covenants that it presently has no interest and shall not acquire any interest, directly or indirectly which should conflict in any manner or degree with the performance of the Services. The Consultant further covenants that in the performance of this Agreement, no person having any such interest shall knowingly are employed by the Consultant. 15. INDEMNIFICATION AND WAIVER OF LIABILITY. The Consultant agrees, to the fullest extent permitted by law, to defend, indemnify and hold harmless the City, its agents, representatives, officers, directors, officials and employees from and against claims, damages, losses and expenses (including but not limited to attorney's fees, arbitration costs, and costs of appellate proceedings) relating to, arising out of or resulting from the Consultant's negligent acts, errors, mistakes or omissions relating to professional services in the performance of this Agreement. The Consultant's duty to defend, hold harmless and indemnify the City, its agents, representatives, officers, directors, officials and employees shall arise in connection with any claim, damage, loss or expense that is attributable to bodily injury; sickness; disease; death; or injury to impairment, or destruction of tangible property including loss of use resulting therefrom, caused by any negligent acts, errors, mistakes or omissions related to professional services in the performance of this Agreement including any person for whose acts, errors, mistakes or omissions the Consultant may be legally liable. The parties agree that One Hundred Dollars ($100.00) represents specific consideration to the Consultant for the indemnification set forth in this Agreement. 16. COMPLIANCE WITH LAW. Consultant shall comply with all laws, regulations and ordinances of any federal, state, or local governmental authority having jurisdiction with respect to this Agreement ("Applicable Laws") and shall obtain and maintain any and all material permits, licenses, approvals and consents necessary for the lawful conduct of the activities contemplated under this Agreement. 17. CONFLICTING PROVISIONS. The terms and conditions in this Agreement supersede any other conflicting provisions that are contained in any other document, including but not limited to correspondences between parties. If there is a conflict or inconsistency between any term, statement, requirement, or provision of any document or events referred to herein, or any other document incorporated into this Agreement by reference and a term, 6 C1213- CONSULTANT AGREEMENT-FINAL statement, requirement or provision of this Agreement, the term, statement, requirement, or provision contained in this Agreement shall prevail and be given superior effect and control. 18. MISCELLANEOUS. A. In the event any provision of this Agreement is found to be void and unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable provisions had been severed and deleted. B. This Agreement may be executed in multiple identical counterparts, each of which shall be deemed an original for all purposes. C. This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof, and it shall supersede all previous and contemporaneous oral and written negotiations, commitments, agreements and understandings relating hereto. D. Any modification of this Agreement shall be effective only if in writing and signed by the parties to this Agreement. E. No waiver of any provision of this Agreement shall be valid or enforceable unless such waiver is in writing and signed by the party granting such waiver. 7 C1213- CONSULTANT AGREEMENT-FINAL IN WITNESS WHEREOF, the parties hereto have executed this Agreement in triplicate on the day and year first written above. WITNESSES: 1 ,1 LYNN M. DANNHEISSER, LLC W . Signature B L M. Dannheisser, Esq. thefl 1Vi �iQ S Print Name ATTEST: CITY OF SUNNY ISLES BEACH B . Ctn BY: Jane A. Hines, MMC, City Clerk hristopher Russo, City Manager APPROVED AS TO FORM AND LE : L FFICIENCY B : AlirA ! 73 Y / Ha TO inot, Q y Atto ey 8 C1213- CONSULTANT AGREEMENT-FINAL