HomeMy WebLinkAboutMary Rebekah McLain Contractor 4-19-2018 AGREEMENT FOR PERSONAL SERVICES
THIS AGREEMENT dated the 19th day of April, 2018 amends the previous agreement
made and entered the 8th day May of 2017,by and between the CITY OF CAPE CANAVERAL,
FLORIDA, a Florida municipal corporation ("City"), located at 100 Polk Avenue, Cape
Canaveral, Florida 32920, and Mary Rebekah McLain ("Contractor"), whose address is 310
Taylor Avenue, Apt. C19, Cape Canaveral, Florida 32920.
WITNESSETH:
WHEREAS, City has a need to obtain additional Community Engagement services; and
WHEREAS,Contractor is willing to provide such products and services to the City under
the terms and conditions stated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged,the parties covenant and agree as follows:
1.0 TERM AND DEFINITIONS
1.1 The terms and conditions herein shall be a month to month Agreement.
1.2 Definitions. The following words and phrases used in this Agreement shall have
the following meaning ascribed to them unless the context clearly indicates otherwise:
a. "Agreement" or "Contract" shall be used interchangeably and shall refer to this
Agreement,as amended from time to time,which shall constitute authorization for the Contractor
to provide the Services as described in Section 2 hereof
b. "Effective Date" shall be the date on which the last signatory hereto shall execute
this Agreement, and it shall be the date on which this Agreement shall go into effect.
c. "Contractor" shall mean M. Rebekah McLain and employees and assistants.
d. "Public Record" shall have the meaning given in section 119.01 1(12), Florida
Statutes as may be amended.
e. "Reimbursable Expenses" shall mean the actual expenses incurred by Contractor
or Contractor's independent professional associates and Contractors which are directly related to
travel and subsistence at the rates, and under the requirements of, section 112.061, Florida
Statutes,as may be amended or any other actual and direct expenses the City agrees to reimburse.
f. "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in a Task Order.
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g. "Services to be Performed" shall mean those as outlined in Section 2.0 of this
Agreement, which sets forth the Work to be performed by Contractor under this Agreement, and
shall include, without the necessity of a cross-reference, the terms and conditions of this
Agreement.
1.3 Engagement. The City hereby engages the Contractor and Contractor agrees to
perform the Services outlined in this Agreement for the stated fee arrangement. No prior or
present representations shall be binding upon any of the parties hereto unless incorporated in this
Agreement.
2.0 DESCRIPTION OF SERVICES
2.1 The City shall make request of Contractor to assist in the development and
implementation of Community Engagement initiatives such as,but not limited to,the following:
• Grant sourcing and writing.
• Investigate new program innovations.
• Provide assistance in areas of social media.
• Provide assistance during community events.
• Perform other duties as outlined in Attachment#1.
• Perform related duties as requested.
The City will communicate with Contractor, verbally or in writing, a general description of
Services to be performed. Contractor will perform these Services not to exceed twenty(20)hours
per week. Services may be performed on weekends and evenings. A flexible schedule will be
coordinated with the City's Community Engagement Director.
2.2 The City reserves the right,at its discretion,to perform any Services related to this
Agreement or to retain the Services of other Contractor(s)to provide personal services.
2.3 Contractor retains the right to perform Services for other clients.
3.0 SCHEDULE
3.1 Contractor shall perform Services in conformance with the mutually agreed
schedule set forth in Section 2.1. Contractor shall complete all said Services in a timely manner
and will keep City apprised of the status of work on at least a weekly basis or as otherwise
reasonably requested by the City. Should Contractor fall behind, she shall communicate with the
Community Engagement Director and arrange adjustments to the mutually agreed upon schedule.
4.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF
CONTRACTOR
4.1 The City agrees to pay the Contractor $20.00 per hour for the number of hours
worked performing Services as outlined in Section 2.
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4.2 The City will pay the Contractor twice a month within 14 days of receipt of an
invoice from the Contractor by the City's Financial Services Division.
4.3 Contractor, at Contractor's expense, may employ assistants as Contractor deems
appropriate to perform Services. Contractor will be responsible for payment of the assistants as
well as any expense attributable to them including income, Social Security and Medicare taxes
and unemployment contributions.
4.4 With prior approval by the Community Engagement Director, the City will
provide all equipment,tools and supplies necessary to perform the Contractual Services
4.5 Errors and Deficiencies. Contractor shall not invoice the City or seek any
compensation from the City to correct or revise any errors or deficiencies in Contractor's Services
provided under this Agreement.
4.6 Payment Offsets. To the extent that Contractor owes the City any money under
this or any other Agreement with the City,the City shall have the right to withhold payment and
otherwise back charge the Contractor for any money owed to the City by Contractor.
4.7 Payment not Waiver. The City's payment of any invoice under this Agreement
shall not be construed or operate as a waiver of any rights under this Agreement or any cause of
action arising out of the performance of this Agreement and Contractor shall remain liable to the
City in accordance with applicable law for all damages to the City caused by Contractor's
performance of any Services provided under this Agreement.
5.0 RIGHT TO INSPECTION
5.1 City or its affiliates shall at all times have the right to review or observe the
Services performed by Contractor.
5.2 No inspection, review or observation shall relieve Contractor of its responsibility
under this Agreement.
6.0 PROGRESS MEETING
6.1 The City Manager or Community Engagement Director may hold periodic
progress meetings during the term of this Agreement. Contractor shall attend such meetings as
designated by City. Contractor shall be compensated at the $20.00 hourly rate for attendance.
7.0 SAFETY
7.1 Contractor shall be solely and absolutely responsible and assume all liability for
the safety and supervision of its principals, employees, resident project representatives (and
assistants)while performing Services provided hereunder.
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8.0 REASONABLE ACCESS
8.1 During the term of this Agreement, City shall grant Contractor reasonable access
to the City's premises, records and files for purposes of fulfilling its obligations under this
Agreement.
9.0 COMPLIANCE WITH LAWS AND REGULATIONS
9.1 Contractor shall comply with all requirements of federal, state and local laws,
rules, regulations, standards and/or ordinances applicable to the performance of Services under
this Agreement.
10.0 REPRESENTATIONS
10.1 Contractor represents that the Services provided hereunder shall conform to all
requirements of this Agreement, shall be consistent with recognized and sound copywriting and
licensing practices and procedures; and shall conform to the customary standards of care, skill
and diligence appropriate to the nature of the Services rendered. Contractor shall perform as
expeditiously as is consistent with professional skill and care and the orderly progress of the
Services performed hereunder. Contractor's Services shall be consistent with the time periods
established under this Agreement. The Contractor shall render decisions in a timely manner in
order to avoid unreasonable delay in the orderly and sequential progress of the Services. Except
with the City's knowledge and consent, the Contractor shall not engage in any activity or accept
any employment, interest or contribution that would reasonably appear to compromise the
Contractor's professional judgment with respect to the Services. The Contractor shall review
laws, codes and regulations applicable to Contractor's Services. The Contractor's Services and
design shall comply with all applicable requirements imposed by all public authorities. The
Contractor represents and warrants that it is familiar with, and accepts that it will perform the
Services hereunder in a manner that complies with all applicable requirements of law, codes and
regulations. Contractor shall be responsible for the professional quality, technical accuracy and
the coordination of all plans, studies, reports and other Services furnished to the City under this
Agreement. Unless this Agreement is terminated by the City, or terminated by Contractor for
nonpayment of any proper invoices, or the City exercises its rights to perform the Services
pursuant to Paragraph 2.2 herein,Contractor shall be responsible for the satisfactory and complete
execution of the Services described in this Agreement. The Contractor represents that it will
carefully examine the Scope of Services required by the City, in that it will investigate the
essential requirements of the Services required, and that it will have sufficient personnel,
equipment and material at its disposal to complete the Services set forth in the Agreement in a
good professional and workmanlike manner in conformance with the requirements of this
Agreement.
10.2 Contractor represents that all principals,employees and other personnel furnishing
such Services shall be qualified and competent to perform the Services assigned to them and that
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such guidance given by and the recommendations and performance of such personnel shall reflect
their best professional knowledge and judgment.
11.0 GUARANTEE AGAINST INFRINGEMENT
11.1 Contractor guarantees that all Services performed under this Agreement shall be
free from claims of patent, copyright and trademarks infringement. Notwithstanding any other
provision of this Agreement, Contractor shall indemnify, hold harmless and defend City, its
officers, directors, employees, agents assigns and servants from and against any and all liability,
including expenses,legal or otherwise,for actual or alleged infringement of any patent,copyright
or trademark resulting from the use of any goods, Services or other item provided under this
Agreement. Notwithstanding the foregoing, Contractor may elect to provide non-infringing
Services.
12.0 DOCUMENTS
12.1 Public Records: Pursuant to Section 119.0701,Florida Statutes and other applicable
public records laws, CONTRACTOR agrees that any records, documents,transactions,writings,
papers, letters, grants, computerized information and programs, maps, books, audio or video
tapes, films, photographs, data processing software, writings or other material(s), regardless of
the physical form, characteristics, or means of transmission, of CONTRACTOR related, directly
or indirectly, to the services provided to the CITY under this Agreement and made or received
pursuant to law or ordinance or in connection with the transaction of official business by the
CITY,may be deemed to be a public record,whether in the possession or control of CITY or the
CONTRACTOR. Said records, documents, transactions, writings, papers, letters, grants,
computerized information and programs, maps, books, audio or video tapes, films,photographs,
data processing software, writings or other material(s), regardless of the physical form,
characteristics, or means of transmission of CONTRACTOR are subject to the provisions of
Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of
the CITY's designated custodian of public records.
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 CITY'S
CUSTODIAN OF PUBLIC RECORDS/CITY CLERK AT (321) 868-
1220 Ext. 207, 100 POLK AVENUE, CAPE CANAVERAL, FLORIDA
32920.
CONTRACTOR is required to and agrees to comply with public records laws. CONTRACTOR
shall keep and maintain all public records required by CITY to perform the services as agreed to
herein. CONTRACTOR shall provide the CITY, upon request from the CITY CLERK, copies
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 by law. CONTRACTOR shall 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 Agreement term. Upon
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completion of the Agreement, CONTRACTOR shall transfer to CITY, at no cost, all public
records in possession of the CONTRACTOR,provided the transfer is requested in writing by the
CITY CLERK. Upon such transfer, CONTRACTOR shall destroy any duplicate public records
that are exempt or confidential and exempt from public records disclosure requirements.
However, if the CITY CLERK does not request that the public records be transferred, the
CONTRACTOR shall continue to keep and maintain the public records upon completion of the
Agreement and shall meet all applicable requirements for retaining public records. All records
stored electronically must be provided to CITY,upon request from the CITY CLERK,in a format
that is compatible with the information technology systems of CITY. Should the CITY not
possess public records relating to this Agreement which are requested to be inspected or copied
by the CITY or any other person, the CITY shall immediately notify CONTRACTOR of the
request and the CONTRACTOR shall then provide such records to the CITY or allow the records
to be inspected or copied within a reasonable time. If the CONTRACTOR does not comply with
a public records request, the CITY may enforce this Section to the extent permitted by law.
CONTRACTOR acknowledges that if the CONTRACTOR does not provide the public records
to the CITY within a reasonable time, the CONTRACTOR may be subject to penalties under
Section 119.10,Florida Statutes. The CONTRACTOR acknowledges that if a civil action is filed
against the CONTRACTOR to compel production of public records relating to this Agreement,
the court may assess and award against CONTRACTOR the reasonable costs of enforcement,
including reasonable attorney fees. All public records in connection with this Agreement shall,
at any and all reasonable times during the normal business hours of the CONTRACTOR,be open
and freely exhibited to the CITY for the purpose of examination, audit, or otherwise. Failure by
CONTRACTOR to grant such public access and comply with public records laws and/or requests
shall be grounds for immediate unilateral cancellation of this Agreement by the CITY upon
delivery of a written notice of cancellation. If the CONTRACTOR fails to comply with this
Section, and the CITY must enforce this Section, or the CITY suffers a third party award of
attorney's fees and/or damages for violating Chapter 119, Florida Statutes, due to
CONTRACTOR's failure to comply with this Section, the CITY shall collect from
CONTRACTOR prevailing party attorney's fees and costs, and any damages incurred by the
CITY, for enforcing this Section against CONTRACTOR. And, if applicable, the CITY shall
also be entitled to reimbursement of all attorneys' fees and damages which the CITY had to pay
a third party because of the CONTRACTOR's failure to comply with this Section. The terms
and conditions set forth in this Section shall survive the termination of this Agreement.
13.0 ASSIGNMENT
13.1 Contractor shall not assign or subcontract this Agreement or any rights or any
monies due or to become due hereunder without the prior,written consent of City.
13.2 If upon receiving written approval from City, any part of this Agreement is
subcontracted by Contractor, Contractor shall be fully responsible to City for all acts and/or
omissions performed by the subcontractor as if no subcontract had been made.
13.3 If City determines that any subcontractor is not performing in accordance with
this Agreement, City shall so notify Contractor who shall take immediate steps to remedy the
situation.
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14.0 INDEPENDENT CONTRACTOR
14.1 At all times during the term of this Agreement, Contractor shall be considered an
independent contractor and not an employee of the City. Contractor shall be solely responsible
for any Social Security,Medicare,self-employment,income or other tax. City shall not withhold
from Contractor's pay any sums for the prior stated taxes. Additionally, neither Contractor nor
Contractor's employees, assistants or sub-contractors are eligible to participate in any City
benefit plan including pension, insurance or personal time off(PTO).
15.0 DEFAULT BY CONTRACTOR AND CITY'S REMEDIES
15.1 The City reserves the right to revoke and terminate this Agreement and rescind all
rights and privileges associated with this Agreement, without penalty, in the following
circumstances, each of which shall represent a default and breach of this Agreement:
15.2 Contractor defaults in the performance of any material covenant or condition of
this Agreement and does not cure such other default within thirty(30)calendar days after written
notice from the City specifying the default complained of, unless, however, the nature of the
default is such that it cannot, in the exercise of reasonable diligence, be remedied within thirty
(30)calendar days, in which case the Contractor shall have such time as is reasonably necessary
to remedy the default,provided the Contractor promptly takes and diligently pursues such actions
as are necessary therefore; or
15.3 Contractor is adjudicated bankrupt or makes any assignment for the benefit of
creditors or Contractor becomes insolvent, or is unable or unwilling to pay its debts; or
15.4 Contractor has acted grossly negligent, as defined by general and applicable law,
in performing the Services hereunder; or
15.5 Contractor has committed any act of fraud upon the City; or
15.6 Contractor has made a material misrepresentation of fact to the City while
performing its obligations under this Agreement.
15.7 Contractor has assigned this Agreement without the City's prior written consent.
15.8 Notwithstanding the aforementioned, in the event of a default by Contractor, the
City shall have the right to exercise any other remedy the City may have by operation of law,
without limitation, and without any further demand or notice.
16.0 TERMINATION
16.1 Notwithstanding any other provision of this Agreement, City may, upon written
notice to Contractor, terminate this Agreement, without penalty, if: (a) Contractor is in default
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pursuant to paragraph 15.0 Default; (b) Contractor makes a general assignment for the benefit of
its creditors; or(c)Contractor fails to comply with any condition or provision of this Agreement.
In addition, either party may terminate for convenience with no penalty at any time upon thirty
(30) days advance written notice. In the event of such termination, City shall be liable only for
the payment of all unpaid charges, determined in accordance with the provisions of this
Agreement, for Work properly performed prior to the effective date of termination.
17.0 FORCE MAJEURE
17.1 Any delay or failure of either party in the performance of its required obligations
hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm;
explosion;riot; war; sabotage; strikes; extraordinary breakdown of or damage to City's affiliates'
generating plants,their equipment or facilities;court injunction or order;federal and/or state law
or regulation; order by any regulatory agency; or cause or causes beyond the reasonable control
of the party affected;provided that prompt notice of such delay is given by such party to the other
and each of the parties hereunto shall be diligent in attempting to remove such cause or causes.
If any circumstance of Force Majeure remains in effect for sixty days,either party may terminate
this Agreement.
18.0 GOVERNING LAW & VENUE
18.1 This Agreement is made and shall be interpreted, construed, governed and
enforced in accordance with the laws of the State of Florida. Venue for any state action or
litigation shall be Brevard County, Florida. Venue for any federal action or litigation shall be
Orlando, Florida.
19.0 HEADINGS
19.1 Paragraph headings are for the convenience of the parties only and are not to be
construed as part of this Agreement.
20.0 SEVERABILITY
20.1 In the event any portion or part thereof of this Agreement is deemed invalid,
against public policy, void or otherwise unenforceable by a court of law, the parties shall
negotiate an equitable adjustment in the affected provision of this Agreement. The validity and
enforceability of the remaining parts of this Agreement shall otherwise be fully enforceable.
21.0 WAIVER AND ELECTION OF REMEDIES
21.1 Waiver by either party of any terms or provision of this Agreement shall not be
considered a waiver of that term, condition or provision in the future.
21.2 No waiver, consent or modification of any of the provisions of this Agreement
shall be binding unless in writing and signed by a duly authorized representative of each party
hereto.
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22.0 THIRD PARTY RIGHTS
22.1 Nothingin this Agreement shall be construed togive anyrights or benefits to
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anyone other than City and Contractor.
23.0 PROHIBITION AGAINST CONTINGENT FEES
23.1 Contractor warrants that it has not employed or retained any company or person,
other than a bona fide employee working solely for the Contractor, to solicit or secure this
Agreement,and that it has not paid or agreed to pay any person,company,corporation,individual
or firm,other than a bona fide employee working solely for the Contractor,any fee, commission,
percentage, gift or other consideration contingent upon or resulting from the award or making of
this Agreement.
24.0 ENTIRE AGREEMENT
24.1 This Agreement including any Schedules, Attachments,Appendices and Exhibits
attached hereto, constitutes the Entire Agreement between City and Contractor with respect to
the Services specified and all previous representations relative thereto, either written or oral, are
hereby annulled and superseded.
25.0 NO JOINT VENTURE
25.1 Nothing herein shall be deemed to create a joint venture or principal—agent
relationship between the parties, and neither party is authorized to, nor shall either party act
toward third persons or the public in any manner which would indicate any such relationship with
the other.
26.0 ATTORNEY'S FEES
26.1 Should either party bring an action to enforce any of the terms of this Agreement,
the prevailing party shall be entitled to recover from the non-prevailing party the costs and
expenses of such action including, but not limited to, reasonable attorney's fees, whether at
settlement,trial or on appeal.
27.0 COUNTERPARTS
27.1 This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be considered an Original Agreement;but such counterparts
shall together constitute but one and the same instrument.
28.0 DRAFTING
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28.1 City and Contractor each represent that they have both shared equally in drafting
this Agreement and no party shall be favored or disfavored regarding the interpretation of this
Agreement in the event of a dispute between the parties.
29.0 NOTICE
29.1 Any notices required to be given by the terms of this Agreement shall be delivered
by hand or mailed,postage prepaid to:
For Contractor:
Mary Rebekah McLain
310 Taylor Avenue
Apt. C19
Cape Canaveral, FL 32920
(410) 800-3709
m.rebekah.mclain@gmail.com
For City:
City of Cape Canaveral
Attention: City Manager
P. O. Box 326
100 Polk Avenue
Cape Canaveral, FL 32920
(321) 868 -1220 Phone
(321) 868 -1224 Fax
29.2 Either party may change the notice address by providing the other party written
notice of the change.
30.0 SOVEREIGN IMMUNITY
30.1 Notwithstanding any other provision set forth in this Agreement, nothing
contained in this Agreement shall be construed as a waiver of the City's right to Sovereign
Immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's
potential liability under state or federal law. As such, the City shall not be liable under this
Agreement for punitive damages or interest for the period before judgment.Further,the City shall
not be liable for any claim or judgment, or portion thereof, to any one person for more than two
hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof, which,
when totaled with all other claims or judgments paid by the State or its agencies and subdivisions
arising out of the same incident or occurrence,exceeds the sum of three hundred thousand dollars
($300,000.00). This paragraph shall survive termination of this Agreement.
31.0 INDEMNIFICATION
31.1 Contractor shall indemnify and hold harmless the City, and its officers(including
its City Attorneys) and employees, from liabilities, damages, losses and costs including, but not
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limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness or
intentionally wrongful conduct of the Contractor and other persons employed by the Contractor
or by Contractor's breach and caused by other persons employed by the Contractor in the
performance of the Agreement.
32.0 CONTRACTOR'S PERSONNEL CONDUCTING WORK ON BEHALF
OF THE CITY
32.1 The presence or duties of Contractor's personnel conducting work on behalf of the
City, whether as onsite representatives or otherwise, do not make Contractor or Contractor's
personnel in any way responsible for those duties that belong to City or other entities. Contractor
and Contractor's personnel have no authority to exercise any control over any contractor or other
entity or their employees in connection with their work or any health or safety precautions and
have no duty for inspecting, noting, observing, correcting or reporting on health or safety
deficiencies of any other entity or any other persons except Contractor's own personnel.
33.0 ADDITIONAL ASSURANCES
33.1 The Contractor certifies that:
a. It is not presently debarred, suspended, proposed for debarment, declared
ineligible or voluntarily excluded from participation in any activity by any federal, state or local
governmental commission, department, corporation, subdivision, or agency;
b. It has not employed or otherwise provided compensation to any employee or
officer of the City; and;
c. It has not willfully offered an employee or officer of the City any pecuniary or
other benefit with the intent to influence the employee or officer's official action or judgment.
IN WITNESS WHEREOF,the parties hereto caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
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CONTRACTOR:
Mary Rebekah McLain
GS• Gi 20�r
Mary Rebekah McLain
State of Florida o
County of Brevard 1
nt,66.
Sworn to and subscril d-�in--�y presence this / day of tpfi 018, by Mary Rebekah
McLain, whopersonally knowt me or produced the following as identification:
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Notary
Seal:
/e.,,, JANE E.ROSS
� ;... MY COMMISSION M FF 152567
EXPIRES:September
o,2018
- , Bonded UdItwrit
CITY:
CITY OF CAPE CANAVERAL
David L. Greene, City Manager
ATTEST:
/
Mia Goforth, City Cler
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