HomeMy Public PortalAbout2018 D Squared Engineering AgreementPROFESSIONAL SERVICES AGREEMENT BETWEEN
THE VILLAGE OF KEY BISCAYNE AND D SQUARED ENGINEERING, LLC
THIS AGREEMENT (this "Agreement") is made effective as of the ELI day of
Yam , 2018 (the "Effective Date"), by and between the VILLAGE OF KEY
BISCA E, FLORIDA, a Florida municipal corporation, whose principal address is 88 West
McIntyre Street, Key Biscayne, Florida 33149 (hereinafter the "Village"), and D Squared
Engineering, a Florida limited liability company address is 328 Crandon Blvd 206, Key
Biscayne, FL 33149 (hereinafter the "Consultant").
WHEREAS, the Consultant will review and provide consultation as to the Village's
management, services, and infrastructure relating to its sustainability (the "Services"); and
WHEREAS, the Consultant and Village, through mutual negotiation, have agreed upon a
fee for the Services; and
WHEREAS, the Village desires to engage the Consultant to perform the Services and
provide the deliverables as specified below.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the Consultant and the Village agree as follows:
1. Scope of Services.
1.1 Consultant shall provide the Services set forth in the proposal attached
hereto as Exhibit "A" and incorporated herein by reference.
1.2 Consultant shall furnish all reports, documents, information obtained
pursuant to this Agreement, and recommendations as set forth in the
schedule of deliverables ("Schedule of Deliverables"), attached hereto as
Exhibit "B" and incorporated herein by reference therein (hereafter
"Deliverables").
2.
3.
Term/Commencement Date.
2.1 This Agreement shall become effective upon the Effective Date and shall
remain in effect for twelve (12) months thereafter, unless earlier
terminated in accordance with Paragraph 8.
2.2 Consultant agrees that time is of the essence and Consultant shall
complete the Services within the timeframes set forth in the Schedule of
Deliverables, unless extended by the Village Manager.
Compensation and Payment.
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3.1 Compensation for Services provided by Consultant shall be in accordance
with the proposal attached hereto as Exhibit "A."
3.2 Consultant shall deliver an invoice to Village no more often than once per
month detailing Services completed and the amount due to Consultant under
this Agreement. Fees shall be paid in arrears each month, pursuant to
Consultant's invoice, which shall be based upon the percentage of work
completed for each task invoiced. The Village shall pay the Consultant in
accordance with the Florida Prompt Payment Act after approval and
acceptance of the Services by the Village Manager.
4. Subconsultants.
4.1 The Consultant shall be responsible for all payments to any subconsultants
and shall maintain responsibility for all work related to the Services.
4.2 Consultant may only utilize the services of a particular subconsultant with
the prior written approval of the Village Manager, which approval shall be
in Village Manager's sole and absolute discretion.
5. Village's Responsibilities
5.1 Village shall make available any staff, representatives, and provide criteria
requested by Consultant to assist Consultant to review and provide
recommendations regarding the sustainability of the Village's operations.
5.2 Upon Consultant's request, Village shall reasonably cooperate in
arranging access to public information that may be required for Consultant
to perform the Services.
6. Consultant's Responsibilities
6.1 The Consultant shall exercise the same degree of care, skill and diligence
in the performance of the Services as is ordinarily provided by a
consultant under similar circumstances. If at any time during the term of
this Agreement or within two (2) years from the completion of this
Agreement, it is determined that the Consultant's Deliverables or Services
are incorrect, not properly rendered, defective, or fail to conform to
Village requests, the Consultant shall at Consultant's sole expense,
immediately correct its Deliverables or Services.
6.2 The Consultant hereby warrants and represents that at all times during the
term of this Agreement it shall maintain in good standing all required
licenses, certifications and permits required under Federal, State and local
laws applicable to and necessary to perform the Services for Village as an
independent contractor of the Village.
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7. Conflict of Interest.
7.1 To avoid any conflict of interest or any appearance thereof, Consultant
shall not, for the term of this Agreement, provide any consulting services
to any private sector entities (developers, corporations, real estate
investors, etc.), with any current, or foreseeable, adversarial issues in the
Village.
8. Termination.
8.1 The Village Manager, without cause, may terminate this Agreement upon
five (5) calendar days written notice to the Consultant, or immediately
with cause.
8.2 Upon receipt of the Village's written notice of termination, Consultant
shall immediately stop work on the project unless directed otherwise by
the Village Manager.
8.3 In the event of termination by the Village, the Consultant shall be paid for
all work accepted by the Village Manager up to the date of termination,
provided that the Consultant has first complied with the provisions of
Paragraph 8.4.
8.4 The Consultant shall transfer all books, records, reports, working drafts,
documents, maps, and data pertaining to the Services and the project to the
Village, in a hard copy and electronic format within fourteen (14) days
from the date of the written notice of termination or the date of expiration
of this Agreement.
9. Insurance.
9.1 Consultant shall secure and maintain throughout the duration of this RFP
and agreement, if selected, insurance of such types and in such amounts
not less than those specified below as satisfactory to Village, naming the
Village as an Additional Insured, underwritten by a firm rated A -X or
better by A.M. Best and qualified to do business in the State of Florida.
The insurance coverage shall be primary insurance with respect to the
Village, its officials, employees, agents and volunteers naming the Village
as additional insured. Any insurance maintained by the Village shall be in
excess of the Consultant's insurance and shall not contribute to the
Consultant's insurance. The insurance coverages shall include at a
minimum the amounts set forth in this section and may be increased by the
Village as it deems necessary or prudent.
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a. Commercial General Liability coverage with limits of liability
of not less than a $1,000,000 per Occurrence combined single
limit for Bodily Injury and Property Damage. This Liability
Insurance shall also include Completed Operations and Product
Liability coverages and eliminate the exclusion with respect to
property under the care, custody and control of Consultant.
The General Aggregate Liability limit and the
Products/Completed Operations Liability Aggregate limit shall
be in the amount of $2,000,000 each.
b. Workers Compensation and Employer's Liability insurance, to
apply for all employees for statutory limits as required by
applicable State and Federal laws. The policy(ies) must include
Employer's Liability with minimum limits of $1,000,000.00
each accident. No employee, subcontractor or agent of the
Consultant shall be allowed to provide Services pursuant to this
RFP who is not covered by Worker's Compensation insurance.
c. Business Automobile Liability with minimum limits of
$1,000,000 per Occurrence, combined single limit for Bodily
Injury and Property Damage. Coverage must be afforded on a
form no more restrictive than the latest edition of the Business
Automobile Liability policy, without restrictive endorsements,
as filed by the Insurance Service Office, and must include
Owned, Hired, and Non -Owned Vehicles.
d. Professional Liability Insurance in an amount of not less than
One Million Dollars ($1,000,000.00) per occurrence, single
limit.
9.2 Certificate of Insurance. Certificates of Insurance shall be provided to
the Village, reflecting the Village as an Additional Insured (except with
respect to Professional Liability Insurance and Worker's Compensation
Insurance), no later than ten (10) days after award of this Agreement and
prior to the execution of this Agreement by Village and prior to
commencing Services. Each certificate shall include no less than (30)
thirty -day advance written notice to Village prior to cancellation,
termination, or material alteration of said policies or insurance. The
Consultant shall be responsible for assuring that the insurance certificates
required by this Section remain in full force and effect for the duration of
this Agreement, including any extensions or renewals that may be granted
by the Village. The Certificates of Insurance shall not only name the types
of policy(ies) provided, but also shall refer specifically to this Agreement
and shall state that such insurance is as required by this Agreement. The
Village reserves the right to inspect and return a certified copy of such
policies, upon written request by the Village. If a policy is due to expire
prior to the completion of the Services, renewal Certificates of Insurance
shall be furnished thirty (30) calendar days prior to the date of their policy
expiration. Each policy certificate shall be endorsed with a provision that
not less than thirty (30) calendar days' written notice shall be provided to
the Village before any policy or coverage is cancelled or restricted.
Acceptance of the Certificate(s) is subject to approval of the Village.
9.3 Additional Insured. Except with respect to Professional Liability
Insurance and Worker's Compensation Insurance, the Village is to be
specifically included as an Additional Insured for the liability of the
Village resulting from Services performed by or on behalf of the
Consultant in performance of this Agreement. The Consultant's
insurance, including that applicable to the Village as an Additional
Insured, shall apply on a primary basis and any other insurance maintained
by the Village shall be in excess of and shall not contribute to the
Consultant's insurance. The Consultant's insurance shall contain a
severability of interest provision providing that, except with respect to the
total limits of liability, the insurance shall apply to each Insured or
Additional Insured (for applicable policies) in the same manner as if
separate policies had been issued to each.
9.4 Deductibles. All deductibles or self -insured retentions must be declared
to and be reasonably approved by the Village. The Consultant shall be
responsible for the payment of any deductible or self -insured retentions in
the event of any claim.
9.5 The provisions of this section shall survive termination of this Agreement.
10. Nondiscrimination.
10.1 During the term of this Agreement, Consultant shall not discriminate
against any of its employees or applicants for employment because of their
race, color, religion, sex, or national origin, and to abide by all Federal and
State laws regarding nondiscrimination
11. Attorneys Fees and Waiver of Jury Trial.
In the event of any litigation arising out of this Agreement, the prevailing
party shall be entitled to recover its attorneys' fees and costs, including the
fees and expenses of any paralegals, law clerks and legal assistants, and
including fees and expenses charged for representation at both the trial and
appellate levels.
11.2 In the event of any litigation arising out of this Agreement, each party
hereby knowingly, irrevocably, voluntarily and intentionally waives its
right to trial by jury.
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12. Indemnification.
12.1 Consultant shall indemnify and hold harmless the Village, its officers,
agents and employees, from and against any and all demands, claims,
losses, suits, liabilities, causes of action, judgment or damages, arising
from Consultant's performance or non-performance of any provision of
this Agreement, including, but not limited to, liabilities arising from
contracts between the Consultant and third parties made pursuant to this
Agreement. Consultant shall reimburse the Village for all its expenses
including reasonable attorneys' fees and costs incurred in and about the
defense of any such claim or investigation and for any judgment or
damages arising from Consultant's performance or non-performance of
this Agreement.
12.2 The provisions of this section shall survive termination of this Agreement.
13.
Notices/Authorized Representatives.
13.1 Any notices required by this Agreement shall be in writing and shall be
deemed to have been properly given if transmitted by hand -delivery, by
registered or certified mail with postage prepaid return receipt requested,
or by a private postal service, addressed to the parties (or their successors)
at the following addresses:
For the Village:
With a copy to:
John C. Gilbert
Village Manager
Village of Key Biscayne
88 West McIntyre Street
Key Biscayne, FL 33149
Chad Friedman, Esq.
Village Attorney
Weiss Serota Helfman Cole & Bierman, P.A.
2525 Ponce de Leon Blvd., Suite 700
Coral Gables, Florida 33134
For The Consultant: D Squared Engineering LLC
328 Crandon Blvd., Suite 206
Key Biscayne, FL 33149
Attn: Derek Duzoglou
14. Governing Law and Venue.
14.1 This Agreement shall be construed in accordance with and governed by
the laws of the State of Florida. Venue for any proceedings arising out of
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this Agreement shall be proper exclusively in Miami -Dade County,
Florida.
15.
Entire Agreement/Moditication/Amendment.
15.1 This writing contains the entire Agreement of the parties and supercedes
any prior oral or written representations. No representations were made or
relied upon by either party, other than those that are expressly set forth
herein.
15.2 No agent, employee, or other representative of either party is empowered
to modify or amend the terms of this Agreement, unless executed with the
same formality as this document.
15.3 Consultant represents that is an entity validly existing and in good
standing under the laws of Florida. The execution, delivery and
performance of this Agreement by Consultant have been duly authorized,
and this Agreement is binding on Consultant and enforceable against
Consultant in accordance with its terms. No consent of any other person
or entity to such execution, delivery and performance is required.
16. Ownership and Access to Records and Audits.
16.1 Consultant acknowledges that all inventions, innovations, improvements,
developments, methods, designs, analyses, drawings, reports and all
similar or related information (whether patentable or not) which relate to
Services to the Village which are conceived, developed or made by
Consultant during the term of this Agreement ("Work Product") belong to
the Village. Consultant shall promptly disclose such Work Product to the
Village and perform all actions reasonably requested by the Village
(whether during or after the term of this Agreement) to establish and
confirm such ownership (including, without limitation, assignments,
powers of attorney and other instruments).
16.2 Consultant agrees to keep and maintain public records in Consultant's
possession or control in connection with Consultant's performance under
this Agreement. Consultant additionally agrees to comply specifically
with the provisions of Section 119.0701, Florida Statutes. Consultant
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, and following
completion of the Agreement until the records are transferred to the
Village.
16.3 Upon request from the Village's custodian of public records, Consultant
shall provide the Village with a copy of the requested records or allow the
records to be inspected or copied within a reasonable time at a cost that
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does not exceed the cost provided by Chapter 119, Florida Statutes, or as
otherwise provided by law.
16.4 Unless otherwise provided by law, any and all records, including but not
limited to reports, surveys, and other data and documents provided or
created in connection with this Agreement are and shall remain the
property of the Village.
16.5 Upon completion of this Agreement or in the event of termination by
either party, any and all public records relating to the Agreement in the
possession of the Consultant shall be delivered by the Consultant to the
Village Manager, at no cost to the Village, within seven (7) days. All such
records stored electronically by Consultant shall be delivered to the
Village in a format that is compatible with the Village's information
technology systems. Once the public records have been delivered upon
completion or termination of this Agreement, the Consultant shall destroy
any and all duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements.
16.6 Any compensation due to Consultant shall be withheld until all records are
received as provided herein.
16.7 Consultant's failure or refusal to comply with the provisions of this
section shall result in the immediate termination of this Agreement by the
Village.
Section 119.0701(2)(a), Florida Statutes
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 CONTRACT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS.
Custodian of Records:
Mailing address:
Telephone number:
Email:
17. Nonassignability.
Jennifer Medina,
88 West McIntyre Street
Key Biscayne, FL 33149
305-365-5506
j dug ue(aikevbiscavne.fl.aov
17.1 This Agreement shall not be assignable by Consultant unless such
assignment is first approved by the Village Manager. The Village is
relying upon the apparent qualifications and expertise of the Consultant,
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and such firm's familiarity with the Village's area, circumstances and
desires.
18. Severability.
18.1 If any term or provision of this Agreement shall to any extent be held
invalid or unenforceable, the remainder of this Agreement shall not be
affected thereby, and each remaining term and provision of this
Agreement shall be valid and be enforceable to the fullest extent permitted
by law.
19. Independent Contractor.
19.1 The Consultant and its employees, volunteers and agents shall be and
remain an independent contractor and not an agent or employee of the
Village with respect to all of the acts and services performed by and under
the terms of this Agreement. This Agreement shall not in any way be
construed to create a partnership, association or any other kind of joint
undertaking, enterprise or venture between the parties.
20. Compliance with Laws.
20.1 The Consultant shall comply with all applicable laws, ordinances, rules,
regulations, and lawful orders of public authorities in carrying out
Services under this Agreement, and in particular shall obtain all required
permits from all jurisdictional agencies to perform the Services under this
Agreement at its own expense.
21. Waiver
21.1 The failure of either party to this Agreement to object to or to take
affirmative action with respect to any conduct of the other which is in
violation of the terms of this Agreement shall not be construed as a waiver
of the violation or breach, or of any future violation, breach or wrongful
conduct.
22. Survival of Provisions
22.1 Any terms or conditions of either this Agreement that require acts beyond
the date of the term of the Agreement, shall survive termination of the
Agreement, shall remain in full force and effect unless and until the terms
or conditions are completed and shall be fully enforceable by either party.
23. Prohibition of Contingency Fees.
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23.1 The Consultant warrants that it has not employed or retained any company
or person, other than a bona fide employee working solely for the
Consultant, to solicit or secure this Agreement, and that it has not paid or
agreed to pay any person(s), company, corporation, individual or firm,
other than a bona fide employee working solely for the Consultant, any
fee, commission, percentage, gift, or any other consideration, contingent
upon or resulting from the award or making of this Agreement.
24.
Public Entity Crimes Affidavit
24.1 Consultant shall comply with Section 287.133, Florida Statutes (Public
Entity Crimes Statute), notification of which is hereby incorporated herein
by reference, including execution of any required affidavit.
25. Counterparts
25.1 This Agreement may be executed in several counterparts, each of which
shall be deemed an original and such counterparts shall constitute one and
the same instrument.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date
written below their signatures.
CONSULTANT:
D SQUARED ENGINEERING, a Florida
limited liability company
By:
Name: RJ
Title:
Date Executed:
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IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day
and date first above written.
VILLAGE:
VILLAGE OF KEY BISCAYNE, a
Florida municipal corporation
Attest:
By:
Jenni
Medina, illage Cler, , CMC
Approved as to Form and Legal Sufficiency:
By,
Village Attorney
Weiss Serota Helfman Cole & Bierman, P.A.
Jo C. Gilbert, Village anager
D. e E cuted: \iS
4:4
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EXHIBIT "A"
SCOPE OF SERVICES
Scope of Services are those contained in Exhibit "A" to Resolution 2017-48, attached hereto and
incorporated herein by reference.
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EXHIBIT "B"
SCHEDULE OF DELIVERABLES
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