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HomeMy Public PortalAbout2020 KB Community Foundation Agreement.pdfPROFESSIONAL SERVICES AGREEMENT BETWEEN THE VILLAGE OF KEY BISCAYNE AND KEY BISCAYNE COMMUNITY FOUNDATION, INC. THIS AGREBMENT (this "Agreement") is made effective as of the l{.e"t of - -5t r nt, , 202A (he "Fflectivs Date"), by and between the VILLAGE OF KEy BISCAYNE' FLORfDA, a Florida municipal corporation, whose principal address is 88 West Mclntyre Street, Key Biscayne, Florida 33149 (hereinafter the "Vllage"), and THE KEY BISCAYNE COMMUNITY F'OUNDATION, INC., a Florida Not-For Profit Corporation, whose address is 88 West Mclntyre Street, Suite 200, Key Biscayne, Florida 33149 (hereinafter, "KBCF"). WHEREAS, KBCF will perform services on behalf of the Village, all as fu*her set forth in the Scope of Services attached hereto as Exhibit "A" (thc "Services," as further defined below); and WHEREAS, KBCF and Village, through mutual negotiation, have agreed upon a fee for the Services; and WHEREAS, the Village desires to engage KBCF to perform the Services NOW THEREFORE, in consideration of the mutual covenants and conditions contained herein, KBCF and the Village agree as follows: 1. Scope ofServices. 1.1. KBCF shall provide the Services set forth in the Scope of Services attached hereto as Exhibit "A" and incorporated herein by reference (the "services"). Additional services may be agreed to in writing between the Village and the KBCF ("Additional Services") for additional fees. l.2.Prior to commencement of any of the Services, the KBCF will receive written approval from the Village Manager. 1.3. KBCF shall furnish all reports, documents, and information obtained pursuant to this Agreement, and recommendations during the term of this Agteement to the Village. 1.4. Prior to the use of the Village's seal or logo, KBCF shall obtain the written consent of the Village Manager. Page I of ll 2. Tbrm/Commencement Date. 2.1. This Agreement shall become effective upon the Effective Date and shall remain in effect for three years thereafter, unless earlier terminated in accordance with Paragraph 8. Additionally, the Village Manager and KBCF may reneq in writing, this Agreement for 2 additional I year periods on the same terms as sct forth herein. 3. Compensaftop,{nd Payment. 3.1. Compensation for Services provided by KBCF shall be in accordance with the Proposal attached hereto as Exhibit "A." Compensation for Additional Services shall be in an amount to be determined in writing by the Village and KBCF. 3.2. KBCF shall deliver an invoice to Village no more often than once per month detailing Services completed and the amount due to KBCF rurder this Agreement. Fees shall be paid in arrears each month, ptusuant to KBCF's invoice, which shall be based upon the percentage of work completed for each task invoiced. The Village shall pay KBCF in accordance with the Florida Prompt Payment Act after approval and acceptance of the Services by the Village Manager. 4. Subconsultants. 4.1. KBCF shall be responsible for all payments to any sub-consultants and shall maintain responsibility for all work related to the Services. 4.2. KBCF may only utilize the services of a particular sub-consultant with the prior written approval of the Village Manager, which approval may not be unreasonably withheld. 5. Village'nRestrnnslbllitics. 5.1. Village shall make available any maps, plans, existing studies, reports, staff and representatives, and other data pertinent to the Services and in possession of the Village, and provide criteria requested by KBCF to assist KBCF in performing the Services. 5.2. Upon KBCF's request, Village shall reasonably cooperate in arranging access to public information that may be required for Consultant to perform the Services. 6. Consultnnttr Responsibllifiesl Renresentatlons and Wsrranties. 6.1. KBCF 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 dwing the term of this Agreement or within two (2) years from the completion of this Agreement, it is determined that KBCF's Services are incorrect, not properly rendered, defective, or fail to conform to Village requests, KBCF shall at KBCF's sole expense, immediately coffect its Services. Page 2 ot'11 6.2. KBCF hereby warrants and represents that at all times dwing 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 conftactor of the Village. KBCF fluther warrants and represents that it has the required knowledge, expertise, and experience to perform dhe Services and carry out its obligations under this Agreement in a professional and first class manner. 6.3. KBCF 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 KBCF have been duly authorized, and this Agreement is binding on KBCF and enforceable against KBCF in accordance with its terms. No consent of any other person or entity to such execution, delivery and performance is required. 7 . Conllict of Interest. To avoid any conflict of interest or any appearance thereof, KBCF 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 or the Consultant, without cause, may terminate this Agreement upon thirty (30) calendar days written notice to KBCF, or immediately with cause. 8.2. Upon receipt of the Village's written notice of termination, KBCF shall immediately stop work on the Services unless directed otherwise by the Village Manager. 8.3. In the event of termination by the Village, the KBCF shall be paid for all work authorized by the Village Manager and performed up to the date of termination, provided that KBCF has first complied with the provisions of Paragraph 8.4. 8.4. KBCF shall transfer all books, recordsn 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, Insurancq. 9.1. KBCF shall secure and maintain throughout the duration of this Agreement insurance of such types and in such amounts not lcss 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 voluntccrs naming thc Village as additional insurcd. Any insurancc maintained by the Village shall be in excess of KBCF's insurance and shall not contribute to KBCFs insurance. The insurance coverages shall include at a minimum the Page3ofll amounts set forth in this section and may be increased by the Village as it deems necessary or prudcnt. 9.l.l.Commercial General Liabilify coverage with limits of liability of not less than a $1,000,000 per Occurrence combined single limit for Bodily ItUury 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 KBCF. The General Aggregate Liability limit and the ProductslCompleted Operations Liability Aggregate limit shall be in the amount of $2,000,000 each. 9,l.2.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 fhe Consultant shall be allowed to provide Services pursuant to this Agreement who is not covered by Worker's Compensation insurance. 9.2. Certitifrfe of Insurance. Certificatcs 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 Mllage prior to cancellation, termination, or material alteration of said policies or insurance. KBCF 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 thirly (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 Vllage. 9.3. Additio4al Insur,ed. Except with respect to Professional Liabilify Insurance and Worker's Compensation Insurance, the Village is to be specifically included as an Additional Inswed for the liability of the Village resulting from Services performed by or otr bchalf of KBCF in performance of this Agreement. KBCFs insurancc, including that applicable to the Village as an Additional lnsured, shall apply on a primary basis and any other insurance maintained by the Village shall be in excess of and shall not Page 4 of ll contribute to KBCFs insurance. KBCF's insurance shall contain a severability of interest provision providing that, except with respect to the total limits of liability, the insuranoe 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. freserved] 9.5. Deductibles. All deductibles or self-insured retentions must be declared to and be reasonably approved by the Village. KBCF shall be responsible for the payment of any deductible or self-insured retentions in the event of any claim. 9.6. The provisions of this section shall survive termination of this Agreement 10. Nondiscrimination. During the term of this Agreement, KBCF 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 tr'ees end Wsiver of Jury THal. 11.l.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, IRREVOCABLX VOLIINTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO TRIAL BY ruRY. 12. Indemnification. 12.1.KBCF shall indemniff 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 KBCF's negligent acts, errors, or omissions arising out of the performance or non-performance of any provision of this Agreement, including, but not limited to, liabilities arising from contracts between KBCF and third parties made pursuant to this Agreement. KBCF shall reimburse the Village for all its expenses including reasonable affomeys' fees and costs incurred in and about the defense of any such claim or investigation and for any judgment or damages arising from KBCF's negligent performance or non-performance of this Agreement. l2.2.Nothing herein is intended to serve as a waiver of sovereign immunity by the Village nor shall anything included herein be construed as consent to be sued by third parties in any matter arising out of this Agreement or any other contract. The Village is subject to section 768.28, Florida Statutes, as may be amended from time to time. Page 5 of 1l 12,3.The provisions of this section shall survive termination of this Agreement. 13. Nodces/Authorized Representedves. 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:AndreaAgha Village Manager Village of Key Biscayne 88 West Mclntyre Street Key Biscayne,FL33149 With a copy to:Chad Friedman, Esq. Village Attorney Weiss Serota Helfrnan Cole & Bierman, P.L. 2525 Ponce de Leon Blvd., Suite 700 Coral Gables, FL 33134 For the Consultant:Key Biscayne Comnrunity Foundation, Inc. Attn: Melissa White 88 West Mclntyre Street, Suite 200 Key Biscayne,FL33L49 14. Governlnq Law qnd Venue. 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 this Agreement shall be proper exclusively in Miami-Dade County, Florida. I 5. Entire A.sreement/Modificetion/Amendment. 15.1.This writing contains the entireAgreement of the parties and supersedes any prior oral or written representations. No representations were made or relied upon by either parfy, other than those that are expressly set forth herein. l5.2.No agent, employee, or other representative of either party is empowered to modiff or amend the terms of this Agreement, unless executed with the same formality as this document. 16. Use snd Access to Records and Audits. 16.I.KBCF acknowledges that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports, compiled information, and all similar or rclatcd information (whether patentable or not) which are specifically created as a part of the Services to the Village and whioh are conceived, developed or made by I(BCF Page 6 of ll during the term of this Agreement ("Work Product") can be used, copied, and displayed by the Village. KBCF 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 use. I6.2.KBCF agrees to keep and maintain public records in KIICF's possAssion or control in connection with KBCF's performance under this Agreement. The Village Manager or her designee shall, during the term of this Agreement and for a period of three (3) years from the date of termination of this Agreement, have access to and the right to examine and audit any records of KBCF involving transactions related to this Agreement. KBCF additionally agrees to comply specifically with the provisions of Section 119.0701, Florida Statutes. KBCF shall ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as atrthorized by law, for the duration of the Agrcement, 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, KBCF 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 does not exceed the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law 16.4. [reserved] 16.5.Upon completion of this Agreement or in the event of termination by either pafi, any and all public records relating to the Agreement in the possession of KBCF shall be delivered by I(BCF to the Village Manager, at no cost to the Village, within seven (7) days. All such records stored electronically by KBCF 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, KBCF 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 KBCF shall be withheld until all records are received as provided herein. 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. l6.7.Notice Pursuant to Section 119.0701(2Xa). Florida Statutes. IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLTCATION OF CHAPTER 119, FLORTDA STATUTES, TO TIIE CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREf,EMENT, CONTACT THE CUSTODTAN OF PUBLIC RECORDS. Page 7 of 11 Custodian of Records: Peter J. Kulpa Mailing address: 88 West Mclntyre Street Key Biscayne, FL 33149 Telephone number: 305-365-5506 Email: 17. Nonssslenrbility, This Agreement shall not be assignable by KBCF unless such assignment is first approved by the Village Manager. The Village is relying upon the apparent qualifications and expertise of the Consultant, and such firm's familiarity with the Village's area, circumstances and desires. 18. $everabititv. 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 thcreby, and each remaining term and provision of this Agreement shall be valid and be enforceable to the fullest cxtent permittcd by law. tg.Indeoendent Contractor. KBCF 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 ofjoint undertaking, enterprise or venture between the parties. 20. Comnlinnce with Laws. KBCF 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. Wrivcr. 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 brcach, or of any future violation, breach or wrongful conduct. 22. Survival of Provisions. 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 fulI force and effect unless and until the terms or conditions are completed and shall be fully enforceable by either party. 23. Prohibition of Continqencv Fees, KBCF warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for KBCF, to solicit or secure this Agreement, and that it has not paid or agreed to pay any person(s), company, Page I of lt corporation, individual or firm, other than a bona fide employee working sotely 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 r'-ntity Crlmes Alfidavlt KBCF 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 affrdavit. 25. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original and such counterparts shall constifute one and the same instrument. [Remainder of page intentionally left blank. Signature pages fotlow.l Page 9ofll IN WITNESS WHEREOF the parties hereto have executed thisAgreement as of the date written below their signatures. FOR KBCF: KEY BISCAYNE COMMIINITY FOUNDATION, INC., a Florida Corporation Name: Title: Whitp Date Executed:lTr're- lZ ,?-orc FOR THE WLLAGE: VILLAGE OF KEY BISCAYNE, a Florida Municipal Corporation By: IA]tABy: Andrea Agha, Village Manager Date Attest: By: Peter Clerk, CMC Approved as to Form andLegal Suffrciency: dfu t By: Weiss Serota Helfman Cole & Bierman, P.L. VillageAttomey Page l0 of 11 Page ll ofll EXHIBIT "A'' SCOPE OF SERVICES The Scope of Services to be provided by Consultant to the Village are itemized below. The fee to the Consultant for the services referenced below is $125,000. l. Environqrent and Natural Resources: Through thc Kcy Biscayne Citizen Scientist Project promote the protection of natural resources through education, information, and advocacy; this includes administration and coordination of partner efforts, stafftime. materials and supplies. 2. Civic Engagcment and Anti-bullying: Through the Village of Empathy promote good citizcnry through programming that educates about the rights and responsibilities of citizenship; this includes administration ol' programming, staff time, materials. 3. Arts and Culturc: Culrural programnring: augrncnt currcnt programming rvith thc bcst local playwrights, musicians, artists, writers, etc.; this includes adrninistration of events, marketing 1o community, staff time. materials and supplies. 4. Commurrity informatlon. workshops. and town halls: Commtrnity news and information: provide monthly information on social. cultural, and communify events for all organizations; administration of design & marketing, staff tirne, materials and supplies. Community forums: advocate locally on issues that benefit the community through town halls meetings, constant contact, and social media. This includes administration of events. 5.: Administration of project including income and expenses of community groups that receive municipal funding for programmatic services to the community. Page 12 of l1 6. Quet+rnerrela{pniretnled.tolopfll.trlp$[o.fFffonDlpsrem4lna: Adminishation of customer service relationship with residents and visitors: cornplaints, cornments, changes; this includes all staff time, materials and supplies. This Service shall terminate upon the Village executing its agreement with a transportation services provider. 7. Addlffonrl Servicos,: Additional Services may be agreed to in writing between the Village and the KBCF for additional fees. Page 13 of ll