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.
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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.
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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
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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
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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.
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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
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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.
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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,
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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
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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
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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 $125,000.
l. Environqrent and Natural Resources:
Through thc Kcy Biscayne Citizen Scientist Project promote the protection of natural
resources through education, information, and advocacy; this includes administration and
coordination of partner efforts, stafftime. materials and supplies.
2. Civic Engagcment and Anti-bullying:
Through the Village of Empathy promote good citizcnry through programming that
educates about the rights and responsibilities of citizenship; this includes administration ol'
programming, staff time, materials.
3. Arts and Culturc:
Culrural programnring: augrncnt currcnt programming rvith thc bcst local playwrights,
musicians, artists, writers, etc.; this includes adrninistration of events, marketing 1o
community, staff time. materials and supplies.
4. Commurrity informatlon. workshops. and town halls:
Commtrnity news and information: provide monthly information on social. cultural, and
communify events for all organizations; administration of design & marketing, staff tirne,
materials and supplies. Community forums: advocate locally on issues that benefit the
community through town halls meetings, constant contact, and social media. This includes
administration of events.
5.:
Administration of project including income and expenses of community groups that
receive municipal funding for programmatic services to the community.
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6. Quet+rnerrela{pniretnled.tolopfll.trlp$[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.
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