HomeMy Public PortalAbout2008 Agreement - Reso 2008-48.tifRESOLUTION NO. 2008-48
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, APPROVING
PROFESSIONAL SERVICES AGREEMENT BETWEEN THE
VILLAGE OF KEY BISCAYNE AND RON OPRZADEK
CONCERNING HORTICULTURE SERVICES; PROVIDING
FOR IMPLEMENTATION; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the Village Council desires to obtain the professional services of Ron Oprzadek
concerning the provision of horticulture services to the Village; and
WHEREAS, the Village Council finds that approval of the attached Agreement for Professional
Services between Ron Oprzadek and the Village is in the best interest of the Village.
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE VILLAGE COUNCIL OF
THE VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. Recitals Adopted. That each of the recitals stated above is hereby adopted and
confirmed.
Section 2. Agreement Approved. That certain Village of Key Biscayne Agreement for
Professional Services (the "Agreement"), in substantially the form attached hereto, is hereby approved,
and the Village Manager is authorized to execute the Agreement on behalf of the Village, once approved
by the Village Attorney as to form and legal sufficiency.
Section 3. Implementation. That the Village Manager is authorized to take any necessary
action to implement the purposes of this resolution and the Agreement.
Section 4. Effective Date. That this Resolution shall be effective immediately upon
adoption hereof.
PASSED AND ADOPTED this 9th day of September, 2008.
MAYOR ROBERT L. VERNON
CONCHITA H. ALVAREZ, CMC, VILLAGE CLERK
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
C:\OFFICE\WPWIN\RES02O8\Resolution - Professional Services Agreement With Ron Oprazadek (Horticulturist).rtf
VILLAGE OF KEY BISCAYNE
AGREEMENT
FOR
PROFESSIONAL SERVICES
(HORTICULTURIST)
THIS AGREEMENT (this "Agreement") is made effective as of the 9th day of
September, 2008 (the "Effective Date"), by and between the VILLAGE OF KEY BISCAYNE,
a Florida municipal corporation (hereinafter the "Village"), and RON OPRZADEK (hereinafter
the "Consultant").
WHEREAS, the Consultant and Village, through mutual negotiation, have agreed upon a
scope of services, schedule, and fee for professional horticulturist services within the Village;
and
WHEREAS, the Village desires to engage the Consultant to perform the services 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. The Consultant shall furnish such professional services (the "Services") as
described in Exhibit "A" attached hereto and made a part hereof.
2. Term/Commencement Date.
2.1 This Agreement shall become effective upon the Effective Date and shall
remain in effect through September 9th, 2009, unless earlier terminated in
accordance with Paragraph 8.
3. Compensation and Payment.
3.1 The Consultant shall be compensated at an annual rate of Fifty Thousand
Dollars ($50,000). Village shall pay such amount in installments in the
same manner as Village employees are paid.
3.2 In the event of any termination of this Agreement, Village shall not be
liable for any further payments except with respect to those periods in
which Consultant actually performed Services under this Agreement.
4. Assignment.
4.1 This Agreement involves skilled personal services and shall not be
assignable by the Consultant.
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5. Village's Responsibilities
5.1 Village shall make available any maps, plans, existing studies, reports and
other data pertinent to the Services and in possession of the Village.
5.2 Upon Consultant's request in writing, Village shall arrange for access to
any real property as 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 for the Project as is ordinarily provided
by a consultant under similar circumstances.
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 adversarial issues in the Village. For the
purposes of this section "adversarial" shall mean any development
application where staff is recommending denial or denied the application,
or an administrative appeal or court action wherein the Village is a party.
8. Termination.
8.1 The Village Manager, without cause, may terminate this Agreement upon
thirty (30) days written notice to the Consultant, or immediately with
cause.
8.2 Upon receipt of the Village's written notice of termination, Consultant
shall stop work unless directed otherwise by the Village Manager.
8.3 In the event of termination by the Village, the Consultant shall be paid 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 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.
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9. Independent Consultant.
9.1 The parties acknowledge and agree that Consultant is, and shall remain at
all times during the term of the Agreement, an independent contractor.
Consultant and Village agree that Consultant shall not become an
employee, partner, agent, joint venturer or principal of Village.
Accordingly, neither party shall have any authority to represent or bind the
other. Further, Consultant shall not be entitled to the rights and benefits
afforded to Village's employees, including, but not limited to, disability or
unemployment insurance, workers' compensation, medical or disability
insurance, vacation or sick leave or any other employment benefit.
Consultant shall file all tax returns and reports required to be filed by
Consultant on the basis that Consultant is an independent contractor,
rather than an employee, and Consultant shall indemnify the Company for
the amount of any employment taxes paid by the Village as the result of
not withholding employment taxes from the compensation under this
Agreement.
10. Inventions and Patents.
10.1 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).
11. Attorneys Fees and Waiver of Jury Trial
11.1 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 defend, 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 out of, related to, or any way connected with 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 out of,
related to, or in any way connected with 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 at the following
addresses:
For the Village: Genaro " Chip" Iglesias
Village Manager
Village of Key Biscayne
88 West McIntyre Street
Key Biscayne, FL 33149
With a copy to: Stephen J. Helfman, Esq.
Village Attorney
Weiss Serota Helfman Pastoriza
Cole & Boniske, P.L.
2525 Ponce de Leon Blvd.
Coral Gables, Florida 33134
For The Consultant:
rzad
7e42 •
f4 t 1 33 I3 $'
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14. Governing Law.
14.1 This Agreement shall be construed in accordance with and governed by
the laws of the State of Florida. Venue for any litigation arising out of this
Agreement shall be proper exclusively in Miami -Dade County, Florida.
15. Entire Agreement/Modification/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.
16. Ownership and Access to Records and Audits.
16.1 All records, books, documents, maps, data, deliverables, papers and
financial information (the "Records") that result from the Consultant
providing the Services to the Village under this Agreement shall be the
property of the Village.
16.2 The Village Manager or his 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 the Consultant involving transactions related to this
Agreement.
16.3 The Village may cancel and terminate this Agreement immediately for
refusal by the Consultant to allow access by the Village Manager or his
designee to any Records pertaining to work performed under this
Agreement that are subject to the provisions of Chapter 119, Florida
Statutes.
17. Severability.
17.1 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.
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18. Compliance with Laws.
18.1 The Consultant shall comply with all applicable laws, ordinances, rules,
regulations, and lawful orders of public authorities in carrying out
Services under this Agreement.
19. Waiver
19.1 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.
20. Survival of Provisions
20.1 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.
21. Prohibition of Contineencv Fees.
21.1 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.
22. Counterparts
22.1 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.
23. Public Entity Crimes Affidavit
23.1 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.
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24. Insurance.
24.1 Consultant shall secure and maintain throughout the duration of this
Agreement, insurance of such type and in such amounts necessary to
protect its interest and the interest of the Village against hazards or risks of
loss as specified below. The underwriter of such insurance shall be
qualified to do business in Florida, be rated AB or better, and have agents
upon whom service of process may be made in the State of Florida. The
insurance coverage shall be primary insurance with respect to the Village,
its officials, employees, agents and volunteers. 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 a minimum of the amounts set forth in this Section.
24.2 Worker's Compensation and Employer's Liability Insurance. If
applicable, coverage to apply for all employees for statutory limits as
required by applicable State and Federal laws.
24.3 Comprehensive Automobile and Vehicle Liability Insurance. This
insurance shall be written in comprehensive form and shall protect the
Consultant and the Village against claims for injuries to members of the
public and/or damages to property of others arising from the Consultant's
use of motor vehicles or any other equipment and shall cover operation
with respect to onsite and offsite operations and insurance coverage shall
extend to any motor vehicles or other equipment irrespective of whether
the same is owned, non -owned, or hired. The limit of liability shall not be
less than $300,000.00 per occurrence, combined single limit for Bodily
Injury Liability and Property Damage Liability.
24.4 Commercial General Liability. This insurance shall be written in
comprehensive form and shall protect the Consultant and the Village
against claims arising from injuries to members of the public or damage to
property of others arising out of any act or omission to act of the
Consultant or any of its agents, employees, or subcontractors. The limit of
liability shall not be less than $500,000.00 per occurrence, combined
single limit for Bodily Injury Liability and Property Damage Liability.
24.5 Certificate of Insurance. Consultant shall provide the Village Manager
with Certificates of Insurance for all required policies. 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 require the Consultant to provide 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 term of this Agreement, renewal Certificates of
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Insurance or policies 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 Manager.
24.6 Additional Insured. The Village is to be specifically included as an
Additional Insured for the liability of the Village resulting from operations
performed by or on behalf of Consultant in performance of this
Agreement. 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 Consultant's insurance.
24.7 Deductibles. All deductibles or self -insured retentions must be declared
to and be approved by the Village Manager. The Consultant shall be
responsible for the payment of any deductible or self -insured retentions in
the event of any claim.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day
and date first above written.
VILLAGE:
VILLAGE ; • F KE B SCAYNE
By: S.!►'. �►�! �.
Genar s p " Igle ill . ; - Manager
Adwi
Conchita Alvarez, Village Clerk
Approved as to
rm and Legal Sufficiency:
CONSULTANT:
6?-,
RON OP ADEK
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EXHIBIT "A"
THE SERVICES
HORTICULTURIST
Village of Key Biscayne
This position reports to the Village Manager. The horticulturist will be responsible for
supervising the maintenance of landscape in the Village, as well as coordinating with the
maintenance crews.
This position requires knowledge of greenhouse/nursery management, modern biological and
chemical pest control methods, and familiarity:tith how to use native plant species, maintain
ball fields and turf areas and knowledge aitc»triaantenance and operation of irrigation systems.
This Agreement requires working" in phySi011y hallenging conditions, and requires a hands-on
knowledge of job -related maaeria ,gnat itiolal/aultural requirements, pathology and taxonomic
classification of plants in Key, '#`i the, and the ability to work cooperatively with diverse
personalities. ` "'i
Exhibit "A"