HomeMy Public PortalAbout2019 Agreement for Professional Services.pdfPROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE VILLAGE OF KEY BISCAYNE
AND
SMART -SCIENCES, INC
THIS AGREEMENT (this "Agreement ) is made effective as of the day of
, 2019 (the Effective Date ), by and between the VILLAGE OF KEY
BISCAYNE, FLORIDA, a Florida municipal corporation whose principal address is 88 West
McIntyre Street Key Biscayne Florida 33149 (hereinafter the Village') and SMART -
SCIENCES, INC a Florida Corporation whose address is 330 SW 27th Avenue Suite 504
Miami Florida 33135 (hereinafter the ` Consultant )
WHEREAS the Village desires for Consultant to perform a Florida Bonneted Bat roost
survey and
'WHEREAS the Consultant will perform services on behalf of the Village all as further
set forth in the Proposal dated October 14 2019, attached hereto as Exhibit A (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 (the Services )
1 2 Consultant shall furnish all reports documents and information obtained pursuant to this
Agreement and recommendations during the term of this Agreement (hereinafter
Deliverables ) to the Village
2 Term/Commencement Date
21 The term of this Agreement shall be from the Effective Date through two (2) 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 term of this Agreement, unless extended by the Village Manager
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3 Compensation and Payment
31 Compensation for Services provided by Consultant shall be in accordance with the Proposal
attached hereto as Exhibit A Consultant shall be compensated a flat rate lump sum fee
in the amount of $4 000 00
32 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
41 The Consultant shall be responsible for all payments to any subconsultants and shall
maintain responsibility for all work related to the Services
42 Consultant may only utilize the services of a particular subconsultant with the prior written
approval of the Village Manager, which approval may be granted or withheld in the
Village Manager s sole and absolute discretion
5 Village's Responsibilities
51 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 Consultant to assist Consultant in performing the
Services
52 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, Representations and Warranties
61 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
62 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 Consultant further warrants
and represents that it has the required knowledge, expertise and experience to perform the
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Services and carry out its obligations under this Agreement in a professional and first class
manner
6 3 The 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
7 Conflict of Interest
71 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 pertammg 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 wntten 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 agreement 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
9 1 1 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
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Damage This Liability Insurance shall also mclude 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
9 1 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 the Consultant shall be allowed
to provide Services pursuant to this Agreement who is not covered by Worker s
Compensation insurance
9 1 3 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
9 1 4 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 hability 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
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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 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 ongm and to abide by all Federal and State laws regarding nondiscrimination
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
112 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
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 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 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 negligent performance or non performance of this Agreement
12 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
12 3 The provisions of this section shall survive termination of this Agreement
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13. Notices/Authorized Representatives. 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 addresses listed on the signature
page of this Agreement or such other address as the party may have designated by proper
notice.
14. Governing Law and 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.
15. Entire Agreement/Modification/Amendment.
15.1. This writing contains the entire Agreement of the parties and supersedes 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. Consultant acknowledges that all inventions, innovations, improvements,
developments, methods, designs, analyses, drawings, reports, compiled information, 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. 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 the Consultant involving transactions related to 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 does not exceed the cost
provided by Chapter 119, Florida Statutes, or as otherwise provided by law.
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16 4 Unless otherwise provided by law any and all records mcludmg 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
16 8 Notice Pursuant to Section 119 0701(2)(a), Florida Statutes IF THE
CONSULTANT HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEEMENT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS
Custodian of Records
Mailing address
Telephone number
Email
Jennifer Medina, CMC
88 West McIntyre Street
Key Biscayne, FL 33149
305-365-5506
lmedtna@keybiscayne 11 gov
17 Nonassignability 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 and such firm s familiarity with the Village s
area, circumstances and desires
18 Severability 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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19 Independent Contractor 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 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 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 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 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 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 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
[Remainder of page intentionally left blank Signature pages follow ]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the day and year as first stated above.
VILLAGE OF KEY BISCAYNE
By:
Andrea Agha
Village Manager
Attest:
By:
Jenner Medi a, CMC
Village Clerk
Approved as to form and legal sufficiency:
By:
Weiss Serota Helfman Cole & Bierman, P.L.
Village Attorney
Addresses for Notice:
Addresses for Notice:
Village of Key Biscayne
Attn: Village Manager
88 West McIntyre Street
Key Biscayne, FL 33149
305-365-5514 (telephone) (telephone)
305-365-8936 (facsimile) (facsimile)
aagha@keybiscayne.fl.gov (email) (email)
SMART -SCIENCES, INC.
Name:
Title: S/,0'e./f
With a copy to: With a copy to:
Weiss Serota Helfman Cole & Bierman, P.L.
Attn: Chad Friedman, Esq.
Village of Key Biscayne Attorney
2525 Ponce de Leon Boulevard, Suite 700
Coral Gables, FL 33134 (telephone)
cfriedman@wsh-law.com (email) (facsimile)
(email)
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EXHIBIT "A"
SCOPE OF SERVICES
The Scope of Services are those contained in the Proposal dated October 14 2019 attached hereto
and Incorporated herein by reference
Page 10 of 11
EXHIBIT "A"
SCOPE OF SERVICES
Page 11 of 11
Lirbar?
SMART -SCIENCES
Environmental Consulting
October 14, 2019
Mr. Jake Ozyman, P.E.
Village of Key Biscayne
88 West McIntyre Street
Key Biscayne, Florida 33149
Subject: Proposal for Florida Bonneted Bat Roost Survey
Village of Key Biscayne Safe Routes to Schools
Vicinity of Key Biscayne K-8 Center
Key Biscayne, Miami -Dade County, Florida
Smart -Sciences Proposal No. 175-001-P
Dear Mr. Ozyman:
Smart -Sciences, Inc. (Smart -Sciences) is pleased to submit this proposal to the Village of Key Biscayne
(Village, Client) for conducting a roost survey for Florida bonneted bat (Eumops floridanus, FBB), a species
listed under the Endangered Species Act (ESA, 1973), in accordance with U.S. Fish and Wildlife Service
(USFWS) Draft Protocol for Florida Bonneted Bat Roost Survey (February 2015). This federal listing is
recognized by State of Florida Fish and Wildlife Conservation Commission (FWC) and Miami -Dade County
(MDC) Comprehensive Development Master Plan (Chapter IV CON -9A, B, C).
Included in this proposal is a summary of pertinent project information as understood by Smart -Sciences, the
proposed scope of services, fees, schedule, and authorization procedures.
Background Information and Purpose
The Site consists of several roadway sections in the vicinity of Key Biscayne K-8 Center where the Village
is proposing the construction of sidewalks in association with the Safe Routes to School program. The
construction of the sidewalks will result in the removal of several trees and/or palms. It is our understanding
that the Florida Department of Transportation (FDOT) is requiring an FBB roost survey for trees that will
be removed in association with the Safe Routes to School Location for the Key Biscayne K-8 School. As
the Site is located within the USFWS Consultation Area of the FBB, an FBB roost survey in accordance
with the USFWS Draft Protocol for FBB Roost Surveys is required. Each suitable tree (greater than 20 feet
in height and 8 inches or more in diameter at breast height [dbh]) will be surveyed for the presence of
cavities or holes that could be used by FBB. Contents of observed cavities will be video inspected, and the
results of these inspections and photographs of the subject trees will be documented. Based on
information provided by the engineer, Kimley Horn and Associates, Inc. there are approximately
22 trees that will be removed.
330 Southwest 27th Avenue I Suite 504 !Miami, Florida 33135 I P: 786-313-3977 IF: 305.356.4333
www.Smart-Sciences.com
Proposal for Florida Bonneted Bat Roost Survey
Vacmaty of Key Biscayne K 8 Center
Key Biscayne Miami Dade County Florida
Smart Sciences Proposal No 175 001 P
Proposed Scope of Services
October 14 2019
Page 2 of 3
Task 1 FBB Roost Survey
An FBB roost survey m accordance with guidance issued by USFWS for performing FBB roost surveys
the Draft Protocol for Florida Bonneted Bat Roost Surveys (February 3 2015) will be performed This
survey will evaluate roostmg potential by conducting a roost survey of mature trees proposed for removal
(-22) withm the project area This effort will mclude reviewing tree cavities for use by FBB as roosting or
resting areas Smart Sciences biologists will inspect cavities or crevices for claw marks hair guano or
other signs of use As appropriate cavities will be inspected visually with a micro video camera mounted
on an extendable rod or by direct sight inspection usmg binoculars
Task 1 includes the preparation of a Technical Memo for submittal to VKB and FDOT The memo will
discuss our findings from the roost survey activities minding dimensions and color photographs of the
trees inspected and provide a discussion of FBB roosting potential within and directly adjacent to the Site
Please note that this Technical Memo will not meet the USFWS requirements for a Biological Assessment
If FBB are identified to be roosting or signs of FBB roosting are observed within or directly adjacent to
the Site further consultation with USFWS will be required Additionally ESA Section 7(a)(2) Consultation
may be required Such consultation efforts are beyond the scope of this proposal but can be provided as
we routmely coordinate with USFWS on issues of FBB
Task 2 - Commumcahons and Meetings
This effort includes up to two (2) hours communications (conference calls mails update memos and
similar) by Smart Sciences staff amongst VKB team members quenes of agencies deemed appropriate by
Smart Sciences and other communications requested by VKB
Schedule
Based on current staff availability Smart Sciences is prepared to schedule activities to begin work within
five business days of written authorization of notice to proceed The technical memo of our findings will
be delivered within 15 busmess days of our Site visit
Cost of Services
Smart Sciences proposes to perform Task 1 and Task 2 for a lump sum of $4 000 00 This fee includes
assessmg up to 25 trees for FBB roosting potential If additional trees are required to be assessed we will
need to request additional funds
Deliverables will be provided electronically If hard copy reports are required their production will be billed
at cost times 1 15
If unforeseen conditions should require services beyond the scope of services descnbed herein Smart
Sciences will notify you of additional costs necessary to complete the project prior to proceeding Services
Proposal for Florida Bonneted Bat Roost Survey
Vicinity of Key Biscayne K-8 Center
Key Biscayne, Miami -Dade County, Florida
Smart -Sciences Proposal No. 175 -00I -P
October 14, 2019
Page 3 of 3
beyond those described herein will be invoiced in accordance with our agreed schedule of fees at the
applicable rates. Please note that payment of invoices is due upon receipt.
Authorization
If the above services and fees are acceptable, please provide us with a services agreement and notice to
proceed.
We appreciate the opportunity to offer our professional services on this project. If you have any questions
concerning this proposal, please contact us at 786-313-3977.
Sincerely,
SMART -SCIENCES, INC
Gisele L. Colbert
Principal Scientist
M: ProposalslBy Clientl—Proposals 100 - 200\135-002-P Kimley MDC Safe School Routes FBBIKimley Safe School Routes FBB Roost Survey
Proposal.docx