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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 Page 1 of 11 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 Page 2 of 11 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 Page 3 of 11 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 Page 4 of 11 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 Page 5 of 11 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. Page 6 of 11 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 Page 7 of 11 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 ] Page 8 of 11 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) Page 9 of 11 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