HomeMy Public PortalAbout2022-16 Selecting Witt O'Brien's LLC for emergency disaster debris monitoring servicesRE S O L U T IO N N O . 20 22 -16
A RE S O L U T IO N O F T H E V IL L A G E C O UN C IL O F T H E
V IL L A G E O F K E Y B IS C A Y N E , F L O RI D A , S E L E C T IN G
W IT T O 'B RI E N 'S L L C F O R E M E R G E N C Y D IS A S T E R
D E B RI S M O N IT O RI N G S E R V IC E S P U R S U A N T T O
RE Q U E S T F O R P R O P O S A L N O . 202 0 -5 0 ; P R O V ID IN G F O R
A U T H O RI Z A T IO N ; A N D P R O V ID IN G F O R A N
E F F E C T IV E D A T E .
W H E RE A S , on April 22, 2020, the Village of Key Biscayne (the "Village") issued Request
for Proposal No. 2020-50 (the "RFP") seeking proposals from qualified firms to provide
emergency disaster debris monitoring services (the "Services"); and
WHEREAS, two sealed proposals were received by the RFP deadline; and
WHEREAS, after review and evaluation of the proposals submitted, the Selection
Committee ranked Witt O'Brien's LLC (the "Consultant'') as the lowest, most responsive and
responsible firm that provides the best value to the Village for the Services; and
WHEREAS, the Village Council desires to select the Consultant to perform the Services
and authorize the Village Manager to enter into an agreement with the Consultant in substantially
the form attached hereto as Exhibit "A"; and
WHEREAS, the Village Council finds that this Resolution is in the best interest and
welfare of the residents of the Village.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. Recitals. That each of the above-stated recitals are hereby adopted,
confirmed, and incorporated herein.
Section 2. Selection. That the Village Council hereby selects the Consultant for the
Services.
Page I of2
Section 3. Authorization. That the Village Council hereby authorizes the Village
Manager to enter into an agreement with the Consultant for the Services in substantially the form
attached hereto as Exhibit "A," subject to the Village Attorney's approval as to form, content, and
legal sufficiency.
Section 4.
adoption.
Effective Date. That this Resolution shall be effective imm ediately upon
PASSED and AD OPTED this 12th day of __ -=-A=p=ri-=-1 , 2022.
ATTEST:
.JOC L YNB.0 c H '
VILLAGE CLERK
APPROVED AS TO FORM AND LEGAL SUFFICIENC
WEISS SEROTA HELFMAN COLE & BIERMAN, P.L.
VILLAGE ATTORNEY
Page 2 of2
EXHIBIT "A"
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE VILLAGE OF KEY BISCAYNE
AND
WITT O'BRIEN'S LLC
THIS AGREEMENT (this "Agreement") is made effective as of the day of
__________ , 2022 (the "Effective Date"), by and between the VILLAGE OF
KEY BISCAYNE, FLORIDA, a Florida municipal corporation, (the "Village"), and WITT
O'BRIEN'S LLC, a Delaware limited liability company authorized to do business· in Florida
(hereinafter, the "Consultant").
WHEREAS, on April 22, 2020, the Village issued Request for Proposal No. 2020-50 ,
which is incorporated herein by this reference, seeking proposals from qualified firms to provide
Disaster Debris Monitoring Services, as set forth in greater detail in the Scope of Services attached
hereto as Exh ibit "A" (the "Services," as further defined below); and
WHEREAS, the Consultant submitted a proposal to the Village to perform the Services
on behalf of the Village, all as further set forth in the Proposal dated May 18, 2020, attached hereto
as Exhibit "B"; and
WHEREAS, on [DATE], the Village adopted Resolution No. 21-:XX selecting
Consultant's Proposal to provide the Services; and
WHEREAS, the Consultant and Village, through mutual negotiation, have agreed upon a
fee for the Services, as set forth in the Rate Schedule attached hereto as Exhibit "C"; and
WHEREAS, the Village desires to engage the Consultant to perform the Services and
pro vide 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 Scope of Services and the
Consultant's Proposal, which are attached hereto as Exhibits "A" and "B", respectively,
and incorporated herein by reference (collectively, the "Services").
1.2. Consultant shall furnish all reports, documents, and information obtained pursuant to this
Agreement, and recomm endations during the term of this Agreement (hereinafter
"Deliverables") to the Village.
Contract No. IXX-XXl Page 1 of 16
2. Term/Commencement Date.
2.1. The term of this Agreement shall be from the Effective Date through three years thereafter,
unless earlier terminated in accordance with Paragraph 8. Additionally, the Village
Manager may renew this Agreement for two additional one year periods on the same terms
as set forth herein upon written notice to the Consultant.
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.
3. Compensation and Payment.
3.1. Compensation for Services provided by Consultant shall be in accordance with the Rate
Schedule attached hereto as Exhibit "C."
3.2. 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 an-ears 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.
3.3. Consultant's invoices must contain the following information for prompt payment:
3.3.1. Name and address of the Consultant;
3.3.2. Purchase Order number;
3.3.3. Contract number;
3.3.4. Date of invoice;
3.3.5. Invoice number (Invoice numbers cannot be repeated. Repeated invoice numbers
will be rejected);
3.3.6. Name and type of Services;
3.3.7. Timeframe covered by the invoice; and
3.3.8. Total value of invoice.
Failure to include the above information will result in the delay of payment or rejection of
the invoice. All invoices must be submitted electronically to payables@keybiscayne.fl.gov.
4. Subconsultants.
4.1. The Consultant shall be responsible for all payments to any subconsultants and shall
maintain responsibility for all work related to the Services.
Contract No. XX-XX Page 2 of 16
4 .2 . 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.
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 Consultant to assist Consultant in performing the
Services.
5.2. 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.
6.1. 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.
6.2. 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
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.
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 current, or foreseeable,
adversarial issues in the Village related to this Agreement and the performance of the
Services.
8. Termination.
Contract No. !XX-XX Page 3 of 16
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 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.
8.5. In the event the Village is in default with the terms of this Agreement, the Consultant shall
provide written notice to the Village Manager of such default and provide the Village
seven (7) calendar days to cure such default. If the Village remains in default seven (7)
calendar days after providing the Village Manager written notice of such default, the
Consultant may terminate 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
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 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.
Contract No. XX-XX Page 4 of 16
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 the final 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 liability 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
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.
Contract No. XX-XX Page 5 of 16
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 origin, and will 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 reasonable attorn eys' fe es and costs, including the fees and
expenses of any para legals, law clerks and legal assistants, and including fe es and
expenses charged fo r representation at both the trial and appellate levels.
11.2. IN THE EV EN T OF ANY LI TIGA TI ON ARI SIN G OU T OF TH IS
A G RE EM E N T, EA C H PAR T Y HERE B Y KN OW IN GL Y , IRRE V OCA BLY ,
V OL UN T A RILY AN D IN T EN TI ON ALLY W AIV ES ITS RIGHT TO TRIAL BY
JU RY.
12. Indemnification.
12.1. C onsultant shall indemn ify and hold harmless the Village, its officers, agents and
em ployees, fr om and against any and all demands, claims, losses, suits, liabilities, causes
of action, judgm ent or dam ages, to the extent arising fr om C onsultant's negligent
perfo rm ance or non-perfo rm ance of any pro vision of this Agreem ent, including, but not
lim ited to, liabilities arising fr om contra cts betw een the C onsultant and third parties m ade
pur suant to this Agreem ent. C onsultant shall reim burse the V ill age fo r all its expenses
including reasonable attorn eys' fees and costs incurred in and about the defe nse of any
such claim or investigation and fo r any judgm ent or dam ages to the extent arising fr om
Consultant's perfo rm ance or non-perfo rm ance of this Agreem ent.
12.2. N othing herein is intended to serve as a waiver of sovereign im m unity by the
V ill age nor shall anyt hing included herein be constru ed as consent to be sued by third
parties in any m atter arising out of this Agreem ent or any other contract. The V illage is
subject to section 768.28, Fl orida Statutes, as m ay be am ended fr om tim e to tim e.
12.3. The pro visions of this section shall surv ive term ination of this Agreem ent.
13. Notices/Authorized Representatives. Any notices required by this Agreem ent shall be in
writing and shall be deem ed to have been pro perl y given if tra nsm itted by hand-delivery , by
registered or certified m ail with postage prepaid return receipt requested, or by a private postal
service, addressed to the patties ( or their successors) at the addresses listed on the signatu re
page of this Agreem ent or such other address as the party m ay have designated by pro per
notice.
14. Governing Law and Venue. This A greem ent shall be constru ed in accordance with and
govern ed by the law s of the State of Florida. Venue fo r any pro ceedings arising out of this
A greem ent shall be pro per exclusively in M iam i-D ade C ounty, Fl orida.
15. Entire Agreement/Modification/Amendment.
C ontra ct N o. XX -XX Page 6 of 16
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.
16.4. Unless otherwise provided by law, any and all records, including 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
Contract No. XX-XX Page 7 of 16
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 AGREEMENT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS.
Custodian of Records: Jocelyn B. Koch
Mailing address:
Telephone number:
Email:
88 West McIntyre Street
Key Biscayne, FL 33149
305-365-5506
i koch@keybiscayne.fl.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.
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.
Contract No. XX-XX Page 8 of 16
21. Waiver. The failure of either party to this Agreement to object to or to take affi rmative 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 wro ngful 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.
26. Conflicts; Order of Priority. This document without exhibits is referred to as the "Base
Agreement." In the event of a confli ct between the terms of this Base Agreement and any
exhibits or attachments hereto, or any documents incorporated herein by reference, the conflict
shall be resolved in the following order of priorities and the more stringent criteria for
perform ance of the Services shall apply:
26.1. First Priority: this Base Agreement;
26.2. Second Priority: Exh ibit C - Rate Schedule;
26.3. Third Priority: Exhibit A - Scope of Services;
26.4. Fourth Priority: the RF P;
26.5. Fifth Priority: Exhibit B - Consultant's Proposal; and
26.6. Sixth Priority: W ork Orders, with later date taking precedence.
27. E-Verify Affidavit. In accordance with Section 448.095, Florida Statutes, the Village requires
all contractors doing business with the Village to register with and use the E- Verify system to
verify the work authorization status of all newly hired employees. The Village will not enter
into a contract unless each party to the contract registers with and uses the E-Verify system.
The contracting entity must provide of its proof of enrollment in E-Verify. For instructions on
how to provide proof of the contracting entity's participation/enrollment in E-Verify, please
visit: https://www .e-verify.gov/faq/how-do-i-provide-proof-of-my-participationenrollment-
in-e-verify. By entering into this Agreement, the Consultant acknowledges that it has read
Section 448.095, Florida Statutes; will comply with the E-Verify requirements imposed by
Section 448.095, Florida Statutes, including but not limited to obtaining E-Verify affidavits
Contract No. XX-XX Page 9 of 16
from subcontractors; and has executed the required affidavit attached hereto and incorporated
herein.
28. Federally Required Clauses.
28.1. Equal Employment Opportunity. During the performance of this Agreement, the
Consultant agrees as follows:
28.1.1. The Consultant will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, sexual orientation, gender identity,
or national origin. The Consultant will take affirmative action to ensure that applicants
are employed, and that employees are treated during employment without regard to
their race, color, religion, sex, sexual orientation, gender identity, or, national origin.
Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. The Consultant agrees to post in
conspicuous places, available to employees and applicants for_employment, notices
to be provided setting forth the provisions of this nondiscrimination clause.
28.1.2. The Consultant will, in all solicitations or advertisements for employees placed by
or on behalf of the Consultant, state that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex, sexual
orientation, gender identity, or national origin.
28.1.3. The Consultant will not discharge or in any other manner discriminate against any
employee or applicant for employment because such employee or applicant has
inquired about, discussed, or disclosed the compensation of the employee or applicant
or another employee or applicant. This provision shall not apply to instances in which
an employee who has access to the compensation information of other employees or
applicants as a part of such employee's essential job functions discloses the
compensation of such other employees or applicants to individuals who do not
otherwise have access to such information, unless such disclosure is in response to a
formal complaint or charge, in furtherance of an investigation, proceeding, hearing,
or action, including an investigation conducted by the employer, or is consistent with
the Consultant's legal duty to furnish information.
28.1.4. The Consultant will send to each labor union or representative of workers with
which he has a collective bargaining agreement or other contract or understanding, a
notice to be provided advising the said labor union or workers' representatives of the
Consultant's commitments under this section, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
28.1.5. The Consultant will comply with all provisions of Executive Order 11246 of
September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary
of Labor.
28.1.6. The Consultant will furnish all information and reports required by Executive Order
11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary
of Labor, or pursuant thereto, and will permit access to his books, records, and
Contract No. XX-XX Page 10 of 16
accounts by the administering agency and the Secretary of Labor for purposes of
investigation to ascertain compliance with such rules, regulations, and orders.
,78.1.7. In the event of the Consultant's noncompliance with the nondiscrimination clauses
of this contract or with any of the said rules, regulations, or orders, this contract may
be canceled, terminated, or suspended in whole or in part and the Consultant may be
declared ineligible for further Government contracts or federally assisted construction
contracts in accordance with procedures_authorized in Executive Order 11246 of
September 24, 1965, and such other sanctions may be imposed and remedies invoked
as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation,
or order of the Secretary of Labor, or as otherw ise provided by law.
28.1.8. The Consultant will include the portion of the sentence immediately preceding
subsection 28.1 and the provisions of subsections 28.1.1 through 28.1.8 in every
subcontract or purchase order unless exempted by rules, regulations, or orders of the
Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of
September 24, 1965, so that such provisions will be binding upon each subcontractor
or vendor. The Consultant will take such action with respect to any subcontract or
purchase order as the administering agency may direct as a means of enforcing such
provisions, including sanctions for noncompliance:
Provided, however, that in the event a Consultant becomes involved in, or is
threatened with, litigation with a subcontractor or vendor as a result of such direction
by the administering agency, the Consultant may request the United States to enter
into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity
clause with respect to its own employment practices when it participates in federally
assisted construction work: Provided, That if the applicant so participating is a State
or local government, the above equal opportunity clause is not applicable to any
agency, instru mentality or subdivision of such government which does not participate
in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering
agency and the Secretary of Labor in obtaining the compliance of contractors and
subcontractors with the equal opportunity clause and the rules, regulations, and
relevant orders of the Secretary of Labor, that it will furnish the administering agency
and the Secretary of Labor such information as they may require for the supervision
of such compliance, and that it will otherwise assist the administering agency in the
discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or
contract modification subject to Executive Order 11246 of September 24, 1965, with
a Consultant debarred from, or who has not demonstrated eligibility for, Government
contracts and federally assisted construction contracts pursuant to the Executive
Order and will carry out such sanctions and penalties for violation of the equal
opportunity clause as may be imposed upon contractors and subcontractors by the
administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the
Executive Order. In addition, the applicant agrees that if it fails or refuses to comply
with these undertakings, the administering agency may take any or all of the following
Contract No. XX-XX Page 11 of 16
actions: Cancel, terminate, or suspend in whole or in part this grant ( contract, loan,
insurance, guarantee); refrain from extending any further assistance to the applicant
under the program with respect to which the failure or refund occurred until
satisfactory assurance of future compliance has been received from such applicant;
and refer the case to the Department of Justice for appropriate legal proceedings.
28.2. Compliance with the Contract Work Hours and Safety Standards Act. During
the performance of this Agreement, the Consultant agrees as follows:
28.2.1. Overtime requirements. The Consultant or subcontractor contracting for any part
of the contract work which may require or involve the employment of laborers or
mechanics shall not require nor permit any such laborer or mechanic in any workweek
in which he or she is employed on such work to work in excess of forty hours in such
workweek unless such laborer or mechanic receives compensation at a rate not less
than one and one-half times the basic rate of pay for all hours worked in excess of
forty hours in such workweek.
28.2.2. Violation; liability for unpaid wages; liquidated damages. In the event of any
violation of the clause set forth in subsection 28.2.1. of this section the Consultant
and any subcontractor responsible therefor shall be liable for the unpaid wages. In
addition, the Consultant and subcontractor shall be liable to the United States (in the
case of work done under contract for the District of Columbia or a territory, to such
District or to such territory), for liquidated damages. Such liquidated damages shall
be computed with respect to each individual laborer or mechanic, including watchmen
and guards, employed in violation of the clause set forth in subsection 28.2.1. of this
section, in the sum of $10 for each calendar day on which such individual was
required or permitted to work in excess of the standard workweek of forty hours
without payment of the overtime wages required by the clause set forth in 28.2.1. of
this section.
28.2.3. Withholding for unpaid wages and liquidated damages. The Village shall upon its
own action or upon written request of an authorized representative of the Department
of Labor withhold or cause to be withheld, from any moneys payable on account of
work performed by the Consultant or subcontractor under any such contract or any
other Federal contract with the same prime Consultant, or any other federally-assisted
contract subject to the Contract Work Hours and Safety Standards Act, which is held
by the same prime Consultant, such sums as may be determined to be necessary to
satisfy any liabilities of such Consultant or subcontractor for unpaid wages and
liquidated damages as provided in the clause set forth in subsection 28.2.2. of this
section.
28.2.4. Subcontracts. The Consultant or subcontractor shall insert in any subcontracts the
clauses set forth in subsections 28.2.1 through 28.2.4. of this section and a clause
requiring the subcontractors to include these clauses in any lower tier subcontracts.
The prime Consultant shall be responsible for compliance by any subcontractor or
lower tier subcontractor with the clauses set forth in subsections 28.2.1. through
28.2.4. of this section.
Contract No. XX-XX Page 12 of 16
28.3. Clean Air Act and Federal Water Pollution Control Act. As required by Federal
program legislation, the Consultant agrees to comply with the following federal
requirements:
28.3.1. Clean Air Act.
28.3.1.1. The Consultant agrees to comply with all applicable standards, orders or
regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. (2)
28.3.1.2. The Consultant agrees to report each violation to the Village and
understands and agrees that the Village will, in tum, report each violation as
required to assure notification to the State of Florida, Federal Emergency
Management Agency, and the appropriate Environmental Protection Agency
Regional Office.
28.3.1.3. The Consultant agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance
provided by FEMA.
28.3.2. Federal Water Pollution Control Act.
28.3.2.1. The Consultant agrees to comply with all applicable standards, orders or
regulations issued pursuant to the Federal Water Pollution Control Act, as
amended, 33 U.S.C. 1251 et seq.
28.3.2.2. The Consultant agrees to report each violation to the Village and
understands and agrees that the Village will, in tum, report ~ach violation as
required to assure notification to The State of Florida, Federal Emergency
Management Agency, and the appropriate Environmental Protection Agency
Regional Office.
28.3.2.3. The Consultant agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance
provided by FEMA.
28.4. Debarment and Suspension. During the performance of this Agreement, the
Consultant agrees as follows:
28.4.1. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R.
pt. 3000. As such the Consultant is required, and will, verify that neither Consultant,
its principals (defined at 2 C.F.R. § 180.995), nor its affiliates (defined at 2 C.F.R. §
180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2
C.F.R. § 180.935).
28.4.2. The Consultant will comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000,
subpart C and must include a requirement to comply with these regulations in any
lower tier covered transaction it enters.
28.4.3. Consultant's certification is a material representation of fact relied upon by the
Village. If it is later determined that the Consultant did not comply with 2 C.F.R. pt.
180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to
the State of Florida, the Federal Government may pursue available remedies,
including but not limited to suspension and/or debarment.
Contract No. XX-XX Page 13 of 16
28.4.4. The Consultant agrees to comply with the requirements of2 C.F.R. pt. 180, subpart
C and 2 C.F.R. pt. 3000, subpart C throughout the period this Agreement. The
Consultant further agrees to include a provision requiring such compliance in its
lower-tier covered transactions.
28.5. Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended). During the
performance of this Agreement, the Consultant agrees as follows:
28.5.1. The Consultant certifies to the Village that it has not and will not use Federal
appropriated funds to pay any person or organization for influencing or attempting to
influence an officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in connection with
obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. §
1352. The required Certification is attached to this Agreement.
28.5.2. Consultant will also ensure that each tier of subcontractor( s) shall also disclose any
lobbying with non-Federal funds that takes place in connection with obtaining any
Federal award. Such disclosures will be forwarded from tier-to-tier up to the Village.
28.6. Procurem ent of Recovered M aterials. As required by federal pro gram
legislation, Consultant agrees to the following:
28.6.1. In the perform ance of this contract, the Consultant shall make maximum use of
products containing recovered materials that are EPA-designated items unless the
pro duct cann ot be acquired:
28.6.1.1. competitively within a timeframe providing for compliance with the
contra ct perform ance schedule;
28.6.1.2. meeting contra ct perform ance requirements; or
28.6.1.3. at a reasonable price.
28.6.2. Inform ation about this requirement, along with the list of EPA-designate items, is
available at EPA' s Comprehensive Pro curement Guidelines web site,
https://www .epa.gov/smm/comprehensive-pro cur ement-gu ideline-cpg-progr am.
28.6.3. The Consultant also agrees to comply with all other applicable requirements of
Section 6002 of the Solid Waste Disposal Act.
28.7. DHS Seals, Logos, and Flags. The Consultant shall not use the DHS seal(s), logos,
crests, or reproductions of flags or likenesses of DRS agency officials without specific
FEM A pre-appro val.
28.8. Compliance with Federal Law, Regulations, and Executive Orders. The
Consultant acknowledges that FEM A financial assistance will be used to fund the contra ct
only. The Consultant will comply will all applicable federal law, regulations, executive
orders, FEM A policies, pro cedures, and directives.
28.9. No Obligation by Federal Govern m ent. Consultant acknowledges that the
Federal Governm ent is not a party to this contra ct and is not subject to any obligations or
liabilities to the non-Federa l entity, Consultant, or any other party pertaining to any matter
resulting from the contra ct.
Contract No. XX-XX Page 14 of 16
28.10. Program Fraud and False or Fraudulent Statements or Related Acts. The
Consultant ackn owledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False
Claims and Statements) applies to the Consultant actions pertaining to this Agreement.
28.11. Access to Records.
28.11.1. The Consultant agrees to provide the State of Florida, the Village, the
FEMA Administrator, the Comptroller General of the United States, or any of their
authorized representatives access to any books, documents, papers, and records of
the Consultant which are directly pertinent to this contract for the purposes of making
audits, examinations, excerpts, and transcriptions.
28.11.2. The Consultant agrees to permit any of the foregoing patties to reproduce
by any means whatsoever or to copy excerpts and transcriptions as reasonably
needed.
28.11.3. The Consultant agrees to provide the FEMA Administrator or his
authorized representatives access to construction or other work sites pertaining to the
work being completed under the contract.
28.12. Small and Minority Businesses, Women's Business Enterprises.
28.12.1. Consultant shall comply with 2 C.F.R. § 200.321, "Contracting with small
and minority businesses, women's business enterprises, and labor surplus area firms."
28.12.2. If subcontracts are to be let, the Consultant is required to take all necessary steps
identified in 2 C.F.R. § 200.321(b)(l)-(5) to ensure that small and minority businesses,
women's business enterprises, and labor surplus area firms are used when possible.
[Remainder of page intentionally left blank. Signature pages follow.]
Contract No. XX-XX Page 15 of 16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year as first
stated above.
VILLAGE OF KEY BISCAYNE WITT O'BRIEN'S LLC
By:---------------
Steven C. Williamson
Village Manager
Attest:
By:---------------
Name: _
Title: _
Entity: _
By:---------------
Jocelyn B. Koch
Village Clerk
Approved as to form and legal sufficiency:
By:---------------
Weiss Serota Helfman Cole & Bierman, P.L.
Village Attorney
Addresses for Notice:
Village of Key Biscayne
Attn: Village Manager
88 West McIntyre Street
Key Biscayne, FL 33149
305-365-5514 (telephone)
305-365-8936 (facsimile)
swilliamson@keybiscayne.fl.gov ( email)
With a copy to:
Weiss Serota Reifman Cole & Bierman, P.L.
Attn: Chad Friedman, Esq.
Village of Key Biscayne Attorney
2525 Ponce de Leon Boulevard, Suite 700
Coral Gables, FL 33134
cfriedman@wsh-law.com ( email)
Addresses for Notice:
____________ (telephone)
_____________ (facsimile)
____________ (email)
With a copy to:
_____________ (telephone)
_____________ (facsimile)
_____________ (email)
Contract No. XX-XX Page 16 of 16