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HomeMy Public PortalAbout2021 AgreementPROFESSIONAL SERVICES AGREEMENT BETWEEN THE VILLAGE OF KEY BISCAYNE AND BISCAYNE BAY WATERKEEPER, INC. THIS AGREEMENT (this "Agreement") is made effective as of the _ day of October 2021 (the "Effective Date"), by and between the VILLAGE OF KEY BISCAYNE, FLORIDA, a Florida municipal corporation, (the "Village"), and BISCAYNE BAY WATERKEEPER, INC., a Florida not -for-profit corporation (hereinafter, the "Consultant"). WHEREAS, the Village desires certain water quality sampling and analysis services; and WHEREAS, the Consultant will perform services on behalf of the Village, all as further set forth in the Proposal dated July 8, 2020, 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. 2.1. The term of this Agreement shall commence on the Effective Date and shall remain in effect for one (1) year, unless earlier terminated in accordance with Paragraph 8. Additionally, the Village Manager may renew this Agreement for up to two (2) additional one (1) year terms 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. Page 1 of 10 3. Compensation and Payment. 3.1. Compensation for Services provided by Consultant shall be in accordance with the Proposal attached hereto as Exhibit "A." Consultant shall be compensated in an amount not to exceed $30,000.00 for the initial or any renewal term. 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 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. 3.3. Contractor'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 pavablesAkeybiscayne.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. 4.2. Consultant may only utilize the services of a particular subconsultant with the prior written approval of the Village Manager, which approval shall 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, Page 2 of 10 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. 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. Page 3 of 10 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. 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. 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 Page 4 of 10 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. 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 its attorneys' fees and costs, including the fees and expenses of any paralegals, law clerks and legal assistants, and including fees and expenses charged for representation at both the trial and appellate levels. 11.2. IN THE EVENT OF ANY LITIGATION ARISING OUT OF THIS AGREEMENT, EACH PARTY HEREBY KNOWINGLY, IRREVOCABLY, Page 5 of 10 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 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 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. 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 Page 6 of 10 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 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 Page 7of10 RELATING TO THIS AGREEEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS. Custodian of Records: Mailing address: Telephone number: Email: Jocelyen Brewster Koch 88 West McIntyre Street Key Biscayne, FL 33149 305-365-5506 jkoch(a keybiscayne.fl.2ov 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. 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 Continency 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. Page 8 of 10 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. In the event of a conflict between the terms of this Agreement and any exhibits or attachments hereto, the terms of this Agreement shall control. [Remainder of page intentionally left blank. Signature pages follow.] Page 9 of 10 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 By: Steven C. Williamson Village Manager Attest: By: C Jocelyn Brewster K Village Clerk Approved as to form and legal sufficiency: By: &,..fte•tA/alr 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) silliamson@keybiscayne.fl.gov (email) 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 cfriedman@wsh-law.com (email) CONSULTANT By: v -;\-- Name: Dr. Rachel Silverstein Title: Executive Director mi Waterkeeper I Addresses for Notice: Miami Waterkeeper Attn: Dr. Rachel Silverstein 2103 Coral Way, 2nd Floor Miami, FL 33145 305-905-0856 (telephone) (facsimile) rachel(amiamiwaterkeeper.org (email) With a copy to: (telephone) (facsimile) (email) Page 10 of 10 • T; R EXHIBIT "A" SCOPE OF SERVICES The Scope of Services are those contained in the Proposal dated July 8, 2020, attached hereto and incorporated herein by reference. Exhibit A ABOUT MIAMI WATERKEEPER As a Miami -based non-profit organization, Miami Waterkeeper is dedicated to protecting Biscayne Bay and the surrounding watershed. Launched in 2010, Miami Waterkeeper has become a leading advocate for clean water, inspiring a movement of empowered citizens dedicated to achieving swimmable, drinkable, fishable water. Often tackling issues on multiple fronts, we address environmental, social, and political water issues using community outreach, scientific research, and civic and legal action. ENHANCING THE QUALITY OF LIFE OF THE KEY BISCAYNE COMMUNITY Water quality issues can seriously impact the health of those who come into contact with recreational water. Water and beach recreation are key to life on Key Biscayne. Ongoing beach swim advisories have been challenging for the community with respect to beach closures, incurring repeated beach advisories on Virginia Key and Crandon Park. With information about water quality from the same locations taken over time, we can better inform the public and take action on issues that may lead to environmental or public health dangers. With this information and buy -in from a community armed with information, we will work to protect the water, public health, and the economy that depends upon it. We have a record of success collaborating with the Village of Key Biscayne and with the Key Biscayne Community Foundation, including the past year of water quality sampling (8/17/20 - 11/5/21), which produced 345 data points from 4 sites. Past collaborations with Key Biscayne have also included our summer Senior Ambassador program, Ultra research, volunteer cleanups, and other educational events. Our efforts with the Village Council on issues like the straw ban, water quality protections, and the recent fertilizer ordinance are also a testament to our connections to this community. We look forward to this continued opportunity to further collaborate with the Village of Key Biscayne and its residents. WEEKLY WATER MONITORING Please find below our proposal to continue our fecal indicator bacteria (FIB) monitoring efforts at four specific sites located on Key Biscayne. We propose a weekly water quality testing plan to keep the public informed about water quality at Key Biscayne's key recreational areas by testing these four sites weekly to analyze levels of the FIB enterococci. Water quality results will be made free and available to the public through the Swim Guide web and phone app and Miami Waterkeeper's social media channels and website. We will also work to improve the communication of beach advisories to the public. PROJECT DESCRIPTION WEEKLY WATER SAMPLING AT FOUR HIGH -VALUE RECREATION SITES As part of our mission to ensure swimmable, drinkable, and fishable water in Miami -Dade and Broward Counties, Miami Waterkeeper's in-house water quality monitoring program involves the weekly sampling of sites for enterococci. This sampling will complement, but will not replace, existing testing by the state Department of Health. In the Village of Key Biscayne, we propose to test recreational water quality at the Silver Sands Beach Resort, the Key Biscayne Beach Club, the McNamara residence on Mariner Drive, and the Key Biscayne Yacht Club. However, we can also alter these locations based on the needs of the Village. We will use the IDEXX system for weekly routine water sample analysis for fecal indicator bacteria. We will also collect data on environmental conditions at the time of samplings, such as weather, tide, air temperature, and rainfall. Additional testing at no extra cost to the Village of Key Biscayne We are also pleased to offer additional data about sites on Key Biscayne as part of an EPA -funded project in conjunction with Florida International University, the University of Miami (UM), UM's Cooperative Institute for Marine and Atmospheric Studies, and Beta Analytic. The project seeks to understand the influence that canal discharge and land -based sources of pollution have on our waterways. The project will be measuring nutrients, which include: total nitrogen, total phosphorus, nitrate, nitrite, and soluble reactive phosphorus, along with the analysis of nitrate isotopes in sediments, algae, and water. Isotope analysis will aid in determining the sources of dissolved nitrate in the water, sediment, and algae. These parameters will provide strong lines of evidence about the source of nutrients and FIB and identify pollution hot spots in Biscayne Bay. Microbial source tracking may also be performed and analyzed in late 2022. Through this funding, we purchased a YSI EXO 1 to measure physical -chemical conditions, such as salinity, temperature, chlorophyll -a, dissolved oxygen, and turbidity. These additional parameters are available to the Village of Key Biscayne at no extra cost for the duration of the study. CONTINUATION OF SWIM GUIDE APP AND VILLAGE OF KEY BISCAYNE BANNER ADS We will continue to publish our weekly water quality testing information and the water quality testing information produced by the state Department of Health via our Swim Guide App. The Swim Guide application is available on both web and mobile devices. The app had over 95,000 views from August 2020 to November 2021 in our region and 43,287 views at the Key Biscayne and Virginia Key -specific sites. Swim Guide uses an easy -to -read stoplight format, green indicates good water quality (0-70 CFU/MPN enterococci per 100 mL sample,) and red indicates poor water quality (71+ CFU/MPN enterococci per 100 mL sample). As before, historical data will be accessible as well. Numeric data is available through the Water Quality Monitoring page on our website. The banner ads on the sponsored sites indicating that the sampling is being supported by the Village of Key Biscayne will also continue at the designated sites. We will continue to coordinate with the Village on the exact language of this sponsorship in addition to any online marketing or strategic promotion. Timeline Weekly sampling will continue for one year with the requested level of funding but can be extended indefinitely with future funding. The project is intended to be a permanent part of Miami Waterkeeper's mission. Additional monitoring under the EPA -funded project is planned through June 2022. Thank you for your consideration of this proposal. We look forward to hearing from you. Feel free to let us know any questions you might have. Proposed Budget • Weekly water quality testing (including staff specialists and sample analysis): $21,250 • Equipment and supplies: $4,250 • Overhead, 15%, (General liability insurance, Worker's compensation insurance, Owned/Non- Owned auto insurance, fringe, etc.): $4,500 TOTAL $30,000 for one year