HomeMy Public PortalAbout2022 First Amendment to AgreementDocuSign Envelope ID: B362862A-27F3-40B6-A594-EEF0B6F09875
FIRST AMENDMENT TO AGREEMENT
VILLAGE OF KEY BISCAYNE
AND
BEEFREE, LLC D/B/A FREEBEE
THIS FIRST AMENDMENT TO AGREEMENT (this "First
Amendment ") is entered into this ! day of /lp✓tsrbti- , 2022 (the "Effective Date"), by and
between the VILLAGE OF KEY BISCAYNE, FLORIDA, a Florida municipal corporation
(hereinafter the "Village"), and BEEFREE, LLC D/B/A FREEBEE, a Florida limited liability
company (hereinafter the "Contractor").
WHEREAS, on March 9, 2020, the Village entered into an agreement (the "Agreement")
with the Contractor for the provision of a mobile -based, on -demand, and circulator transportation
service (the "Services") in the Village, which Agreement is set to expire on June 30, 2023; and
WHEREAS, on April 12, 2022, the Village adopted Resolution No. 2022-17, approving
an interlocal agreement with Miami -Dade County governing the use of the Village's Citizens
independent Transportation Trust surtax proceeds for the provision of the Services (the "County
Provisions"); and
WHEREAS, on July 26, 2022, the Village Council adopted a resolution, authorizing the
Village Manager to enter into this First Amendment to the Agreement in order to increase the
number of vehicles operated as part of the Services to six (6) Freebee electric vehicles in an
amount not to exceed $84,388 per vehicle per year; and
WHEREAS, as part of its negotiation with the Contractor, the Village has agreed to
forgo $24,125 in advertising revenue from the placement of advertising on the vehicles; and
WHEREAS, the Village and Contractor have agreed to enter into this First Amendment
to the Agreement to formally incorporate the County Provisions and add a sixth Freebee electric
vehicle to the scope of the Services, as set forth in greater detail herein; and
NOW, THEREFORE, for and in consideration of the mutual promises set forth herein,
the parties do hereby agree as follows: 1
1. Recitals Adopted. The above recitals are true and correct and are incorporated
herein by this reference. All initially capitalized terms used but not otherwise
defined herein shall have the meaning ascribed thereto in the Agreement.
1 Words Hugh shall be deleted. Words underscored constitute the amendment. Remaining provisions are
now in effect and remain unchanged.
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DocuSign Envelope ID. B3628B2A-27F3-4086-A594-EEF0B6F09875
Scope of Services. Exhibit "A" to the Agreement is hereby deleted in its entirety
and replaced with Exhibit "A" to this First Amendment.
3. Insurance. Section 9, Insurance, of the Agreement is hereby amended as follows:
Contractor 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 the Village, naming the Village
and Miami -Dade County (the "County") 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 or County shall be in excess of the
Contractor's insurance and shall not contribute to the Contractor'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. In the event that the Village deems
an increase in coverage necessary or prudent, it shall provide
Contractor with a thirty (30) day written notice of any changes to
insurance obligations that the Village requires. Contractor will comply
with such a request prior to expiration of the notice period unless the
insurance coverage is not then readily available in the national market
and may request additional compensation from the Village for any
increased premiums incurred as a result of any such change,
accompanied by justification. Notwithstanding the foregoing, should
the Village require any changes to Contractor's insurance obligations
during this Agreement, Contractor shall have the right to terminate
this Agreement with cause without penalty or further obligation if the
Village declines to provide Contractor with additional compensation
requested by Contractor in connection with such increased premiums
for insurance coverage.
**
2. Certificate of Insurance. Certificates of Insurance shall be provided
to the VilLige, reflecting the Village and the County 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 Contractor 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
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DocuS+grr Envelope ID: B3628B2A-27F3-4086-A594-EEF0B6F09875
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.
3. Additional Insured. Except with respect to Professional Liability
Insurance and Worker's Compensation Insurance, the Village and the
County are 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 Contractor in performance of this Agreement. The
Contractor's insurance, including that applicable to the Village and
the County as an Additional Insureds, shall apply on a primary basis
and any other insurance maintained by the Village or the County shall
be in excess of and shall not contribute to the Contractor's insurance.
The Contractor'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.
4. Indemnification. Section 12, "Indemnification," of the Agreement is hereby
amended as follows:
12. Indemnification.
12.1.Contractor 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 Contractor's performance or
non-performance of any provision of this Agreement, including,
but not limited to, liabilities arising from contracts between the
Contractor and third parties made pursuant to this Agreement.
Contractor 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 Contractor's performance or
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DocuSign Envelope ID B3628B2A-27F3-40B6-A594-EEFOB6F09875
non-performance of this Agreement.
12.2.Contractor shall indemnify and hold harmless the County, its
officers, agents and employees, from and against any and all
demands, claims, losses, suits, liabilities, causes of action,
judgment or damages, arising from Contractor's performance or
non-performance of any provision of this Agreement, including,
but not limited to, liabilities arising from contracts between the
Contractor and third parties made pursuant to this Agreement.
Contractor shall reimburse the County 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 Contractor's performance or
non-performance of this Agreement.
12.3.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.
12.4.The provisions of this section shall survive termination of this
Agreement.
5. Ownership and Access to Records and Audits. Section 16, "Ownership and
Access to Records and Audits," of the Agreement is hereby amended as follows:
16.9 Notice Pursuant to Section 119..0701(2)(a). Florida Statutes.
IF THE CONTRACTOR HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119, FLORIDA
STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEEMENT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS.
Custodian of Records: P r—Kuipa Jocelyn B. Koch, InteFim
Village Clerk, 88 West McIntyre Street, Key Biscayne, FL 33149,
Telephone number: 305-365-5506, Email:
ykochakey biscayne.fl. gov pku-Ipaki,-keybiseayn .
6. E -Verify Affidavit. The Agreement is hereby amended to create Section 28, "E -
Verify Affidavit," as follows:
28. • Ilr Allr • . ' 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
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DocuSign Envelope ID: B3628B2A-21F3-4086-A594-EEF0B6F09875
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
Contractor 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 from
subcontractors: and has executed the required affidavit attached hereto and
incorporated herein.
7. Conflict: Amendment Prevaik. In the event of any conflict or ambiguity
between the terms and provisions of this First Amendment and the terms and
provisions of the Agreement and any prior amendments, the terms and provisions
of this First Amendment shall control.
8. Agreement Ratified, Except as otherwise specifically set forth or modified
herein, all terms and pricing in the Agreement are hereby ratified and affirmed
and shall remain unmodified and in full force and effect in accordance with its
terms.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK.
E -VERIFY AFFIDAVIT AND SIGNATURE PAGE FOLLOW.]
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DocuSign Envelope ID. B3628B2A-27F3-4086-A594-EEFOB6F09875
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: blips:/%www.e-verify.govifaq/how-do-i-provide-proof-of-my-participationenrollm� nt verify
By By signing below, the contracting entity acknowledges that it has read Section 448.095, Florida
Statutes and will comply with the E -Verify requirements imposed by it, including but not limited
to obtaining E -Verify affidavits from subcontractors.
❑ Check here to confirm proof of enrollment in E -Verify has been attached to this
Affidavit.
In the presence of: Signed, sealed and delivered by:
Witness #1 Print Name: Print Name:
Title:
Witness #2 Print Name: Entity Name:
ACKNOWLEDGMENT
State of Florida
County of
The foregoing instrument was acknowledged before me by means of 0 physical presence or 0
online notarization, this day of , 2022, by
(name of person) as (type of authority) for
(name of party on behalf of whom instrument is executed).
Notary Public (Print, Stamp, or Type as
Commissioned)
Personally known to me; or
Produced identification (Type of Identification: )
Did take an oath; or
Did not take an oath
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DacuSign Envelope ID: 83628B2A-27F3-4086-A594-EEFOB6F09875
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed the day and year as
first stated above.
VILLAGE OF KEY BISCAYNE
-DeecuSigned by
Sft vw (, ()ditto* Sot&
By: —CF5c6959rsan42B
Steven C. Williamson
Village Manager
Attest:
By: O �%
Jocelyn B Koch
Village Clerk
Approved as to form and legal sufficiency:
DocuSigned br.
C e4"ire.�inf.,
By: F94F1sEBEEtetcF
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 Helfman Cole & Bierman, P.L.
Attn: Chad Friedman, Esq.
Village of Key Biscayne Attorney
2800 Ponce de Leon Boulevard, Suite 1200
Coral Gables, FL 33134
cfriedmam@wsh-law.com (email)
CONTRACTOR
By:
Name/ Jason Spiegel
Title: CEO
.0 d/h/a Freehee
Addresses for Notice:
Beefree, LLC d/b/a Freebee
Managing Partner
Attn: Jason Spiegel
2312 N. Miami Avenue
Miami, FL 33127
With a copy to:
Switkes and Zappala, Esq.
Attn: Bradley Zaonala
407 Lincoln Rd, PH SE
Miami Beach, FL 33139
305-534-4757 (telephone)
hzappala(ir switkeslaw.com (email)
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DocuSign Envelope ID: B3628B2A-27F3-40B6-A594-EEFOB6F09875
EXHIBIT "A"
Scope of Services
The Contractor will provide a mobile -based, on -demand and circulator transportation services
("On- Demand Services") within the Village of Key Biscayne utilizing six (6) 2016 or newer
Polaris GEM E6 electric vehicles with full doors and windows that seat up to six (6) individuals
at any given time, with at least one (1) E6 vehicle being wheelchair -accessible (collectively, the
"Vehicles"). The Village acknowledges and accepts that wheelchair accessible vehicles may seat
less than (6) individuals when a wheelchair is in use.
All vehicles, including wheelchair accessible vehicles, must meet all safety and mechanical
standards established by Federal, State, County, and local law, rules, or regulations. Wheelchair
accessible vehicles shall be equipped to allow for the safe loading, securing, and travel of
passengers who use wheelchairs based on the vehicle's wheelchair capacity and in compliance
with the specifications and regulations setforthby the FTA for wheelchair accessible vehicles.
The wheelchair accessible vehicles will ,be either lift or ramp equipped to accommodate
wheelchairs and shall have a manual backup to its lift system as required by the ADA. The lift
shall incorporate an emergency method of deploying, lowering to ground level with a lift
occupant, and raising and stowing the empty lift if the power to the lift fails.
The terms of operating the Vehicles are as follows:
1) The Vehicles will be dedicated exclusively to serving individuals within the Village of Key
Biscayne jurisdictional limits. Additionally, no individual on -demand trip shall exceed five
(5) miles in length.
2) The Contractor will operate the Vehicles from Sunday to Thursday from 8:00 am to 8:00 pm;
Fridays from 8:00 am to 10:00 pm; and Saturdays from 10 am to 10 pm (the "Operating
Hours"). Contractor will take all reasonable steps to limit driver break times to downtimes in
service. Operating Vehicles will be staggered such that no Vehicle will operate for longer than
ten (10) hours in a single day. A minimum of two (2) Vehicles will be in operation at all times
during the Operating Hours. The Operating Hours set forth herein may be reasonably
adjusted from time to time by mutual written agreement of the Parties hereto. The contractor
will operate the vehicles accordingly to the following schedule, which may vary from time to
time:
a) Sunday to Thursday:
• Car 1: 7:45am-llam, 11:45am-6:30pm
• Car 2: 7:45am-12pm, 12:45pm-6:30pm
Car 3: 8:45am-lpm, 1:45pm-7:30pm
Car 4: 8:45am-2pm, 2:45pm-7:30pm
Car 5: 9:30am-3pm, 3:45pm-8:15pm
• Car 6: 9:30am-4pm, 4:45pm-8:15pm
b) Friday:
Car 1: 7:45am- I 1 am, 11:45am-6:30prn
Exhibit "A"
DocuSign Envelope ID: B3628B2A-27F3-4086-A594-EEFOB6F09875
• Car 2: 7:45am-12pm, 12:45pm-6:30pm
• Car 3: 8:45am-fpm, 1:45pm-7:30pm
• Car 4: 8:45am-2pm, 2:45pm-7:30pm
• Car 5: 11:30am-4prn, 4:45pm-10:15pm
• Car 6: 11:30am-5pm, 5:45pm-10:15pm
c) Saturday:
• Car 1: 9:45am-lpm, 1:45pm-8:30pm
• Car 2: 9:45am-2pm, 2:45pm-8:30pm
• Car 3: 9:45am-3pm, 3:45pm-8:30pm
• Car 4: 10:45am-4pm, 4:45pm-9:30pm
• Car 5: 11:30am-5pm, 5:45pm-10:15pm
• Car 6: 11:30am-6pm, 6:45pm-10:15pm
3) The Contractor agrees that at all times during the Operating Hours, at least one (1)
wheelchair- accessible Vehicle will be available to accommodate passengers upon request,
and Contractor will operate any ramping systems or other available accommodation -related
systems should such accommodations be requested.
4) The Contractor will operate six (6) Vehicles ("On -Demand Vehicles") within the Village,
which will consist of various pick-up and drop-off stops as designated by riders within the
Designated Service Area at all times during the Operating Hours (weather and conditions
permitting) with the exception of times when drivers are on any company -approved breaks.
To the extent reasonably possible, break times should be staggered to limit the total number of
Vehicles out of operation at any given time during the Operating Hours.
5) On occasion, the Village may request the Contractor to operate outside the normal Operating
Hours or increase the number of Vehicles servicing the Village in response to a special event.
In such cases, the Village will request a quote for the additional services utilizing the hourly
rates established below. In no event shall the quote utilize a rate that exceeds the maximum
hourly rate established per Vehicle provided for below.
6) As compensation for the services above, the Village shall pay the Contractor a maximum
hourly rate of $23,12 per Vehicle.
7) The Contractor will provide drivers for the Vehicles that will communicate public service
announcements as may be communicated by the Village to Contractor from time to time.
8) The Contractor will assist the Village in developing a marketing plan to encourage ridership
on the Vehicles during the term of the Agreement, including the creation of promotional
brochures at no additional cost to the Village.
9) Beginning with the second month of the term of the Agreement and continuing for each
month of the term thereafter, Contractor will provide the Village and the County's Office of
Management and Budget — c/o Management Planning and Performance Analysis with a
monthly report showing data and analytics related to ridership and operations of the Vehicles
for the preceding month(s). Contractor will provide these reports with each monthly invoice
starting the second month of the term. At a minimum and in addition to any other reporting
requirements required by this Agreement, the monthly report shall include data, segregated
by on -demand and circulator services, relating to:
a) Total boardings per month;
b) Average weekday boardings (i.e., the number of boardings on a specific route on a typical
Exhibit "A"
DocuSign Envelope ID. B3628B2A-27F3-4086-A594-EEF0B6F09875
weekday);
c) Average weekday net operating cost (i.e., the total route cost, minus any revenues
received from riders, divided by 255 (number of weekdays in a year));
d) Scheduled revenue miles (i.e., the total scheduled number of miles per route per day),
which should be calculated by the number of miles per roundtrip multiplied by the
number of trips scheduled; and
e) Operations and maintenance (O&M) costs, which shall include the total cost of
operations and maintenance per month.
f) Number of completed rides
g) Average journey time
h) Average distance per ride
i) Average utilization (passengers per vehicle hour)
j) Ridership (average weekday, Saturday and Sunday)
k) Vehicle miles driven
1) Vehicle hours driven
m)No show rate
n) Cancellation rate
o) Average wait time
p) Average percentage of on -time pick up requests
q) Average percentage of requested rides completed
r) Top pick-up and drop-off locations
s) Number of passengers picked -up and dropped off at County transit facilities
t) Percentage of bookings shared
Additionally, the Contractor shall comply with. Federal, State, and C.I.T.T. reporting
requirements applicable to the subject service. Quarterly reports shall include the information
listed above in aggregated format, including trends noticed. Monthly reports shall be
submitted to the County no later than the 15th day of the following month.
10) If State and local law allow for Contractor to sell advertising space on the Vehicles at any
time during the term, and provided Contractor is able to sell such advertising space,
Contractor may enter into separate agreements with advertisers for the placement of
advertising on the Vehicles. At any time, Village may request copies of advertising
agreements entered into for the placement of advertising on the Vehicles and Contractor will
furnish said copies within fifteen (15) calendar days. Nothing in this paragraph should be
deemed to constitute a guarantee that Contractor will sell such advertising space or generate
any revenue by selling advertising on the Vehicles during the term, and the Village expressly
acknowledges that no such guarantee has been made by Contractor. The Village agrees to
forego Vehicle advertising revenues owed to the Village in the amount of $24,125 that were
generated by the Contractor prior to the Effective Date of the First Amendment to the
Agreement.
11) With each invoice to the Village, Contractor will attach a record of invoices for any
advertising agreements entered into in connection with the Vehicles.
12) The Contractor agrees to provide to the County the real-time On -demand service route
information in a format approved by the County DTPW, or its successor department, such as
provided by a Global Positioning System (GPS), and which is compatible with, and may be
Exhibit "A"
DocuSign Envelope ID, B3628B2A-27F3-40B6-A594-EEF0B6F09875
integrated into, the County's srnartphone transit tracker application and common third -party
applications.
Exhibit "A"