Loading...
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. Page 1 of 7 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 Page 2 of 7 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 Page 3 of 7 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 Page4of7 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.] Page 5 of 7 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 Page 6 of 7 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) Page 7 of 7 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"