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R16-077RESOLUTION NO. R16 -077 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING AGREEMENT WITH RUNBROOK, LLC OF WEST PALM BEACH, FL FOR "GREENHOUSE GAS EMISSIONS INVENTORY CONSULTING SERVICES" IN THE AMOUNT OF $44,985.00 AS A RESULT OF THE RFQ NO. 010 - 2821-16/JMA; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, On April 19, 2016 City Commission authorized staff to conduct negotiations based on the approval of the selection of the top ranked qualifier, RunBrook LLC, determined by the Evaluation Committee from oral presentations from the two responding Consultants; and WHEREAS, Staff has successfully completed negotiations with RunBrook, LLC resulting in a contract amount for Task 1. — Data Collection; Task 2. — Greenhouse Gas Emissions Inventory Analysis; and Task 3. — Greenhouse Gas Emissions Inventory Reporting, and Web Based Application Development for a contract amount totaling $44,985.00; WHEREAS, the City Commission of the City of Boynton Beach accepts the recommendations of staff to award a contract to RunBrook, LLC a contract for Task 1. — Data Collection; Task 2. — Greenhouse Gas Emissions Inventory Analysis; and Task 3. — Greenhouse Gas Emissions Inventory Reporting and Web Based Application Development for an amount totaling $44,985.00 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof. {00135786.1 306- 9001821} Section 2. The City Commission of the City of Boynton Beach, Florida does hereby award to RunBrook, LLC a contract for Task 1. — Data Collection; Task 2. — Greenhouse Gas Emissions Inventory Analysis; and Task 3. — Greenhouse Gas Emissions Inventory Reporting and Web Based Application Development for an amount totaling $44,985.00. A copy of the contract is attached hereto as Exhibit "A ". Section 3. The City Manager is authorized to execute the contract on behalf of the City Commission. Section 4. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this 21 day of June, 2016. CITY OF BOYNTON BEACH, FLORIDA YES NO Mayor — Steven B. Grant L— Vice Mayor — Mack McCray " Commissioner — Justin Katz Commissioner — Christina L. Romelus Lr Commissioner — Joe Casello ATTEST: J'�' it A. Pyle, C Ifiterim City Clerk (Corporate Seal) v VOTE -5� {00135786.1 306 - 9001821} w a' N �r AGREEMENT FOR GREENHOUSE GAS EMISSIONS INVENTORY CONSULTING SERVICES THIS AGREEMENT is entered into between the City of Boynton Beach, hereinafter referred to as "CITY ", and RunBrook, LLC hereinafter referred to as "CONSULTANT ", in consideration of the mutual benefits, terms, and conditions hereinafter specified. WHEREAS, pursuant to Section 287.055, Florida Statutes, the City of Boynton Beach solicited proposals for a non - exclusive Contract to perform professional services with a firm for required services, and WHEREAS, THE CITY issued a Request for Qualifications for GREENHOUSE GAS EMISSIONS INVENTORY CONSULTING SERVICES, RFQ No. 010 - 2821 -16 /JMA and 010 - 2821 -16 /JMA defined Scope of Services as TASK 1 THROUGH TASK 4 with specific Project Deliverables as outlined in the RFQ. WHEREAS, the CITY determined that CONSULTANT was qualified for appointment to perform the scope of services set forth in the Request for Qualifications; and WHEREAS, the CITY Commission on June 21, 2016, determined that CONSULTANT was qualified for appointment to perform the scope of services set forth in the Request for Qualifications; and WHEREAS, the City Manager, through his administrative staff, has successfully negotiated an Agreement with CONSULTANT defining terms and conditions for the performance of consulting and related services within the scope of the Request for Qualifications. NOW, THEREFORE, in consideration of the mutual covenants expressed herein, the parties agree as follows: ARTICLE 1 - SERVICES CONSULTANT agrees to perform Green House Gas Emissions Consulting and related services by way of individual task orders, at the request of the CITY during the term of this Agreement, including the provision of all labor, materials, equipment and supplies. The specified project which may be assigned to CONSULTANT is set forth on Exhibit " A ". The CITY's Representative during the performance of this Contract shall be Christopher Roschek, Utilities Engineering Manager; Telephone (561) 742 -6413. C -1 ARTICLE 2 - TERM The CONSULTANT shall be available to commence services after Commission approval and shall not exceed twelve (12) months to complete this project. ARTICLE 3 - TIME OF PERFORMANCE Work under this Contract shall commence upon the giving of written notice by the CITY to the CONSULTANT by way of purchase order. ARTICLE 4 - PAYMENT The CONSULTANT shall be paid by the CITY for completed work and for services rendered under this agreement as follows: a. Payment for the work provided by CONSULTANT shall be made as provided on Exhibit " A " attached hereto. b. The CONSULTANT may submit vouchers to the CITY once per month during the progress of the Work for partial payment for project completed to date. Such vouchers will be checked by the CITY, and upon approval thereof, payment will be made to the CONSULTANT in the amount approved. c. Final payment of any balance due the CONSULTANT of the total contract price earned will be made promptly upon its ascertainment and verification by the CITY after the completion of the Work under this Agreement and its acceptance by the CITY. d. Payment as provided in this section shall be full compensation for work performed, services rendered and for all materials, supplies, equipment and incidentals necessary to complete the work. ARTICLE 5 - OWNERSHIP AND USE OF DOCUMENTS Except for CONSULTANT's Underlying IP (defined below), all documents, drawings, specifications and other materials produced by the CONSULTANT in connection with the services rendered under this agreement shall be the property of the CITY whether the project for which they are made is executed or not. The CONSULTANT shall be permitted to retain copies, including reproducible copies, of drawings and specifications for information, reference and use in connection with CONSULTANT's endeavors. Any use of the documents for purposes other than as originally intended by this Agreement, without the written consent of CONSULTANT, shall be at the CITY's sole risk. Notwithstanding anything to the contrary, CONSULTANT shall retain all right, title and ownership over CONSULTANT's Underlying IP. "CONSULTANT's Underlying IP" means any and all underlying technology, code, methods and other intellectual property used by CONSULTANT to provide deliverables to the CITY, including, without limitation, all components of any platform, website or underlying software as a service created, used or leveraged by CONSULTANT. C -2 ARTICLE 6 — FUNDING This Agreement shall remain in full force and effect only as long as the expenditures provided in the Agreement have been appropriated by the CITY in the annual budget for each fiscal year of this Agreement, and is subject to termination based on lack of funding. ARTICLE 7 - WARRANTIES AND REPRE SENTATIONS CONSULTANT represents and warrants to the CITY that it is competent to engage in the scope of services contemplated under this Agreement and that it will retain and assign qualified professionals to all assigned projects during the term of this Agreement. CONSULTANT's services shall meet a standard of care for professional greenhouse gas emissions inventory and related services equal to or exceeding the standard of care for such a professional practicing under similar conditions. In submitting its response to the RFQ, CONSULTANT has represented to CITY that certain individuals employed by CONSULTANT shall provide services to CITY pursuant to this Agreement. CITY has relied upon such representations. Therefore, CONSULTANT shall not change the designated Project Manager for any project without the advance written approval of the CITY, which consent may be withheld in the sole and absolute discretion of the CITY. ARTICLE 8 - COMPLIANCE WITH LA CONSULTANT shall, in performing the services contemplated by this service Agreement, faithfully observe and comply with all federal, state and local laws, ordinances and regulations that are applicable to the services to be rendered under this Agreement. ARTICLE 9 — I NDEMNIFICATION; LIMITATION ON LIABILITY CONSULTANT shall indemnify, defend and hold harmless the CITY, its offices, agents and employees, from and against any and all claims, losses or liability, or any portion thereof, including attorneys' fees and costs, arising from injury or death to persons, including injuries, sickness, disease or death to CONSULTANT's own employees, or damage to property occasioned by a negligent act, omission or failure of the CONSULTANT. Neither party to this Agreement shall be liable to each other or to any third party claiming directly or through the other respective party, for any special, incidental, indirect or consequential damages of any kind, including but not limited to lost profits or use that my result from this Agreement or out of the services or goods furnished hereunder. Except for a claim of non - payment, or a claim arising from injury or death to persons or infringement of intellectual property, in no event will either party's total liability pursuant to or related to this Agreement or the services provided pursuant to this Agreement exceed an amount equal to the amounts paid by the CITY to CONSULTANT in the six (6) months prior to the event giving rise to the claim. ARTICLE 10 - INSURANCE 10.1 During the performance of the services under this Contract, CONSULTANT shall maintain the following insurance policies, and provide originals or certified copies of all policies, and shall be written by an insurance company authorized to do business in Florida. C -3 10.1.1 Worker's Compensation Insurance: The CONSULTANT shall procure and maintain for the life of this Contract, Worker's Compensation Insurance covering all employees with limits meeting all applicable state and federal laws. This coverage shall include Employer's Liability with limits meeting all applicable state and federal laws. This coverage must extend to any sub - Consultant that does not have their own Worker's Compensation and Employer's Liability Insurance. The policy must contain a waiver of subrogation in favor of the CITY of Boynton Beach, executed by the insurance company. 10.1.2 Comprehensive General Liability: The CONSULTANT shall procure and maintain for the life of this Contract, Comprehensive General Liability Insurance. This coverage shall be on an "Occurrence" basis. Coverage shall include Premises and Operations; Independent Contractors, and Products Completed Operations. This policy shall provide coverage for death, personal injury or property damage that could arise directly or indirectly from the performance of this Agreement. CONSULTANT shall maintain a minimum coverage of $1,000,000 per occurrence and $1,000,000 aggregate for personal injury/ and $1,000.000 per occurrence /aggregate for property damage. The general liability insurance shall include the CITY as an additional insured and CONSULTANT shall provide the CITY with notice at least thirty (30) days prior written prior to cancellation. 10.1.4 Professional Liability (Errors and Omissions) Insurance: The CONSULTANT shall procure and maintain for the life of this Contract in the minimum amount of $1,000,000 per occurrence. 10.2 It shall be the responsibility of the CONSULTANT to ensure that all sub- contractors comply with the same insurance requirements referenced above. 10.3 In the judgment of the CITY, prevailing conditions warrant the provision by the CONSULTANT of additional liability insurance coverage or coverage which is different in kind, the CITY reserves the right to require the provision by CONSULTANT of an amount of coverage different from the amounts or kind previously required and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. Should the CONSULTANT fail or refuse to satisfy the requirement of changed coverage within the thirty (30) days following the CITY's written notice, the CITY, at its sole option, may terminate the Contract upon written notice to the CONSULTANT, said termination taking effect on the date that the required change in policy coverage would otherwise take effect. 10.4 CONSULTANT shall, for a period of two (2) years following the termination of the Agreement, maintain a "tail coverage" in an amount equal to that described above for Comprehensive Liability Insurance on a claims -made policy only C -4 ARTICLE 11 - INDEPENDENT CONTRACTOR 11.1 The CONSULTANT and the CITY agree that the CONSULTANT is an independent consultant with respect to the services provided pursuant to this Agreement. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the parties hereto. Neither CONSULTANT nor any employee of CONSULTANT shall be entitled to any benefits accorded CITY employees by virtue of the services provided under this Agreement. The CITY shall not be responsible for withholding or otherwise deducting federal income tax or social security or for contributing to the state industrial insurance program, otherwise assuming the duties of an employer with respect to CONSULTANT, or any employee of CONSULTANT. 11.2 CONSULTANT acknowledges and understands that, as an independent consultant pursuant to this Agreement, CONSULTANT shall comply with Chapter 119, Florida Statutes, as amended (Public Records). CONSULTANT's obligation includes, but is not limited to CONSULTANT's obligation to preserve public records and make public records available to third parties in addition to the CITY. Any and all information regarding CONSULTANT's Underlying IP are CONSULTANT's trade secrets and shall be protected pursuant to Florida Statutes Section 119.071(f) and Section 812.081, and kept confidential and exempt from public record disclosure requirements. ARTICLE 12 - COVENANT AGAINST CONTINGENT FEES The CONSULTANT warrants that he 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 he has not paid or agreed to pay any company or person, other than a bona fide employee working solely for the CONSULTANT, any fee, commission, percentage, brokerage fee, gifts, or any other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the CITY shall have the right to annul this Agreement without liability or, in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. ARTICLE 13 — TRUTH -IN- NEGOTIATION CERTIFICATE 13.1 Execution of this Agreement by the CONSULTANT shall act as the execution of a truth -in- negotiation certificate certifying that the wage rates and costs used to determine the compensation provided for in this Agreement is accurate, complete, and current as of the date of the Agreement and no higher than those charged the CONSULTANT's most favored customer for the same or substantially similar service. 13.2 The said rates and cost shall be adjusted to exclude any significant sums should the CITY determine that the rates and costs were increased due to inaccurate, incomplete, or non - current wage rates or due to inaccurate representations of fees paid to outside consultants. The CITY shall exercise its rights under this "Certificate" within one (1) year following payment. C -5 ARTICLE 14 - DISCRIMINATION PROHIBITED The CONSULTANT, with regard to the work performed by it under this Agreement, will not discriminate on the grounds of race, color, national origin, religion, creed, age, sex or the presence of any physical or sensory handicap in the selection and retention of employees or procurement of materials or supplies. ARTICLE 15 - ASSIGNMENT The CONSULTANT shall not sublet or assign any of the services covered by this Agreement without the express written consent of the CITY. ARTICLE 16 - NON - WAIVER A waiver by either CITY or CONSULTANT of any breach of this Agreement shall not be binding upon the waiving party unless such waiver is in writing. In the event of a written waiver, such a waiver shall not affect the waiving party's rights with respect to any other or further breach. The making or acceptance of a payment by either party with knowledge of the existence of a default or breach shall not operate or be construed to operate as a waiver of any subsequent default or breach. ARTICLE 17 — TERMINATION 17.1 Termination for Convenience: This Agreement may be terminated by the CITY for convenience, upon ten (10) days of written notice by the terminating party to the other party for such termination in which event the CONSULTANT shall be paid its compensation for services performed to termination date, including services reasonably related to termination. In the event that the CONSULTANT abandons the Agreement or causes it to be terminated, CONSULTANT shall indemnify the CITY against loss pertaining to this termination. 17.2 Termination for Default: In addition to all other remedies available to the CITY, this Agreement shall be subject to cancellation by the CITY for cause, should the CONSULTANT neglect or fail to perform or observe any of the terms, provisions, conditions, or requirements herein contained, if such neglect or failure continue for a period of thirty (30) days after receipt by CONSULTANT of written notice of such neglect or failure. ARTICLE 18 - DISPUTES Any dispute arising out of the terms or conditions of this Agreement shall be adjudicated within the courts of Palm Beach County, Florida. Further, this Agreement shall be construed under Florida Law. C -6 RTICLE 19 — UNCONTROLLABLE FORCES 19.1 Neither the CITY nor CONSULTANT shall be considered to be in default of this Agreement if delays in or failure of performance shall be due to Uncontrollable Forces, the effect of which, by the exercise of reasonable diligence, the non- performing party could not avoid. The term "Uncontrollable Forces" shall mean any event which results in the prevention or delay of performance by a party of its obligations under this Agreement and which is beyond the reasonable control of the non - performing party. It includes, but is not limited to fire, flood, earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage, and governmental actions. 19.2 Neither party shall, however, be excused from performance if non - performance is due to forces which are preventable, removable, or remediable, and which the non - performing party could have, with the exercise of reasonable diligence, prevented, removed, or remedied with reasonable dispatch. The non - performing party shall, within a reasonable time of being prevented or delayed from performance by an uncontrollable force, give written notice to the other party describing the circumstances and uncontrollable forces preventing continued performance of the obligations of this Agreement. ARTICLE 20 - NOTICES Notices to the CITY of Boynton Beach shall be sent to the following address: City of Boynton Beach Attn: Lori LaVerriere, City Mgr. 100 E. Boynton Beach Blvd. Boynton Beach, FL 33435 Notices to CONSULTANT shall be sent to the following address: RunBrook, LLC Attn: Gaida Zirkelbach 777 S. Fla ler Dr., Suite 800 West Palm Beach, FL 33401 ARTICLE 21 - INTEGRATED AGREEMENT This Agreement, together with the RFQ and any addenda and /or attachments, represents the entire and integrated agreement between the CITY and the CONSULTANT and supersedes all prior negotiations, representations, or agreements written or oral. This Agreement may be amended only by written instrument signed by both CITY and CONSULTANT. C -7 ARTICLE 22 - SOVEREIGN IMMUNITY 22.1 CITY is a political subdivision of the State of Florida and enjoys sovereign immunity. Nothing in the Agreement is intended, nor shall be construed or interpreted, to waive or modify the immunities and limitations on liability provided for in Section 768.28, Florida Statute, as may be emended from time to time, or any successor statute thereof. To the contrary, all terms and provisions contained in the Agreement, or any disagreement or dispute concerning it, shall . be construed or resolved so as to insure CITY of the limitation from liability provided to any successor statute thereof. To the contrary, all terms and provision contained in the Agreement, or any disagreement or dispute concerning it, shall be construed or resolved so as to insure CITY of the limitation from liability provided to the State's subdivisions by state law. 22.2 In connection with any litigation or other proceeding arising out of the Agreement, the prevailing party shall be entitled to recover its own costs and attorney fees through and including any appeals and any post - judgment proceedings. CITY's liability for costs and attorney's fees, however, shall not alter or waive CITY's entitlement to sovereign immunity, or extend CITY's liability beyond the limits established in Section 768.28, Florida Statutes, as amended. 1. Claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement shall be in a court of law. The CITY does not consent to mediation or arbitration for any matter connected to this Agreement. 2. The parties agree that any action arising out of this Agreement shall take place in Palm Beach County, Florida. ARTICLE 23 — PUBLIC RECORDS Sealed documents received by the City in response to an invitation are exempt from public records disclosure until thirty (30) days after the opening of the Bid unless the City announces intent to award sooner, in accordance with Florida Statutes 119.07. The City is public agency subject to Chapter 119, Florida Statutes. The Contractor shall comply with Florida's Public Records Law. Specifically, the Contractor shall: A. Keep and maintain public records required by the CITY to perform the service; B. Upon request from the CITY's custodian of public records, provide the CITY 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 in chapter 119, Fla. Stat. or as otherwise provided by law; C. Ensure that public records that are exempt or that are confidential and exempt from public record disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and, following completion of the contract, Contractor shall destroy all copies of such confidential and exempt records remaining in its possession once the Contractor transfers the records in its possession to the CITY; and C -8 D. Upon completion of the contract, Contractor shall transfer to the CITY, at no cost to the CITY, all public records in Contractor's possession All records stored electronically by Contractor must be provided to the CITY, upon request from the CITY's custodian of public records, in a format that is compatible with the information technology systems of the CITY. E. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS: (CITY CLERK) 100 E BOYNTON BEACH BLVD. BOYNTON BEACH, FLORIDA, 33435 561- 742 -6061 PYLEJ @BBFL.US IN WITNESS WHEREOF, the parties hereto have executed this Contract in multiple copies, each of which shall be considered an original on the following dates: DATED this day of 1 2016 CITY OF BOYNTON BEACH Lori LaVerriere, City Manager RunBrook, LLC Attest /Authenticated: Judy Pyle, Interim City Clerk Approved as to Form: James A. Cherof, City Attorney Title (Corporate Sea[) Attest /Authenticated: Secretary C -9