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HomeMy WebLinkAbout2008 07 14 Consent 207 Contract with Planning Communities, LLC for Second Phase of EAR WorkCOMMISSION AGENDA Consent X ITEM 2 0 7 Informational Public Hearing ~ Regular ~ ~ July 14, 2008 Meeting Mgr. REQUEST: The Community Development Department- Planning Division requests the City Commission approve authorization to enter into a contract with Planning Communities, LLC for the second phase of the EAR work to prepare the Evaluation and Appraisal Report (EAR)-Based Comprehensive Plan Amendments, due December 2009. PURPOSE: To authorize a contract with Planning Communities, LLC to prepare the EAR-Based Comprehensive Plan Amendments, due December 2009. CONSIDERATIONS: In August 2007, the City issued a Request for Qualifications and invited the submittal of qualifications from professional planning consultants with expertise and skills in comprehensive planning for the preparation of the EAR and subsequent EAR-Based Amendments. Eighteen (18) submittals were received. Of these, three (3) firms were short listed for interviews. As a result, the City selected Planning Communities, LLC for both phases of work and entered into a contract on October 8, 2007 for the preparation of the First Phase of work related to the EAR. Winter Springs submitted its Adopted EAR to the DCA on April 17, 2008, well in advance of the statutory deadline of May 1, 2008. Subsequently, the City received notice from the DCA on June 23, 2008, that the DCA has determined the EAR to be Sufficient pursuant to Section 163.3191(2). The DCA also commended the City's efforts in preparation of the EAR and indicated support for many of the recommendations made in the EAR. The City now begins the Second Phase of work related to the EAR- the preparation of the EAR- Based Comprehensive Plan Amendments. The statutory deadline for this Adoption of the EAR- BasedComprehensive Plan Amendments is 18 months after the determination of Sufficiency for the EAR or December 2009. -1- July 14, 2008 City Commission Agenda Item 207 Page 2 of 2 The Community Development Department seeks approval to enter into a contract with Planning Communities, LLC for this second phase of work, the preparation of the EAR-Based Amendments. The contract amount is $42,370. FUNDING: Funding for these services will be provided under the current City's FY 2007-2008 budget item 1510-53180. Staff anticipates no additional funding requirements over the stipulated amount of $42,370, for this phase of services. STAFF RECOMMENDATION: The Community Development -Planning Division recommends approval of the contract with Planning Communities, LLC for the completion of the EAR-Based Amendments and seeks authority for the City Manager to execute the Contract in the amount of $42,370. ATTACHMENTS: A- Contract with Exhibits CITY COMMISSION ACTION: ATTACHMENTA PROFESSIONAL SERVICES AGREEMENT (Evaluation and Appraisal Report-Based Comprehensive Plan Amendments) THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into this day of , 2008, by and between PLANNING COMMUNITIES, LLC, a Florida limited liability company ("Consultant"), whose principle mailing address is 2510 Wild Tamarind Boulevard, Orlando, Florida 32828, and THE CITY OF WINTER SPRINGS, a Florida municipal corporation, ("City"), whose principle mailing address is 1126 East State Road 434, Winter Springs, Florida, 32708. WITNESSETH: WHEREAS, section 163.3191, Florida Statutes, requires that the City adopt an evaluation and appraisal report ("EAR") once every seven (7) years assessing the City's progress in implementing its comprehensive plan; and WHEREAS, the Florida Department of Community Affairs approved the City's EAR on June 20, 2008; and WHEREAS, the City desires to engage the Consultant to prepare amendments to the City's Comprehensive Plan consistent with the approved EAR as further described herein; and WHEREAS, the City and Consultant desire to memorialize the terms and conditions of the services to be provided as set forth in this Agreement; and INCONSIDERATION of the mutual covenants and provisions hereof, and other good and valuable consideration, the receipt and sufficiency all of which is hereby acknowledged, the parties desiring to be legally bound do hereby agree as follows: 1.0 Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 2.0 Definitions. For purposes of this Agreement, the following terms and words shall have the meaning ascribed to them, unless the context clearly indicates otherwise. Agreement shall mean this Professional Services Agreement, as may be modified, which shall constitute authorization for the Consultant to provide the Services stated herein to the City. Amendments shall mean the amendments to the City's Comprehensive Plan based on the Evaluation and Appraisal Report approved by the Florida Department of Community Affairs on June 20, 2008 and consistent with the Services as set forth herein. PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 1 of 9 City means the City of Winter Springs, Florida, a Florida municipal corporation. Consultant shall mean Planning Communities, LLC, a Florida limited liability company, its agents, employees and contractors thereof. Effective date shall be the date on which the last signatory hereto shall execute this Agreement, and it shall be the date on which this Agreement shall go into effect. Public Record is as described in section 119.011(11), Florida Statutes. Services shall mean the performance of the Services outlined in Section 5.0 of this Agreement. 3.0 Engagement. The City hereby engages the Consultant and the Consultant agrees to perform the Services outlined in this Agreement for the stated fee arrangement. No prior or present agreements or representations shall be binding upon any party hereto unless incorporated in this Agreement. 4.0 Term; Termination. 4.1 Term. This Agreement shall become effective upon execution by both parties hereto and shall remain in effect until Consultant completes the Services outlined herein in Section 5.0 to the satisfaction of the City. 4.2 Termination. 4.2.1 For convenience. The City, in whole or in part, may terminate the performance of the Services under this Agreement whenever the City determines that termination is in the City's best interest. Any such termination shall be effected by the delivery to the Consultant of a written notice of termination at least fifteen (15) days prior to the date of termination. The City shall pay all reasonable costs incurred by Consultant up to the date of termination. Consultant will not be reimbursed for any anticipatory profits that have not been earned to the date of termination. 4.2.2 For cause. If Consultant fails to fulfill its obligations under this Agreement properly and on time, or otherwise violates any provision of this Agreement, the City may terminate this Agreement by written notice to Consultant. The notice shall specify the acts or omissions relied upon as cause for termination. All finished or unfinished work provided by Consultant shall, at the City's option, become the City's property. The City shall pay Consultant fair and equitable compensation for satisfactory performance prior to receipt of Notice of Termination less the amount of damages caused by Consultant's breach. If the damages are more than the PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 2 of 9 compensation payable to Consultant, Consultant will remain liable after termination and the City may affirmatively collect damages. 5.0 Scope of Services; Time of Performance. Consultant agrees to provide the professional and technical Services required to amend the City's Comprehensive Plan based on the recommendations made in the Adopted Evaluation and Appraisal Report and as outlined in the Scope of Service document attached hereto as "Exhibit A," and fully incorporated herein by this reference. Consultant agrees that said Services shall be completed on or before December 14, 2009. Consultant agrees that the schedule attached hereto as "Exhibit B" represents a reasonable period of time for Consultant to perform the Services and that the Amendments will be transmitted to the Florida Department of Community Affairs ("DCA") no later than June 11, 2009. 6.0 Compensation. 6.1 For the performance and full completion of the Services specified herein, City agrees to pay Consultant a sum not to exceed Forty-Two Thousand Three Hundred Seventy Dollars and no/100 ($42,370.00), inclusive of all reasonable and necessary direct expenses as described in "Exhibit A." There shall be no other compensation due Consultant forthe Services provided underthis Agreement, unless specifically agreed to by the City and Consultant in writing, pursuant to Section 17 of this Agreement. 6.2 Additional services may be added at the sole discretion of the City, based upon a negotiated lump sum fee or hourly rate. Consultant must obtain express written direction of the City prior to commencing any additional services. Consultant's hourly rates shall be as follows: Personnel Hourly Rate in Dollars Project Manager $110.00 Principal Planner $100.00 Senior Planner $85.00 Planner/GIS/Graphics $70.00 7.0 Professionalism. Consultant shall perform all Services required by this Agreement in a manner and with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and shall be consistent with Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. 8.0 Warranty of Professional Services. The Consultant hereby warrants unto the City that PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 3 of 9 it has sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit of any Services, the Consultant shall supervise and direct the Services, using its skill and attention and shall enforce strict discipline and good order among its employees and agents. The Consultant shall comply with all laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on performance of the Services. The Consultant shall pay all taxes, fees, license fees required by law, including but not limited to occupational fees and withholding taxes and assume all costs incident to the Services, except as provided herein. 9.0 Services is a Private Undertaking. With regard to any and all Services performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and Consultant is such that the Consultant is an independent Consultant and is neither an agent nor employee of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent Consultant, between the City, on one hand, and the Consultant, on the other hand, during or after the performance of the Services under this Agreement. 10.0 Protection of Persons and Property: Insurance. 10.1 Coverage requirements. Upon the Effective Date of this Agreement, Consultant shall provide proof of the following: 10.1.1 Worker's compensation insurance in accordance with the applicable provisions of Florida law. 10.1.2 Professional liability insurance with a combined single limit of $1,000,000 for each occurrence and $1,000,000 in the aggregate. 10.1.3 Commercial general liability insurance with a combined single limit of $1,000,000 for each occurrence and $1,000,000 in the aggregate. 101.4 Automobile liability insurance in an amount not less than $1,000,000 for injuries to any one (1) person, $1,000,000 on account of any one (1) accident, and in an amount of not less than $1,000,0000 for property damages. 10.1.5 Employer's liability in an amount adequate to cover related assets. 10.2 General requirements. Consultant is solely responsible for procuring and maintaining the insurance coverage required by this Section at its own expense and with insurance companies authorized to do business in the State of Florida and as long as reasonably available in the standard marketplace. The insurance coverage required by this Section shall include the liability and coverage provided herein, or as required by law, PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 4 of 9 whatever requirements afford greater coverage. All of the policies of insurance so required to be purchased and maintained for the certificates (or other evidence thereof) shall contain a provision or endorsement that the coverage afforded will not be canceled until at least thirty (30) days prior written notice has been given to the City and the Consultant by certified mail, return receipt requested. All such insurance shall remain in effect until final payment. Unless agreed to by the City to the contrary, the City shall be named on the foregoing insurance policies as "additional insured," except with regard to the professional liability coverage. The Consultant shall cause its insurance carriers to furnish insurance certificates specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days prior written notice to the City in compliance with other provisions of this Agreement. For all claims that arise in connection with this contract, Consultant will pay any insurance deductible for such claim. For all Services performed pursuant to this Agreement, Consultant shall continuously maintain such insurance in the amounts, type, and quality as required by this Section. In the event Consultant fails to maintain said insurance, City, at its option, may elect to terminate this Agreement without penalty by written notice to Consultant. 11.0 Indemnification and Hold Harmless. For all Services performed pursuant to this Agreement, Consultant agrees, to the fullest extent permitted by law, to indemnify and hold harmless the City and its employee, officers, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death) or liability (including reasonable attorney's fees), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, resulting from Consultant's performance of any Services provided pursuant to this Agreement. 12.0 Governing Law; Venue. This Agreement shall be governed by the laws of the State of Florida. Venue of all disputes shall be properly placed in Seminole County, Florida. The parties agree that the Agreement was consummated in Seminole County, and the site of the Services is Seminole County. If any dispute concerning this Contract arises under Federal law, the venue will be Orlando, Florida. 13.0 Consultant's Representative. The Consultant shall designate an individual to act as a representative for the Consultant under this Agreement with the authority to transmit instructions, receive information, and make or interpret the Consultant's decisions. This person shall be the Consultant's contract administrator. The Consultant may, from time to time, designate other individuals or delete individuals with the authority to act for the Consultant under this Agreement with the authority to transmit instructions, receive information, and make or interpret the Consultant's decisions. All deletions or designation of individuals to serve as a representative shall be given by written notice. 14.0 Notices. All projects hereunder, all notices, demands, requests, instructions, approvals, and claims shall be in writing. All notices of any type hereunder shall be given by U.S. mail or by hand PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 5 of 9 delivery to an individual authorized to receive mail for the below listed individuals, all to the following individuals at the following locations: To City: Randy Stevenson, Community Development Director City of Winter Springs 1 126 East S.R. 434 Winter Springs, Florida 32708 (407) 327-5970(Phone) w/copy to: Anthony A. Garganese, City Attorney Brown, Garganese, Weiss, & D'Agresta, P.A. P.O. Box 2873 Orlando, FL 32802-2873 (407) 425-9566 (Phone) (407) 425-9596 (Fax) To Consultant: Teresa Townsend, CEO Planning Communities, LLC 2510 Wild Tamarind Boulevard Orlando, Florida 32828 (407) 3 82-2229 (Phone) Notice shall be deemed to have been given and received on the date the notice is physically received if given by hand delivery, or if notice is given by first class U.S. mail, postage prepaid, then notice shall be deemed to have been given upon the date said notice was deposited in the U.S. Mail addressed in the manner set forth above. Any party hereto by giving notice in the manner set forth herein may unilaterally change the name of the person to whom notice is to be given or the address at which notice is to be received. 15.0 Public Record. It is hereby specifically agreed that any record, document, computerized, information and program, audio or video tape, photograph, or other writing of the Consultant related, directly or indirectly, to this Agreement and the Services provided hereunder, may be deemed to be a Public Record whether in the possession or control of the City or the Consultant. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Consultant is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City, the Consultant shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours of the Consultant be open and freely exhibited to the City for the PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 6 of 9 purpose of examination and/or audit. 16.0 Interpretation. Both the City and the Consultant have participated in the drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 17.0 Modification of Agreement. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City. 18.0 Severability. If a word, sentence, phrase, clause or paragraph herein shall be declared illegal, unenforceable, or unconstitutional, the said word, sentence, phrase, clause or paragraph shall be severed from this Contract, and this Contract shall be read as if said illegal, unenforceable, or unconstitutional word, sentence, phrase, clause or paragraph did not exist. 19.0 Additional Assurances. The Consultant certifies that: 19.1 No principal (which includes officers, directors, or executive) or individual holding a professional license and performing Services under this Agreement is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any Services required by this Agreement by any Federal, State, or local governmental commission, department, corporation, subdivision, or agency; 19.2 No principal (which includes officers, directors, or executive) or individual holding a professional license and performing Services under this Agreement, employee, or agent has employed or otherwise provided compensation to, any employee or officer of the City; and 19.3 No principal (which includes officers, directors, or executive) or individual holding a professional license and performing Services under this Agreement, employee or agent has willfully offered an employee or officer of the City any pecuniary or other benefit with the intent to influence the employee or officer's official action or judgment. 20.0 Attorney's Fees. Should any litigation arise concerning this Agreement between the parties hereto, the parties agree to bear their own costs and attorney's fees. 21.0 Entire Agreement. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. 22.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 7 of 9 liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 23.0 Assignment. Neither party hereto may assign, convey, or otherwise transfer any of its rights, obligations or interest herein without the prior written consent of the other party. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date first written above. CONSULTANT: PLANNING COMMUNITIES, LLC, a Florida limited liability company. WITNESSES: By: Print Name: Print Name: Teresa Townsend, CEO PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 8 of 9 City: By: CITY OF WINTER SPRINGS, FLORIDA a Florida municipal corporation. Ronald McLemore, City Manager PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 9 of 9 Exhibit `A' raaecr. Winter Springs Comprehensive Plan Updates I to er prings ompre enslve an p a es Planning Commun ities Tasks TASK Projed Manager Prinapal Planner Senior Planner Planner/GIS/ raphics TOTALS Com rehensive Plan Update Strete y 1.1 Kick Off Activities - Kidc Off Meeting with City Staff 4.0 - Press Release 8 U dated ScheduleAnfonnafion about the Comp. Plan Update: t.u 2.0 1.2 Additional Data Collection -Data ColledionNpdates• Police, Fire, Parks and Rec, Conservation, Development-Related, Transportation/Transit, Pop./Demographi Infrastructure defiats, Other 8.0 12.0 24.0 4.0 48.0 2 Meetings and Coordination 2.1 LPA Meetin s 3 -LPA Briefing (1) 1 Planning Communities Slaf 4.0 4.0 8.0 -Other LPA Briefin s by Ci of Winter S n s Staff (Plannin Communities will not attend, Ci to 2pare handouts, resentations, etc. -LPA Presentation to the Commission on the Draft Comp Plan Amendments (1) 1 Planning Communities Staff 4.0 4.0 -LPA Public Hearin (1) 1 Planning Communities Staff 4.0 4.0 2.2 Commission Meetin s 2 -Commission Public Hearings (2) 1 Pfannin Communities Staff tt.u 4.u 4.u 16.0 -ReviseN date Materials for Commission based on LPA Recommendations (2 Meetings) 2n a u z n 8.0 2.3 A enc Coordination - FDOT 2 meefin s, travel to meefin s, hone/email wordinafion a i i F n 16.0 - DCA Coordination 1 meefin ,travel to meefin s, phone/email wordinafion ~ 3 0 2 u 14.0 3 Comprehensive Plan Amendments 3.1 Required/Editorial U dates ie: u dates not requirin additional in~epfh analysis' -Updates to date deadlines, agency names, other minor edit: 1.u 4.u 5.0 -Statute and Administrative Rule U ales 6.0 16.0 22.0 - Water Su pty/V1later Plan related 3.0 8.0 11.0 - Other Minor Edits Identfied in the EAR 4.0 12.0 16.0 3.2 Com rehensive Plan Evaluations (Based on EAR Recommendations and Stakeholder In ut -InfilVRedevelopment Issue Analysis 4.0 4.0 12.0 2.0 22.0 -Greenewa Interchange District Issue Anatysi: 4.0 12.0 4.0 2.0 22.0 -Trans ortation Issues/SR 4341ssue Anaysis 4.0 16.0 4.0 2.0 26.0 -Housing Affordable, Elde Issue Matysis 4.0 10.0 2.D 16.0 -GIS and Ma in Ana sis 2.0 4.0 16.0 22.0 3.3 Draft Ma'or Com rehensive Plan Amendments (Based on Visionin and Evaluations - Dreft Ma or Plan Amendments and map series 8.U 8.0 '24.D 4.0 44.0 -Submit Preliminary Draft Amendments to City Staff (Digital pdf copy/2cds) 2.0 1.0 3.0 - Revise Amendments for Staff Comments 4.0 4.0 8.0 2.0 18.0 -Print, Assemble and Submit Prelimina Draft Amendments to LPA (10 Hard Co ies 2.0 6.D 8.0 - Revise Amendments for LPA Comments 2.0 2.0 4.D 1.0 9.0 -Print, Assemble and Submit Prelimina Draft Amendments to Commission 15 Hard Copies) 2.0 6.0 8.0 4 Contract Mana ement/Coordination -Bi-week hone calls, ongoing emails, monthly meetin s (1-2 staff) 24.0 12.0 36.0 -Contract coordination, progress reports, invoicin 2.0 6.D 8.0 SUBTOTALS 130.0 76.0 177.D 37.0 420.0 Burdened Rates $ 110 $ 100 $ 85 ~ S 70 $ 14,300 $ 7,600 $ 15,045 ~, 5 2,590 S 39,535 inter prings ompre enslve an pates Planning Communities Tasks TASK Projed Prinapal Senior Planner/GIS/ Manager Planner Planner raphics TOTALS Plannin Communities Direct costs Draft Report Printing (10 printed, collated, 11x17 insertions, color, and binding) $ 650.00 Final Report (15 printed, collated, 11x17 insertions, color, and binding) $ 975.00 Misc. Co ies, Corres ondence, Postage, Delive , Meetin Su lies $ 250.00 Mapping, DisplaysBoards, Materials $ 960.00 .Total Directs S 2,835.00 Phase 2 Total $ 42,370.00 Exhibit `B' SCHEDULE July 2008 -January Develop EAR-Based Amendments 2009 • Phase II kick-off • Minor and data updates • Statutory changes • Evaluations (Major Issues) • LPA and Commission Briefings February 2009 LPA Workshop on Final draft March 2009 Final Production of Transmittal Package Notice for LPA Public Hearing April 2009 LPA Public Hearing- April 1, 2009; April/May 2009 Joint LPA/City Commission Workshop May/June 2009 City Commission Transmittal Public Hearing [lst Reading]- No later than June 8, 2009. June 2009 Transmittal Sent to DCA- No later than June 11, 2009. August 2009 Receive ORC Report from DCA August 2009 Response to ORC Report LPA Briefing September 2009 Final Production of Adoption Package Notice for CC Hearing October/November City Commission Adoption Public Hearing 2009 [2"d Reading]. Additional Public Hearings, if needed. Adoption No later than Dec. 14, 2009. December 2009 DCA Review for Compliance PROFESSIONAL SERVICES AGREEMENT (Evaluation and Appraisal Report-Based Comprehensive Plan Amendments) THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into this p +kiay of u , 2008, by and between PLANNING COMMUNITIES, LLC, a Florida limited liabi ity company ("Consultant"), whose principle mailing address is 2510 Wild Tamarind Boulevard, Orlando, Florida 32828, and THE CITY OF WINTER SPRINGS, a Florida municipal corporation, ("City"), whose principle mailing address is 1126 East State Road 434, Winter Springs, Florida, 32708. WITNESSETH: WHEREAS, section 163.3191, Florida Statutes, requires that the City adopt an evaluation and appraisal report ("EAR") once every seven (7) years assessing the City's progress in implementing its comprehensive plan; and WHEREAS, the Florida Department of Community Affairs approved the City's EAR on June 20, 2008; and WHEREAS, the City desires to engage the Consultant to prepare amendments to the City's Comprehensive Plan consistent with the approved EAR as further described herein; and WHEREAS, the City and Consultant desire to memorialize the terms and conditions of the services to be provided as set forth in this Agreement; and IN CONSIDERATION ofthe mutual covenants and provisions hereof, and other good and valuable consideration, the receipt and sufficiency all of which is hereby acknowledged, the parties desiring to be legally bound do hereby agree as follows: 1.0 Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 2.0 Definitions. For purposes of this Agreement, the following terms and words shall have the meaning ascribed to them, unless the context clearly indicates otherwise. Agreement shall mean this Professional Services Agreement, as may be modified, which shall constitute authorization for the Consultant to provide the Services stated herein to the City. Amendments shall mean the amendments to the City's Comprehensive Plan based on the Evaluation and Appraisal Report approved by the Florida Department of Community Affairs on June 20, 2008 and consistent with the Services as set forth herein. PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 1 of 9 City means the City of Winter Springs, Florida, a Florida municipal corporation. Consultant shall mean Planning Communities, LLC, a Florida limited liability company, its agents, employees and contractors thereof. Effective date shall be the date on which the last signatory hereto shall execute this Agreement, and it shall be the date on which this Agreement shall go into effect. Public Record is as described in section 119.011(11), Florida Statutes. Services shall mean the performance of the Services outlined in Section 5.0 of this Agreement. 3.0 Engagement. The City hereby engages the Consultant and the Consultant agrees to perform the Services outlined in this Agreement for the stated fee arrangement. No prior or present agreements or representations shall be binding upon any party hereto unless incorporated in this Agreement. 4.0 Term; Termination. 4.1 Term. This Agreement shall become effective upon execution by both parties hereto and shall remain in effect until Consultant completes the Services outlined herein in Section 5.0 to the satisfaction of the City. 4.2 Termination. 4.2.1 For convenience. The City, in whole or in part, may terminate the performance of the Services under this Agreement whenever the City determines that termination is in the City's best interest. Any such termination shall be effected by the delivery to the Consultant of a written notice of termination at least fifteen (15) days prior to the date of termination. The City shall pay all reasonable costs incurred by Consultant up to the date of termination. Consultant will not be reimbursed for any anticipatory profits that have not been earned to the date of termination. 4.2.2 For cause. If Consultant fails to fulfill its obligations under this Agreement properly and on time, or otherwise violates any provision of this Agreement, the City may terminate this Agreement by written notice to Consultant. The notice shall specify the acts or omissions relied upon as cause for termination. All finished or unfinished work provided by Consultant shall, at the City's option, become the City's property. The City shall pay Consultant fair and equitable compensation for satisfactory performance prior to receipt of Notice of Termination less the amount of damages caused by Consultant's breach. If the damages are more than the PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 2 of 9 compensation payable to Consultant, Consultant will remain liable after termination and the City may affirmatively collect damages. 5.0 Scope of Services; Time of Performance. Consultant agrees to provide the professional and technical Services required to amend the City's Comprehensive Plan based on the recommendations made in the Adopted Evaluation and Appraisal Report and as outlined in the Scope of Service document attached hereto as "Exhibit A," and fully incorporated herein by this reference. Consultant agrees that said Services shall be completed on or before December 14, 2009. Consultant agrees that the schedule attached hereto as "Exhibit B" represents a reasonable period of time for Consultant to perform the Services and that the Amendments will be transmitted to the Florida Department of Community Affairs ("DCA") no later than June 11, 2009. 6.0 Compensation. 6.1 For the performance and full completion of the Services specified herein, City agrees to pay Consultant a sum not to exceed Forty-Two Thousand Three Hundred Seventy Dollars and no/100 ($42,370.00), inclusive of all reasonable and necessary direct expenses as described in "Exhibit A." There shall be no other compensation due Consultant forthe Services provided underthis Agreement, unless specificallyagreed to by the City and Consultant in writing, pursuant to Section 17 of this Agreement. 6.2 Additional services may be added at the sole discretion of the City, based upon a negotiated lump sum fee or hourly rate. Consultant must obtain express written direction of the City prior to commencing any additional services. Consultant's hourly rates shall be as follows: Personnel Hourly Rate in Dollars Project Manager $110.00 Principal Planner $100.00 Senior Planner $85.00 Planner/GIS/Graphics $70.00 7.0 Professionalism. Consultant shall perform all Services required by this Agreement in a manner and with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and shall be consistent with Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. 8.0 Warranty of Professional Services. The Consultant hereby warrants unto the City that PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 3 of 9 it has sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit of any Services, the Consultant shall supervise and direct the Services, using its skill and attention and shall enforce strict discipline and good order among its employees and agents. The Consultant shall comply with all laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on performance of the Services. The Consultant shall pay all taxes, fees, license fees required by law, including but not limited to occupational fees and withholding taxes and assume all costs incident to the Services, except as provided herein. 9.0 Services is a Private UndertakinE. With regard to any and all Services performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and Consultant is such that the Consultant is an independent Consultant and is neither an agent nor employee of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent Consultant, between the City, on one hand, and the Consultant, on the other hand, during or after the performance of the Services under this Agreement. 10.0 Protection of Persons and Property: Insurance. 10.1 Coverage requirements. Upon the Effective Date of this Agreement, Consultant shall provide proof of the following: 10.1.1 Worker's compensation insurance in accordance with the applicable provisions of Florida law. 10.1.2 Professional liability insurance with a combined single limit of $1,000,000 for each occurrence and $1,000,000 in the aggregate. 10.1.3 Commercial general liability insurance with a combined single limit of $1,000,000 for each occurrence and $1,000,000 in the aggregate. 101.4 Automobile liability insurance in an amount not less than $1,000,000 for injuries to any one (1) person, $1,000,000 on account of any one (1) accident, and in an amount of not less than $1,000,0000 for property damages. 10.1.5 Employer's liability in an amount adequate to cover related assets. 10.2 General requirements. Consultant is solely responsible for procuring and maintaining the insurance coverage required by this Section at its own expense and with insurance companies authorized to do business in the State of Florida and as long as reasonably available in the standard marketplace. The insurance coverage required by this Section shall include the liability and coverage provided herein, or as required by law, PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 4 of 9 whatever requirements afford greater coverage. All of the policies of insurance so required to be purchased and maintained for the certificates (or other evidence thereof) shall contain a provision or endorsement that the coverage afforded will not be canceled until at least thirty (30) days prior written notice has been given to the City and the Consultant by certified mail, return receipt requested. All such insurance shall remain in effect until final payment. Unless agreed to by the City to the contrary, the City shall be named on the foregoing insurance policies as "additional insured," except with regard to the professional liability coverage. The Consultant shall cause its insurance carriers to furnish insurance certificates specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days prior written notice to the City in compliance with other provisions of this Agreement. For all claims that arise in connection with this contract, Consultant will pay any insurance deductible for such claim. For all Services performed pursuant to this Agreement, Consu Itant shall continuously maintain such insurance in the amounts, type, and quality as required by this Section. In the event Consultant fails to maintain said insurance, City, at its option, may elect to terminate this Agreement without penalty by written notice to Consultant. 11.0 Indemniitication and Hold Harmless. For all Services performed pursuant to this Agreement, Consultant agrees, to the fullest extent permitted by law, to indemnify and hold harmless the City and its employee, officers, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death) or liability (including reasonable attorney's fees), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, resulting from Consultant's performance of any Services provided pursuant to this Agreement. 12.0 Governing Law; Venue. This Agreement shall be governed by the laws of the State of Florida. Venue of all disputes shall be properly placed in Seminole County, Florida. The parties agree that the Agreement was consummated in Seminole County, and the site of the Services is Seminole County. If any dispute concerning this Contract arises under Federal law, the venue will be Orlando, Florida. 13.0 Consultant's Representative. The Consultant shall designate an individual to act as a representative for the Consultant under this Agreement with the authority to transmit instructions, receive information, and make or interpret the Consultant's decisions. This person shall be the Consultant's contract administrator. The Consultant may, from time to time, designate other individuals or delete individuals with the authority to act for the Consultant under this Agreement with the authority to transmit instructions, receive information, and make or interpret the Consultant's decisions. All deletions or designation of individuals to serve as a representative shall be given by written notice. 14.0 Notices. All projects hereunder, all notices, demands, requests, instructions, approvals, and claims shall be in writing. All notices of any type hereunder shall be given by U.S. mail or by hand PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 5 of 9 delivery to an individual authorized to receive mail for the below listed individuals, all to the following individuals at the following locations: To City: Randy Stevenson, Community Development Director City of Winter Springs 1126 East S.R. 434 Winter Springs, Florida 32708 (407) 327-5970(Phone) w/copy to: Anthony A. Garganese, City Attorney Brown, Garganese, Weiss, & D'Agresta, P.A. P.O. Box 2873 Orlando, FL 32802-2873 (407) 425-9566 (Phone) (407) 425-9596 (Fax) To Consultant: Teresa Townsend, CEO Planning Communities, LLC 2510 Wild Tamarind Boulevard Orlando, Florida 32828 (407) 382-2229 (Phone) Notice shall be deemed to have been given and received on the date the notice is physically received if given by hand delivery, or if notice is given by first class U.S. mail, postage prepaid, then notice shall be deemed to have been given upon the date said notice was deposited in the U.S. Mail addressed in the manner set forth above. Any party hereto by giving notice in the manner set forth herein may unilaterally change the name of the person to whom notice is to be given or the address at which notice is to be received. 15.0 Public Record. It is hereby specifically agreed that any record, document, computerized, information and program, audio or video tape, photograph, or other writing of the Consultant related, directly or indirectly, to this Agreement and the Services provided hereunder, may be deemed to be a Public Record whether in the possession or control of the City or the Consultant. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Consultant is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City, the Consultant shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours of the Consultant be open and freely exhibited to the City for the PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 6 of 9 purpose of examination and/or audit. 16.0 Interpretation. Both the City and the Consultant have participated in the drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 17.0 Modification of Agreement. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City. 18.0 Severability. If a word, sentence, phrase, clause or paragraph herein shall be declared illegal, unenforceable, or unconstitutional, the said word, sentence, phrase, clause or paragraph shall be severed from this Contract, and this Contract shall be read as if said illegal, unenforceable, or unconstitutional word, sentence, phrase, clause or paragraph did not exist. 19.0 Additional Assurances. The Consultant certifies that: 19.1 No principal (which includes officers, directors, or executive) or individual holding a professional license and performing Services under this Agreement is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any Services required by this Agreement by any Federal, State, or local governmental commission, department, corporation, subdivision, or agency; 19.2 No principal (which includes officers, directors, or executive) or individual holding a professional license and performing Services underthis Agreement, employee, or agent has employed or otherwise provided compensation to, any employee or officer of the City; and 19.3 No principal (which includes officers, directors, or executive) or individual holding a professional license and performing Services under this Agreement, employee or agent has willfully offered an employee or officer of the City any pecuniary or other benefit with the intent to influence the employee or officer's official action or judgment. 20.0 Attorney's Fees. Should any litigation arise concerning this Agreement between the parties hereto, the parties agree to bear their own costs and attorney's fees. 21.0 Entire Agreement. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, orAgreements, either oral or written, and all such matters shall be deemed merged into this Agreement. 22.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 7 of 9 liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($ ] 00,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 23.0 Assignment. Neither party hereto may assign, convey, or otherwise transfer any of its rights, obligations or interest herein without the prior written consent of the other party. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date first written above. CONSULTANT: WITNESSES: Print Name: p ~ YY- Print Name: PLANNING COMMUNITIES, LLC, a Florida limited liability company. By. .~ eresa To send, CEO PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 8 of 9 city: CITY OF WINTETt SPRINGS, FLORIDA a Florida municipal corpQxation. ---.._. By: ~c~d~'f2- Ro ld McLemd~e, Cilj~ Manager PROFESSIONAL SERVICES AGREEMENT City of Winter Springs /Planning Communities, LLC Page 9 of 9 Exhibit `A' raaecr~ Winter Springs Comprehensive Plan Updates In er prings ompre enslve an pates Planning Communities TBSkS TASK Project Manager Principal Planner Senior Planner Planner/GIS/ raphics TOTALS Comprehensive Plan U date Strafe 1.1 Kick Off Activities -Kick Off Meetin with Ci Staff 2.0 2.0 4.0 -Press Release 8 Updated Schedule/Information about the Comp. Plan Update: 2.0 2.0 1.2 Additional Data Collection -Data Collection/Updates- Police, Fire, Parks and Rec, Conservation, Development-Related, Transportation/rransit, Pop./Demographi Infraslruilure deficits, Other B.0 12.0 24.0 4.0 48.0 2 Meetings and Coordination 2.1 LPA Meetin s 3 -LPABriefin (1) 1 Plannin Communities Staf 4.0 4.0 8.0 -Other LPA Bnefin s b Ci of lNinter S rin s Staff (Planning Communities will not attend, City to p2pa2 handouts, p2sentations, etc.l -LPA Presentation to the Commission on the Draft Comp Plan Amendments (1) 1 Plannin Communities Staff 4.0 4.0 -LPA Public Hearin (1) 1 Plannin Communities Staff 4.0 4.0 2.2 Commission Meetin s (2) -Commission Public Hearin s (2) 1 Plannin Communities Staff 8.0 4.0 4.0 16.0 -ReviseN date Materials for Commission based on LPA Recommendations 2 Meetin s 2.0 4.0 2.D 8.0 2.3 A ency Coordination - FDOT (2 meetn s, travel to meetings, phone/email coordination) 8.0 8.0 16.0 - DCA Coordination (1 meetn ,travel to meetings, phone/email coordination) 12.0 2.0 14.0 3 Com rehensive Plan Amendments 3.1 Required/Editorial Updates (ie: updates not requirin additional in~e th anal sis' -Updates to date deadlines, agency names, other minor edit; 1.0 4.0 6.0 -Statute and Administrative Rute Updates 6.0 16.0 22.0 - Water Supply/Waler Plan related 3.0 8.0 11.0 - Other Minor Edits Ident'fiied in the EAR 4.0 12.0 16.0 3.2 Com rehensive Plan Evaluations Based on EAR Recommendations and Stakeholder In ut -InfilURedevebpment Issue Analysis 4.0 4.0 12.0 2.0 22.0 -Greeneway Interchange District Issue Analyst: 4.0 12.0 4.0 2.0 22.0 -Transportation Issues/SR 434 Issue Analysis 4.0 16.0 4.0 2.0 26.0 -Housin (Affordable, Eldedy) Issue Analysis 4.0 10.0 2.0 16.0 -GIS and Map in Analysis 2.0 4.0 16.0 22.0 3.3 Drett Ma'or Com rehensive Plan Amendments (Based on Visioning and Evaluations) - Draft Ma'or Plan Amendments and map series 8.0 8.0 24.0 4.0 44.0 -Submit Preliminary Draft Amendments to City Staff (Di ital df copy/2cds 2.0 1.0 3.0 - Revise Amendments for Staff Comments 4.0 4.0 8.0 2.0 18.0 -Print, Assemble and Submit Preliminary Draft Amendments to LPA (10 Hard Co ies 2.0 6.0 8.0 - Revise Amendments for LPA Comments 2.0 2.0 4.0 1.0 9.0 -Print, Assemble and Submit Preliminary Draft Amendments to Commission (15 Hard Co ies 2.0 6.0 8.0 4 Contract Mana ement/Coordination -Bi-weekty phone calls, on oin emails, monthly meetin s (1-2 staff) 24.0 12.0 36.0 -Contrail coordination, ro ress reports, invoidn 2.0 6.0 8.0 SUBTOTALS 130.0 76.0 177.0 37.0 420.0 Burdened Rates $ 110 $ 100 $ 85 $ 70 $ 14,300 $ 7,600 $ 15,045 $ 2,590 $ 39,535 Inter prings ompre enslve an pates Planning Communities Tasks TASK Project Prindpal Senior Planner/GIS/ Manager Planner Planner raphics TOTALS Planning Communities Direct costs Draft Report Printing (10 printed, collated, 11x17 insertions, color, and binding) $ 650.00 Final Report (15 printed, collated, 11x17 insertions, color, and binding) $ 975.00 Misc. Copies, Correspondence, Postage, Delivery, Meeting Supplies $ 250.00 Mapping, Displays/Boards, Materials $ 960.00 Total Directs E 2,835.00 Phase 2 Total E 42,370.00 Exhibit `B' SCHEDULE July 2008 -January Develop EAR-Based Amendments 2009 • Phase II kick-off • Minor and data updates • Statutory changes • Evaluations (Major Issues) • LPA and Commission Briefings February 2009 LPA Workshop on Final draft March 2009 Final Production of Transmittal Package Notice for LPA Public Hearing April 2009 LPA Public Hearing- April 1, 2009; April/May 2009 Joint LPA/City Commission Workshop May/June 2009 City Commission Transmittal Public Hearing [15Y Reading]- No later than June 8, 2009. June 2009 Transmittal Sent to DCA- No later than June 11, 2009. August 2009 Receive ORC Report from DCA August 2009 Response to ORC Report LPA Briefing September 2009 Final Production of Adoption Package Notice for CC Hearing October/November City Commission Adoption Public Hearing 2009 [2"d Reading]. Additional Public Hearings, if needed. Adoption No later than Dec. 14, 2009. December 2009 DCA Review for Compliance