R99-039RESOLUTION NO. R99-,.~'P
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA,
AUTHORIZING AND DIRECTING THE MAYOR AND
CITY CLERK TO EXECUTE A CONSULTANT
AGREEMENT BETWEEN THE CITY OF BOYNTON
BEACH LaRUE PLANNING & MANAGEMENT
SERVICES, INC., TO PROVIDE ASSISTANCE WITH
PREPARATION OF THE EAR - BASED
COMPREHENSIVE PLAN AMENDMENTS; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Boynton Beach is implementing its Evaluation and
Appraisal Report (EAR) of its Comprehensive Plan, as defined in Section 163.3191, F.S.
and Rule 9J-5.0043, F.A.C.; and
WHEREAS, at the February 2, 1999, City Commission Meeting agenda the City
Commission ratified the selection of LaRue Planning and Management Services to
provide assistance to the City of Boynton Beach in this endeavor;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION
OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The City Commission of the City of Boynton Beach, Florida does
hereby authorize and direct the Mayor and City Clerk to execute a Consultant Agreement
between the City of Boynton Beach and LaRue Planning and Management Services
(LMS), which Agreement is attached hereto as Exhibit "A".
Section 2. This Resolution shall become effective immediately upon passage.
PASSED AND ADOPTED this ,/~ day of March, 1999.
Commissioner
Commissioner
ATTEST:
CONSULTANT AGREEMENT
THIS AGREEMENT, made and entered into the 16T' day of March, 1999, by and between City of
Boynton Beach, Florida, (hereinafter called "CITY"), and LaRue Planning & Mana.qement Services, Inc., a
.Florida Corporation, with offices at 1375 Jackson Street, Suite 206, Fort Myers1 Florida 33901, (hereinafter
called "CONSULTANTS").
WITNESSETH:
VVHEREAS, the CITY is implementing its Evaluation and Appraisal Report (EAR) of its Comprehensive
Plan, (hereinafter called "PROJECT") as defined in Section 163.3191, F.S. and Rule 9J-5.0053, F.A.C. and
WHEREAS, the City wishes to engage CONSULTANTS to provide certain services with regard to the
PROJECT as set forth by Paragraph I, DESCRIPTION OF WORK AND SERVICES; and
WHEREAS, the CONSULTANTS represents that they have the expertise to provide such work and
services:
NOW, THEREFORE, in consideration of the mutual covenants contained herein, it is agreed that
CONSULTANTS are hereby employed, authorized, and instructed by the CITY to perform such services as
are specifically described herein in accordance with the following covenants and conditions, which both
CONSULTANTS and the CITY have agreed upon:
DESCRIPTION OF WORK AND SERVICES:
Ao
The CITY desires the best utilization of certain areas within the PROJECT and wishes to
continue to undertake the orderly and well-planned development of such areas in such a
manner that will help protect the health, safety, welfare, and quality of life of the residents of the
CITY. In furtherance of these goals, the CITY desires that the CONSULTANTS proVide
professional services within present technological knowledge and accepted standards and
consistent with the current requirement of law.
Upon all parties signing this Agreement, the CONSULTANTS shall provide the CITY with the
considerations named herein to perform such consultation work and services as stipulated by
this Agreement and presented in Exhibit B.
The work and services involved shall include review of all pertinent data, studies and plans
which the CITY has in its possession and agrees to provide for CONSULTANTS. Unless
otherwise agreed upon by both the CITY and the CONSULTANTS, municipal staff will provide
the CONSULTANTS with the local comprehensive plan and support documents, and the EAR.
Co
The CONSULTANTS shall work closely with the CITY on all aspects of the work and services.
The work will include cooperative working sessions with the CITY and public officials, CITY
departments, other CITY representatives, and with other entities contributing to the EAR work
product as indicated in the project schedule in EXHIBIT A. The City reserves the right to make
minor modifications to, or add or delete elements of the project as set forth on Exhibit B, in
order to achieve'a full and complete update of the comprehensive plan as required by law and
the CITY.
The CONSULTANTS agree to providing at a' minimum, monthly written reports (to include hours
spent by whom, a description of specific tasks and corresponding hours consumed, and percent
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II.
III.
Eo
Fo
of specific tasks and project completed)and weekly reports (via telephone or facsimile when
telephone contact is not possible) which also descdbe all work completed during such periods
throughout the term of this Agreement, and further agree to provide any additional informati~-~
or status reports as reasonably requested by the CITY.
i
Unless otherwise agreed upon in writing by both parties, communications as described in
paragraph "D" above shall be between the project manager for the CONSULTANTS and the
Planning and Zoning Manager and/or the Manager's designee.
The CONSULTANTS shall present the project at the public meetings described in the
CONSULTANTS Project Proposal. Unless agreed by both the CONSULTANTS and the CITY,
no less than 5 meetings will be included.
MANNER OF PERFORMANCE:
Ao
The CONSULTANTS agree, as an independent contractor, to undertake work and/or perform
such services as may be specified in this Agreement or any addendum executed by the parties
or in any authorized written Work Order by the CITY issued in connection with this agreement.
All work, and each draft described herein, shall be performed to the satisfaction of CITY in a
neat and workmanlike manner. All deliverables shall be provided in a timely manner allowing
sufficient review time prior to forwarding for further review by the CITY.
Should any work and/or services be required which are not specified in this Agreement or any
addenda, but which' is nevertheless necessary for the proper completion of the job, such work~
or services shall be performed as described and delineated herein, but CONSULTANTS sh;
first obtain permission from the CITY before starting such work and the CITY shall provide
payments for such additional work and/or services at the CITY'S expense in accordance witti
Paragraph III (B) of this Agreement.
The CITY may request that CONSULTANTS make additions, deletions, and changes in the
work or services only by Written Notice in accordance with the procedures hereinafter set forth.
Such shall be at the CITY'S expense and shall not be binding until agreed upon by the parties,
and s~ch agreement is reduced to writing and signed by both parties.
Eo
The CONSULTANTS agree that the CITY shall not be liable for payment for any work or
services unless the CITY, through an authorized representative of the CITY, authorizes the
CONSULTANTS to perform said work.
COMPENSATION:
As compensation for the CONSULTANTS' services, the CITY agrees to pay the
CONSULTANTS in accordance with the terms and conditions set forth herein. The CITY shall
pay up to thirty-nine thousand eight hundred dollars ($39,800.00) for the work and services to
be performed under this Agreement. Payment of said fee shall be due and payable monthly
within twenty (20) days of inVoice as long as said invoice is accompanied by the respective
monthly report oh project progress and includes respective deliverables.
If the CITY should desire additional work or services and the CONSULTANTS agree to
undertake same, the parties shall agree, in writing, to an addendum or addenda to this
Page 2 of 9
IV.
Agreement. The CONSULTANTS shall be COmpenSated for such agreed additional work and
services based upon a payment amount acceptable to the parties.
The CONSULTANTS shall maintain records conforming to usual accounting practices which
shall be available to the CITY or its authorized representative at all times throughout the term of
this Agreement. The CONSULTANTS further agree to render requests for payment to the CITY,
in writing, setting forth information on actual costs including hourly rates, hours consumed by
Consultant, travel expenses, and materials, which shall be submitted simultaneously with the
provision of monthly status reports. All payments are due and payable within twenty (20) days
of the date of the invoice. The amount of each monthly request shall be based upon time,
materials, and other expenses.
USE AND OWNERSHIP:
All original materials, reports, documents, drawings, specifications, computations, sketches, test
data, photographs, and renderings related to the services and work performed hereunder shall
be the property of the CITY, once the CITY has paid the CONSULTANTS in full for services
rendered to date. The CITY shall be entitled to 3 copies of reproducible sets of any of the
aforesaid deliverables which are prepared by the CONSULTANTS and 15 copies of draft and
final report.
The CONSULTANTS agree that the CITY is not required in its development activities to use
any plan, report, drawing, advice, map, document, or study prepared by the CONSULTANTS.
Further, the CONSULTANTS agree that the CITY in its sole discretion, 'may utilize the
aforesaid, or any part thereof, or in any modified or amended form, and the CONSULTANTS
· waive any right of amendment to any of the CONSULTANTS' work by the CITY or any person,
firm, or corporation other than the CONSULTANTS and shall release the CONSULTANTS from
any and all liability in connection with such work thereafter and the CITY shall not use
CONSULTANTS' name thereon.
INDEMNIFICATION:
The CONSULTANTS shall promptly notify the Accounting Department and Legal Department of
the CITY of all damage to property ofthe CITY or others, and of injuries sustained by any
persons, including employees of the CONSULTANTS, in any manner relating directly or
indirectly to the work within the scope of this Agreement.
The CONSULTANTS agree to and do hereby indemnify and save the CITY harmless from and
against any and all losses, damage, claims, actions, liability, attorney's fees, and expense in
contract or in tort, in connection with loss of life, bodily injury and/or property damage occurring
on or about or arising out of those portions of the work under the CONSULTANTS' control or
wherever adsing if occasioned wholly by negligence of the CONSULTANTS, or by them or their
agents, servants, employees, or materialism, should the same arise during the progress of the
work.
Notwithstanding anything to the contrary herein contained, each party hereby waives all claims
for the recovery from the other party for any loss or damage to its property caused by fire or
other insured casualty. This waiver shall apply, however, only where the insurance covering the
loss or damage will not be prejudiced by any reason of such waiver.
Page 3 of 9
Vi. INSURANCE:
VII.
IX.
The CONSULTANTS shall secure and maintain in effect at all times, at their expense,
insurance of the following kinds and limits to cover all locations of the CONSULTANTS'
operations in connection with work on the PROJECT:
Worker's Compensation and Employer's Liab/Tity covering emplOyees of the
CONSULTANTS.
a. Worker's Compensation with statutory limits of liability.
b. Employer's Liability with a limit of liability of at least $1,000,000.00.
Public Liability Insurance covedng the CONSULTANTS' legal liability for bodily injuries in
limits of not less than $500,000.00 per person and $1,000,000.00 per occurrence and
for property damage of not less than $100,000.00 per accident and $200,000.00
aggregate.
Automobile Liability Insurance for bodily injudes in limits of not less than $500,000.00
per person and $1,000,000.00 per accident, and for property damages of not less than
$200,000,00 per accident, providing coverage for any accident arising out of or resulting
from the operation, maintenance or use by the CONSULTANTS 'of any owned,
non-owned or hired automobiles, trailers, or other equipment required to be licensed.
Professional Liability Insurance for all facets'of CONSULTANTS' ~)perations and work, L_
including errors, omission and negligent acts covering this Agreement with minimum
limits of $250,000.00 liability per occurrence and $250,000.00 aggregate errors and
omissions. The CITY agrees to limit the CONSULTANTS' liability to the CITY, and tO afl
construction Contractors and Subcontractors on the project, due to the CONSULTANTS'
negligent acts, errors or omissions, such that the total aggregate liability of the
CONSULTANTS to all those named shall not exceed $100,000.00 or the
CONSULTANTS' total fee for services rendered on this project, whichever is greater.
COMPLIANCE WITH GOVERNMENTAL REGULATIONS:
The parties shall keep and perform all requirements of applicable Federal, State, and local laws, rules,
regulations or ordinances.
LIENS AND CLAIMS:
The CONSULTANTS shall promptly and properly pay for all labor employed, materials purchased, and
equipment hired by them in connection with the work, shall keep the CITY'S property free from any
matedalism's or mechanics' liens and claims or notices in respect thereto arising by reason of the
CONSULTANTS' work and shall discharge the same. In the event that the CONSULTANTS do'not pay
or satisfy such claim or lien within ten (10) business days after the filing of notice thereof, the CITY, in
addition to any and all other remedies, may forthwith terminate this Agreement, effective immediately.
DEFAULT:
The occurrence of any of the following, by either party, shall constitute an event of default
hereunder:
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XI.
The filing of a petition by or against or for adjudication as a bankrupt or insolvent, or for
reorganization, for the appointment of a receiver or trustee of the property.
2. An assignment for the benefit of creditors.
The taking of possession of the property by any governmental officer or agency
pursuant to statutory authority for the dissolution or liquidation of the business.
4. Non-payment of compensations due hereunder for the CONSULTANTS' services.
Upon the occurrence of any of the foregoing, or if either partyshall fail to discharge and perform
the obligations under this Agreement after having received five (5) days written notice from the
non-defaulting party of its failure to perform, the non-defaulting party shall have the right,
without prejudice to any right or remedy afforded by law or equity, to terminate their
performance of the Agreement.
If the defaulting party is the CONSULTANTS' and the CITY elects to terminate the Agreement,
the CONSULTANTS shall remove themselves from the premises and turn over to the CITY as
the CITY'S property, all materials, reports, maps, documents, plans, and other written
documents prepared or obtained by the CONSULTANTS incident to their work under this
Agreement upon payment in full by the CITY of all amounts due and owing to the
CONSULTANTS.
D4
If the defaulting party is the CITY, the CONSULTANTS shall not be requi~ed to deliver any work
product performed under this Agreement, including but not limited to materials, reports, maps,
documents, plans or other written documents prepared or obtained by the CONSULTANTS
incident to its work under this Agreement unless and until all defaults of the CITY have been
cured and all payments due the CONSULTANTS have been made.
If it should become necessary for either of the parties to resort to legal action because of a
default by the other party, then each shall pay its own legal fees, including appellate
proceedings.
WARRANTIES AND CONFLICT OF INTEREST:
The CONSULTANTS represent and warrant that they have every legal right to enter into this
Agreement and the CONSULTANTS will not be restricted in providing the performance hereunder by
any prior commitments. The CONSULTANTS hereby warrant that there is no conflict of interest in the
CONSULTANTS present employment, if any, with the activities to be performed hereunder and shall
advise the CITY if a conflict of interest arises in the future.
SUCCESSORS:
This Agreement shall inure to the benefit of and be binding upon the heirs, executor, administrators,
successors and assigns of the parties hereto, except as expressly limited herein.
ASSIGNMENT:
This Agreement and the services hereunder are non-assignable by the CONSULTANTS unless the
CITY has given written consent. This Agreement and the obligations hereunder are not assignable by
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XlV.
XV.
the CITY unless the CONSULTANTS have given written consent to such assignment. Any attempted
assignment without such written consent shall be void.
SCHEDULE:
The work and services set forth in this Agreement shall be completed as provided on the attached
Schedule contained in Exhibit "A" or any other date agreed upon to in writing by both parties.
INDEPENDENT CONTRACTOR:
In all matters relating to this Agreement, the CONSULTANTS shall be acting as an independent
contractor. Neither the CONSULTANTS nor employees of the CONSULTANTS, if any, are employees
of the CITY under the meaning or application of any Federal or State Unemployment or Insurance laws
or Old Age laws, or otherwise: The CONSULTANTS agree to assume all liabilities or obligations
imposed by any one or more of such laws with respect to employees of the CONSULTANTS, if any, in
the performance of this Agreement. The CONSULTANTS shall not have any authority to assume or
create any obligation, express or implied, on behalf of the CITY and the CONSULTANTS shall have no
authority to represent as agent, employee, or in any other capacity than as hereinbefore set forth.
HEADINGS:
The headings used in this Agreement are for reference only and shall not be relied upon nor used in
the interpretation of same.
INTERPRETATION:
If the CONSULTANTS be a partnership or corporation, all words in this Agreement referrin(.
the CONSULTANTS shall be read as though written in the plural or in the neuter gender, as
case may be.
This agreement and all of the terms and provisions shall be interpreted and construed
according to the law of the State of Florida. Should any clause, paragraph, or other part of this
Agreement be held or declared to be void or illegal, for any reason, by any Court having
competent jurisdiction, all other clauses, paragraphs or parts of this Agreement shall,
nevertheless, remain in full force and effect.
Co
This Agreement between the parties shall be deemed to include this Agreement and any
addendum pertaining hereto as may be executed by the parties. The CITY shall not be bound
by an addendum or change order hereto unless it is signed by an executive officer or such
other authorized representative of the CITY. The CONSULTANTS shall not be bound by any
addendum or change order hereto unless it is signed by an officer of the CONSULTANTS.
MISCELLANEOUS:
Ao
Litigation: It is understood that the fixed sum payment 'amount set forth in Paragraph Ill(A) does
not include compensation to the CONSULTANTS for assisting the CITY in litigations in which
the CITY may be involved. If the CITY deSires assistance from the CONSULTANTS in litigation,
the parties shall agree in writing on the compensation.
Bo
Records: All records relating to the work performed and reimbursable expenses incurred,
including reports of accounts, shall be maintained by the CONSULTANTS on generally
Page 6 of 9
XVIII.
accepted accounting principles and shall be-available to the CITY or its authorized
representatives.
NOTICE:
Any notice provided by this Agreement to be served in writing upon either of the parties shall be
deemed sufficient if delivered to an authorized representative of either of the parties, or if mailed by
registered or certified mail, return receipt requested, to the address of the party above written or to
such other addresses as the parties hereto may designate in writing. Such notice shall be effective
from the date the same is deposited in the mails, registered or certified mail, return receipt requested,
first class postage prepaid and addressed, whether or not received.
XIX. TERMINATION:
It is hereby agreed that this Agreement is for a term commencing on the date first above written, and
ending one year hence, and may be extended for a specific period of time and for mutually agreed
upon compensation. It is understood however, that future extensions may be made only if fully
executed in writing by the parties hereto.
Notwithstanding the foregoing, either party can terminate this Agreement upon thirty (30) days written
notice.
XX. ENTIRE UNDERSTANDING:
This Agreement contains the entire understanding between the parties and no modification or alteration
of this Agreement shall be binding unless endorsed in writing by the parties hereto.
' 'XXI. BINDING EFFECT:
This Agreement shall not be binding until exeCuted by all parties.
Page 7 of 9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized
representatives on the date first above written.
ATTEST:
BY:
CITY OF BOYNTON BEACH, FLORIDA
/
Title:
Approved as to Form:
City Attorney
LaRUE PLANNING & MANAGEMENT
SERV!CES, INC.
BY:
Title:
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