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2016-59 PROFESSIONAL CONSULTANT SERVICES AGREEMENT THIS AGREEMENT, made this 23th day of August, 2016, between the City of Clermont, a Municipal Corporation of the State of Flonda, (hereinafter referred to as the "CITY") and Levey Consulting, LLC, whose address is PO Box 560156-0156, Orlando, Flonda 32856-0156 (hereinafter referred to as "CONSULTANT"). WITNESS ETH WHEREAS, the City is in need of qualified, professional consulting services to assist the City with multiple services in the economic development area, including but not limited to 1) assisting in the developing and executing an economic strategy for downtown; 2) examining the deployment of City owned real estate in the pursuit of the implementation of the Downtown/Waterfront portion of the City's Master Plan; 3) providing strategic guidance for the City's participation in Wellness Way; 4) assist City in developing strategies for annexation and expansion of tax base; and 5) provide guidance and technical support for any review of City Land Development Code, Development Review, and Permitting processes to create a regulatory environment more conducive to business recruitment, retention, and expansion; and WHEREAS, it is necessary that the City move forward on the procurement of such consulting services to advance implementation of the Master Plan; to avoid loss of potential opportunities, developments and partners in the implementation of the Master Plan; and to facilitate a new economic development approach for the entire City; and WHEREAS, the CONSULTANT submitted a proposal to provide said services and has represented to City that he is qualified and desires to perform said services in accordance with the terms and conditions contained herein, and all applicable law and professional standards; NOW THEREFORE, in consideration of the covenants, representations and agreements herein contained, the parties agree as follows: 1 SCOPE OF SERVICES The CITY agrees to and does engage CONSULTANT to perform the professional services as more particularly described in the Scope of Services/Compensation Schedule, attached hereto and incorporated herein as Exhibit "A". 1 CONSULTANT agrees to assign Richard L. Levey, Ph.D., AICP to perform the assigned responsibilities and duties faithfully, intelligently, and to the best of their ability, and in the best interest of CITY during the term of this Agreement. All services provided shall be performed in accordance with this Agreement and with any and all applicable law, professional standards and guidelines. CITY may request CONSULTANT to make changes in the scope of services or make revisions to the work performed. Any changes or revisions requested by CITY that are not due to CONSULTANT error, omission or negligence will be incorporated into the scope of services by written amendment to this agreement and CONSULTANT may be entitled to additional compensation upon the agreement of the parties. 2. AUTHORIZATION TO PROVIDE SERVICES CONSULTANT shall not be authorized to provide any services as set forth in the Scope of Services/Compensation Schedule until such time as CONSULTANT has received wntten authorization from the City Manager, or his designee, to perform the specific tasks set forth m the Scope of Services/Compensation Schedule. In the event that CONSULTANT commences any ; such services without such authorization, CONSULTANT expressly acknowledges that it shall not be entitled to compensation of any kind related to said services. 3. COMPENSATION a. The CITY agrees to and does engage CONSULTANT to perform the professional services for compensation in the amount of $5,000.00 per month described herein and set forth in Exhibit "A" attached hereto and incorporated herein. b. As a condition precedent to receiving payment, CONSULTANT shall have been authorized to proceed by CITY for the specific phase or sub-task, shall not be in default of any of the terms and conditions of this Agreement and shall provide to CITY an invoice. The invoice shall include a statement identifying the services provided in accordance with the Scope of Services/Compensation Schedule. 2 c. All invoices submitted for compensation shall include a statement by CONSULTANT that states as follows: This statement sets forth only actual time spent by the firm's employees and does not contain any unit billing, multipliers, or other devices that permit payment for more than actual time spent. d. CITY shall pay all valid, approved and undisputed invoices within thirty (30) days of receipt from CONSULTANT. In the event that CITY disputes any invoice submitted, it shall advise CONSULTANT in writing and said invoice shall not be deemed due and payable under this agreement. Neither the CITY's review approval or acceptance of, nor payment for, any services provided hereunder shall be construed to operate as a waiver of any rights under this Agreement and the CONSULTANT shall be liable to CITY for any and all damages to CITY caused by the CONSULTANT's negligent or wrongful performance of any of the services furnished under this Agreement. 4. TERM This Agreement shall take effect on September 1, 2016 and shall continue for a period nine (9) months, until May 31, 2017, or the agreement is terminated as provided in Section 5 below. The term may be extended by mutual consent of the parties. 5 TERMINATION a. The non-breaching party upon breach of the terms and conditions contained herein may terminate this Agreement. b. Additionally, CITY shall have the right to terminate the agreement, for any reason, upon thirty (30) days written notice to the CONSULTANT. In the event of termination, without cause, by the CITY pursuant to this Section 5b, CONSULTANT shall be compensated in accordance with the services completed and accepted, as of the date of the termination and as set forth in the Scope of Services. 3 6. RESPONSIBILITIES OF CONSULTANT In addition to all other responsibilities provided herein, CONSULTANT expressly understands and agrees that, through the above- referenced assigned personnel, it shall perform all of the services required in the Scope of Services, and further agrees as follows: a. CONSULTANT may retain subcontractors to provide any of the services contemplated herein. Said subcontractors shall be used at the sole expense of CONSULTANT, under the direct supervision of CONSULTANT and with the prior written approval of CITY. b. CONSULTANT expressly acknowledges that any and all documents, plans, designs, reports, and specifications related to the project and acquired or created by CONSULTANT shall remain, at all times the property of CITY and CONSULTANT. CONSULTANT, therefore, shall preserve and maintain said records and shall immediately provide copies of them to CITY upon termination of this Agreement. 7. RESPONSIBILITIES OF CITY The City shall provide full information, as reasonably directed by CONSULTANT, regarding the requirements of the project. 8. AUTHORIZED REPRESENTATIVE OF THE CITY During the term of this Agreement, the City Manager shall be the designated representative authorized to act on behalf of the CITY, as provided by law,with respect to the project. 9. INSURANCE PROVIDED BY CONSULTANT a Workers Compensation CONSULTANT agrees to pay for and maintain in full force and affect all applicable Workers Compensation Insurance as required by Federal and Florida Law. 4 b. Comprehensive Automobile Liability CONSULTANT agrees to pay for and maintain in full force and effect at all times dunng the term of this Agreement, bodily injury and property damage liability insurance. The limits of said policies shall be in an amount approved by the CITY. c Proof of Insurance The originals of the aforementioned policies of insurance, or certificates of the issuance thereof, shall be delivered to the CITY as evidence of the compliance by the CONSULTANT with the terms and provisions contained herein. Each of the said insurance policies shall be issued by a company or companies authorized to do business in the State of Florida and which have an A.M. Best Company Rating of "A" or better and a Financial Size Category of"VII" or as otherwise approved by CITY, in its sole discretion. Each policy shall name the CITY as an additional insured. The proof of insurance as provided herein, shall be delivered to CITY initially upon execution of this Agreement and thereafter, within thirty (30) days immediately following each renewal thereof. d. Loss of Insurance If during the period which an insurance company is providing the coverage required by this Agreement, an insurance company shall: 1) lose its Certificate of Authority, 2) no longer comply with any applicable Flonda Law, or 3) fail to maintain the Best Rating and Financial Size Category, CONSULTANT shall, as soon as it has knowledge of any such circumstance, immediately notify CITY and immediately replace the insurance coverage provided by the insurance company with a different insurance company meeting the requirements of this Agreement. Until the CONSULTANT has replaced the unacceptable insurer with an insurer acceptable to CITY, the CONSULTANT shall be deemed in default of this Agreement. e. Insurance Coverage Not Limitation of Liability The maintenance of insurance coverage as provided herein shall not be construed to limit or have the effect of limiting CONSULTANT's liability to CITY under the provision of any clause or paragraph contained in this Agreement. 5 10. INDEMNIFICATION CONSULTANT agrees to hold harmless and indemnify, including attorney fees, ' CITY, its officers, employees and agents against any and all claims, losses, damages or lawsuits for damages, arising from or related to negligent acts, errors or omissions of the CONSULTANT. 1 1 . INDEPENDENT CONTRACTOR The parties agree that at all times and for all purposes within the scope of this Agreement, the relationship of CONSULTANT and CITY is that of an independent contractor. 12 FORCE MAJEURE With regard to the performance hereunder, CONSULTANT shall not be deemed to be in default of this agreement, or have to failed to comply with any term or conditions herein if, for reasons beyond CONSULTANT's reasonable control (including, without limitation, acts of God, natural disaster, labor unrest, war, declared or undeclared, the existence of injunctions or requirements for obtaining licenses, permits or other compliance with applicable laws, rules and regulations), such performance is not reasonably possible within such time periods, then the time for such performance shall be extended until removal of such reasons beyond CONSULTANT's reasonable control, provided that CONSULTANT commences such performance as soon as reasonably possible and diligently pursues such performance. 13 NOTICES All notices shall be in writing and sent by United States mail, certified or registered, with return receipt requested and postage prepaid, or by nationally recognized overnight courier service to the address of the party set forth below. Any such notice shall be deemed given when received by the party to whom it is intended. Consultant: Levey Consulting, LLC P 0 Box 560156-0156 Orlando, FL 32856-0156 City: City of Clermont Darren Gray, City Manager 685 W. Montrose Street Clermont, FL 34711 6 14. PROHIBITION AGAINST CONTINGENT FEES Consultant warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for CONSULTANT, to solicit or secure this agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for CONSULTANT any fee, commission, percentage, gift or other consideration contingent upon or resulting from the award of making of this agreement. For breach or violation of this provision, in addition to any and all remedies available to CITY, CITY shall have the right to terminate this agreement without liability and to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration. 15 GENERAL PROVISIONS a. Attorneys' Fees In the event a suit or action is instituted to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover such sum as the Court may adjudge reasonable as attorneys' fees at tnal or on any appeal, in addition to all other sums provided by law. b. Waiver The waiver by CITY of breach of any provision of this Agreement shall not be construed or operate as a waiver of any subsequent breach of such provision or of such provision itself and shall in no way affect the enforcement of any other provisions of this Agreement. c. Severability If any provision of this Agreement or the application thereof to any person or circumstance is to any extent invalid or unenforceable, such provision, or part thereof, shall be deleted or modified in such a manner as to make the Agreement valid and enforceable under applicable law, the remainder of this Agreement and the application of such a provision to other persons or circumstances shall be unaffected, and this Agreement shall be void and enforceable to the fullest extent permitted by applicable law. 7 d Amendment Except for as otherwise provided herein, this Agreement may not be modified or amended except by an Agreement in writing signed by both parties. e. Entire Agreement This Agreement including the documents incorporated by reference contains the entire understanding of the parties hereto and supersedes all prior and contemporaneous agreements between the parties with respect to the performance of services by CONSULTANT. f Assignment This Agreement is personal to the parties hereto and may not be assigned by CONSULTANT, in whole or in part, without the prior wntten consent of CITY. g Venue The parties agree that the sole and exclusive venue for any cause of action arising out of this Agreement shall be Lake County, Florida. h. Applicable Law This Agreement and any amendments hereto are executed and delivered in the State of Florida and shall be governed, interpreted, construed and enforced in accordance with the laws of the State of Florida. i. Public Records CONSULTANT expressly understands records associated with this project are public records and agrees to comply with Florida's Public Records law, to include, to: (1) Keep and maintain' public records that ordinarily and necessarily would be required by the CITY in order to perform the services contemplated herein. 8 (2) Provide the public with access to public records on the same terms and conditions that the CITY would provide the records and at a cost that does not exceed the cost provided in this Flonda's Public Records law or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (4) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all public records in possession of CONSULTANT upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement for the purposes herein expressed on the date first above written. z attest: ; CITY OF CLERMONT, FLORIDA i, w BY LI— BY:JJAgLI Gail L. Ash, Mayor lipz___ Tracy Ackroyd Howe, City Clerk 41 LEVEY . :UL ' G, Li ir i BY /i41lr Air i r Ri• rd L. Levey� ►�,AICP M.r aging Director 9