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CITY OF SEBASTIAN PROFESSIONAL SERVICES AGREEMENT
This Agreement is hereby entered into this __________ day of ___________202 5, by and
between the City of Sebastian, 1225 Main Street, Sebastian, FL 32958 a Florida municipal
corporation of the State of Florida, hereinafter referred to as CITY and Mills, Short & Associates,
LLC. (FEIN/EIN Number 46-5071916), hereinafter referred to as CONSULTANT. For and in
consideration of the mutual agreements hereinafter contained, and for other good and valua ble
consideration, the CITY hereby retains the CONSULTANT, and the CONSULTANT hereby
covenants to provide professional services as prescribed herein.
WITNESSETH:
WHEREAS, the City desires to retain the CONSULTANT to provide Professional
Services as defined in Florida Statute 287.055, a nd subsequently set out in individual statements
of work (Consultant Services Agreement (CSA)), cumulatively incorporated by reference upon
execution by both parties; and
WHEREAS, the City desires to employ the CONSULTANT to support the
activities, programs, and projects of the City upon the terms and conditions hereinafter
set forth, and the CONSULTANT is desirous of performing and providin g such
goods/services upon said terms and conditions; and
WHEREAS, the CONSULTANT hereby warrants and represents to the City that
it is competent and otherwise able to provide professional services to the City; and
WHEREAS, the City desires to use the expertise and knowledge of the
CONSULTANT; and
WHEREAS, the CONSULTANT recognizes the importance of strict adherence to
all laws, rules, and regulations, particularly regarding safety procedures and processes.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is agreed by and between the parties
hereto as follows:
SECTION 1 - CITY OBLIGATIONS
1.1 The CITY agrees that they shall furnish to the CONSULTANT, upon request, any data
available in the CITY’S files pertaining to the work to be performed under this Agreement
SECTION 2 - PROFESSIONAL SERVICES
2.1 Upon receipt of the CSA, CONSULTANT agrees to perform professional services in
accordance with the negotiated terms of this Agreement, and in accordance with
accepted professional standards and practices. The CONSULTANT agrees to, without
causing any delay in the project, correct any errors, oversights, or omissions and prepare
any revisions at no cost to the City, that may be required because the work violates
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accepted professional standards and practices or if deemed to be inadequate,
insufficient, or defective. This remedy shall be cumulative to all other remedies available
under the Agreement.
2.2 In connection with professional services to be rendered pursuant to this Agreement, the
CONSULTANT further agrees to:
2.2.1 Maintain an adequate staff of qualified personnel.
2.2.2 Comply with federal, state, county and local laws or ordinances applicable to the
work.
2.2.3 Cooperate fully with the CITY in the scheduling and coordination of all phases of
the work.
2.2.4 Supervise and coordinate the work of any subconsultants.
2.2.5 Cooperate and coordinate with other CITY consultants, as directed by the CITY.
2.2.6 Report the status of the work to the CITY upon request and hold pertinent data,
calculations, field notes, records, sketches and other projects open to the
inspection of the CITY or its authorized agent at any time.
2.2.7 Submit for CITY review all design comp utations, sketches and other data
representative of the work’s progress at the percentage stages of completion that
may be stipulated in Attachment(s) “B” and submit for CITY approval the final
work product upon incorporation of any modifications requested by the CITY
during any previous review. Any CITY approval of the CONSULTANT’S work shall
not be deemed to diminish the CONSULTANT’S responsibilities as set forth in
this Agreement.
2.2.8 Confer with the CITY during the further development and implementation o f
improvements for which the CONSULTANT has provided design or other
services.
2.2.9 Interpret plans and other documents, correct errors and omissions and prepare
any necessary revisions not involving a change in the scope of the work required,
at no additional cost to the City.
2.2.10 Prior to final approval of the work by the CITY, conduct and complete a preliminary
check of any documents through any review committee, third party consultant or
any county, city, state or federal agency from which a permit or other approval is
required. Any approval obtained from the CITY or any other agency shall not be
deemed to diminish or discharge the CONSULTANT from the responsibilities set
forth in this Agreement.
2.2.11 Following CITY’S approval of the construction documents and of the latest
preliminary estimate of construction cost, when so directed and authorized by
CITY, assist CITY in obtaining bids or negotiated proposals and assist in awarding
and preparing contracts for construction.
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2.2.12 If requested, review and analyze the bids/proposals received by CITY and make
a recommendation for any award based on CITY’s Procurement Ordinance.
2.2.13 Should the lowest responsible, responsive bid/proposal exceed the estimated
total construction cost of the final design plans by 10% or more, at CITY’s
direction, redesign the Project and/or work with CITY to reduce the costs to within
the total estimated construction costs, at no additional expense to CITY. If
negotiations between CITY and a Firm have not commenced within three months
after completion of the Final Design Phase, or if industry-wide prices are changed
because of unusual or unanticipated events affecting the general level of prices
or times of delivery in the construction industry, the estimated Construction Cost
set by the Consultant limit may be adjusted in accordance with the applicable
change in the Construction Cost Index for twenty cities from the date of
completion of the final Design Phase and the date on which bids/proposals are
sought, as published monthly in “Engineering News Record”. If the Project scope
and design are expanded by CITY after CONSULTANT renders the Estimated
Construction Cost of the Final Design Plans, CONSULTANT shall not be
responsible for any redesign without compensation.
2.2.14 Provide CITY with a list of recommended, prospective proposers.
2.2.15 Attend all pre-bid/pre-proposal conferences.
2.2.16 Recommend any addenda, through CITY Engineer, as appropriate to clarify,
correct, or change Proposal Documents. If Pre-Qualification of proposers is
required as set forth in the Request for Bid/Proposal, assist CITY, if requested, in
developing qualification criteria, review qualifications and recommend acceptance
or rejection of the proposers.
2.2.17 If requested, evaluate bids/proposals and bidders/proposers, and make
recommendations regarding any award by CITY.
2.3 The CITY shall make decisions on all issues regarding interpretation of the construction
documents, and on all other matters relating to the execution and progress of the Work
after receiving a recommendation from CONSULTANT, and the CITY shall have the
absolute and undisputed authority to decide any differences or conflicts between the
Consultant and any Firm for the City, and shall check and approve samples, schedules,
shop drawings and other submissions for conformance with the concept of each Project,
and for compliance with the information given by the Construction Documents.
CONSULTANT shall also prepare Change Orders for the City’s consideration, assemble
written guarantees required of the Firm, and review and recommend progress payments
to the Firm based on each Project Schedule of Values and the percentage of Work
completed. All change orders must be in writing and signed by the CITY and the other
parties/party to be bound by the change order.
2.4 The CITY shall maintain a record of all change orders which shall be categorized
according to the various types, causes, etc. that the CITY may determine are useful or
necessary for its purpose. Among those change orders shall be change orders ident ified
as architectural/engineering errors or omissions. It is specifically agreed that any change
to the work identified as an error on the part of CONSULTANT shall be considered to be
an additional cost to CITY that would not have been incurred without t he error. It is further
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specifically agreed that the actual documented increase in construction costs or fifteen
percent (15%) of the construction costs of any item categorized as an omission,
whichever is less, shall be considered an additional cost to CI TY that would not be
incurred without the CONSULTANT’s omission. Should the sum of the two as defined
above exceed five percent (5 %) of the total construction cost, CITY shall recover the full
and total additional cost to CITY. To obtain such recovery, CI TY shall deduct the cost to
the CITY from CONSULTANT’s fee. Should additional costs incurred by CITY exceed
CONSULTANT’s insurance deductible, CITY shall look to CONSULTANT and
CONSULTANT’s insurer for the remaining amount of additional construction costs
incurred by CITY.
2.5 CONSULTANT ensures that its insurer has been provided a copy of this provision. The
recovery of additional costs to CITY under this paragraph shall not limit or preclude
recovery for other separate and/or additional damages, which CIT Y may otherwise incur.
SECTION 3 - TIME OF COMPLETION
3.1 The services to be rendered by the CONSULTANT for each section of the work shall
commence as specified in Section 7 of this Agreement and shall be completed within the
time stated in Attachment(s) “B”. A reasonable extension of time shall be granted by the
CONSULTANT in the event there is a recognized delay on the part of the CITY in fulfilling
its part of the Agreement or should weather conditions, acts of God or terrorism any force
majeure, or hidden conditions delay performance of the CONSULTANT’s or the CITY’s
duties. Extensions of time shall be the sole remedy of the CONSULTANT for such
delays, and the CONSULTANT will not be entitled to any damages or any claim for ext ra
compensation for direct costs associated with such delay; CONSULTANT agrees that it
will not be entitled to any damages or any claim for extra compensation for consequential
damages of any type whatsoever for any such extensions including but not limite d to
damages and compensation for any direct or indirect financial damages, losses for
extended corporate overhead impacted, extended project overhead impacts, project
support, services, or by any other name or other legal concept, label or theory or any
business damages or losses of whatever type or nature and CONSULTANT hereby
knowingly waives any right to make any such claim or claims and acknowledges
additional good and valuable consideration for such waiver and lack of entitlement to
such damages, losses and compensation.
SECTION 4 - COMPENSATION
4.1 The CITY agrees to pay CONSULTANT for services rendered pursuant to this
Agreement, all fees and other compensation computed in accordance with one or a
combination of the methods outlined below, as specifie d in an approved Purchase Order:
4.1.1 The total contract expenditure shall not exceed $25,000 without prior
approval from the City Council, and costs under this contract shall not
exceed $35,000.
4.1.2 Hourly Rate – the CONSULTANT shall be compensated at the attached Hourly
Rate Schedule (Attachment “A”) for each hour of time engaged directly in the
work.
4.1.3 Lump Sum Fee – At the option of the CITY, the fee for any requested portions of
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work may be lump sum if mutually-agreed-upon by the CITY and the
CONSULTANT, stated in a written Task Order and referenced in the issued
Purchase Order.
4.1.4 Reimbursable Expenses – The CONSULTANT shall be compensated for certain
work-related expenditures not covered by fees for CONSULTANT services,
provided such expenditures are previously in advance expressly authorized by
the CITY in writing. All basic reimbursable costs including reproduction,
deliverables, and travel should be included in any proposed Lump Sum Task Fee.
Other requests for reimbursable expenses must be brought to the attention and
approved by the CITY before the work is performed. If authorized by the CITY
and upon receipt of satisfactory back-up materials, the CONSULTANT will be
compensated for such reimbursable expenses. Such expenses may include:
A. Travel, Lodging and Meals, provided travel occurs in coach class and lodging
and meals do not exceed the Domestic Per Diem rates listed in the current
edition Appendix “A” of Chapter 301 of the Federal Trave l Regulations.
B. Courier Services
C. Facsimile
D. Photocopies
E. Long Distance and Conference Telephone Charges
F. 3rd Party expenses, such as printing, incurred on behalf of CITY
G. Other expenses approved by CITY in writing prior to the time CONSULTANT
incurs such expenses.
4.1.5 At least sixty (60) days prior to each anniversary date of this Agreement either
party may request an adjustment to the rates provided for herein to apply in the
forthcoming year. Failure of the parties to agree on a new rate shall constitute a
basis for issuing a Notice of Termination by the CITY. Any proposed changes in
rates by the CONSULTANT shall be subject to the prior written approval of the
CITY. In the event the CONSULTANT requests a change in rate, either party
may terminate this Agreement in accordance with Sect ion 15 should the proposed
rates or fees not be mutually acceptable. If the CONSULTANT fails to request a
rate adjustment prior to the anniversary date, the previous year’s rates shall
remain in effect.
SECTION 5 - PAYMENT AND PARTIAL PAYMENTS
5.1 Subject to the CITY’S right to withhold any amounts reasonably necessary to complete
or correct defective or substandard work, the CITY may make monthly payments or
partial payments to the CONSULTANT for all authorized work performed during the
previous calendar month, and in accordance with Attachment “A” and Attachment “B” and
under the provisions of Chapter 218, Part VII, (Local Government Prompt Payment Act),
Florida Statutes. City shall promptly pay consultant any undisputed amounts consistent
with the Local Government Prompt Payment Act.
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5.1.1 The CONSULTANT shall submit signed invoices to the CITY.
5.1.2 The amount of each invoice submitted shall be the amount due for all services
performed to date in connection with authorized work, as certified by the
CONSULTANT. Each invoice shall include any authorized reimbursable expense,
accompanied by appropriate documentation.
5.1.3 Invoices for the work other than lump sum shall include a breakdown for each part
of the work billed for each item and personnel as identified in Attachment “A”.
SECTION 6 - SCHEDULE OF WORK
6.1 The CITY shall have the sole right to determine on which units or sections of the work
the CONSULTANT shall proceed and in what order. Should a work revision effect a
change in scope, cost or schedule of the work, the CONSULTANT shall submit such
revision(s) for review and, if warranted, approval by the CITY in writing.
6.2 The CONSULTANT shall commence work within five working days of the CSA unless
otherwise specified in the CSA.
SECTION 7 - RIGHT OF DECISIONS
7.1 All services by the CONSULTANT shall be performed in accordance with all professional
standards and practices and to the reasonable requirements of the CITY. The CITY shall
make all decisions on all claims, questions and disputes a rising under this Agreement.
In the event the CONSULTANT does not concur with any decision of the CITY, it must,
within thirty (30) days after determination by the CITY, unless such time is extended in
writing by CITY, present written objections to the de cision to the City Manager or her/his
designee for resolution. Before taking any action to contest the CITY’s determination in
a court of competent jurisdiction, the CONSULTANT must follow the appeal process
established in this Agreement and provided furth er that the CONSULTANT strictly abides
by the time deadline set forth in this paragraph; failure to do so will result in making the
CITY’s decision final. During any appeal of, or objection to, the CITY’s decision,
CONSULTANT shall continue to perform all work in accordance with professional
standards and practices and the requirements of this Agreement.
SECTION 8 - OWNERSHIP OF DOCUMENTS
8.1 All reports, tracings, plans, maps, and/or other work products developed by the
CONSULTANT pursuant to this Agreement shall become the sole property of the CITY
without restrictions or limitation upon their use and shall be made available by the
CONSULTANT at any time upon request by the CITY. When each individual section of
work requested pursuant to this Agreement is complete, all of the above work products
shall be delivered to the CITY for its use.
8.2 CONSULTANT agrees that all documents maintained and generated pursuant to this
Agreement shall be subject to all provisions of Chapter 119, Florida Statutes, unless
otherwise provided for by law.
8.3 It is further understood that any report, tracing, plan, map or other work product, without
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limitation, given by CITY to CONSULTANT pursuant to this Agreement shall at all times
remain the property of CITY, shall be returned to CITY, and shall not be used by
CONSULTANT for any other purpose without the express, written consent of the City
Manager or appropriate designee
8.4 However, should CITY utilize the work product in connection with a project upon which
CONSULTANT is not retained by CITY, CITY shall accep t all responsibility for such
utilization to the extent provided by law. Nothing contained in this paragraph or elsewhere
in this Agreement is in any manner intended either to be a waiver of the limitation placed
upon the CITY’s liability as set forth in Section 768.28, Florida Statutes, or to extend the
City’s liability beyond the limits established in said Section; and no claim or award against
the CITY shall include attorney fees, investigative costs, expert fees, suit costs or
prejudgment interest.
8.5 COURT APPEARANCE, CONFERENCES AND HEARINGS
This Agreement shall obligate CONSULTANT to prepare for and appear in litigation on
behalf of CITY involving any dispute arising out of any work performed or services
provided out of this Agreement all at no cost to the City. CONSULTANT shall also confer
with CITY, its attorneys and experts, during the performance of the Services regarding
the interpretation of this Agreement, the correction of errors and omissions, the
preparation of any necessary revisions to corre ct errors and omissions or the clarification
of service requirements, all at no cost to the CITY. Work by CONSULTANT, as a result
of litigation, beyond the scope of the original work shall be considered an additional
service that shall be paid in accordan ce with Section 5 of this Agreement.
SECTION 9 - REUSE OF DOCUMENTS
9.1 The CONSULTANT may not retain, reuse and/or copy data or work products developed
by the CONSULTANT for the CITY without express written permission of the City
Manager’s Office or appropriate designee. The CONSULTANT will upon request provide
the CITY additional copies of reports, tracings, plans, maps, and/or other work products
produced pursuant to this Agreement at the cost for reproduction and not for the cost of
labor.
SECTION 10 – NOTICES
10.1 Whenever either party desires to give notice unto the other, it must be given by
written notice, sent by email and/or registered United States mail, with return
receipt requested, addressed to the party for whom it is intended, at the place last
specified. The place for giving notice shall remain such until it shall have been
changed by written notice in compliance with the provisions of this Section.
10.2 For the present, the parties designate the following as the representative places
for giving of notice, to wit:
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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TO THE CITY:
City Manager Procurement/Contracts Manager
City of Sebastian City of Sebastian
1225 Main Street 1225 Main Street
Sebastian, FL 32958 Sebastian, FL 32958
P: 772-388-8231
E: jessgraham@cityofsebastian.org
TO THE CONSULTANT:
J. Wesley Mills (Principal)
Mills, Short & Associates
700 22nd Place, Suite 2C
Vero Beach, Florida 32960
772-226-7287
Wmills@MillsShortAssociates.com
10.3 Written notice requirements of this agreement shall be strictly construed and such
requirements are a condition precedent to pursuing any rights or remedies
hereunder. The CONSULTANT agrees not to claim any waiver by the City of such
notice requirements based upon the City having actual knowledge, implied, verbal
or constructive notice, lack of prejudice, or any other grounds as a substitute for
the failure of the CONSULTANT to comply with the express written notice
requirements herein. Computer notification (e-mails and message boards) shall
not constitute proper written notice under the terms of the agreement.
SECTION 11 - AUDIT RIGHTS
11.1 The CITY or any of its duly authorized representatives reserves the right to audit the
records of the CONSULTANT related to this Agreement at any reasonable time during
the prosecution of the work included herein and for a period of five (5) years after
termination of the date of the contract or as otherwise extended by law
11.2 The CONSULTANT agrees to provide copies of any records necessary to substantiate
payment requests to the CITY as may be requested by the CITY, solely at the cost of
reproduction. CONSULTANT agrees to maintain all books, documents, papers,
accounting records and other evidences pertaining to work performed under this
Agreement.
11.3 As federal funds are used for work under this Agreement, the Comptroller General of the
United States, or any of his duly authorized representatives, shall have access to any
books, documents, papers, and records of CONSULTANT which are directly pertinent to
work performed under this Agreement, for purposes of making audit, examination,
excerpts, and transcriptions
SECTION 12 – PUBLIC RECORDS
12.1 The CONSULTANT’s records as related to performance of work under this Agreement
are considered public record and must be made available to the public. A request to
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inspect or copy public records relating to the CITY’s contract with the CONSULTANT
must be made directly to the CITY. If the CITY does not possess the requested records,
the CITY shall immediately notify the CONSULTANT of the request, and the
CONSULTANT must provide the records to the CITY or allow the records to be inspected
or copied within a reasonable time. If the CONSULTANT does not comply with the CITY’s
request for records, the CITY shall enforce the contract provisions in accordance with the
contract. A CONSULTANT who fails to provide the public records to the public agency
within a reasonable time may be subject to penalties under §119.10. The CITY is a public
agency subject to Chapter 119, Florida Statutes. The CONSULTANT shall comply with
Florida’s Public Records law. Specifically, the CONSULTANT shall:
12.1.1 Keep and maintain public records that ordinarily and necessarily would be
required by the public agency in order to perform this service.
12.1.2 Provide the public agency with access to public records at a cost that does not
exceed the cost provided in Chapter 119, Florida Statutes or as ot herwise
provided by law.
12.1.3 Ensure that public records that are exempt or that are confidential and exempt
from public record requirements are not disclosed except as authorized by law;
and
12.1.4 Meet all requirements for retaining public records and transfers to the City, at no
cost, all public records in possession of the Consultant upon termination of the
contract and destroy any duplicate public records that are exempt or confidential
and exempt. All records stored electronically must be provided to the City in a
format that is compatible with the information technology systems of the City.
12.2 The failure of the CONSULTANT to comply with the provisions set forth in this section
shall constitute a material breach of Agreement and shall be cause for immediate
termination of the Agreement.
12.3 IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT JEANETTE
WILLIAMS, THE CUSTODIAN OF PUBLIC RECORDS AT 772-388-
8215 OR EMAIL JWILLIAMS@CITYOFSEBASTIAN.ORG CITY OF
SEBASTIAN, 1225 MAIN STREET, SEBASTIAN, FLORIDA 32958
SECTION 13 – SUB-CONSULTING
13.1 The CONSULTANT shall not assign, or transfer any work under this Agreement without
the express written approval of the CITY. The CONSULTANT shall cause the name(s)
of any subconsultant firms responsible for major portions (or separate specialty) of the
work to be inserted in the pertinent documents or data.
13.2 The CONSULTANT shall be fully responsible to CITY for all acts and omissions of any
officers, representatives, agents, employees, or subconsultants of CONSULTANT.
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Subconsultants of CONSULTANT shall have appropriate general liability, professional
liability and workers’ compensation insurance, or be covered by CONSULTANT’s
insurance. CONSULTANT shall furnish CITY with appropriate proof of insurance and
releases from all subconsultants in connection with the work performed in amounts
required
SECTION 14 - CONTINGENT FEES
14.1 The CONSULTANT warrants that he or she 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 or she has not paid or agreed to pay any
person, company or corporation, individual, or firm, other than a bona fide employee
working solely for the CONSUL TANT any fee, commission, percentage, gift or other
consideration contingent upon or results from the award or making of this Agreement.
For any breach or violation of this provision, the CITY shall have the right to terminate
this Agreement, without liability, and, at its discretion, to deduct from the contract price or
amounts due to CONSULTANT or otherwise recover, the full amount of such fee,
commission, percentage, gift or consideration and any damages related to the breach of
the provision and shall report the details of such breach or vio lation to the proper legal
authorities where and when appropriate.
SECTION 15 - DURATION OF AGREEMENT
15.1 This Agreement shall remain in full force and effect until February 21, 2026, unless it is
terminated as provided herein.
15.2 The City has the right to extend any contract for the period necessary for the
CONSULTANT to complete their contractual obligations and/or release, award, and
implement a replacement agreement. Such extension shall be based on the same prices,
terms, and conditions this contract ou tlines.
SECTION 16 – TERMINATION FOR CONVENIENCE
16.1 The CITY reserves the right to terminate this contract without cause by giving thirty (30)
days prior notice to the CONSULTANT in writing of the intention to terminate. Payment
only for approved, nondisputed worked performed will be made in accordance with
Section 6, Payment and Partial Payment. The City shall not be liable to CONSULTANT
for any consequential or incidental damages.
SECTION 17 – NON-APPROPRIATIONS
17.1 In the event sufficient budgeted funds are not available for a new fiscal period, the CITY
shall notify the CONSULTANT of such occurrence and Agreement shall terminate on the
last day of current fiscal period without penalty or expense to the City.
SECTION 18 – NOTICE OF DEFICIENCY
18.1 If the CONSULTANT is notified in writing of a fault, def iciency or error in the Work
provided within ten (10) days from the discovery of any fault, deficiency or error of the
Work, the CONSULTANT shall, at the CITY’s option, either: 1) re -perform such portions
of the Work to correct such fault, defect or erro r, at no additional cost to the CITY, or 2)
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refund to the CITY, any amounts paid by the CITY that are attributable to such portions
of the faulty, defective or erroneous Work, including the costs for re -performance of the
work provided by other CONSULTANTS.
SECTION 19 – TERMINATION FOR CAUSE/DEFAULT
19.1 The CITY may terminate with cause if at any time the CONSULTANT fails to fulfill or
abide by any of the terms or conditions specified. Failure of the CONSULTANT to comply
with any of the provisions of this Agreement shall be considered a material breach of
Agreement and shall be cause for termination of the Agreement at the discretion of the
City.
19.2 An event of default shall mean a breach of this Agreement by CONSULTANT as
determined by CITY. An event of default shall include but not be limited to the fo llowing:
19.2.1 CONSULTANT has not performed services on timely basis;
19.2.2 CONSULTANT has refused or failed to supply enough properly -skilled personnel;
19.2.3 CONSULTANT has failed to make prompt payment to subconsultants or suppliers
for any services;
19.2.4 CONSULTANT has failed to fulfill representations made in this Agreement;
19.2.5 CONSULTANT has refused or failed to provide the Services as defined in this
Agreement; or
19.2.6 CONSULTANT has failed to timely address a fault, deficiency or error in the Work
as provided in the Notice of Deficiency.
19.2.7 CONSULTANT understands and agrees that the CITY may immediately
terminate this contract upon written notice if the CONSULTANT is found to have
submitted a false certification or any of the following occur with respect to the
CONSULTANT or a related entity: (i) for any contract for goods or services in any
amount of monies, it has been placed on the Scrutinized Companies that Boycott
Israel List, or is engaged in a boycott of Israel, or (ii) for any contract for goods or
services of one million dollars ($1,000,000) or more, it has been placed on the
Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies
with Activities in the Iran Petroleum Energy Sector List, or it is found to have been
engaged in business operations in Cuba or Syria.
19.3 If a CONSULTANT is in default on its contract with the CITY as outlined above, the CITY
shall follow the procedures contained herein:
19.3.1 The CITY shall notify, in writing, the CONSULTANT to adhere to contract terms
and conditions. This notice shall state the nature of the failure to perform and
provide a time certain for correcting the failure within a reasonable time period .
The notice will also provide that, should it fail to perform within the time provided,
the CONSULTANT will be found in default and removed from the CITY’s approved
vendor list.
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19.3.2 Unless the CONSULTANT corrects its failure to perform within the time provided,
or unless the CITY determines on its own investigation that the CONSULTANT’s
failure is legally excusable, the CITY shall find the CONSULTANT in default and
shall issue a second notice stating (i) the reasons the CONSULTANT is
considered in default, (ii) that the CITY will reprocure or has reprocured the
commodities or services, and (iii) and the amount of the re-procurement if known.
19.4 The forgoing provisions do not limit, waive or exclude the CITY’s remedies against the
defaulting CONSULTANT at law or in equity.
19.5 In an Event of Default, CONSULTANT shall be liable for damages to the CITY resul ting
from lost funding and for the difference between the cost associated with procuring
services from CONSULTANT and the amount actually expended by CITY, in
procurement of another professional consultant to perform the services of
CONSULTANT. CITY shall be entitled to recover consequential damages and lost
funding and administrative costs associated with the procurement of alternative
professional services.
19.6 In an Event of Default, CONSULTANT shall be liable for damages to the CITY resulting
from lost funding and for the difference between the cost associated with procuring
services from CONSULTANT and the amount actually expended by CITY, in
procurement of another professional to perform the services of CONSULTANT. CITY
shall be entitled to recover consequential damages and lost funding and administrative
costs associated with the procurement of alternative professional services.
SECTION 20 – INDEMNIFICATION
20.1 The CONSULTANT and any SUB-CONSULTANTs shall indemnify, defend and
hold harmless the City, and its officers and employees, from liabilities, damages,
losses, and costs, including, but not limited to, reasonable attorneys’ fees, to the
extent caused by the negligence, recklessness, o r intentionally wrongful conduct
of the CONSULTANT or its subCONSULTANTs and other persons employed or
utilized by the CONSULTANT or its subCONSULTANTs in the performance of the
contract; irrespective of the negligence of the indemnitee or its officers, di rectors,
agents, or employees. However, such indemnification shall not include claims of,
or damages resulting from, gross negligence or willful, wanton, or intentional
misconduct of the City or its officers, directors, agents, or employees. Upon
request of the City, the CONSULTANT or its SUB-CONSULTANTs shall, at no
cost or expense to the City, indemnify and hold the City harmless of any suit
asserting a claim for any loss, damage, or liability specified above, and the
CONSULTANT or its subCONSULTANTs shall pay any cost and reasonable
attorneys’ fees that may be incurred by the City in connection with any such claim
or suit or in enforcing the indemnity granted above. Nothing in this agreement
shall be construed as the City waiving its sovereign immunity un der Florida
Statute §768.28 or any other sovereign or governmental immunity, nor an
admission of any liability. This provision shall survive the termination of this
agreement.
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SECTION 21 – INSURANCE
21.1 The CONSULTANT and its SUB-CONSULTANTS, assignees and suppliers will be
required to procure and maintain, at its own expense and without cost to the CITY, until
final acceptance by the CITY of all products or services covered by the Agreement, the
following types of insurance in the following minimum amounts:
21.1.1 Commercial General Liability: The CONSULTANT shall provide minimum limits
of $1,000,000.00 each occurrence, $1,000,000.00 annual aggregate combined
single limit for bodily injury and property damage liability. This shall include
premises/operations, independent Consultant, products, completed operations,
broad form property damage, personal and advertising injury, and contractual
liability, specifically confirming and insuring the indemnification and hold harmless
clause of the contract. This policy of insurance shall be considered primary to and
not contributing to any insurance maintained by the City of Sebastian and shall
name the City of Sebastian as additional insured. The policy of insurance shall be
written on an “occurrence” basis and form.
21.1.2 Automobile Liability Insurance: CONSULTANT shall provide minimum limits of
liability of $1,000,000.00 each accident, combined single limit for bodily injury and
property damage. This shall include coverage for:
• Owned Automobiles
• Hired Automobiles
• Non-Owned Automobiles
21.1.3 Professional Liability Insurance: Professional liability insurance with a minimum
limit of $1,000,000.00 aggregate with respect to negligent acts, errors or
omissions in connection with professional services to be provided under this
Agreement. Any deductible is not to exceed $5,000 for each claim CONSULTANT
represents it is financially responsible for the deductible amount.
21.1.4 Workers' Compensation Coverage: Full and complete Workers' Compensation
Coverage, including coverage for Employer’s Liability, as required by State of
Florida law, shall be provided. Should the Named Vendor utilize a Professional
Employer Organization, said Vendor acknowledges and agrees that all
employees sent to the City of Sebastian MUST be included on that PEO roster.
21.1.5 Insurance Certificates: The City of Sebastian is to be specifically included on all
certificates of insurance (with exception to Workers Compensation and
Professional Liability) as additional insured. Waiver of Subrogation is required for
Commercial General Liability and Automobile Liability. All certificates must be
received prior to commencement of service/work. In the event the insurance
coverage expires prior to the completion of this contract, a renewa l certificate shall
be issued thirty (30) days prior to said expiration date. The certificate shall provide
a thirty (30) day notification clause in the event of cancellation or modification to
the policy.
21.2 All insurance carriers shall be rated (A) or better by the most recently published A.M. Best
Rating Guide. Unless otherwise specified, it shall be the responsibility of the
CONSULTANT to insure that all subconsultants comply with the insurance requirements
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set forth in this Agreement. The City may reque st a copy of the insurance policy according
to the nature of the project. City reserves the right to accept or reject the insurance carrier.
21.3 CONSULTANT shall obtain insurance on an “occurrence” basis if such insurance is
available at commercially reasonable premium costs. Any insurance on a “claim made”
basis shall be maintained for at least two (2) years after acceptance of the Work.
SECTION 22 - QUALITY CONTROL
22.1 The CONSULTANT shall provide a high level of quality control and accuracy. The CITY
may request additional data collection or reanalysis of data at no expense to the CITY.
If the original data collected and/or data analysis is found to be accurate and rea sonable,
the CONSULTANT shall be compensated for the additional work in accordance with
Section 5 of this Agreement.
22.2 The CONSULTANT acknowledges that the CITY may periodically evaluate the
CONSULTANT’S performance and that the evaluation may be used by t he CITY in
determining the CONSULTANT’S qualifications for future contracts with the CITY.
SECTION 23 - REPRESENTATIONS
23.1 CONSULTANT represents that it is able to furnish all services, labor, equipment, and
materials necessary and as may be required in the performance of this Agreement and
all services performed under this Agreement shall be performed in a professional manner
suitable to the CITY.
23.2 CONSULTANT represents, with full knowledge that CITY is relying upon these
representations when entering into this Agreement with CONSULTANT, that
CONSULTANT has the professional expertise, experience, and manpower to perform
the services described in this Agreement.
23.3 CONSULTANT shall be responsible for technically deficient designs, reports or studies,
after the date of final acceptance of the Services by CITY. CONSULTANT shall, upon
the request of CITY, promptly correct or replace all deficient work due to its errors and/or
omissions without cost to CITY. CONSULTANT shall also be responsible for all damage s
resulting from CONSULTANT’s deficient documents. Payment in full by CITY for services
performed does not constitute a waiver of this representation.
23.4 All services performed by CONSULTANT shall be to the satisfaction of CITY. If resolution
cannot be reached, the provisions of Section 16 shall apply.
23.5 CONSULTANT represents 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 contract and that it has not paid or agreed to pay any company or person other than
a bona fide employee working solely for CONSULTANT any fee, commission, percentage
fee, gifts, or any other considerations contingent upon or resulting from the award or
making of this contract. For breach or violation of this representation, CITY shall have
the absolute right to cancel this Agreement without liability to CONSULTANT or any third
party.
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SECTION 24 - INTEREST OF MEMBERS OF CITY AND OTHERS
24.1 No officers, members or employees of the CITY, and no members of its governing body,
and no other public official of any other governmental entity, who exercise any functions
or responsibilities in the review or approval of the undertaking or carrying out of this
project, shall participate in any decision relating to this Agreement that affects their
personal interest, or shall have any personal or pecuniary interest, direct or indirect, in
this Agreement or the proceeds thereof.
SECTION 25 - INTEREST OF CONSULTANT
25.1 The CONSULTANT covenants that it presently has no conflict of interest and shall not
acquire any interest, direct or indirect, that shall conflict in any manner or degree with the
performance of services required to be performed under this Agreement. The
CONSULTANT further covenants that in the performance of this Agreement, no person
having such interest shall be employed by the CONSULTANT.
SECTION 26 - INDEPENDENT CONSULTANT
26.1 CONSULTANT and its employees, agents, Consultants and subconsultants shall be
deemed to be independent an d not CITY agents or employees. CONSULTANT, its
employees or agents, Firms, subconsultants and Subconsultants shall not attain any
rights or benefits under CITY’s Personnel Rules and Regulations or Pension Systems
nor any rights generally afforded CITY’s c lassified or unclassified employees.
CONSULTANT, its agents, employees, or subconsultants shall not be deemed entitled
to the Florida Workers’ Compensation benefits as a CITY employee.
SECTION 27 - OTHER PROVISIONS
27.1 Title and paragraph headings are for convenient reference and are not a part of this
Agreement.
27.2 No waiver or breach of any provision of this Agreement shall constitute a waiver of any
subsequent breach of the same or any other provision, and no waiver shall be effective
unless made in writing.
27.3 Should any provision, paragraph, sentence, word or phra se contained in this Agreement
be determined to be invalid, illegal or otherwise unenforceable under the laws of the State
of Florida by a court of competent jurisdiction, such provision, paragraph, sentence, word
or phrase shall be deemed modified in orde r to conform with Florida law or any order
entered by such court. If not modifiable to conform to such law or order, then it shall be
deemed severable and, in either event, the remaining terms and provisions of this
Agreement shall remain unmodified and in full force and effect.
27.4 The parties hereby waive the right to a trial by jury in any action, proceeding or
counterclaim brought or filed by either of them against the other.
27.5 The rights of the parties hereto shall be construed and be subject to the jurisdiction of the
courts in accordance with the laws of the State of Florida.
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27.6 Venue for any litigation arising out of this Agreement shall be in Indian River County,
Florida.
27.7 There are no third-party beneficiaries intended to be bound by or to enfor ce this
Agreement.
27.8 The CONSULTANT shall utilize the U.S. Department of Homeland Security’s E -Verify
system, in accordance with the terms governing use of the system, to verify employment
eligibility of all new employees hired by the CONSULTANT during the term of the Contract
and shall expressly require any subconsultants performing work or providing services
pursuant to the Contract to likewise utilize the U.S. Department of Homeland Security’s
E-Verify system to verify employment eligibility of all new e mployees hired by the
subconsultant during the contract term.
27.9 PUBLIC ENTITY CRIMES –Firm acknowledges and agrees to the following: A person or
affiliate who has been placed on the Convicted Vendor List following a conviction for a
public entity crime may not submit a proposal on a contract to provide any goods or
services to a public entity, may not submit a proposal on a contract with a public entity
for the construction or repair of a public building or public work, may not submit proposals
for leases of real property to a public entity, may not be awarded or perform work as a
Successful Firm, supplier, subconsultant, or consultant under a contract with any public
entity, and may not transact business with any public entity in excess of the threshold
amount provided in Section 287.017 Florida Statutes, for CATEGORY TWO for a period
of 36 months from the date of being placed on the Convicted Vendor List (Section
287.133, Florida Statutes).
SECTION 28 - LIMITATION OF LIABILITY
28.1 The CITY desires to enter into this Agreement only if in so doing the CITY can place a
limit on the CITY’s liability for any cause of action arising out of this Agreement. For other
and additional good and valuable consideration, the receipt and sufficien cy of which is
hereby acknowledged, CONSULTANT expresses its willingness to enter into this
Agreement with the knowledge that the CONSULTANT’s recovery from the CITY to any
action or claim arising from the Agreement is limited to a maximum amount of the co ntract
value less the amount of all funds actually paid by the CITY to CONSULTANT pursuant
to this Agreement.
28.2 This section shall not prevent the CITY from taking court action it deems necessary
against, including but not limited to, the CONSULTANT, its subconsultant,
subconsultants, assignees, suppliers and employees.
SECTION 29 - ENTIRETY OF AGREEMENT
29.1 This writing, together with documents referenced herein, embody the entire agreement
and understanding between the parties hereto, and there are no ot her agreements and
understandings, oral or written, with reference to the subject matter hereof that are not
merged herein. No alteration, change, or modification of the terms of this Agreement shall
be valid unless made in writing, signed by both parties and added as an addendum to
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have made and executed this
agreement on the respective dates under each signature: the City through its City
Council taking action on the _______ day of __________________, 2025, and the
Contractor signing by and through its duly authorized corporate officer having the full and
complete authority to execute same.
ATTEST: Mills, Short & Associates, LLC.
By:
__________________________ __________________________
J. Wesley Mills, Principal
Date: _____________________
ATTEST: CITY OF SEBASTIAN, FL
By:
__________________________ _______________________________
Jeanette Williams, MMC Brian Benton, City Manager
City Clerk
Date: ______________________
For the use and reliance of the City of
Sebastian only. Approved as to form
and legal sufficiency.
______________________________
Jennifer D. Cockcroft, Esq.
City Attorney
Document ID: BC1AA8123BF5C15C1369CB2539345535
ID: B6253F97-7484-4FB8-9513-9971C5533C...
Digitally signed by
<wmills@millsshortassociates.com>
August 27, 2025 05:16 PM EDT
08/27/2025
ID: BDAE2E37-7B19-44CC-85A5-DD488FFA7...
Digitally signed by
<tadams@millsshortassociates.com>
September 02, 2025 10:43 AM EDT
ID: 04759798-5E28-4048-B8A4-C691A995F9...
Digitally signed by
<jcockcroft@cityofsebastian.org>
September 02, 2025 11:09 AM EDT
ID: 8D2EE2B4-57B7-40DE-8DAE-2930366AA...
Digitally signed by
<bbenton@cityofsebastian.org>
September 02, 2025 11:27 AM EDT
09/02/2025
2nd September
ID: FB7618E3-B4C1-41A1-840F-62F7D7738...
Digitally signed by
<jwilliams@cityofsebastian.org>
September 02, 2025 02:08 PM EDT
Document ID: BC1AA8123BF5C15C1369CB2539345535