HomeMy WebLinkAboutAgreement for Consulting Services 07-03-2013 AGREEMENT FOR CONSULTING SERVICES
THIS AGREEMENT FOR CONSULTING SERVICES ("Agreement") is made and
entered this 3' day of Z14/5 2013, by and between the CITY OF CAPE
CANAVERAL, a Florida municipal corporation ("City"), located at 105 Polk Avenue, Cape
Canaveral, Florida 32920, and THE BERRYHILL GROUP, LLC, a Florida limited liability
company ("Consultant"), whose principal address is 1528 Woodgate Way, Tallahassee, Florida
32308.
WITNESSETH:
WHEREAS, the City Council adopted Ordinance 01-2013 on February 19, 2013
authorizing the City to enter into a loan agreement with the Florida Department of
Environmental Protection under the State Revolving Fund in order to finance and construct nine
(9)wastewater and stormwater projects ("Projects"); and
WHEREAS, the City has a need to obtain the professional services of Consultant
related to the Projects; and
WHEREAS, on behalf of the City, Consultant will coordinate with FDEP, City staff,
and City contractors in administering the funding, procurement and construction phases of the
Projects; and
WHEREAS, Consultant is willing to provide such professional consulting services to
the City under the terms and conditions stated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged,the parties covenant and agree as follows:
1.0 TERM AND DEFINITIONS
1.1 Term and Termination. This Agreement shall commence upon full execution by
both parties hereto and, unless sooner terminated pursuant to the terms and conditions
contained herein, shall be for a term of 20 months. This Agreement may be extended for
additional one-month periods by mutual written agreement executed by both parties hereto.
1.2 Definitions. The following words and phrases used in this Agreement shall have
the following meaning ascribed to them unless the context clearly indicates otherwise:
a. "Agreement" or "Contract" shall be used interchangeably and shall refer to this
Agreement, as may be amended, which shall constitute authorization for the Consultant to
provide the professional consulting services approved by the City.
b. "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.
The Agreement shall not go into effect until said date.
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c. "Consultant" shall mean The Berryhill Group, LLC, a Florida limited liability
company, and its principals, employees, resident project representatives(and assistants).
d. "Public Record" shall have the meaning given in Chapter 119, Florida Statutes,
as may be amended.
e. "Reimbursable Expenses" shall mean the actual expenses incurred by Consultant
or Consultant's independent professional associates and consultants which are directly related to
travel and subsistence. Detailed receipts shall be provided to the City in support of
reimbursement. Mileage reimbursement will be paid at the current Internal Revenue Service
allowable amount.
f. "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties.
1.3 Engagement. The City hereby engages Consultant and Consultant hereby agrees
to perform the Services outlined in this Agreement for the stated fee arrangement. No prior or
present representations shall be binding upon any of the parties hereto unless incorporated in
this Agreement.
2.0 DESCRIPTION AND COST OF SERVICES; PAYMENT
2.1 Scope of Services. Consultant agrees to provide the following services to the
City:
General: Services described herein relate to the capital funding services for the
Wastewater and Stormwater Project. The Construction Funding Process relates to the
construction loan application and securing funds for the project. The Procurement Process
services will include those services related to the Florida Department of Environmental
Protection (FDEP) construction contractor(s) bidding and procurement requirements for the
Clean Water State Revolving Fund (CWSRF). Construction Phase services relate to services
during construction and close-out of the CWSRF loan.
The Consultant will represent the City and coordinate with the FDEP, City's staff, the City's
engineer (Engineer), and construction companies in the funding administration process.
Consultant will be available to the City for consultation during the funding and construction
process. Draft transmittal letters and document submittals to the FDEP to facilitate the funding
will be prepared by the Consultant, or assistance provided as needed. The City, the Engineer,
and the construction companies will provide documents and information as necessary to
complete these services. The Consultant will advise and draft responses to questions and/or
comments relative to the funding.
Construction Loan Application and Procurement Process: Consultant will advise and
assist the City in the preparation and filing of the construction loan RFI and application as
previously provided for under Task Order 7, and advise and assist the City in the preparation of
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the contractor procurement and RFP's as previously provided for under Task Order 6, Purchase
Order 6638.
Pre-Bid, Pre Proposal Conferences: Consultant will prepare for and attend a Pre-Bid
or Pre-Proposal conference to respond to questions and comments relative to the SRF program
compliance process and requirements. If a written response to questions is needed, the
Consultant will assist the City in the preparation of the response. Consultant will provide advice
to the City staff relative to the SRF program requirements as needed for additional conferences.
Consultant anticipates on-site participation in one Pre-Bid or Pre-Proposal conference. If
participation in additional conferences is requested by the City, the Consultant will participate
for an additional fee of$2,000 per conference.
Construction Award Packages: Consultant will advise the City and the Engineer in the
assembly and submittal of a bid package to the FDEP for approval. Upon approval of the bid
award package by the FDEP, the Consultant will advise the City in submitting the required
awarded contract documentation to the FDEP for approval. The Consultant will represent the
City and coordinate with the FDEP to gain approval to award the contract and issue a Notice to
Proceed. Consultant will provide advice to the City staff relative to the SRF program
requirements as needed for additional award package submittals.
Pre-Construction Conferences: Consultant will prepare for and attend a Pre-
Construction Conference to provide guidance to the construction contractor relative to the SRF
program compliance process and requirements that apply during construction. Consultant will
advise the City staff relative to the SRF requirements in conducting additional conferences and
be available for consultation as needed. Consultant will provide responses to questions and
comments. If a written response to questions is needed,the Consultant will assist the City in the
preparation of the response. Consultant anticipates on-site participation in one Pre-Construction
conference. If participation in additional conferences is requested by the City, the Consultant
will participate for an additional fee of$2,000 per conference.
Progress Meetings: Consultant will prepare for and attend Progress Meetings with the
City, Engineer and contractors to respond to questions and comments and to provide guidance
relative to the SRF program compliance process and requirements. The status of any
compliance issues that arise during construction will be addressed. Any needed corrections to
submitted documents will be presented. Program updates or program requirement changes will
be presented. Change Orders will be reviewed for SRF eligibility and the Consultant will assist
the City and the Engineer in gaining approval of the FDEP for Change Orders. Consultant will
advise the City and assist in settling any issues with the contractors or the FDEP relative to the
SRF program requirements. Consultant anticipates on-site participation in three Progress
Meetings. These meetings do not include the Pre-Bid or Pre-Construction Conferences. If
participation in additional meetings is requested by the City, the Consultant will participate for
an additional fee of$2,000 per meeting.
CWSRF Disbursement Requests: Consultant will gather and assemble the contractor(s)
monthly pay estimates, invoices for engineering services, administrative services, and other
CWSRF eligible costs along with supporting documentation as required by the FDEP necessary
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to prepare the monthly disbursement requests. The City or the Engineer will verify the
contractor(s) work progress and accuracy of the contractor(s) monthly pay estimates.
Consultant will review the pay estimates and invoices to verify CWSRF eligibility. The City or
the Engineer will obtain other documentation including the Davis-Bacon certified payrolls,
DBE utilization forms, and other documents required by the FDEP from the contractor(s).
Consultant will prepare the monthly disbursement requests and submit to the City for review,
approval, signing, and submittal to the FDEP.
SRF Compliance Monitoring: Consultant will monitor the Federal Labor Standards
Requirements (Davis-Bacon) on a monthly basis. Consultant will review the contractor's and
subcontractors' weekly certified payrolls for compliance with the Davis-Bacon requirements
and notify the City of any exceptions. The City or the Engineer will collect the certified
payrolls and monthly MBE/WBE utilization reports (if required) from the contractors and
subcontractors and submit to the Consultant. The City or the Engineer will conduct on-site
labor interviews as required by the FDEP and submit the labor interview forms on a monthly
basis to the Consultant for review. The Consultant will advise the City in the maintenance of
files of original copies of compliance documentation forms as required for inspection by the
FDEP, auditors, and others. Consultant will notify the City of any exceptions noted in the
review of the submitted documents and assist the City and the Contractor in maintaining
compliance with the FDEP requirements. Consultant will represent the City and coordinate with
the FDEP to settle any issues relating to the Davis-Bacon requirements, MBE/WBE
requirements,or other compliance process requirements.
CWSRF Project Closeout: Consultant will prepare for and meet with the City,
Engineer, and the FDEP for the FDEP final inspection and preliminary project closeout for the
CWSRF loan. Consultant will prepare the final disbursement request and assist with the
documentation needed for the final administrative closeout by the FDEP. Consultant will
review and advise the City relative to the final loan amendment that sets the final terms of the
loan. Consultant will assist the City and cooperate with the auditor in completing the required
project audit that will follow the closeout.
Additional Services: Should additional services beyond the Scope of Services be
requested by the City, Consultant will provide additional services on a negotiated lump sum fee
basis or at the Consultant's standard hourly rate plus travel expenses as is appropriate and
approved in writing by the City. No additional services will be initiated until the City and
Consultant have agreed upon the scope of work and costs.
2.2 Compensation. For the full performance of the Services outlined herein to the
full satisfaction of the City, the City agrees to compensate Consultant at the flat fee rate of
Three Thousand Dollars ($3,000.00) per month. Consultant shall submit an invoice to the City
each month during the term of this Agreement. Upon the City's receipt of said invoices,
payment shall be due and payable as provided by the Florida Prompt Payment Act section
218.70 et. seq., Florida Statutes. There shall be no other compensation due Consultant for the
Services provided under this Agreement, unless specifically agreed to by the City in writing.
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2.3 Payment not Waiver. The City's payment of any invoice under this Agreement
shall not be construed or operate as a waiver of any rights under this Agreement or any cause of
action arising out of the performance of this Agreement and Consultant shall remain liable to
the City in accordance with applicable law for all damages to the City caused by Consultant's
performance of any services provided under this Agreement.
2.4 Services Not Exclusive. The City reserves the right, at its sole discretion, to
perform any Services related to this Agreement or to retain the Services of other consulting
firms to provide professional services. Performance of these Services by any party other than
Consultant will not relieve the City of the contracted monthly amount except by written
agreement of the Consultant.
3.0 CHANGES IN THE SCOPE OF WORK
3.1 City may make changes in the Services at any time by giving written notice to
Consultant. If such changes increase, decrease or eliminate any amount of Work, City and
Consultant will negotiate any schedule modifications that may be necessary.
4.0 SCHEDULE
4.1 Consultant shall perform Services in conformance with the mutually agreed
schedule. Consultant shall complete all of said services in a timely manner and will keep City
apprised of the status of work on at least a monthly basis or as otherwise reasonably requested
by the City. Should Consultant fall behind the agreed upon schedule, it shall employ such
resources so as to comply with the agreed-upon schedule.
4.2 No extension for completion of services shall be granted to Consultant without
City's prior written consent, except as provided in Sections 3.1 and 17.1 herein.
4.3 Any cost caused by defective or ill-timed services shall be borne by the party
responsible therefore.
5.0 RIGHT TO INSPECTION
5.1 City or its affiliates shall at all times have the right to review or observe the
Services performed by Consultant.
5.2 No inspection, review, or observation shall relieve Consultant of its
responsibility under this Agreement.
6.0 PROGRESS MEETING
6.1 City's designated Project Manager may hold periodic progress meetings on a
scheduled basis during the term of this Agreement. Consultant's Project Manager and all other
appropriate personnel shall attend such meetings as designated by City's Project Manager.
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7.0 SAFETY
7.1 Consultant shall be solely and absolutely responsible and assume all liability for
the safety and supervision of its principals, employees, resident project representatives (and
assistants)while performing Services provided hereunder.
8.0 REASONABLE ACCESS
8.1 During the term of this Agreement, City shall grant Consultant reasonable access
to the City's premises, records, and files for purposes of fulfilling its obligations under this
Agreement.
9.0 INSURANCE
9.1 Liability Amounts. During the term of this Agreement, Consultant shall be
responsible for providing the types of insurance and limits of liability as set forth below.
a. General Liability. The Consultant shall maintain comprehensive general liability
insurance in the minimum amount of $1,000,000 per occurrence, $2,000,000 aggregate for
bodily injury and property damage which may arise from any Services performed under this
Agreement whether such Services are performed by the Consultant or by anyone directly
employed by or contracting with the Consultant.
b. Automobile Liability. The Consultant shall maintain comprehensive automobile
liability insurance in the minimum amount of$1,000,000 per occurrence combined single limit
for bodily injury, including wrongful death, and property damage, which may arise from the
ownership, use, or maintenance of owned and non-owned automobiles, including rented
automobiles, whether such operations be by the Consultant or by anyone directly or indirectly
employed by the Consultant.
9.2 Special Requirements. Current, valid insurance policies meeting the
requirements herein identified shall be maintained during the term of this Agreement. Renewal
certificates shall be sent to the City thirty(30)days prior to any expiration date. There shall also
be a thirty (30) day advance written notification to the City in the event of cancellation or
modification of any stipulated insurance coverage. The City shall be an additional named
insured on stipulated insurance policies included in article 9.1.a$ herein, as its interest
may appear, from time to time.
9.3 The insurance required by this Agreement shall include the liability and
coverage provided herein, or as required by law, whichever requirements afford greater
coverage. All of the policies of insurance so required to be purchased and maintained shall
contain a provision or endorsement that the coverage afforded will not be canceled, materially
changed or renewal refused 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. In the event that the Consultant shall fail to comply with
the foregoing requirement,the City is authorized, but in no event shall be obligated,to purchase
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such insurance,and the City may bill the Consultant. The Consultant shall immediately forward
funds to the City in full payment for said insurance. It is expressly agreed that neither the
provision of the insurance referred to in this Agreement, nor the City's acceptance of the terms,
conditions or amounts of any insurance policy, shall be deemed a warranty or representation as
to adequacy of such coverage. All insurance coverage shall be with insurer(s) rated as A+ by
Best's Rating Guide (or equivalent rating and rating service as reasonably determined by the
City Manager) and licensed by the State of Florida to engage in the business of writing of
insurance or provided through the London Market for Professional Liability Insurance. Unless
agreed to by the City to the contrary,the City shall be named on the insurance policies included
rticle 9.1.a 04t '1% as "additional insured." The Consultant shall cause its insurance
carriers,prior to the effective date of this agreement 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. Further copies of all relevant policies will be provided to the City within thirty (30)
days of the effective date of this agreement. If the City has any objection to the coverage
afforded by or other provision of the insurance required to be purchased and maintained by the
Consultant in accordance with this Article on the basis of its not complying with the
Agreement, the City shall notify the Consultant in writing thereof within thirty (30) days of the
date of delivery of such certificates to the City. For all Work performed pursuant to this
Agreement, the Consultant shall continuously maintain such insurance in the amounts, type,
and quality as required by the Agreement.
9.4 Independent Associates and Consultants. All independent associates and
consultants employed by Consultant to perform any Services hereunder shall fully comply with
the insurance provisions contained in this paragraph.
10.0 COMPLIANCE WITH LAWS AND REGULATIONS
10.1 Consultant shall comply with all requirements of federal, state, and local laws,
rules, regulations, standards, and/or ordinances applicable to the performance of Services under
this Agreement.
11.0 REPRESENTATIONS
11.1 Consultant represents that the Services provided hereunder shall conform to all
requirements of this Agreement, are consistent with recognized and sound practices and
procedures within its profession, and conform to the customary standards of care, skill, and
diligence appropriate to the nature of the Services rendered. Consultant shall perform as
expeditiously as is consistent with professional skill and care and the orderly progress of the
Services performed hereunder. Consultant's services shall be consistent with any time periods
established under this Agreement. Consultant shall provide City with a written schedule for
services performed and such schedule shall provide for ample time for the City to review, for
the performance of consultants (if any), and for the approval of submissions by authorities
having jurisdiction over the services. The Consultant's designated representative shall have the
authority to act on Consultant's behalf with respect to the Services. In addition, Consultant's
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representative shall render decisions in a timely manner in order to avoid unreasonable delay in
the orderly and sequential progress of the Services. Except with the City's knowledge and
consent, the Consultant shall not engage in any activity, or accept any employment, interest or
contribution that would reasonably appear to compromise the Consultant's professional
judgment with respect to the Services. The Consultant shall review laws, codes, and regulations
applicable to Consultant's Services. The Consultant's services and design shall comply with all
applicable requirements imposed by all public authorities. The Consultant represents and
warrants that it is familiar with, and accepts that it will perform the Services hereunder in a
manner that complies with all applicable requirements of laws, codes, and regulations.
Consultant shall be responsible for the professional quality, technical accuracy and the
coordination of all plans, studies, reports and other services furnished to the City under this
Agreement. Unless this Agreement is terminated by the City, or terminated by Consultant for
nonpayment of any proper invoices, or the City exercises its rights to perform the Services
pursuant to Paragraph 2.4 herein, Consultant shall be responsible for the satisfactory and
complete execution of the Services described in this Agreement. The Consultant represents that
it will carefully examine the scope of services required by the City and that it will investigate
the essential requirements of the Services required by the Agreement, and that it will have
sufficient personnel, equipment, and material at its disposal to complete the services set forth in
the Agreement in a good professional and workmanlike manner in conformance with the
requirements of this Agreement.
11.2 Consultant represents that all principals, employees, and other personnel
furnishing such Services shall be qualified and competent to perform the Services assigned to
them and that such guidance given by and the recommendations and performance of such
personnel shall reflect their best professional knowledge and judgment.
12.0 DOCUMENTS
12.1 Public Records. It is hereby specifically agreed that any record, document,
computerized information and program, audio or video tape, photograph, or other writing of the
Consultant and its independent contractors and associates related, directly or indirectly, to this
Agreement, shall 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's City Manager. 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 purpose
of examination and/or audit.
a. Reuse of Documents. All documents, including but not limited to, drawings,
specifications, and data, or programs stored electronically or otherwise, prepared by the
Consultant and its independent contractors and associates pursuant to this Agreement or related
exclusively to the Services described herein shall be owned by the City and may be reused by
the City for any reason or purpose at any time. However, the City agrees that the aforesaid
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documents are not intended or represented to be suitable for reuse by the City or others on any
undertaking other than the Work outlined in this Agreement. Any reuse for an undertaking
other than for the Work without verification or adaptation by the Consultant, or its independent
contractors and associates if necessary, to specific purposes intended will be at the City's sole
risk and without liability or legal exposure to the Consultant.
b. Ownership of Documents. The City and the Consultant agree that upon payment
of fees due to the Consultant by the City for a particular design, report, inventory list,
compilation, drawing, specification, model, recommendation, schedule or otherwise, said
design, report, inventory list, compilation, drawing, specification, technical data,
recommendation, model, schedule and other instrument produced by the Consultant in the
performance of this Agreement, or any Work hereunder, shall be the sole property of the City,
and the City is vested with all rights therein. The Consultant waives all rights of copyright in
said design, report, inventory list, compilation, drawing, specification, technical data,
recommendation, model, schedule and other instrument produced by the Consultant in the
performance of this Agreement, and hereby assigns and conveys the same to the City whether
in the possession or control of the Consultant or not.
c. Preexisting Ownership Rights to Documents. Notwithstanding any provisions to
the contrary contained in this Agreement, Consultant shall retain sole ownership to its
preexisting information not produced and paid for by the City under this Agreement including,
but not limited to computer programs, software, standard details, figures, templates and
specifications.
13.0 ASSIGNMENT
13.1 Consultant shall not assign or subcontract this Agreement or any rights or any
monies due or to become due hereunder without the prior, written consent of City.
13.2 If upon receiving written approval from City, any part of this Agreement is
subcontracted by Consultant, Consultant shall be fully responsible to City for all acts and/or
omissions performed by the subcontractor as if no subcontract had been made.
13.3 If City determines that any subcontractor is not performing in accordance with
this Agreement, City shall so notify Consultant who shall take immediate steps to remedy the
situation.
13.4 If any part of this Agreement is subcontracted by Consultant, prior to the
commencement of any Work by the subcontractor, Consultant shall require the subcontractor to
provide City and its affiliates with insurance coverage as set forth by the City.
14.0 INDEPENDENT CONTRACTOR
14.1 At all times during the term of this Agreement, Consultant shall be considered
an independent contractor and not an employee of the City.
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15.0 DEFAULT BY CONSULTANT AND CITY'S REMEDIES
15.1 The City reserves the right to revoke and terminate this Agreement and rescind
all rights and privileges associated with this Agreement, without penalty, in the following
circumstances,each of which shall represent a default and breach of this Agreement:
15.2 Consultant defaults in the performance of any material covenant or condition of
this Agreement and does not cure such other default within thirty (30) calendar days after
written notice from the City specifying the default complained of, unless, however, the nature
of the default is such that it cannot, in the exercise of reasonable diligence, be remedied within
thirty (30) calendar days, in which case the Consultant shall have such time as is reasonably
necessary to remedy the default, provided the Consultant promptly takes and diligently pursues
such actions as are necessary therefore; or
15.3 Consultant is adjudicated bankrupt or makes any assignment for the benefit of
creditors or Consultant becomes insolvent, or is unable or unwilling to pay its debts; or
15.4 Consultant has acted grossly negligent, as defined by general and applicable law,
in performing the Services hereunder; or
15.5 Consultant has committed any act of fraud upon the City; or
15.6 Consultant has made a material misrepresentation of fact to the City while
performing its obligations under this Agreement.
15.7 Consultant has assigned this Agreement without the City's prior written consent.
15.8 Notwithstanding the aforementioned, in the event of a default by Consultant, the
City shall have the right to exercise any other remedy the City may have by operation of law,
without limitation, and without any further demand or notice.
16.0 TERMINATION
16.1 Notwithstanding any other provision of this Agreement, City may, upon written
notice to Consultant, terminate this Agreement, without penalty, if: (a) Consultant is in default
pursuant to paragraph 15.0 Default; (b) Consultant makes a general assignment for the benefit
of its creditors; (c) Consultant fails to comply with any condition or provision of this
Agreement; or (d) Consultant is experiencing a labor dispute which threatens to have a
substantial, adverse impact upon performance of this Agreement without prejudice to any other
right or remedy City may have under this Agreement. In addition, either party may terminate
with no penalty with advance written notice no later than thirty (30) days prior to the
Consultant's Final Contract Payment Due Date. In the event of such termination, City shall be
liable only for the payment of all unpaid charges, determined in accordance with the provisions
of this Agreement, for Work properly performed prior to the effective date of termination.
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17.0 FORCE MAJEURE
17.1 Any delay or failure of either party in the performance of its required obligations
hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm;
explosion; riot; war; sabotage; strikes; extraordinary breakdown of or damage to City's
affiliates' generating plants, their equipment, or facilities; court injunction or order; federal and
/or state law or regulation; order by any regulatory agency; or cause or causes beyond the
reasonable control of the party affected; provided that prompt notice of such delay is given by
such party to the other and each of the parties hereunto shall be diligent in attempting to remove
such cause or causes. If any circumstance of Force Majeure remains in effect for sixty (60)
days, either party may terminate this Agreement.
18.0 GOVERNING LAW & VENUE
18.1 This Agreement is made and shall be interpreted, construed, governed, and
enforced in accordance with the laws of the State of Florida. Venue for any state action or
litigation shall be Brevard County, Florida. Venue for any federal action or litigation shall be
Orlando, Florida.
19.0 HEADINGS
19.1 Paragraph headings are for the convenience of the parties only and are not to be
construed as part of this Agreement.
20.0 SEVERABILITY
20.1 In the event any portion or part of this Agreement is deemed invalid, against
public policy, void, or otherwise unenforceable by a court of law, the parties shall negotiate an
equitable adjustment in the affected provision of this Agreement. The validity and
enforceability of the remaining parts of this Agreement shall otherwise by fully enforceable.
21.0 WAIVER AND ELECTION OF REMEDIES
21.1 Waiver by either party of any terms or provision of this Agreement shall not be
considered a waiver of that term, condition,or provision in the future.
21.2 No waiver, consent, or modification of any of the provisions of this Agreement
shall be binding unless in writing and signed by a duly authorized representative of each party
hereto.
22.0 THIRD PARTY RIGHTS
22.1 Nothing in this Agreement shall be construed to give any rights or benefits to
anyone other than City and Consultant.
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23.0 PROHIBITION AGAINST CONTINGENT FEES
23.1 Consultant warrants that it 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 it has not paid or agreed to pay any person, company, corporation,
individual, or firm, other than a bona fide employee working solely for the Consultant, any fee,
commission, percentage, gift, or other consideration contingent upon or resulting from the
award or making of this Agreement.
24.0 ENTIRE AGREEMENT
24.1 This Agreement, including any Schedules, Attachments, Appendix's and
Exhibits attached hereto, constitute the entire agreement between City and Consultant with
respect to the Services specified and all previous representations relative thereto, either written
or oral, are hereby annulled and superseded.
25.0 NO JOINT VENTURE
25.1 Nothing herein shall be deemed to create a joint venture or principal—agent
relationship between the parties, and neither party is authorized to, nor shall either party act
toward third persons or the public in any manner which would indicate any such relationship
with the other.
26.0 ATTORNEY'S FEES
26.1 Should either party bring an action to enforce any of the terms of this
Agreement, the prevailing party shall be entitled to recover from the non-prevailing party the
costs and expenses of such action including, but not limited to, reasonable attorney's fees,
whether at settlement,trial or on appeal.
27.0 DRAFTING
27.1 City and Consultant each represent that they have both shared equally in drafting
this Agreement and no party shall be favored or disfavored regarding the interpretation of this
Agreement in the event of a dispute between the parties.
28.0 NOTICE
28.1 Any notices required to be given by the terms of this Agreement shall be
delivered by hand or mailed, postage prepaid to:
For Consultant:
The Berryhill Group
1528 Woodgate Way
Tallahassee, Florida 32308
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Phone: (850) 893-0919
dianne a,theberryhillgroup.com
For City:
City of Cape Canaveral
Attention: City Manager
105 Polk Avenue
Cape Canaveral, FL 32920
(321) 868 -1230 Phone
(321) 868-1224 Fax
d.greene @cityofcapecanaveral_orL�
28.2 Either party may change the notice address by providing the other party written
notice of the change.
29.0 SOVEREIGN IMMUNITY
29.1 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 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 two hundred thousand dollars ($200,000.00), 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 three hundred
thousand dollars($300,000.00). This paragraph shall survive termination of this Agreement.
30.0 CORPORATE REPRESENTATIONS BY CONSULTANT
30.1 Consultant hereby represents and warrants to the City the following:
a. Consultant is duly registered and licensed to do business in the State of Florida
and is in good standing under the laws of Florida, and is duly qualified and authorized to carry
on the functions and operations set forth in this Agreement.
b. The undersigned representative of Consultant has the power, authority, and legal
right to execute and deliver this Agreement on behalf of Consultant.
31.0 INDEMNIFICATION
31.1 Consultant shall indemnify and hold harmless the City, and its officers
(including its City Attorneys) and employees, from liabilities, damages, losses, and costs,
including, but not limited to, reasonable attorney's fees, to the extent caused by the negligence,
recklessness, or intentionally wrongful conduct of the Consultant and other persons employed
by the Consultant in the performance of the Agreement.
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City of Cape Canaveral/The Berryhill Group,LLC
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31.2 Consultant shall also indemnify and hold harmless the City, and its officers
(including its City Attorneys) and employees, from liabilities, damages, losses, and costs,
including, but not limited to, reasonable attorney's fees, to the extent caused by Consultant's
breach and caused by other persons employed by the Consultant in the performance of the
Agreement.
The indemnity provisions set forth in Paragraphs 31.1 and 31.2 shall be considered separate and
independent indemnity provisions.
32.0 CONSULTANT'S PERSONNEL AT CONSTRUCTION SITE
32.1 The presence or duties of Consultant's personnel at a construction site, whether
as onsite representatives or otherwise, do not make Consultant or Consultant's personnel in any
way responsible for those duties that belong to City and/or the construction contractors or other
entities, and do not relieve the construction contractors or any other entity of their obligations,
duties, and responsibilities, including, but not limited to, all construction methods, means,
techniques, sequences, and procedures necessary for coordinating and completing all portions
of the construction work in accordance with the applicable construction contract documents and
any health or safety precautions required by such construction work. Consultant and
Consultant's personnel have no authority to exercise any control over any construction
contractor or other entity or their employees in connection with their work or any health or
safety precautions and have no duty for inspecting, noting, observing, correcting, or reporting
on health or safety deficiencies of the construction contractor(s) or other entity or any other
persons at the site except Consultant's own personnel.
33.0 ADDITIONAL ASSURANCES
33.1 The Consultant for itself and its sub-consultants, if any, certifies that:
a. No principal (which includes officers, directors, or executive) or individual
holding a professional license and performing work under this Agreement is presently debarred,
suspended, proposed for debarment, declared ineligible or voluntarily excluded from
participation in any Services under this Agreement by any Federal, State, or local governmental
commission, department, corporation, subdivision, or agency;
b. No principal (which includes officers, directors, or executive) or individual
holding a professional license and performing work under this Agreement, employee, or agent
has employed or otherwise provided compensation to, any employee or officer of the City; and;
c. No principal (which includes officers, directors, or executive) or individual
holding a professional license and performing work 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.
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City of Cape Canaveral/The Berryhill Group,LLC
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d. The undersigned is authorized to execute this Agreement on behalf of the
Consultant and said signature shall bind the Consultant to this Agreement. No further action is
required by the Consultant to enter into this Agreement other than Consultant's undersigned
representative execution of the Agreement.
IN WITNESS WHEREOF,the parties hereto caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
CITY: CONSULTANT:
City of Cape Canaveral, The Berryhill Group, LLC,
a Florida municipal corporation. a Florida limited liability company.
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David Greene Qty Manager Print-N.
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Title: 1-2,4 :51
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Date: 7/-3 �3-. Date: 6-2 q-- Zo L,3
ATTEST:
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Angela Apperson, qty Clerk
Agreement for Consulting Services
City of Cape Canaveral/The Berryhill Group,LLC
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