HomeMy WebLinkAbout2009 09 14 Consent 201 Authorization To Enter Into Contract With Annan Landscaping, LLC And TruGreen, LP For Landscape MaintenanceCOMMISSION AGENDA
ITEM 201
CONSENT
X
September 14, 2009
Meeting
INFORMATIONAL
PUBLIC HEARING
REGULAR
MGR /DEPT
Authorization
REQUEST: Community Development Department, Urban Beautification Services Division, is
requesting authorization for the City to enter into contract agreements for
landscape maintenance services for State Road 434 Rights-Of--Way, Medians and
Ponds with Annan Landscaping, L.L.C., at a cost of $ 94,725, and with
TruGreen, L.P., at a cost of $ 5,032.
PURPOSE: The purpose of this agenda item is to request authorization to enter into
contract agreements for ITB 020/09/SR at a total cost of $ 99,757, resulting in a
savings of $ 48,906.80 as compared to the previous cost.
CONSIDERATIONS:
On August 12, 2009 at 3:OOpm, staff received bid responses to ITB 020/09/SR, SR
434 Rights-of--Way, Medians and Ponds Landscape Maintenance Program. The scope of
work includes mowing, weeding, edging, shrub trimming, pruning, mulching, litter removal,
irrigation maintenance and chemical services. The service area includes: SR 434 medians
from 17-92 to SR 417 (excluding medians between Tuskawilla Road and Central Winds Blvd.)
and various rights of way from Talmo Street to SR 417, including four (4) SR 434 Florida
Department of Transportation (FDOT) ponds.
As part of the bid review process, a committee of five (5) staff members evaluated
proposals based on factors including: bid price, references, work quality, financial
stability, licensing, knowledge, experience, and performance potential. The lowest bid for
all services was submitted by Cato Environmental (failed to qualify) at a cost of $ 88,760 and
the highest bid for all services was submitted by AmeriScapes (bid beyond budget and
failed to qualify) at a cost of $ 534,697.
As a result of the bid review process, the following qualified bidders were ranked for
award by staff in order of points scored based on the abovementioned factors:
Rank Bidder Cost
1. Annan Landscaping $ 94,725 (Landsc. & Irrig.)
1. TruGreen $ 5,032 (Chemical App.)
2. Carol King $ 95,973 (All Services)
3. Nanak's Landscaping $ 102,951 (All Services)
The bid project manual provides for the City to separate services such as landscape
maintenance, irrigation maintenance and chemical applications; to best suit the needs of the
City. In this case, Annan's landscape and irrigation maintenance proposals ($ 94,725) were
separated from his chemical applications proposal ($ 10,200). By utilizing TruGreen for this
service instead of Annan, an additional $ 5,168 savings will be realized by the City.
Staff is recommending Annan Landscaping, L.L.C, whose owner is a city resident,
for award of landscape and irrigation maintenance for (ITB 020/09/SR) at a cost of $ 94,725.
In addition, staff is recommending TruGreen, L.P. for award of chemical applications for
(ITB 020/09/SR) at a cost of $ 5,032. The recommendation of Annan and TruGreen above
Carol King (lowest qualified bidder) for award is a result of a previous contract cancellation
with the City and poor work quality revealed during the due diligence process. Staff feels the
risk of hiring Carol King for this project is not worth the potential savings of $ 3,784 due to
their high probability of failure and poor track record.
Award of the contracts as recommended will result in a $ 48,906.80 reduction over
the current cost of service in FY '09. In addition, FDOT reimburses the City $55,362.50
(FDOT# AOM76 / SJ# 244880-1-72-04) annually for SR 434 Maintenance, of which, roughly
$38,000 is reimbursed for landscape maintenance.
FUNDING:
The scope of work for this contract will be funded by the Urban Beautification
Services - R&M Grounds line code (1525-54682) in the amount of $ 99,757. Funds for this
project will be expended over atwelve-month contract period.
RECOMMENDATION:
It is recommended that authorization be given to enter into contract agreements with
Annan Landscaping, L.L.C. for landscape and irrigation maintenance at a cost of $ 94,725,
and TruGreen, L.P. for chemical services at a cost of $ 5,032, funded from line code (1525-
54682) in the amount of $ 99,757, for ITB 020/09/SR.
IMPLEMENTATION SCHEDULE:
The maintenance contracts will commence on October 1, 2009, for atwelve-month
period with an option for a second and third twelve-month period with a maximum yearly
increase of seven (7%) percent upon renewal, if the work performance is satisfactory.
ATTACHMENTS:
1. Agreement Forms -ITB 020/09/SR
(a) Annan Landscaping, L.L.C. -Landscape & Irrigation Maintenance
(b) TruGreen, L.P. -Chemical Services
2. Bid Tabulation -ITB 020/09/SR
3. Bid Analysis -ITB 020/09/SR
COMMISSION ACTION:
Attachment 1(a)
AGREEMENT FORM -ITB 020/09/SR
THIS AGREEMENT is made and entered into this 1st day of October 2009, by and between the CITY
OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation, hereinafter referred to as "City", located at
1126 East State Road 434, Winter Springs, FL 32708, and Annan Landscaping. L.L.C.. a Florida
Corporation, hereinafter referred to as "Service Provider".
WITNESSETH:
WHEREAS, City wishes to obtain Landscape Maintenance services for SR 434 Medians, Right of
Way and Ponds Bid #ITB 020/09/SR on a continuing basis; and
WHEREAS, Service Provider participated in the selection and negotiation process; and
WHEREAS, Service Provider is willing to provide such Landscape Maintenance for SR 434 Medians,
Right of Way and Ponds for 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 RECITALS
1.1 The foregoing recitals are deemed to be true and accurate and are fully incorporated herein by
reference.
2.0 TERM AND DEFINITIONS
2.1 This contract shall be in effect for twelve (12) months commencing on the Effective Date. The
City may extend this contract for two (2) additional one year terms, provided the City determines, in its
discretion, that Service Provider has adequately performed during the previous term of this contract. In the
event this contract is extended, the contract price may be adjusted to allow for consumer price increases based
on Bureau of Labor and Statistics -Producer Price Index not to exceed 7 (seven) percent. The adjustment
will be based on the annual contract period from the same period of the previous year and calculated 30 days
prior to renewal. The Agreement may be canceled in whole or part by the City or the Service Provider, upon
giving at least (30) days written notice prior to cancellation; EXCEPT that non-performance on the part of the
Service Provider will be grounds for immediate termination. Unless otherwise provided in said notice, all work
being performed by Service Provider at the time of receipt of the notice shall immediately cease and no further
work shall be provided by Service Provider under this contract.
2.2 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 amended from time to time, which shall constitute authorization
for the Service Provider to provide the landscape maintenance 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.
c. "Service Provider" shall mean Annan Landscaping, L.L.C., a Florida
Corporation, and its principals, officers, employees, and agents.
d. "Public Record" shall have the meaning given in Section 119.011(1), Florida
Statutes.
e. "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in this Agreement.
"City Project Manager" or "Designated Representative" or "Project Director" shall mean Urban
Beautification Services Division Manager, or his designee, who is to provide the general
administration of the contract.
3.0 SCOPE OF SERVICES
3.1 Service Provider shall provide landscape and irrigation maintenance services for various
medians, right-of-way and ponds, including the furnishing of all labor, equipment, tools, materials, incidentals
and the performing of all operations necessary as described in the Project Manual.
4.0 CHANGES IN THE SCOPE OF WORK
4.1 City may make changes in the Services at any time by giving written notice to Service Provider.
If such changes increase (additional services) or decrease or eliminate any amount of Work, City and Service
Provider will negotiate any change in total cost or schedule modifications. If the Ciry and the Service Provider
approve any change, the Contract will be modified in writing to reflect the changes. All change orders shall be
authorized in writing by City's and Service Provider's designated representative.
4.2 All of City's amendments thereto shall be performed in strict accordance with the terms of this
Agreement insofar as they are applicable.
5.0 SCHEDULE
5.1 Service Provider shall perform services in conformance with the schedule reasonably
established by the City Project Manager. Service Provider shall complete all of said services in a timely
manner and will keep City apprized of the status of work on at least a monthly basis or as otherwise reasonably
requested by the City. Should Service Provider fall behind on the established schedule, it shall employ such
resources so as to comply with the schedule.
5.2 No extension for completion of services shall be granted to Service Provider without City's prior
written consent.
6.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES
OF SERVICE PROVIDER
6.1 General Bid Services. The City shall only pay Service Provider for services actually
performed based on the Bid Form. The total amount paid to Service Provider for the first year of this
Agreement shall not exceed $94.725 (Ninety Four Thousand and Seven Hundred and Twenty Fivel
Dollars. If this contract is extended, the total annual amount paid to Service Provider shall not exceed that
above mentioned number adjusted by the Producer Price Index as set forth in paragraph 2.1 of this contract.
6.2 Additional Services. From time to time during the term of this Agreement, City may request
that Service Provider perform additional Services not required under the Project Manual. For those additional
services agreed upon by the City and Service Provider in writing, City agrees to pay Service Provider a total
amount equal to that mutually agreed upon by the parties in writing.
6.3 Payment. Upon receipt of a proper invoice from Service Provider, the City agrees to pay the
Service Provider the invoice amount providing said amount accurately reflects the terms and conditions of this
Agreement. Invoices may only be submitted on a monthly basis unless otherwise agreed by the City. Unless
otherwise agreed in writing by the City, there shall be no other compensation paid to the Service Provider and
its principals, employees, and independent professional associates and consultants in the performance of
Work under this Agreement. The City agrees to make all payments due within thirty (30) days of receipt of a
proper invoice delivered by Service Provider. The Service Provider may only bill the City for actual work
performed.
7.0 RIGHT TO INSPECTION
7.1 City or its affiliates shall at all times have the right to review or observe the services pertormed
by Service Provider.
7.2 No inspection, review, or observation shall relieve Service Provider of its responsibility under
this Agreement.
8.0 AUDIT AND INSPECTIONS
8.1 All Service Provider's records with respect to any matters covered by this Agreement shall be
made available to the City, at any time during normal business hours, as often as the City deems necessary, to
audit, examine, and make excerpts or transcripts of all relevant data. Any deficiencies noted in audit reports
must be fully cleared by the Service Provider within thirty (30) days after receipt by the Service Provider.
Failure of the Service Provider to comply with the above audit requirements will constitute a material breach of
this Agreement and may result, at the sole discretion of the City, in the withholding of payment for services
provided under this Agreement.
9.0 PROFESSIONALISM AND STANDARD OF CARE
9.1 Service Provider shall do, perform and carry out in a professional manner all
Services required to be performed by this Agreement. Service Provider shall also use the degree of care and
skill in performing the Services that are ordinarily exercised under similar circumstances by reputable members
of Service Provider's profession working in the same or similar locality as Service Provider.
10.0 SUBMITTAL OF PROGRESS REPORTS
10.1 Service Provider shall submit a monthly written progress report as to the status of all Work set
forth in this Agreement. The report shall in a sufficient manner demonstrate that any funds expended were
used to provide the agreed-upon Services. If the detail is not sufficient in the City Project Manager's
reasonable discretion to permit the City to determine the Work pertormed or the manner in which it is being
performed, the City may seek more detail from the Service Provider.
11.0 WARRANTY OF PROFESSIONAL SERVICES
11.1 The Service Provider (for itself and any of its employees, contractors, partners,
and agents used to perform the Services) hereby warrants unto the City that all of its employees (and those of
any of its contractors, partners, and agents used to perform the Services) have sufficient experience to
properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit
of any Work, the Service Provider shall supervise and direct the Work, using its best skill and attention and
shall enforce strict discipline and good order among its employees. The Service Provider shall comply with all
laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on the performance of the
Work.
12.0 CORPORATE REPRESENTATIONS BY SERVICE PROVIDER
12.1 Service Provider hereby represents and warrants to the City the following:
a. Service Provider 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 carryon the functions and operations set forth in this Agreement.
The undersigned signatory for Service Provider has the power, authority, and the
legal right to enter into and perform the obligations set forth in this Agreement and
all applicable exhibits thereto, and the execution, delivery, and performance hereof
by Service Provider has been duly authorized by the board of directors and/or
president of Service Provider. In support of said representation, Service Provider
agrees to provide a copy to the City of a corporate certificate of good standing
provided by the State of Florida prior to the execution of this Agreement.
c. Service Provider is duly licensed under all local, state and federal laws to provide
the Services stated in paragraph 3.0 herein. In support of said representation,
Service Provider agrees to provide a copy of all said licenses to the City prior to
the execution of this Agreement.
13.0 WORK IS A PRIVATE UNDERTAKING
13.1 With regard to any and all Work performed hereunder, it is specifically understood
and agreed to by and between the parties hereto that the contractual relationship between the City and Service
Provider is such that the Service Provider is an independent contractor and not an agent of the City. The
Service Provider, its contractors, partners, agents, and their employees are independent contractors and not
employees of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than
that of an independent contractor, between the City, on one hand, and the Service Provider, its contractors,
partners, employees, or agents, during or after the performance of the Work under this Agreement.
14.0 PROGRESS MEETING
14.1 City Project Manager may hold periodic progress meetings on a monthly basis, or more
frequently if required by the City, during the term of work entered into under this Agreement. Service Provider's
Project Manager and all other appropriate personnel shall attend such meetings as designated by the City
Project Manager.
15.0 SAFETY
15.1 Service Provider shall be solely and absolutely responsible and assume all liability for the
safety and supervision of its principals, employees, contractors, and agents while performing Services provided
hereunder.
16.0 INSURANCE
16.1 Liability Amounts. During the term of this Agreement, Service Provider shall be responsible
for providing the types of insurance and limits of liability as set forth below.
a. The Service Provider shall maintain comprehensive general liability insurance in the
minimum amount of $1,000,000 as the combined single limit for each occurrence to
protect the Service Provider from claims of property damages which may arise from any
Services performed under this Agreement whether such Services are performed by the
Service Provider or by anyone directly employed by or contracting with the Service
Provider.
b. The Service Provider shall maintain comprehensive automobile liability insurance in the
minimum amount of $1,000,000 combined single limit bodily injury and minimum
$1,000,000 property damage as the combined single limit for each occurrence to protect
the Service Provider from claims for damages for bodily injury, including wrongful death,
as well as from claims from 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 Service Provider or by anyone directly or indirectly employed by
the Service Provider.
c. The Service Provider shall maintain, during the life of this Agreement, adequate Workers'
Compensation Insurance in at least such amounts as are required by law and Employer's
Liability Insurance in the minimum amount of $1,000,000 for all of its employees
performing Work for the City pursuant to this Agreement.
16.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of
Insurance shall be provided to the City by Service Provider upon the Effective Date of this Contract which
satisfied the insurance requirements of this paragraph 16.0. Renewal certificates shall be sent to the City 30
days prior to any expiration date. There shall also be a 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 all stipulated insurance policies as its interest may appear, from time to time.
16.3 Independent Associates and Consultants
by Service Provider to perform any Services hereunder
contained in these paragraphs for sections 15 and 16.
All independent contractors or agents employed
shall fully comply with the insurance provisions
17.0 COMPLIANCE WITH LAWS AND REGULATIONS
17.1 Service Provider shall comply with all requirements of federal, state, and local laws, rules,
regulations, standards, and/or ordinances applicable to the pertormance of Services under this Agreement.
18.0 DOCUMENTS
18.1 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 Service Provider and its
independent contractors and associates related, directly or indirectly, to this Agreement, may be deemed to be
a Public Record whether in the possession or control of the City or the Service Provider. Said record,
document, computerized information and program, audio or video tape, photograph, or other writing of the
Service Provider 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 Service Provider
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 Service Provider be open and freely exhibited to the City for the purpose of examination
and/or audit.
18.2 The Service Provider acknowledges that the City is a Florida municipal corporation and subject
to the Florida Public Records Law. Service Provider agrees that to the extent any document produced by
Service Provider under this Agreement constitutes a Public Record; Service Provider shall comply with the
Florida Public Records Law.
19.0 ASSIGNMENT
19.1 Service Provider 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.
19.2 If upon receiving written approval from City, any part of this Agreement is subcontracted by
Service Provider, Service Provider shall be fully responsible to City for all acts and/or omissions performed by
the subcontractor as if no subcontract had been made.
19.3 If City determines that any subcontractor is not performing in accordance with this Agreement,
City shall so notify Service Provider who shall take immediate steps to remedy the situation.
19.4 If any part of this Agreement is subcontracted by Service Provider, prior to the commencement
of any Work by the subcontractor, Service Provider shall require the subcontractor to provide City and its
affiliates with insurance coverage as set forth by the City.
20.0 TERMINATION: DEFAULT BY SERVICE PROVIDER AND CITY'S REMEDIES
20.1 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:
a. Service Provider defaults in the pertormance of any material covenant or condition of this
Agreement and does not cure such other default within fourteen (14) 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 fourteen (14)
calendar days, in which case the Service Provider shall have such time as is reasonably necessary
to remedy the default, provided the Service Provider promptly takes and diligently pursues such
actions as are necessary therefor; or
b. Service Provider is adjudicated bankrupt or makes any assignment for the benefit of creditors or
Service Provider becomes insolvent, or is unable or unwilling to pay its debts; or
c. Service Provider has acted negligently, as defined by general and applicable law, in performing the
Services hereunder; or
d. Service Provider has committed any act of fraud upon the City; or
e. Service Provider has made a material misrepresentation of fact to the City while performing its
obligations under this Agreement; or
f. Service Provider 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.
20.2 Notwithstanding the aforementioned, in the event of a default by Service Provider, 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. 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.
21.0 FORCE MAJEURE
21.1 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 (except involving Service Providers labor force); 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 days, either party may terminate this Agreement.
22.0 GOVERNING LAW 8 VENUE
22.1 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 Seminole
County, Florida. Venue for any federal action or litigation shall be Orlando, Florida.
23.0 HEADINGS
23.1 Paragraph headings are for the convenience of the parties only and are not to be construed as
part of this Agreement.
24.0 SEVERABILITY
24.1 In the event any portion or part thereof of this Agreement is deemed invalid, against public
policy, void, or otherwise unenforceable by a court of law, the parties, at the sole discretion and option of the
City, 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 be fully enforceable.
25.0 INTEGRATION: MODIFICATION
25.1 The drafting, execution, and delivery of this Agreement by the Parties have been induced by
no representations, statements, warranties, or agreements other than those expressed herein. This
Agreement embodies the entire understanding of the parties, and there are no further or other agreements or
understandings, written or oral, in effect between the parties relating to the subject matter hereof unless
expressly referred to herein. Modifications of this Agreement shall only be made in writing signed by both
parties.
26.0 WAIVER AND ELECTION OF REMEDIES
26.1 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.
26.2 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.
27.0 THIRD PARTY RIGHTS
27.1 Nothing in this Agreement shall be construed to give any rights or benefits to anyone other
than City and Service Provider.
28.0 PROHIBITION AGAINST CONTINGENT FEES
28.1 Service Provider warrants that it has not employed or retained any company or person, other
than a bona fide employee working solely for the Service Provider, 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 Service Provider, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement.
29.0 NO JOINT VENTURE
29.1 Nothing herein shall be deemed to create a joint venture or principal-agent relationship
between the parties and neither party are 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 party.
30.0 ATTORNEY'S FEES
30.1 Should either party bring an action to enforce any of the terms of this Agreement, the
prevailing party shall be entitled, to the extent permitted by law, 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.
31.0 COUNTERPARTS
31.1 This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be considered an original agreement; but such counterparts shall together
constitute but one and the same instrument.
32.0 DRAFTING
32.1 City and Service Provider 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.
33.0 NOTICE
33.1 Any notices required to be given by the terms of this Agreement shall be delivered by hand or
mailed, postage prepaid to:
For Service Provider:
Annan Landscaping, LLC.
991 Explorer Cove, Ste# 133
Altamonte Springs, FL 32701
(407) 339-7701
For City
City of Winter Springs
Urban Beautification Services Division Manager
1126 East State Road 434
Winter Springs, FL 32708
Phone: (407) 327-1800 x315
Facsimile: (407) 327-6695
33.2 Either party may change the notice address by providing the other party written notice of the
change.
34.0 SOVEREIGN IMMUNITY
34.1 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.
35.0 INDEMNIFICATION
35.1 For all Services performed pursuant to this Agreement, the Service Provider agrees to the
fullest extent permitted by law, to indemnify and hold harmless the City and its commissioners, employees,
officers, and city attorneys (individually and in their official capacity) from and against all claims, losses,
damages, personal injuries (including but not limited to death), or liability (including reasonable attorney's fees
through any and all administrative, trial and appellate proceedings), directly or indirectly arising from:
a. any default under this Agreement by Service Provider;
b. any negligent act, omission or operation of work related to all Services
performed under this Agreement by Service Provider, and its employees,
principals, agents, independent contractors, and consultants.
c. the acts, errors, omissions, intentional or otherwise, arising out of or resulting
from Service Provider's and its employees, partners, contractors, and agents
on the performance of the Services being performed under this Agreement;
d. Service Provider's, and its employees, partners, contractors, and agents
failure to comply with the provisions of any federal, state, or local laws,
ordinance, or regulations applicable to Service Provider's and its employees,
partners, contractors, and agents performance under this Agreement;
e. any fraud and misrepresentation conducted by Service Provider and its
employees, partners, contractors, and agents on the City under this
Agreement.
35.2 The indemnification provided above shall obligate the Service Provider to defend at its own
expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of
liability and all suits and actions of every name and description that may be brought against the City or its
commissioners, employees, officers, and City Attorney which may result from any negligent act, omission or
operation of work related to the Services under this Agreement whether the Services be pertormed by the
Service Provider, or anyone directly or indirectly employed by them. In all events the City and its
commissioners, employees, officers, and City Attorney shall be permitted to choose legal counsel of its sole
choice, the fees for which shall be reasonable and subject to and included with this indemnification provided
herein.
36.0 ORDER OF PRECEDENCE
36.1 In case of any inconsistency in any of the documents bearing on the Agreement between the City
and the Service Provider, the inconsistency shall be resolved by giving precedence in the following order:
a. Addenda to this Agreement subsequent to the Effective date of this Agreement;
b. This Agreement;
c. Exhibits to this Agreement; and
d. The Bid documents.
36.2 Any inconsistency in the work description shall be clarified by the City and performed by the
Service Provider.
37.0 AGREEMENT INTERPRETATION
37.1 At its discretion, during the course of the work, should any errors, ambiguities, or discrepancies
be found in the Agreement or specifications, the City at its sole discretion will interpret the intent of the
Agreement and work descriptions and the Service Provider hereby agrees to abide by the City's interpretation
and agrees to carry out the work in accordance with the decision of the City.
37.2 When the material, article, or equipment is designated by a brand name and more than one
brand name is listed, it will be understood that the work is based on one brand name only. The Service
Provider will be responsible for all coordination necessary to accommodate the material, article, or equipment
being provided without additional cost to the City. A substitute material, article, or equipment is allowed if it is
reasonably equivalent to the brand name specified. The City has full discretion to decide whether a substitute
is reasonably equivalent. Service Provider must notify the City prior to use of the substitute for a specified
brand name and allow the City to make a determination before Service Provider uses the substitute.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by
Their duly authorized representatives as of the date first written above.
SERVICE PROVIDER:
Name Signature
Address
Telephone
CITY:
CITY OF WINTER SPRINGS, FLORIDA
BY~ Dated
Kevin L. Smith, City Manager
ATTEST:
By:
City Clerk's Office
Attachment 1(b)
AGREEMENT FORM -ITB 020/09/SR
THIS AGREEMENT is made and entered into this 1st day of October 2009, by and between the CITY
OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation, hereinafter referred to as "City", located at
1126 East State Road 434, Winter Springs, FL 32708, and TruGreen, L.P., a Florida Corporation, hereinafter
referred to as "Service Provider".
WITNESSETH:
WHEREAS, City wishes to obtain chemical application services for SR 434 Medians, Right of Way
and Ponds Bid #ITB 020/091SR on a continuing basis; and
WHEREAS, Service Provider participated in the selection and negotiation process; and
WHEREAS, Service Provider is willing to provide such chemical application services for SR 434
Medians, Right of Way and Ponds for 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 RECITALS
1.1 The foregoing recitals are deemed to be true and accurate and are fully incorporated herein by
reference.
2.0 TERM AND DEFINITIONS
2.1 This contract shall be in effect for twelve (12) months commencing on the Effective Date. The
City may extend this contract for two (2) additional one year terms, provided the City determines, in its
discretion, that Service Provider has adequate{y pertormed during the previous term of this contract. In the
event this contract is extended, the contract price may be adjusted to allow for consumer price increases based
on Bureau of Labor and Statistics -Producer Price Index not to exceed 7 (seven) percent. The adjustment
will be based on the annual contract period from the same period of the previous year and calculated 30 days
prior to renewal. The Agreement may be canceled in whole or part by the City or the Service Provider, upon
giving at least (30) days written notice prior to cancellation; EXCEPT that non-performance on the part of the
Service Provider will be grounds for immediate termination. Unless otherwise provided in said notice, all work
being performed by Service Provider at the time of receipt of the notice shall immediately cease and no further
work shall be provided by Service Provider under this contract.
2.2 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 amended from time to time, which shall constitute authorization
for the Service Provider to provide the chemical application services approved
by the City.
b. "Effective Date" shall be the date on which the Vast 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.
c. "Service Provider" shall mean TruGreen. L.P., a Florida Corporation, and its
principa{s, officers, employees, and agents.
d. "Public Record" shall have the meaning given in Section 119.011(1), Florida
Statutes.
e. "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in this Agreement.
"City Project Manager" or "Designated Representative" or "Project Director" shall mean Urban
Beautification Services Division Manager, or his designee, who is to provide the general
administration of the contract.
3.0 SCOPE OF SERVICES
3.1 Service Provider shall provide chemical application services for various medians, right-of-way
and ponds, including the furnishing of all labor, equipment, tools, materials, incidentals and the performing of all
operations necessary as described in the Project Manual.
4.0 CHANGES IN THE SCOPE OF WORK
4.1 City may make changes in the Services at any time by giving written notice to Service Provider.
If such changes increase (additional services) or decrease or eliminate any amount of Work, City and Service
Provider will negotiate any change in total cost or schedule modifications. If the City and the Service Provider
approve any change, the Contract will be modified in writing to reflect the changes. All change orders shall be
authorized in writing by City's and Service Provider's designated representative.
4.2 All of City's amendments thereto shall be performed in strict accordance with the terms of this
Agreement insofar as they are applicable.
5.0 SCHEDULE
5.1 Service Provider shall perform services in conformance with the schedule reasonably
established by the City Project Manager. Service Provider shall complete all of said services in a timely
manner and will keep City apprized of the status of work on at least a monthly basis or as otherwise reasonably
requested by the City. Should Service Provider fall behind on the established schedule, it shall employ such
resources so as to comply with the schedule.
5.2 No extension for completion of services shall be granted to Service Provider without City's prior
written consent.
6.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES
OF SERVICE PROVIDER
6.1 General Bid Services. The City shall only pay Service Provider for services actually
performed based on the Bid Form. The total amount paid to Service Provider for the first year of this
Agreement shall not exceed $ 5.032 (Five Thousand and Thirtv Two) Dollars. If this contract is extended,
the total annual amount paid to Service Provider shall not exceed that above mentioned number adjusted by
the Producer Price Index as set forth in paragraph 2.1 of this contract.
6.2 Additional Services. From time to time during the term of this Agreement, City may request
that Service Provider perform additional Services not required under the Project Manual. For those additional
services agreed upon by the City and Service Provider in writing, City agrees to pay Service Provider a total
amount equal to that mutually agreed upon by the parties in writing.
6.3 Payment. Upon receipt of a proper invoice from Service Provider, the City agrees to pay the
Service Provider the invoice amount providing said amount accurately reflects the terms and conditions of this
Agreement. Invoices may only be submitted on a monthly basis unless otherwise agreed by the City. Unless
otherwise agreed in writing by the City, there shall be no other compensation paid to the Service Provider and
its principals, employees, and independent professional associates and consultants in the performance of
Work under this Agreement. The City agrees to make all payments due within thirty (30) days of receipt of a
proper invoice delivered by Service Provider. The Service Provider may only bill the City for actual work
performed.
7.0 RIGHT TO INSPECTION
7.1 City or its affiliates shall at all times have the right to review or observe the services performed
by Service Provider.
7.2 No inspection, review, or observation shall relieve Service Provider of its responsibility under
this Agreement.
8.0 AUDIT AND INSPECTIONS
All Service Provider's records with respect to any matters covered by this Agreement shall be made
available to the City, at any time during normal business hours, as often as the City deems necessary, to audit,
examine, and make excerpts or transcripts of all relevant data. Any deficiencies noted in audit reports must be
fully cleared by the Service Provider within thirty (30) days after receipt by the Service Provider. Failure of the
Service Provider to comply with the above audit requirements will constitute a material breach of this
Agreement and may result, at the sole discretion of the City, in the withholding of payment for services provided
under this Agreement.
9.0 PROFESSIONALISM AND STANDARD OF CARE
9.1 Service Provider shall do, perform and carry out in a professional manner all
Services required to be performed by this Agreement. Service Provider shall also use the degree of care and
skill in performing the Services that are ordinarily exercised under similar circumstances by reputable members
of Service Provider's profession working in the same or similar locality as Service Provider.
10.0 SUBMITTAL OF PROGRESS REPORTS
10.1 Service Provider shall submit a monthly written progress report as to the status of all Work set
forth in this Agreement. The report shall in a sufficient manner demonstrate that any funds expended were
used to provide the agreed-upon Services. If the detail is not sufficient in the City Project Manager's
reasonable discretion to permit the City to determine the Work performed or the manner in which it is being
performed, the City may seek more detail from the Service Provider.
11.0 WARRANTY OF PROFESSIONAL SERVICES
11.1 The Service Provider (for itself and any of its employees, contractors, partners,
and agents used to perform the Services) hereby warrants unto the City that all of its employees (and those of
any of its contractors, partners, and agents used to perform the Services) have sufficient experience to
properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit
of any Work, the Service Provider shall supervise and direct the Work, using its best skill and attention and
shall enforce strict discipline and good order among its employees. The Service Provider shall comply with all
laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on the performance of the
Work.
12.0 CORPORATE REPRESENTATIONS BY SERVICE PROVIDER
12.1 Service Provider hereby represents and warrants to the City the following
a. Service Provider 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 signatory for Service Provider has the power, authority, and the
legal right to enter into and perform the obligations set forth in this Agreement and
all applicable exhibits thereto, and the execution, delivery, and performance hereof
by Service Provider has been duly authorized by the board of directors and/or
president of Service Provider. In support of said representation, Service Provider
agrees to provide a copy to the City of a corporate certificate of good standing
provided by the State of Florida prior to the execution of this Agreement.
c. Service Provider is duly licensed under all local, state and federal laws to provide
the Services stated in paragraph 3.0 herein. In support of said representation,
Service Provider agrees to provide a copy of all said licenses to the City prior to
the execution of this Agreement.
13.0 WORK IS A PRIVATE UNDERTAKING
13.1 With regard to any and all Work performed hereunder, it is specifically understood
and agreed to by and between the parties hereto that the contractual relationship between the City and Service
Provider is such that the Service Provider is an independent contractor and not an agent of the City. The
Service Provider, its contractors, partners, agents, and their employees are independent contractors and not
employees of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than
that of an independent contractor, between the City, on one hand, and the Service Provider, its contractors,
partners, employees, or agents, during or after the performance of the Work under this Agreement.
14.0 PROGRESS MEETING
14.1 City Project Manager may hold periodic progress meetings on a monthly basis, or more
frequently if required by the City, during the term of work entered into under this Agreement. Service Provider's
Project Manager and all other appropriate personnel shall attend such meetings as designated by the City
Project Manager.
15.0 SAFETY
15.1 Service Provider shall be solely and absolutely responsible and assume all liability for the
safety and supervision of its principals, employees, contractors, and agents while performing Services provided
hereunder.
16.0 INSURANCE
16.1 Liability Amounts. During the term of this Agreement, Service Provider shall be responsible
for providing the types of insurance and limits of liability as set forth below.
a. The Service Provider shall maintain comprehensive general liability insurance in the
minimum amount of $1,000,000 as the combined single limit for each occurrence to
protect the Service Provider from claims of property damages which may arise from any
Services performed under this Agreement whether such Services are performed by the
Service Provider or by anyone directly employed by or contracting with the Service
Provider.
b. The Service Provider shall maintain comprehensive automobile liability insurance in the
minimum amount of $1,000,000 combined single limit bodily injury and minimum
$1,000,000 property damage as the combined single limit for each occurrence to protect
the Service Provider from claims for damages for bodily injury, including wrongful death,
as well as from claims from 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 Service Provider or by anyone directly or indirectly employed by
the Service Provider.
c. The Service Provider shall maintain, during the life of this Agreement, adequate Workers'
Compensation Insurance in at least such amounts as are required by law and Employer's
Liability Insurance in the minimum amount of $1,000,000 for all of its employees
performing Work for the City pursuant to this Agreement.
16.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of
Insurance shall be provided to the City by Service Provider upon the Effective Date of this Contract which
satisfied the insurance requirements of this paragraph 16.0. Renewal certificates shall be sent to the City 30
days prior to any expiration date. There shall also be a 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 all stipulated insurance policies as its interest may appear, from time to time.
16.3 Independent Associates and Consultants. All independent contractors or agents employed
by Service Provider to perform any Services hereunder shall fully comply with the insurance provisions
contained in these paragraphs for sections 15 and 16.
17.0 COMPLIANCE WITH LAWS AND REGULATIONS
17.1 Service Provider 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.
18.0 DOCUMENTS
18.1 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 Service Provider and its
independent contractors and associates related, directly or indirectly, to this Agreement, may be deemed to be
a Public Record whether in the possession or control of the City or the Service Provider. Said record,
document, computerized information and program, audio or video tape, photograph, or other writing of the
Service Provider 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 Service Provider
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 Service Provider be open and freely exhibited to the City for the purpose of examination
and/or audit.
18.2 The Service Provider acknowledges that the City is a Florida municipal corporation and subject
to the Florida Public Records Law. Service Provider agrees that to the extent any document produced by
Service Provider under this Agreement constitutes a Public Record; Service Provider shall comply with the
Florida Public Records Law.
19.0 ASSIGNMENT
19.1 Service Provider 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.
19.2 If upon receiving written approval from City, any part of this Agreement is subcontracted by
Service Provider, Service Provider shall be fully responsible to City for all acts and/or omissions performed by
the subcontractor as if no subcontract had been made.
19.3 If City determines that any subcontractor is not performing in accordance with this Agreement,
City shall so notify Service Provider who shall take immediate steps to remedy the situation.
19.4 If any part of this Agreement is subcontracted by Service Provider, prior to the commencement
of any Work by the subcontractor, Service Provider shall require the subcontractor to provide City and its
affiliates with insurance coverage as set forth by the City.
20.0 TERMINATION: DEFAULT BY SERVICE PROVIDER AND CITY'S REMEDIES
20.1 The Ciry 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:
a. Service Provider defaults in the performance of any material covenant or condition of this
Agreement and does not cure such other default within fourteen (14) 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 fourteen (14)
calendar days, in which case the Service Provider shall have such time as is reasonably necessary
to remedy the default, provided the Service Provider promptly takes and diligently pursues such
actions as are necessary therefor; or
b. Service Provider is adjudicated bankrupt or makes any assignment for the benefit of creditors or
Service Provider becomes insolvent, or is unable or unwilling to pay its debts; or
c. Service Provider has acted negligently, as defined by general and applicable law, in performing the
Services hereunder; or
d. Service Provider has committed any act of fraud upon the City; or
e. Service Provider has made a material misrepresentation of fact to the City while performing its
obligations under this Agreement; or
f. Service Provider 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.
20.2 Notwithstanding the aforementioned, in the event of a default by Service Provider, 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. 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
pertormed prior to the effective date of termination.
21.0 FORCE MAJEURE
21.1 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 (except involving Service Providers labor force); 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 days, either party may terminate this Agreement.
22.0 GOVERNING LAW 8~ VENUE
22.1 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 Seminole
County, Florida. Venue for any federal action or litigation shall be Orlando, Florida.
23.0 HEADINGS
23.1 Paragraph headings are for the convenience of the parties only and are not to be construed as
part of this Agreement.
24.0 SEVERABILITY
24.1 In the event any portion or part thereof of this Agreement is deemed invalid, against public
policy, void, or otherwise unenforceable by a court of law, the parties, at the sole discretion and option of the
City, 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 be fully enforceable.
25.0 INTEGRATION; MODIFICATION
25.1 The drafting, execution, and delivery of this Agreement by the Parties have been induced by
no representations, statements, warranties, or agreements other than those expressed herein. This
Agreement embodies the entire understanding of the parties, and there are no further or other agreements or
understandings, written or oral, in effect between the parties relating to the subject matter hereof unless
expressly referred to herein. Modifications of this Agreement shall only be made in writing signed by both
parties.
26.0 WAIVER AND ELECTION OF REMEDIES
26.1 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.
26.2 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.
27.0 THIRD PARTY RIGHTS
27.1 Nothing in this Agreement shall be construed to give any rights or benefits to anyone other
than City and Service Provider.
28.0 PROHIBITION AGAINST CONTINGENT FEES
28.1 Service Provider warrants that it has not employed or retained any company or person, other
than a bona fide employee working solely for the Service Provider, 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 Service Provider, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement.
29.0 NO JOINT VENTURE
29.1 Nothing herein shall be deemed to create a joint venture or principal-agent relationship
between
the parties and neither party are 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 party.
30.0 ATTORNEY'S FEES
30.1 Should either party bring an action to enforce any of the terms of this Agreement, the
prevailing party shall be entitled, to the extent permitted by law, 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.
31.0 COUNTERPARTS
31.1 This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be considered an original agreement; but such counterparts shall together
constitute but one and the same instrument.
32.0 DRAFTING
32.1 City and Service Provider 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.
33.0 NOTICE
33.1 Any notices required to be given by the terms of this Agreement shall be delivered by hand or
mailed, postage prepaid to:
For Service Provider
change
TruGreen, L.P.
2175 N Forsyth Rd
Orlando, FL 32807
For Citv
City of Winter Springs
Urban Beautification Services Division Manager
1126 East State Road 434
Winter Springs, FL 32708
Phone: (407) 327-1800 x315
Facsimile: (407) 327-6695
33.2 Either parry may change the notice address by providing the other party written notice of the
34.0 SOVEREIGN IMMUNITY
34.1 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.
35.0 INDEMNIFICATION
35.1 For all Services performed pursuant to this Agreement, the Service Provider agrees to the fullest
extent permitted by law, to indemnify and hold harmless the City and its commissioners, employees, officers,
and city attorneys (individually and in their official capacity) from and against all claims, losses, damages,
personal injuries (including but not limited to death), or liability (including reasonable attorney's fees through
any and all administrative, trial and appellate proceedings), directly or indirectly arising from:
a. any default under this Agreement by Service Provider;
b. any negligent act, omission or operation of work related to all Services
performed under this Agreement by Service Provider, and its employees,
principals, agents, independent contractors, and consultants.
c. the acts, errors, omissions, intentional or otherwise, arising out of or resulting
from Service Provider's and its employees, partners, contractors, and agents
on the performance of the Services being performed under this Agreement;
d. Service Provider's, and its employees, partners, contractors, and agents
failure to comply with the provisions of any federal, state, or local laws,
ordinance, or regulations applicable to Service Provider's and its employees,
partners, contractors, and agents performance under this Agreement;
e. any fraud and misrepresentation conducted by Service Provider and its
employees, partners, contractors, and agents on the City under this
Agreement.
35.2 The indemnification provided above shall obligate the Service Provider to defend at its own
expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of
liability and all suits and actions of every name and description that may be brought against the City or its
commissioners, employees, officers, and City Attorney which may result from any negligent act, omission or
operation of work related to the Services under this Agreement whether the Services be performed by the
Service Provider, or anyone directly or indirectly employed by them. In all events the City and its
commissioners, employees, officers, and City Attorney shall be permitted to choose legal counsel of its sole
choice, the fees for which shall be reasonable and subject to and included with this indemnification provided
herein.
36.0 ORDER OF PRECEDENCE
36.1 In case of any inconsistency in any of the documents bearing on the Agreement between the City
and the Service Provider, the inconsistency shall be resolved by giving precedence in the following order:
a. Addenda to this Agreement subsequent to the Effective date of this Agreement;
b. This Agreement;
c. Exhibits to this Agreement; and
d. The Bid documents.
36.2 Any inconsistency in the work description shall be clarified by the City and performed by the
Service Provider.
37.0 AGREEMENT INTERPRETATION
37.1 At its discretion, during the course of the work, should any errors, ambiguities, or discrepancies
be found in the Agreement or specifications, the City at its sole discretion will interpret the intent of the
Agreement and work descriptions and the Service Provider hereby agrees to abide by the City's interpretation
and agrees to carry out the work in accordance with the decision of the Ciry.
37.2 When the material, article, or equipment is designated by a brand name and more than one
brand name is listed, it will be understood that the work is based on one brand name only. The Service
Provider will be responsible for all coordination necessary to accommodate the material, article, or equipment
being provided without additional cost to the City. A substitute material, article, or equipment is allowed if it is
reasonably equivalent to the brand name specified. The City has full discretion to decide whether a substitute
is reasonably equivalent. Service Provider must notify the City prior to use of the substitute for a specified
brand name and allow the City to make a determination before Service Provider uses the substitute.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by
Their duly authorized representatives as of the date first written above.
SERVICE PROVIDER:
ATTEST:
By:
Name Signature
Address
Telephone
CITY:
CITY OF WINTER SPRINGS, FLORIDA
By:
Dated
Kevin L. Smith, City Manager
City Clerk's Office
Attachment 2 -Bid Tabulation
CITY OF WINTER SPRINGS, FL
1 126 EAST STATE ROAD 434
WINTER SPRINGS, FL 32708
407-327-1800
ITB020/09/SR
SR 434 Medians, ROW and Ponds
Called By: Nancy Vobornik-Purchasing Coordinator
ITB Opened: 3:OOPM
ITB Closed : 3:09PM
Date: August 12, 2009
Witness: Steven Richart, Urban Beautification Manager
Dawnalee Corp
Dawna Furguson, President
216 Stoner Road
Winter Springs, FL 32708
407-696-7343
Base Bid: $123,162.00 (landscape maintenance only)
Eastwood Tuff Turf of Central Florida, Inc
Ian Eastwood
1615 Oklahoma St
Oviedo, FL 32765
Phone: none given
Base Bid: ~ l 10,400.00 (all three services)
Carol King Landscape Maintenance, Inc
Chris Tocco
7032 Old Cheney Hwy
Orlando, FL 32807
Phone:407-275-6200
Fax:407-273-4348
www.carolkingscapes.com
Base Bid: $ 95,973.00 (all three services)
Tru Green Limited Partnership
2175 N Forsyth Rd
Orlando, FL 32807
Base Bid: $ 5,032.00 (chemical program only)
Page Two
All Star Landscaping, Inc
Kamren Jones
62 Beverly Hills Blvd
Beverly Hills, FL 34465
772-526-5332 phone
305-831-4489
Landscapine(u~hotmail.com
Base Bid: $ 119,600.00 (landscape maintenance only)
Nanak's Landscaping
Dave Harting
1174 Florida Central Pkwy
Longwood, FL 32750
Phone - 407-831-8101 ext. 234
Fax-407-712-8000
Cell - 407-402-5030
dharting~r~nanaks.com
Base Bid: $ 102,951.00 (all three services)
Reed Landscaping & Lawn Care, Inc.
J Chris Reed
397 Enterprise St
Ocoee, FL 34761
407-383-4848
Base Bid: $ 1.25,100.00 (all three services)
Fields of Green Landscape Maintenance and Design, Inc.
Sammy Maxwell
400 West Hazel Street
Orlando, FL 32804
407-234-6534
Base Bid: $ 108,663.02 (all three services)
Groundtek of Central Florida
George L Bori
862 Maguire Rd
Ocoee, FL 34761
Phone407-877-7473
Fax_407-877-8670
Base Bid: $ 142,369.00 (all three services)
Servello & Son, Inc
John Dougherty
261 Springview Commerce Dr
DeBary, FL 32713
ldoueherty(c~servel losonine.com
386-753-1100 phone
386-753-1106 fax
Base Bid: $ 181,287.29 (all three services)
Page three
Annan Landscape Co
Scott L Annan
991 Explorer Cove, Suite 133
Altamonte Springs, FL 32701
Phone: none given
Base Bid: $ 104,925.00 (all three services)
AmeriScapes Landscape Management Services, LLC
Billy Butterfield
PO Box 568762
Orlando, FL 32856
407-872-0855 phone
407-872-8579 fax
amerisca pes-landsca pe~a)att. net
Base Bid: $ 534,697.00 (all three services)
Cato Environmental Services, Inc.
PO Box 951556
Lake Mary, Fl 32795
Phone: none given
Base Bid: $ 88,760.00 (all three services)
D & A Building Services, Inc.
321 Georgia Avenue
Longwood, FL 32750
Phone: 407-831-5388
Base Bid: $ 138,297 (all three services)
Bid Analysis - SR434 -Medians, ROW and Ponds
Bid # ITB 020/09/SR Attachment #3 -Bid Analysis
Averaged Staff Evaluations 8/17/2009
BB =Bid Beyond Budget
FTQ =Failed to Qualify
Bidder Total Rank Rank
Base
Bid Avg.
Score By
Price By
Score Services
Bid Result /Comments
Dawnalee $123,162.00 47.8 6 1 L an scape n y. urrent ven or wit exce ent wo sa ety. ery responsive.
Eastwood $110,400.00 32 5 5 L,I,C Previous vendor. Fair work qualit /good safet record.
Carol Kin $95,973.00 41.2 1 3 L,I,C Previous contract cancelled on 2/25/99 due to underbiddin .Mixed reviews on ualit .
$a~2~69-A8 ~ ~ ~ L~6
$~9~A&89 FAQ FAQ ~ 6
nan $104,925.00 41A 3 2 L,I,C Previous vendor. Good work / safet . Responsive to requests.
ruGreen $5,032.00 44.5 C emrca n y. ou ave ran by score. xce en# service.
Nanak's $102,951.00 38 2 4 L,I,C Mixed reviews on work qualit . Lar a compan and heavil insured.
need $1~-a A8-89 €~Q €~8 ET8 ~~G
Fields of Green $108,663.02 31.5 4 6 L,I,C Mixed reviews on work qualit . Lacks experience / licensin .Limited capacity.
Searells $~2~5 ~ i~ /~ L~-C
Cats $88~A:88 FAQ €TQ FAQ L
t
G
;
;
9~4-B1d~3 $157--98 ~ ~ ~ ~~-G
$534~9~09 t~ ~ ~ L~-, C
= Kanrvng score ~s a result of a combination of factors including: price, responsiveness, responsibility and results of the due diligence process. Chemical
or irrigation 'only' vendors not in ranking score due to minimal cost.
Notes: Staff
Committee
Steven Richart
Alan Hill
Nancy Vobomik
Brian Murphy
Chuck Pula
Budget for this project in FY '10 is $ 135,000.00
Staff is recommending Annan Landscaping for LM/lrrig. due to a combination of
staff scoring and price. Carol King may have been the successful bidder if
not for the previous contract cancellation, underbidding and mixed reviews on quality.
Staff is recommending TruGreen for chemical applications due to price and quality.
Contract Award Breakdown:
Annan - Landscape and Irrigation Total $ 94,725 (Chemical app. broken out @ $ 10,200)
TruGreen - Chemcal Only Total $ 5 032
Total Cost $ 99,757
Base Costs: FY'09 Costs $ 148,663.80
FY ' 10 Costs $ 99, 757.00
Savings: $48,906.80
EXEL Evaluatan Maint. Serv.
Date: September 14, 2009
The attached document was referenced by
Attorney Garganese during the September 14,
2009 City Commission Regular Meeting and is
related to the Motion for the Consent Agenda.
t
1
BROWN, GARGANESE, WEISS D'AGRESTA, P.A.
Attorney at Law
Debra S. Babb- Nutcher° Offices in Orlando, Tara L. Barrett
Joseph E. Blitch Ft. Lauderdale Tampa Vivian P. Cocotas
Usher L. Brown' Robin Gibson Drage
Suzanne D'Agresta Gregg A. Johnson
Anthony A. Garganese Katherine W. Latorre
William E. Reischmann, Jr. Bridgette M. Miller
J.W. Taylor Alfred Truesdell
Jeffrey S. Weiss Lynn M. Vouis
Gary M. Glassman
'Board Certified Civil Trial Lawyer Erin J. O'Leary'
°Board Certified City, County Local Government Law Amy J. Pitsch
'Board Certified Appellate Practice Catherine D. Reischmann
Of Counsel
September 14, 2009
Honorable Mayor John F. Bush
Members of the City Commission
1126 E. State Road 434
Winter Springs, Florida 32708
Re: Consent Agenda Items 200 and 201
Dear Mayor and City Commission:
Regarding Consent Items 200 and 201 scheduled for consideration at tonight's
meeting, I am recommending the following small changes to the service contracts in
order to better identify and define the scope of services within the body of the contracts.
1. Consent Item 200 (Dawnalee Corporation)
A. The first "whereas" clause will read as follows:
WHEREAS, City wishes to obtain Landscape Maintenance Services for Various
City Rights of Way and Ponds on a continuing basis, as more specifically set forth in
Winter Springs Bid No. ITB 019/09/SR; and
B. Section 3.0 Scope of Services will be amended to add the following language:
Project Manual for Winter Springs Bid ITB 019/09/SR. Said Project Manual
is hereby fully incorporated herein by this reference.
111 N. Orange Ave, Suite 2000 P.O. Box 2873.Orlando, Florida 32802 -2873
Orlando (407) 425 -9566 Fax (407) 425 -9596 Kissimmee (321) 402 -0144 Cocoa (866) 425 -9566 Ft. Lauderdale (954) 670 -1979
Website: www.orlandolaw.net Email: firm @orlandolaw.net
September 14, 2009
Page 2
2. Consent Item 201 (Annan Landscaping)
A. Section 3.1 Scope of Services will be amended to add the following language:
Project Manual for Winter Springs Bid ITB 020 /09 /SR. Said Project Manual
is hereby fully incorporated herein by this reference.
3. Consent Item 201 (TruGreen)
A. Section 3.1 Scope of Services will be amended to add the following language:
Project Manual for Winter Springs Bid ITB 020 /09 /SR. Said Project Manual
is hereby fully incorporated herein by this reference.
I have informed staff of these changes and they indicated that the changes will
be made to the contracts before they are executed by the contractor and the City.
Sin ly,
Antho y A. Garganese
City Attorney
aag/
[4 09
AGREEMENT FORM ITB 020 /09 /SR
THIS AGREEMENT is made and entered into this 1st day of October 2009, by and between the CITY
OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation, hereinafter referred to as "City", located at
1126 East State Road 434, Winter Springs, FL 32708, and Annan Landscaping, L.L.C. a Florida
Corporation, hereinafter referred to as "Service Provider".
WITNESSETH:
WHEREAS, City wishes to obtain Landscape Maintenance services for SR 434 Medians, Right of
Way and Ponds Bid ITB 020 /09 /SR on a continuing basis; and
WHEREAS, Service Provider participated in the selection and negotiation process; and
WHEREAS, Service Provider is willing to provide such Landscape Maintenance for SR 434 Medians,
Right of Way and Ponds for 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 RECITALS
1.1 The foregoing recitals are deemed to be true and accurate and are fully incorporated herein by
reference.
2.0 TERM AND DEFINITIONS
2.1 This contract shall be in effect for twelve (12) months commencing on the Effective Date. The
City may extend this contract for two (2) additional one year terms, provided the City determines, in its
discretion, that Service Provider has adequately performed during the previous term of this contract. In the
event this contract is extended, the contract price may be adjusted to allow for consumer price increases based
on Bureau of Labor and Statistics Producer Price Index not to exceed 7 (seven) percent. The adjustment
will be based on the annual contract period from the same period of the previous year and calculated 30 days
prior to renewal. The Agreement may be canceled in whole or part by the City or the Service Provider, upon
giving at least (30) days written notice prior to cancellation; EXCEPT that non performance on the part of the
Service Provider will be grounds for immediate termination. Unless otherwise provided in said notice, all work
being performed by Service Provider at the time of receipt of the notice shall immediately cease and no further
work shall be provided by Service Provider under this contract.
2.2 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 amended from time to time, which shall constitute authorization
for the Service Provider to provide the landscape maintenance 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.
c. "Service Provider" shall mean Annan Landscaping, L.L.C. a Florida
Corporation, and its principals, officers, employees, and agents.
d. "Public Record" shall have the meaning given in Section 119.011(1), Florida
Statutes.
e. "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in this Agreement.
I
f. "City Project Manager" or "Designated Representative" or "Project Director" shall mean Urban
Beautification Services Division Manager, or his designee, who is to provide the general
administration of the contract.
3.0 SCOPE OF SERVICES
3.1 Service Provider shall provide landscape and irrigation maintenance services for various
medians, right -of -way and ponds, including the furnishing of all labor, equipment, tools, materials, incidentals
and the performing of all operations necessary as described in the Project Manual for Winter Springs Bid ITB
020 /09 /SR. Said Project Manual is hereby fully incorporated herein by this reference.
4.0 CHANGES IN THE SCOPE OF WORK
4.1 City may make changes in the Services at any time by giving written notice to Service Provider.
If such changes increase (additional services) or decrease or eliminate any amount of Work, City and Service
Provider will negotiate any change in total cost or schedule modifications. If the City and the Service Provider
approve any change, the Contract will be modified in writing to reflect the changes. All change orders shall be
authorized in writing by City's and Service Provider's designated representative.
4.2 All of City's amendments thereto shall be performed in strict accordance with the terms of this
Agreement insofar as they are applicable.
5.0 SCHEDULE
5.1 Service Provider shall perform services in conformance with the schedule reasonably
established by the City Project Manager. Service Provider shall complete all of said services in a timely
manner and will keep City apprized of the status of work on at least a monthly basis or as otherwise reasonably
requested by the City. Should Service Provider fall behind on the established schedule, it shall employ such
resources so as to comply with the schedule.
5.2 No extension for completion of services shall be granted to Service Provider without City's prior
written consent.
6.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES
OF SERVICE PROVIDER
6.1 General Bid Services. The City shall only pay Service Provider for services actually
performed based on the Bid Form. The total amount paid to Service Provider for the first year of this
Agreement shall not exceed $94,725 (Ninety Four Thousand and Seven Hundred and Twenty Five)
Dollars. If this contract is extended, the total annual amount paid to Service Provider shall not exceed that
above mentioned number adjusted by the Producer Price Index as set forth in paragraph 2.1 of this contract.
6.2 Additional Services. From time to time during the term of this Agreement, City may request
that Service Provider perform additional Services not required under the Project Manual. For those additional
services agreed upon by the City and Service Provider in writing, City agrees to pay Service Provider a total
amount equal to that mutually agreed upon by the parties in writing.
6.3 Payment. Upon receipt of a proper invoice from Service Provider, the City agrees to pay the
Service Provider the invoice amount providing said amount accurately reflects the terms and conditions of this
Agreement. Invoices may only be submitted on a monthly basis unless otherwise agreed by the City. Unless
otherwise agreed in writing by the City, there shall be no other compensation paid to the Service Provider and
its principals, employees, and independent professional associates and consultants in the performance of
Work under this Agreement. The City agrees to make all payments due within thirty (30) days of receipt of a
proper invoice delivered by Service Provider. The Service Provider may only bill the City for actual work
performed.
proper invoice delivered by Service Provider. The Service Provider may only bill the City for actual work
performed.
7.0 RIGHT TO INSPECTION
7.1 City or its affiliates shall at all times have the right to review or observe the services performed
by Service Provider.
7.2 No inspection, review, or observation shall relieve Service Provider of its responsibility under
this Agreement.
8.0 AUDIT AND INSPECTIONS
8.1 All Service Provider's records with respect to any matters covered by this Agreement shall be
made available to the City, at any time during normal business hours, as often as the City deems necessary, to
audit, examine, and make excerpts or transcripts of all relevant data. Any deficiencies noted in audit reports
must be fully cleared by the Service Provider within thirty (30) days after receipt by the Service Provider.
Failure of the Service Provider to comply with the above audit requirements will constitute a material breach of
this Agreement and may result, at the sole discretion of the City, in the withholding of payment for services
provided under this Agreement.
9.0 PROFESSIONALISM AND STANDARD OF CARE
9.1 Service Provider shall do, perform and carry out in a professional manner all
Services required to be performed by this Agreement. Service Provider shall also use the degree of care and
skill in performing the Services that are ordinarily exercised under similar circumstances by reputable members
of Service Provider's profession working in the same or similar locality as Service Provider.
10.0 SUBMITTAL OF PROGRESS REPORTS
10.1 Service Provider shall submit a monthly written progress report as to the status of all Work set
forth in this Agreement. The report shall in a sufficient manner demonstrate that any funds expended were
used to provide the agreed -upon Services. If the detail is not sufficient in the City Project Manager's
reasonable discretion to permit the City to determine the Work performed or the manner in which it is being
performed, the City may seek more detail from the Service Provider.
11.0 WARRANTY OF PROFESSIONAL SERVICES
11.1 The Service Provider (for itself and any of its employees, contractors, partners,
and agents used to perform the Services) hereby warrants unto the City that all of its employees (and those of
any of its contractors, partners, and agents used to perform the Services) have sufficient experience to
properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit
of any Work, the Service Provider shall supervise and direct the Work, using its best skill and attention and
shall enforce strict discipline and good order among its employees. The Service Provider shall comply with all
laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on the performance of the
Work.
12.0 CORPORATE REPRESENTATIONS BY SERVICE PROVIDER
12.1 Service Provider hereby represents and warrants to the City the following:
a. Service Provider 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 signatory for Service Provider has the power, authority, and the
legal right to enter into and perform the obligations set forth in this Agreement and
all applicable exhibits thereto, and the execution, delivery, and performance hereof
by Service Provider has been duly authorized by the board of directors and /or
president of Service Provider. In support of said representation, Service Provider
agrees to provide a copy to the City of a corporate certificate of good standing
provided by the State of Florida prior to the execution of this Agreement.
c. Service Provider is duly licensed under all local, state and federal laws to provide
the Services stated in paragraph 3.0 herein. In support of said representation,
Service Provider agrees to provide a copy of all said licenses to the City prior to
the execution of this Agreement.
13.0 WORK IS A PRIVATE UNDERTAKING
13.1 With regard to any and all Work performed hereunder, it is specifically understood
and agreed to by and between the parties hereto that the contractual relationship between the City and Service
Provider is such that the Service Provider is an independent contractor and not an agent of the City. The
Service Provider, its contractors, partners, agents, and their employees are independent contractors and not
employees of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than
that of an independent contractor, between the City, on one hand, and the Service Provider, its contractors,
partners, employees, or agents, during or after the performance of the Work under this Agreement.
14.0 PROGRESS MEETING
14.1 City Project Manager may hold periodic progress meetings on a monthly basis, or more
frequently if required by the City, during the term of work entered into under this Agreement. Service Provider's
Project Manager and all other appropriate personnel shall attend such meetings as designated by the City
Project Manager.
15.0 SAFETY
15.1 Service Provider shall be solely and absolutely responsible and assume all liability for the
safety and supervision of its principals, employees, contractors, and agents while performing Services provided
hereunder.
16.0 INSURANCE
16.1 Liability Amounts. During the term of this Agreement, Service Provider shall be responsible
for providing the types of insurance and limits of liability as set forth below.
a. The Service Provider shall maintain comprehensive general liability insurance in the
minimum amount of $1,000,000 as the combined single limit for each occurrence to
protect the Service Provider from claims of property damages which may arise from any
Services performed under this Agreement whether such Services are performed by the
Service Provider or by anyone directly employed by or contracting with the Service
Provider.
b. The Service Provider shall maintain comprehensive automobile liability insurance in the
minimum amount of $1,000,000 combined single limit bodily injury and minimum
$1,000,000 property damage as the combined single limit for each occurrence to protect
the Service Provider from claims for damages for bodily injury, including wrongful death,
as well as from claims from 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 Service Provider or by anyone directly or indirectly employed by
the Service Provider.
c. The Service Provider shall maintain, during the life of this Agreement, adequate Workers'
Compensation Insurance in at least such amounts as are required by law and Employer's
Liability Insurance in the minimum amount of $1,000,000 for all of its employees
performing Work for the City pursuant to this Agreement.
16.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of
Insurance shall be provided to the City by Service Provider upon the Effective Date of this Contract which
satisfied the insurance requirements of this paragraph 16.0. Renewal certificates shall be sent to the City 30
days prior to any expiration date. There shall also be a 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 all stipulated insurance policies as its interest may appear, from time to time.
16.3 Independent Associates and Consultants. All independent contractors or agents employed
by Service Provider to perform any Services hereunder shall fully comply with the insurance provisions
contained in these paragraphs for sections 15 and 16.
17.0 COMPLIANCE WITH LAWS AND REGULATIONS
17.1 Service Provider 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.
18.0 DOCUMENTS
18.1 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 Service Provider and its
independent contractors and associates related, directly or indirectly, to this Agreement, may be deemed to be
a Public Record whether in the possession or control of the City or the Service Provider. Said record,
document, computerized information and program, audio or video tape, photograph, or other writing of the
Service Provider 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 Service Provider
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 Service Provider be open and freely exhibited to the City for the purpose of examination
and /or audit.
18.2 The Service Provider acknowledges that the City is a Florida municipal corporation and subject
to the Florida Public Records Law. Service Provider agrees that to the extent any document produced by
Service Provider under this Agreement constitutes a Public Record; Service Provider shall comply with the
Florida Public Records Law.
19.0 ASSIGNMENT
19.1 Service Provider 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.
19.2 If upon receiving written approval from City, any part of this Agreement is subcontracted by
Service Provider, Service Provider shall be fully responsible to City for all acts and /or omissions performed by
the subcontractor as if no subcontract had been made.
19.3 If City determines that any subcontractor is not performing in accordance with this Agreement,
City shall so notify Service Provider who shall take immediate steps to remedy the situation.
19.4 If any part of this Agreement is subcontracted by Service Provider, prior to the commencement
of any Work by the subcontractor, Service Provider shall require the subcontractor to provide City and its
affiliates with insurance coverage as set forth by the City.
20.0 TERMINATION: DEFAULT BY SERVICE PROVIDER AND CITY'S REMEDIES
20.1 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:
a. Service Provider defaults in the performance of any material covenant or condition of this
Agreement and does not cure such other default within fourteen (14) 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 fourteen (14)
calendar days, in which case the Service Provider shall have such time as is reasonably necessary
to remedy the default, provided the Service Provider promptly takes and diligently pursues such
actions as are necessary therefor; or
b. Service Provider is adjudicated bankrupt or makes any assignment for the benefit of creditors or
Service Provider becomes insolvent, or is unable or unwilling to pay its debts; or
c. Service Provider has acted negligently, as defined by general and applicable law, in performing the
Services hereunder; or
d. Service Provider has committed any act of fraud upon the City; or
e. Service Provider has made a material misrepresentation of fact to the City while performing its
obligations under this Agreement; or
f. Service Provider 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.
20.2 Notwithstanding the aforementioned, in the event of a default by Service Provider, 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. 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.
21.0 FORCE MAJEURE
21.1 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 (except involving Service Providers labor force); 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 days, either party may terminate this Agreement.
22.0 GOVERNING LAW VENUE
22.1 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 Seminole
County, Florida. Venue for any federal action or litigation shall be Orlando, Florida.
23.0 HEADINGS
23.1 Paragraph headings are for the convenience of the parties only and are not to be construed as
part of this Agreement.
24.0 SEVERABILITY
24.1 In the event any portion or part thereof of this Agreement is deemed invalid, against public
policy, void, or otherwise unenforceable by a court of law, the parties, at the sole discretion and option of the
City, 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 be fully enforceable.
25.0 INTEGRATION; MODIFICATION
25.1 The drafting, execution, and delivery of this Agreement by the Parties have been induced by
no representations, statements, warranties, or agreements other than those expressed herein. This
Agreement embodies the entire understanding of the parties, and there are no further or other agreements or
understandings, written or oral, in effect between the parties relating to the subject matter hereof unless
expressly referred to herein. Modifications of this Agreement shall only be made in writing signed by both
parties.
26.0 WAIVER AND ELECTION OF REMEDIES
26.1 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.
26.2 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.
27.0 THIRD PARTY RIGHTS
27.1 Nothing in this Agreement shall be construed to give any rights or benefits to anyone other
than City and Service Provider.
28.0 PROHIBITION AGAINST CONTINGENT FEES
28.1 Service Provider warrants that it has not employed or retained any company or person, other
than a bona fide employee working solely for the Service Provider, 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 Service Provider, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement.
29.0 NO JOINT VENTURE
29.1 Nothing herein shall be deemed to create a joint venture or principal -agent relationship
between the parties and neither party are 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 party.
30.0 ATTORNEY'S FEES
30.1 Should either party bring an action to enforce any of the terms of this Agreement, the
prevailing party shall be entitled, to the extent permitted by law, 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.
31.0 COUNTERPARTS
31.1 This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be considered an original agreement; but such counterparts shall together
constitute but one and the same instrument.
32.0 DRAFTING
32.1 City and Service Provider 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.
33.0 NOTICE
33.1 Any notices required to be given by the terms of this Agreement shall be delivered by hand or
mailed, postage prepaid to:
For Service Provider:
Annan Landscaping, LLC.
991 Explorer Cove, Ste# 133
Altamonte Springs, FL 32701
(407) 339 -7701
For City:
City of Winter Springs
Urban Beautification Services Division Manager
1126 East State Road 434
Winter Springs, FL 32708
Phone: (407) 327 -1800 x315
Facsimile: (407) 327 -6695
33.2 Either party may change the notice address by providing the other party written notice of the
change.
34.0 SOVEREIGN IMMUNITY
34.1 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.
35.0 INDEMNIFICATION
35.1 For all Services performed pursuant to this Agreement, the Service Provider agrees to the
fullest extent permitted by law, to indemnify and hold harmless the City and its commissioners, employees,
officers, and city attorneys (individually and in their official capacity) from and against all claims, losses,
damages, personal injuries (including but not limited to death), or liability (including reasonable attorney's fees
through any and all administrative, trial and appellate proceedings), directly or indirectly arising from:
a. any default under this Agreement by Service Provider;
b. any negligent act, omission or operation of work related to all Services
performed under this Agreement by Service Provider, and its employees,
principals, agents, independent contractors, and consultants.
c. the acts, errors, omissions, intentional or otherwise, arising out of or resulting
from Service Provider's and its employees, partners, contractors, and agents
on the performance of the Services being performed under this Agreement;
d. Service Provider's, and its employees, partners, contractors, and agents
failure to comply with the provisions of any federal, state, or local laws,
ordinance, or regulations applicable to Service Provider's and its employees,
partners, contractors, and agents performance under this Agreement;
e. any fraud and misrepresentation conducted by Service Provider and its
employees, partners, contractors, and agents on the City under this
Agreement.
35.2 The indemnification provided above shall obligate the Service Provider to defend at its own
expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of
liability and all suits and actions of every name and description that may be brought against the City or its
commissioners, employees, officers, and City Attorney which may result from any negligent act, omission or
operation of work related to the Services under this Agreement whether the Services be performed by the
Service Provider, or anyone directly or indirectly employed by them. In all events the City and its
commissioners, employees, officers, and City Attorney shall be permitted to choose legal counsel of its sole
choice, the fees for which shall be reasonable and subject to and included with this indemnification provided
herein.
36.0 ORDER OF PRECEDENCE
36.1 In case of any inconsistency in any of the documents bearing on the Agreement between the City
and the Service Provider, the inconsistency shall be resolved by giving precedence in the following order:
a. Addenda to this Agreement subsequent to the Effective date of this Agreement;
b. This Agreement;
c. Exhibits to this Agreement; and
d. The Bid documents.
36.2 Any inconsistency in the work description shall be clarified by the City and performed by the
Service Provider.
37.0 AGREEMENT INTERPRETATION
37.1 At its discretion, during the course of the work, should any errors, ambiguities, or discrepancies
be found in the Agreement or specifications, the City at its sole discretion will interpret the intent of the
Agreement and work descriptions and the Service Provider hereby agrees to abide by the City's interpretation
and agrees to carry out the work in accordance with the decision of the City.
37.2 When the material, article, or equipment is designated by a brand name and more than one
brand name is listed, it will be understood that the work is based on one brand name only. The Service
Provider will be responsible for all coordination necessary to accommodate the material, article, or equipment
being provided without additional cost to the City. A substitute material, article, or equipment is allowed if it is
reasonably equivalent to the brand name specified. The City has full discretion to decide whether a substitute
is reasonably equivalent. Service Provider must notify the City prior to use of the substitute for a specified
brand name and allow the City to make a determination before Service Provider uses the substitute.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by
Their duly authorized representatives as of the date first written above.
SERVICE PROVIDER:
A/X4
Na e i nature
Addr s
Telephone
CITY:
CITY OF WINTER SPRINGS, FLORIDA
By: Dated 1 10`)
Kevin Smith, City Manager
ATTEST y�
By: r n al }C1�Ittw ''cJ
C Clerk's,Offic
1410C C�,aO
AGREEMENT FORM ITB 020 /09 /SR
THIS AGREEMENT is made and entered into this 1st day of October 2009, by and between the CITY
OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation, hereinafter referred to as "City located at
1126 East State Road 434, Winter Springs, FL 32708, and TruGreen, L.P., a Florida Corporation, hereinafter
referred to as "Service Provider".
WITNESSETH:
WHEREAS, City wishes to obtain chemical application services for SR 434 Medians, Right of Way
and Ponds Bid ITB 020 /09 /SR on a continuing basis; and
WHEREAS, Service Provider participated in the selection and negotiation process; and
WHEREAS, Service Provider is willing to provide such chemical application services for SR 434
Medians, Right of Way and Ponds for 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 RECITALS
1.1 The foregoing recitals are deemed to be true and accurate and are fully incorporated herein by
reference.
2.0 TERM AND DEFINITIONS
2.1 This contract shall be in effect for twelve (12) months commencing on the Effective Date. The
City may extend this contract for two (2) additional one year terms, provided the City determines, in its
discretion, that Service Provider has adequately performed during the previous term of this contract. In the
event this contract is extended, the contract price may be adjusted to allow for consumer price increases based
on Bureau of Labor and Statistics Producer Price Index not to exceed 7 (seven) percent. The adjustment
will be based on the annual contract period from the same period of the previous year and calculated 30 days
prior to renewal. The Agreement may be canceled in whole or part by the City or the Service Provider, upon
giving at least (30) days written notice prior to cancellation; EXCEPT that non performance on the part of the
Service Provider will be grounds for immediate termination. Unless otherwise provided in said notice, all work
being performed by Service Provider at the time of receipt of the notice shall immediately cease and no further
work shall be provided by Service Provider under this contract.
2.2 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 amended from time to time, which shall constitute authorization
for the Service Provider to provide the chemical application 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.
c. "Service Provider" shall mean TruGreen. L.P. a Florida Corporation, and its
principals, officers, employees, and agents.
d. "Public Record" shall have the meaning given in Section 119.011(1), Florida
Statutes.
e. 'Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in this Agreement.
f. "City Project Manager" or "Designated Representative" or "Project Director" shall mean Urban
Beautification Services Division Manager, or his designee, who is to provide the general
administration of the contract.
3.0 SCOPE OF SERVICES
3.1 Service Provider shall provide chemical application services for various medians, right -of -way
and ponds, including the furnishing of all labor, equipment, tools, materials, incidentals and the performing of all
operations necessary as described in the Project Manual for Winter Springs Bid ITB 020/09 /SR. Said Project
Manual is hereby fully incorporated herein by this reference.
4.0 CHANGES IN THE SCOPE OF WORK
4.1 City may make changes in the Services at any time by giving written notice to Service Provider.
If such changes increase (additional services) or decrease or eliminate any amount of Work, City and Service
Provider will negotiate any change in total cost or schedule modifications. If the City and the Service Provider
approve any change, the Contract will be modified in writing to reflect the changes. All change orders shall be
authorized in writing by City's and Service Provider's designated representative.
4.2 All of City's amendments thereto shall be performed in strict accordance with the terms of this
Agreement insofar as they are applicable.
5.0 SCHEDULE
5.1 Service Provider shall perform services in conformance with the schedule reasonably
established by the City Project Manager. Service Provider shall complete all of said services in a timely
manner and will keep City apprized of the status of work on at least a monthly basis or as otherwise reasonably
requested by the City. Should Service Provider fall behind on the established schedule, it shall employ such
resources so as to comply with the schedule.
5.2 No extension for completion of services shall be granted to Service Provider without City's prior
written consent.
6.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES
OF SERVICE PROVIDER
6.1 General Bid Services. The City shall only pay Service Provider for services actually
performed based on the Bid Form. The total amount paid to Service Provider for the first year of this
Agreement shall not exceed 5,032 (Five Thousand and Thirty Two) Dollars. If this contract is extended,
the total annual amount paid to Service Provider shall not exceed that above mentioned number adjusted by
the Producer Price Index as set forth in paragraph 2.1 of this contract.
6.2 Additional Services. From time to time during the term of this Agreement, City may request
that Service Provider perform additional Services not required under the Project Manual. For those additional
services agreed upon by the City and Service Provider in writing, City agrees to pay Service Provider a total
amount equal to that mutually agreed upon by the parties in writing.
6.3 Payment. Upon receipt of a proper invoice from Service Provider, the City agrees to pay the
Service Provider the invoice amount providing said amount accurately reflects the terms and conditions of this
Agreement. Invoices may only be submitted on a monthly basis unless otherwise agreed by the City. Unless
otherwise agreed in writing by the City, there shall be no other compensation paid to the Service Provider and
its principals, employees, and independent professional associates and consultants in the performance of
Work under this Agreement. The City agrees to make all payments due within thirty (30) days of receipt of a
proper invoice delivered by Service Provider. The Service Provider may only bill the City for actual work
performed.
7.0 RIGHT TO INSPECTION
7.1 City or its affiliates shall at all times have the right to review or observe the services performed
by Service Provider.
7.2 No inspection, review, or observation shall relieve Service Provider of its responsibility under
this Agreement.
8.0 AUDIT AND INSPECTIONS
All Service Provider's records with respect to any matters covered by this Agreement shall be made
available to the City, at any time during normal business hours, as often as the City deems necessary, to audit,
examine, and make excerpts or transcripts of all relevant data. Any deficiencies noted in audit reports must be
fully cleared by the Service Provider within thirty (30) days after receipt by the Service Provider. Failure of the
Service Provider to comply with the above audit requirements will constitute a material breach of this
Agreement and may result, at the sole discretion of the City, in the withholding of payment for services provided
under this Agreement.
9.0 PROFESSIONALISM AND STANDARD OF CARE
9.1 Service Provider shall do, perform and carry out in a professional manner all
Services required to be performed by this Agreement. Service Provider shall also use the degree of care and
skill in performing the Services that are ordinarily exercised under similar circumstances by reputable members
of Service Provider's profession working in the same or similar locality as Service Provider.
10.0 SUBMITTAL OF PROGRESS REPORTS
10.1 Service Provider shall submit a monthly written progress report as to the status of all Work set
forth in this Agreement. The report shall in a sufficient manner demonstrate that any funds expended were
used to provide the agreed -upon Services. If the detail is not sufficient in the City Project Manager's
reasonable discretion to permit the City to determine the Work performed or the manner in which it is being
performed, the City may seek more detail from the Service Provider.
11.0 WARRANTY OF PROFESSIONAL SERVICES
11.1 The Service Provider (for itself and any of its employees, contractors, partners,
and agents used to perform the Services) hereby warrants unto the City that all of its employees (and those of
any of its contractors, partners, and agents used to perform the Services) have sufficient experience to
properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit
of any Work, the Service Provider shall supervise and direct the Work, using its best skill and attention and
shall enforce strict discipline and good order among its employees. The Service Provider shall comply with all
laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on the performance of the
Work.
12.0 CORPORATE REPRESENTATIONS BY SERVICE PROVIDER
12.1 Service Provider hereby represents and warrants to the City the following:
a. Service Provider 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 signatory for Service Provider has the power, authority, and the
legal right to enter into and perform the obligations set forth in this Agreement and
all applicable exhibits thereto, and the execution, delivery, and performance hereof
by Service Provider has been duly authorized by the board of directors and /or
president of Service Provider. In support of said representation, Service Provider
agrees to provide a copy to the City of a corporate certificate of good standing
provided by the State of Florida prior to the execution of this Agreement.
c. Service Provider is duly licensed under all local, state and federal laws to provide
the Services stated in paragraph 3.0 herein. In support of said representation,
Service Provider agrees to provide a copy of all said licenses to the City prior to
the execution of this Agreement.
13.0 WORK IS A PRIVATE UNDERTAKING
13.1 With regard to any and all Work performed hereunder, it is specifically understood
and agreed to by and between the parties hereto that the contractual relationship between the City and Service
Provider is such that the Service Provider is an independent contractor and not an agent of the City. The
Service Provider, its contractors, partners, agents, and their employees are independent contractors and not
employees of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than
that of an independent contractor, between the City, on one hand, and the Service Provider, its contractors,
partners, employees, or agents, during or after the performance of the Work under this Agreement.
14.0 PROGRESS MEETING
14.1 City Project Manager may hold periodic progress meetings on a monthly basis, or more
frequently if required by the City, during the term of work entered into under this Agreement. Service Provider's
Project Manager and all other appropriate personnel shall attend such meetings as designated by the City
Project Manager.
15.0 SAFETY
15.1 Service Provider shall be solely and absolutely responsible and assume all liability for the
safety and supervision of its principals, employees, contractors, and agents while performing Services provided
hereunder.
16.0 INSURANCE
16.1 Liability Amounts. During the term of this Agreement, Service Provider shall be responsible
for providing the types of insurance and limits of liability as set forth below.
a. The Service Provider shall maintain comprehensive general liability insurance in the
minimum amount of $1,000,000 as the combined single limit for each occurrence to
protect the Service Provider from claims of property damages which may arise from any
Services performed under this Agreement whether such Services are performed by the
Service Provider or by anyone directly employed by or contracting with the Service
Provider.
b. The Service Provider shall maintain comprehensive automobile liability insurance in the
minimum amount of $1,000,000 combined single limit bodily injury and minimum
$1,000,000 property damage as the combined single limit for each occurrence to protect
the Service Provider from claims for damages for bodily injury, including wrongful death,
as well as from claims from 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 Service Provider or by anyone directly or indirectly employed by
the Service Provider.
c. The Service Provider shall maintain, during the life of this Agreement, adequate Workers'
Compensation Insurance in at least such amounts as are required by law and Employer's
Liability Insurance in the minimum amount of $1,000,000 for all of its employees
performing Work for the City pursuant to this Agreement.
16.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of
Insurance shall be provided to the City by Service Provider upon the Effective Date of this Contract which
satisfied the insurance requirements of this paragraph 16.0. Renewal certificates shall be sent to the City 30
days prior to any expiration date. There shall also be a 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 all stipulated insurance policies as its interest may appear, from time to time.
16.3 Independent Associates and Consultants. All independent contractors or agents employed
by Service Provider to perform any Services hereunder shall fully comply with the insurance provisions
contained in these paragraphs for sections 15 and 16.
17.0 COMPLIANCE WITH LAWS AND REGULATIONS
17.1 Service Provider 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.
18.0 DOCUMENTS
18.1 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 Service Provider and its
independent contractors and associates related, directly or indirectly, to this Agreement, may be deemed to be
a Public Record whether in the possession or control of the City or the Service Provider. Said record,
document, computerized information and program, audio or video tape, photograph, or other writing of the
Service Provider 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 Service Provider
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 Service Provider be open and freely exhibited to the City for the purpose of examination
and /or audit.
18.2 The Service Provider acknowledges that the City is a Florida municipal corporation and subject
to the Florida Public Records Law. Service Provider agrees that to the extent any document produced by
Service Provider under this Agreement constitutes a Public Record; Service Provider shall comply with the
Florida Public Records Law.
19.0 ASSIGNMENT
19.1 Service Provider 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.
19.2 If upon receiving written approval from City, any part of this Agreement is subcontracted by
Service Provider, Service Provider shall be fully responsible to City for all acts and /or omissions performed by
the subcontractor as if no subcontract had been made.
19.3 If City determines that any subcontractor is not performing in accordance with this Agreement,
City shall so notify Service Provider who shall take immediate steps to remedy the situation.
19.4 If any part of this Agreement is subcontracted by Service Provider, prior to the commencement
of any Work by the subcontractor, Service Provider shall require the subcontractor to provide City and its
affiliates with insurance coverage as set forth by the City.
20.0 TERMINATION; DEFAULT BY SERVICE PROVIDER AND CITY'S REMEDIES
20.1 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:
a. Service Provider defaults in the performance of any material covenant or condition of this
Agreement and does not cure such other default within fourteen (14) 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 fourteen (14)
calendar days, in which case the Service Provider shall have such time as is reasonably necessary
to remedy the default, provided the Service Provider promptly takes and diligently pursues such
actions as are necessary therefor; or
b. Service Provider is adjudicated bankrupt or makes any assignment for the benefit of creditors or
Service Provider becomes insolvent, or is unable or unwilling to pay its debts; or
c. Service Provider has acted negligently, as defined by general and applicable law, in performing the
Services hereunder; or
d. Service Provider has committed any act of fraud upon the City; or
e. Service Provider has made a material misrepresentation of fact to the City while performing its
obligations under this Agreement; or
f. Service Provider 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.
20.2 Notwithstanding the aforementioned, in the event of a default by Service Provider, 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. 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.
21.0 FORCE MAJEURE
21.1 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 (except involving Service Providers labor force); 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 days, either party may terminate this Agreement.
22.0 GOVERNING LAW VENUE
22.1 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 Seminole
County, Florida. Venue for any federal action or litigation shall be Orlando, Florida.
23.0 HEADINGS
23.1 Paragraph headings are for the convenience of the parties only and are not to be construed as
part of this Agreement.
24.0 SEVERABILITY
24.1 In the event any portion or part thereof of this Agreement is deemed invalid, against public
policy, void, or otherwise unenforceable by a court of law, the parties, at the sole discretion and option of the
City, 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 be fully enforceable.
25.0 INTEGRATION; MODIFICATION
25.1 The drafting, execution, and delivery of this Agreement by the Parties have been induced by
no representations, statements, warranties, or agreements other than those expressed herein. This
Agreement embodies the entire understanding of the parties, and there are no further or other agreements or
understandings, written or oral, in effect between the parties relating to the subject matter hereof unless
expressly referred to herein. Modifications of this Agreement shall only be made in writing signed by both
parties.
26.0 WAIVER AND ELECTION OF REMEDIES
26.1 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.
26.2 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.
27.0 THIRD PARTY RIGHTS
27.1 Nothing in this Agreement shall be construed to give any rights or benefits to anyone other
than City and Service Provider.
28.0 PROHIBITION AGAINST CONTINGENT FEES
28.1 Service Provider warrants that it has not employed or retained any company or person, other
than a bona fide employee working solely for the Service Provider, 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 Service Provider, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement.
29.0 NO JOINT VENTURE
29.1 Nothing herein shall be deemed to create a joint venture or principal -agent relationship
between
the parties and neither party are 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 party.
30.0 ATTORNEY'S FEES
30.1 Should either party bring an action to enforce any of the terms of this Agreement, the
prevailing party shall be entitled, to the extent permitted by law, 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.
31.0 COUNTERPARTS
31.1 This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be considered an original agreement; but such counterparts shall together
constitute but one and the same instrument.
32.0 DRAFTING
32.1 City and Service Provider 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.
33.0 NOTICE
33.1 Any notices required to be given by the terms of this Agreement shall be delivered by hand or
mailed, postage prepaid to:
For Service Provider:
TruGreen, L.P.
2175 N Forsyth Rd
Orlando, FL 32807
For City:
City of Winter Springs
Urban Beautification Services Division Manager
1126 East State Road 434
Winter Springs, FL 32708
Phone: (407) 327 -1800 x315
Facsimile: (407) 327 -6695
33.2 Either party may change the notice address by providing the other party written notice of the
change.
34.0 SOVEREIGN IMMUNITY
34.1 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.
35.0 INDEMNIFICATION
35.1 For all Services performed pursuant to this Agreement, the Service Provider agrees to the fullest
extent permitted by law, to indemnify and hold harmless the City and its commissioners, employees, officers,
and city attorneys (individually and in their official capacity) from and against all claims, losses, damages,
personal injuries (including but not limited to death), or liability (including reasonable attorney's fees through
any and all administrative, trial and appellate proceedings), directly or indirectly arising from:
a. any default under this Agreement by Service Provider;
b. any negligent act, omission or operation of work related to all Services
performed under this Agreement by Service Provider, and its employees,
principals, agents, independent contractors, and consultants.
c. the acts, errors, omissions, intentional or otherwise, arising out of or resulting
from Service Provider's and its employees, partners, contractors, and agents
on the performance of the Services being performed under this Agreement;
d. Service Provider's, and its employees, partners, contractors, and agents
failure to comply with the provisions of any federal, state, or local laws,
ordinance, or regulations applicable to Service Provider's and its employees,
partners, contractors, and agents performance under this Agreement;
e. any fraud and misrepresentation conducted by Service Provider and its
employees, partners, contractors, and agents on the City under this
Agreement.
35.2 The indemnification provided above shall obligate the Service Provider to defend at its own
expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of
liability and all suits and actions of every name and description that may be brought against the City or its
commissioners, employees, officers, and City Attorney which may result from any negligent act, omission or
operation of work related to the Services under this Agreement whether the Services be performed by the
Service Provider, or anyone directly or indirectly employed by them. In all events the City and its
commissioners, employees, officers, and City Attorney shall be permitted to choose legal counsel of its sole
choice, the fees for which shall be reasonable and subject to and included with this indemnification provided
herein.
1
36.0 ORDER OF PRECEDENCE
36.1 In case of any inconsistency in any of the documents bearing on the Agreement between the City
and the Service Provider, the inconsistency shall be resolved by giving precedence in the following order:
a. Addenda to this Agreement subsequent to the Effective date of this Agreement;
b. This Agreement;
c. Exhibits to this Agreement; and
d. The Bid documents.
36.2 Any inconsistency in the work description shall be clarified by the City and performed by the
Service Provider.
37.0 AGREEMENT INTERPRETATION
37.1 At its discretion, during the course of the work, should any errors, ambiguities, or discrepancies
be found in the Agreement or specifications, the City at its sole discretion will interpret the intent of the
Agreement and work descriptions and the Service Provider hereby agrees to abide by the City's interpretation
and agrees to carry out the work in accordance with the decision of the City.
37.2 When the material, article, or equipment is designated by a brand name and more than one
brand name is listed, it will be understood that the work is based on one brand name only. The Service
Provider will be responsible for all coordination necessary to accommodate the material, article, or equipment
being provided without additional cost to the City. A substitute material, article, or equipment is allowed if it is
reasonably equivalent to the brand name specified. The City has full discretion to decide whether a substitute
is reasonably equivalent. Service Provider must notify the City prior to use of the substitute for a specified
brand name and allow the City to make a determination before Service Provider uses the substitute.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by
Their duly authorized representatives as of the date first written above.
SERVICE PROVIDER:
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Telephone
CITY:
CITY OF WINTER SPRINGS, FLORIDA
By: Dated 9/ t 7 /a)
Kevin L'Smith, City Manager
ATTES i
By: �'j i.- ,_2
ity Clerk's 0 ice