HomeMy WebLinkAbout2008 08 25 Consent 200 Central Florida Landscaping and Maintenance, Inc.
COMMISSION AGENDA
ITEM
200
CONSENT X
INFORMA TIONAL
PUBLIC HEARING
REGULAR
August 25, 2008
Meeting
11 /~"
MGR IV IDEPT
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Authorization
REQUEST: Community Development Department is requesting authorization to enter into a
contract agreement with Central Florida Landscaping and Maintenance, Inc. for
landscaping to be installed pursuant to a Florida Department of Transportation
(FDOT) State Road 434 Highway Beautification Grant in the amount of
$142,000.
PURPOSE: The purpose of this agenda item is to request authorization to enter into
a contract agreement for installation of landscaping as part of a FDOT Highway
Beautification Grant Joint Participation Agreement (JP A) for State Road 434 Medians
located in the Winter Springs Town Center District.
CONSIDERATIONS:
On May 22, 2006, in Commission Agenda Item 302, Staff presented a State Road 434
Beautification Program consisting of landscaping and hardscaping improvements for State
Road 434 Medians located between Central Winds Boulevard and Tuskawilla Road. The
landscape portion of the project was detailed to cost $142,000 for trees and shrubs that would
further enhance the developing Town Center District.
In July 2007, Staff secured a FDOT Highway Beautification Grant that would fund
all costs for landscaping as previously presented on May 22, 2006, in Agenda Item 302. The
beautification grant requires that funding be provided in advance by the City to install
landscaping pursuant to the approved plans, and once completed and accepted by FDOT, the
expenditure would be reimbursed in full to the City (up to $142k) by FDOT.
On April 9, 2007, in Commission Agenda Item 302, the Commission approved
Resolution 2007-16 authorizing the City Manager to enter into an agreement with FDOT for
the grant project. FDOT JPA (AOR53) was executed April 30th, 2007 by the City of Winter
Springs and FDOT.
On June 20, 2008, FDOT informed City Staff of approval of the submitted plans and
authorization of funding for the grant project. Staff later published the bid release date of July
23, 2008 and distributed the project manual for public bid (ITB 012/08/SR), with a
submission deadline of August 14, 2008 at 3pm for this project. Eight (8) landscaping
contractors submitted proposals with four ( 4) failing to qualify due to the lack of
documentation requested for their submissions.
Qualified bids for ITB 012/08/SR are shown ranked with results as follows:
Rank Firm Cost Result
1. Central Florida $135,000 Stafffeels this company will provide the best overall product.
CFL&M was the subcontractor that installed landscaping for
Blumberg Blvd.
2. Annan Landsc. $126,170 Staffmade a site visit to several current projects and did not see the
quality attributes desired for this project.
3. Florida Green $137,962 Staff feels this company does nice work but is concerned with the
size and scope of past projects as compared with this proposal.
4. REW Custom $135,359 Staff feels this company does excellent work but is concerned due to
the fact that last year RE W cancelled the Tuskawilla Road
Maintenance Contract without proper notice.
After careful consideration, Staff is recommending Central Florida Landscaping and
Maintenance, Inc. for contract award at a base cost of $135,000, plus an additional $7,000 in
upgrades to the landscape plan, based upon their past performance with the Blumberg Blvd.
median project and current maintenance contracts with the City.
FUNDING:
Expenditures for work performed pursuant to (ITE 012/08/SR) will be funded from
Arbor Fund - Line Code (110-54685-30111) in the amount of $135,000 for the base bid plus
$7,000 in upgrades; a total of $142,000. FDOT will reimburse the entire $142,000
expenditure upon successful completion and approval of the project.
RECOMMENDATION:
It is recommended that authorization be given for the City Manager to enter into a
contract agreement with Central Florida Landscaping and Maintenance, Inc., at a cost of
$135,000 for the base bid plus $7,000 in upgrades, to provide landscape installation services
for the State Road 434 Highway Beautification Grant Project (ITB 012/08/SR).
IMPLEMENT A TION SCHEDULE:
The contract will commence on September 1,2008 for a maximum two month period. The
contractual deadline with FDOT for completion of lPA (AOR53) is April 30, 2009.
A TT ACHMENTS:
1. Agreement Form - Central Florida Landscaping and Maintenance, Inc.
2. ITB 012/08/SR - Bid Tabulation
3. ITB 012/08/SR - Bid Analysis
COMMISSION ACTION:
Attachment #1 - Agreement Form
AGREEMENT FORM
ITB 012/08/SR
THIS AGREEMENT is made and entered into this day of , 2008, 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 Central Florida Landscaping
and Maintenance, Inc., a Florida Corporation hereinafter referred to as "Service Provider".
WITNESSETH:
WHEREAS, City wishes to obtain landscape installation services for the SR 434 FOOT (AOR53)
Landscaping Project; and
WHEREAS, Service Provider participated in the selection and negotiation process; and
WHEREAS, Service Provider is willing to provide such services 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 two (2) consecutive months, or until the project has been
accepted by the City, commencing on the Effective Date. 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 Central Florida Landscaping and
Maintenance, Inc., 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 the
Urban Beautification Manager for the City, or his designee, who is to provide the general
administration of the contract.
3.0 SCOPE OF SERVICES
2.1 Service Provider shall provide landscape installation services for the SR 434 FOOT (AOR53)
Landscaping Project, 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 Representative. 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 base amount paid to Service Provider for this Agreement shall not
exceed $135.000 (One Hundred and Thirtv Five Thousand) Dollars.
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 Service Provider 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 Service Provider, prior to the commencement of any Work subcontracts any part of this
Agreement 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 (7) 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 (7)
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 has 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 is authorized to, nor shall either party act toward third persons or the public in any
manner which would indicate any such relationship with the other 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:
Central Florida Landscaping and Maintenance, Inc.
Attn: Paul Bonadonna, J.R.
P.O. Box 620645
Oviedo, FL 32762-0645
For City:
City of Winter Springs
Urban Beautification Services Division
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:
Signature
Name
Address
Telephone
CITY:
CITY OF WINTER SPRINGS, FLORIDA
By: Dated
RONALD W. MCLEMORE
City Manager
ATTEST:
By:
City Clerk's Office
Attachment #2 - Bid Tabulation
CITY OF WINTER SPRINGS, FL
1126 EAST STATE ROAD 434
WINTER SPRINGS, FL 32708
407-327-1800
SR 434 FDOT (AOR53) LANDSCAPING PROJECT
ITB 012/08/SR
Called By:
Nancy V obomik-Purchasing Coordinator
ITB Opened:
3:00 PM
ITB Closed:
3:14 PM
Date:
August 14, 2008
Witness:
Steven Richart-Urban Beautification Services Manager
Central Florida Landscaping and Maintenance, Inc.
Contact: Paul Bonadonna Jr
PO Box 620645
Oviedo, FL 32762-0645
Phone- none given
Base Bid: $ 135,000.00
Annan Landscape Co LLC
991 Explorer Cove, Suite 133
Altamonte Springs, FL 32701
Phone - none given
Base Bid: $ 126,170.00
Ken-Lin Landscaping, Inc
2901 Alafaya Trail
Oviedo, FL 32765
Phone 407-365-6190
Base Bid: $ 114,963.31
Concepts in Greenery Inc
16366 Old Cheney Hwy
Orlando, FL 32833
Phone: 407-568-2000
Base Bid: $ 86,066.00
Page Two
Florida Irrigation & Putting Greens, Inc
DBA: Florida Green
Contact: Paula Warren
1858 Murphy St
Oviedo, FL 32765
Phone 407-359-7376
Fax 407-359-4973
Base Bid: $ 137,962.51
REW Custom Landscape LLC
1469 N New York Street
Sanford, FL 32771
Contact: John Cerabino, Mgr.
Phone: 407-328-9425
Fax: 407-324-9448
Base Bid: $ 134,359.70
Vial & Son Landscaping Corp
1900 Williams Road
Winter Garden, FL 34787
Base Bid: $ 112,955.00
R.G Landscapes, Inc
677 Olean Court
Winter Springs, FL 32708
Contact: Richard Geer
Cell: 321-228-7174
Base Bid: $ 88,587.30
ATTACHMENT 3 - BID ANALYSIS
Consent 200 - August 25, 2008
Bid Analysis - SR434 (AOR53) FOOT Landscape Project
Bid # ITB 012/08/SR
Aug-08
SCORE
0= Failed to Qualify
1 -5 = Quality (1 lowest / 5 highest)
FTQ = Failed to Qualify
~
~
Bidder Responsiveness Score Responsible Score Due Diligence Total Rank
Base Doc. Corp. Camp. Cust. Bid InsurancE Unit Financial Prove Provide Provide Work Unit Price
Bid Signed Seal Forms Refs. Security Provided Costs Resources Experience Occ. Lic. Licenses Quality Value
Central FL. $135,000.00 5 5 5 5 5 5 5 5 5 5 5 5 5 65 1
Ken-Lin $114,963.31 5 5 5 0 5 0 5 0 0 0 5 4 5 39 FTQ
Annan $126,170.00 5 0 4 5 5 5 5 5 5 5 4 3 4 55 2
Concepts $86,066.00 5 0 4 0 5 0 5 0 0 0 0 3 4 26 FTQ
FLA. Green $137,962.51 5 5 5 5 5 5 5 5 5 5 5 4 3 62 3
REW Custorr $135,359.70 5 0 4 5 5 5 5 3 5 5 0 5 3 50 4
Vila & Son $112,955.00 5 5 5 0 5 0 5 0 0 0 0 3 5 33 FTQ
RGL $88,58730 0 0 0 5 0 0 0 0 2 0 0 4 0 11 FTQ
0
0
0
0
0
. Ranking score is a result of a combination of factors including: price, responsiveness, responsibility and results of the due diligence process including
potential site visits to references. A rank of Failed to Qualify 'FTQ' will be given if the bid security is not received or the total score is below 45.
EXEL Evaluation Main!. Serv
I
AGREEMENT FORM
ITB 012/08/SR
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THIS AGREEMENT is made and entered into this ~ 6 day of I'`S~ , 2008, 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 Central Florida Landscaping
and Maintenance, Inc., a Florida Corporation hereinafter referred to as "Service Provider".
WITNESSETH:
WHEREAS, City wishes to obtain landscape installation services for the SR 434 FDOT (AOR53)
Landscaping Project; and
WHEREAS, Service Provider participated in the selection and negotiation process; and
WHEREAS, Service Provider is willing to provide such services 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 two (2) consecutive months, or until the project has been
accepted by the City, commencing on the Effective Date. 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 Central Florida Landscaping and
Maintenance, Inc., 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 the
Urban Beautification Manager for the City, or his designee, who is to provide the general
administration of the contract.
3.0 SCOPE OF SERVICES
2.1 Service Provider shall provide landscape installation services for the SR 434 FDOT (AOR53)
Landscaping Project, including the furnishing of all labor, equipment, tools, materials, incidentals and the
pertorming 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 Representative. 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 base amount paid to Service Provider for this Agreement shall not
exceed $135,000 (One Hundred and Thirty Five Thousand) Dollars.
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.
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.
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 Service Provider 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 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 pertorming in accordance with this Agreement,
City shall so notify Service Provider who shall take immediate steps to remedy the situation.
19.4 If Service Provider, prior to the commencement of any Work subcontracts any part of this
Agreement 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:
Service Provider defaults in the performance of any material covenant or condition of this
Agreement and does not cure such other default within fourteen (7) 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 (7)
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 pertormance 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 has 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 is authorized to, nor shall either party act toward third persons or the public in any
manner which would indicate any such relationship with the other 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:
Central Florida Landscaping and Maintenance, Inc.
Attn: Paul Bonadonna, J.R.
P.O. Box 620645
Oviedo, FL 32762-0645
For Citv:
City of Winter Springs
Urban Beautification Services Division
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;
Exhibits to this Agreement; and
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.
~-
ATTEST:
By: /I
r c's Office
Signature
Name
Address 3~/ /~~,- o25g7
Telephone
CITY:
CITY OF WINTER SPRINGS, FLORIDA
By: r`~~,r~t~ !~ lY~'` F.y-,--f ~~ Dated ~ -~
RONALD . MCLEt'dlORE ~ -
City Manager ~~