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2011 01 24 Consent 204 Agreement With Power Exterminators
COMMISSION AGENDA Consent X Informational ITEM 204 Public Hearing Regular January 24, 2011 Regular Meeting Mgr. Dept. Authorization REQUEST: The Community Development Department, Urban Beautification Division, and the Parks and Recreation Department, are requesting approval for the City Manager to enter into a contract agreement with Power Exterminators Inc., totaling $70,620 for chemical services pursuant to public bid ITB • 003 /11 /SR for Central Winds Park. SYNOPSIS: The grounds at Central Winds Park (CWP) have traditionally been maintained by parks staff as part of the ongoing Parks and Grounds Maintenance Program. The chemical applications portion of their maintenance program has been deficient for several years due to reductions in staffing, lack of training, and a progressive reduction in chemical purchases for the care of athletic fields and common areas within CWP. This has resulted in a sharp decline in the appearance of this once `Award Winning' Facility. Staff believes that contracting out the chemical program will save time and money while providing an increase in quality of service at this facility. Requirements of the chemical program for CWP include provisions for a re- treatment guarantee where chemical applications are unsuccessful for any reason, including replacement of turf that declines due to lack of performance. CONSIDERATIONS: On January 7, 2011, ITB 003:11 /SR was opened at a public meeting with seven (7) sealed bids having been submitted to the City as detailed on Attachment B' of this item. As part of the due diligence process, a review committee consisting of four (4) staff • members evaluated each proposal for bidder responsiveness and responsibility. Out of the proposals received and evaluated by the committee, only five (5) were determined to be qualified submittals and within the projected budget of $ 100,000 or Less. During the evaluation process the staff review committee ranked all qualified bidders based on factors including but not limited to: cost, experience, references, financial statements, integrity, licenses, quality, ability, and the necessary insurance coverage(s). Based on outcomes of this process, the committee unanimously selected Power Exterminators, Inc., as the most qualified bidder for recommendation to the City Commission for award of ITB 003 /11 /SR, at a cost of $70,620. D &A Building Services provided the lowest bid and is not being recommended by the review committee for the following reasons: 1. Chemical applications are heavily regulated by the State of Florida, especially where Restricted Use Pesticides (RUP) are used and may come into contact with the public. D &A has less than 2 years registered as a licensed pest control company in Florida. 2. High volume athletic fields such as those at CWP have unique and specialized requirements for diagnosis and chemical care. Staff feels that D &A's lack of experience on similar projects may put the City at risk for loss of turf and undue safety concerns related to public exposure. 3. D &A has provided a limited equipment register and staff is concerned that the complex requirements of this project could not be sufficiently met in a timely manner with their current equipment. 4. Performance has been average for the existing landscape contract (ITB 004 /10 /SR) with Winter Springs for Tuskawilla Road, Town Center Phl, and the Oak Forest Wall and Beautification District. BID RESULTS Bidder Base Bid Review Notes P &L Lawn Maint. $95,388 Established company, only fair performance for other chemical contract with the City. JSM Services $125,400 Bid beyond budget. Carol King Landscaping $96,324 Poor previous experience on other contract with the City. TruGreen $64,500 Disqualified due to poor performance on a prior contract with the City. D &A Building Svcs. S57,722 Limited experience on like projects. Equipment register is lacking. Power Exterminators $70,620 Large, established company with multiple locations. Extensive Athletic and Golf Turf experience. Impressive revenue. Kirkland's Prop. Serv. $96,996 Very small, established company with experience. Solid references. FISCAL IMPACT: Funding for the Central Winds Park Chemical Program (ITB# 003 /11 /SR) shall come from Parks and Grounds Line Code (7230 - 53186) in the amount of 570,620 as follows: • FY '11 - $47,080 (Feb 1, 2011 thru Sept 30, 2011) Transferred from Salaries Line Code to Parks and Grounds Line Code (7230 - 53186) Available funding from four (4) unfilled budgeted positions: ( including benefits for FT positions) o Crew Chief S35,519 o Maintenance Worker 529,222 o 2 — P.T. Maintenance Worker $26,770 Total $91,511 FY' 11 Savings $44,431 COMMUNICATION EFFORTS: ITB# 003 /11 /SR Central Winds Park Chemical Program was broadcast to more than 200 bidders throughout Central Florida through advertisements in the Orlando Sentinel, Demand Star and the City's website bid system. This Agenda Item has also been forwarded to the Mayor and City Commission; City Manager; City Attorney /Staff; placed in Press Packets; placed in the City Hall (Lobby) City Commission Meeting binder; and is available on the City's Website, LaserFiche, and the City's Server. Further, information related to this Agenda Item has been sent to media/press representatives who have requested Agendas /Agenda Item information, all Homeowner's Associations on file with the City, all individuals who have requested Agendas /Agenda Item information, Department Directors; and also posted outside City Hall; posted inside City Hall with additional copies available for the general public; and posted at five (5) different locations around the City. RECOMMENDATIONS: Staff recommends the City Commission review and approve a contract with Power Exterminators, Inc., for the Central Winds Park Chemical Program (ITB 003 /11 /SR), at a cost of 570,620. If approval is granted staff recommends the City Commission authorize the City Manager and the City Attorney to prepare and execute any and all applicable documents required for this project. IMPLEMENTATION SCHEDULE: The contract will commence on February 1, 2011 for a 12 month period and terminate on January 31, 2012, with up to two (2) additional one (1) year terms as per Section 2.1 of the contract. ATTACHMENTS: Attachment A Agreement Form — ITB 003 /11 /SR 1. Power Exterminators, Inc. Attachment B Central Winds Park Chemical Program ITB 003 /11 /SR Bid Tab Attachment `A' - Agreement Form AGREEMENT FOR CHEMICAL SERVICES THIS AGREEMENT FOR CHEMICAL SERVICES ( "Agreement ") is made and entered into by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation ( "City"), located at 1126 East State Road 434, Winter Springs, Florida 32708, and Power Exterminators, Inc., authorized to conduct business in Florida ( "Service Provider "), located at 385 Center Pointe Circle, Altamonte Springs, FL 32710. WITNESSETH: WHEREAS, City wishes to obtain Central Winds Park Chemical Program Services on a continuing basis; and WHEREAS, Service Provider participated in the selection and negotiation process; and WHEREAS, Service Provider is willing to provide such Central Winds Park Chemical Program 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 GENERAL PROVISIONS 1.1 Recitals. The foregoing recitals are deemed to be true and accurate and are fully incorporated herein by reference. 1.2 Engagement. The City hereby engages Service Provider and Service Provider agrees to perform the Services outlined in this Agreement for the stated fee arrangement. No prior or present agreements or representations shall be binding upon any of the parties hereto unless incorporated in this Agreement. 1.3 Due Diligence. Service Provider acknowledges that it has investigated prior to the execution of this Agreement and satisfied itself as to the conditions affecting the Services, the availability of materials and labor, the cost thereof, the requirements to obtain necessary insurance as set forth herein, and the steps necessary to complete the Services within the time set forth herein. Service Provider warrants unto the City that it has the competence and abilities to carefully and faithfully complete the Services within the time set forth herein. Service Provider will perform its Services with due and reasonable diligence consistent with sound professional practices. 2.0 TERM AND DEFINITIONS 2.1 This contract shall be for a term of twelve (12) months commencing on February 1, 2011 and terminating on January 31, 2012. By mutual agreement of both parties hereto, the term of this Agreement may be extended 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 Agreement. 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 2 (two) percent. The adjustment will be based on the annual contract period from the same period of the previous year and calculated 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 Agreement. 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 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 Power Exterminators, 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 Parks and Recreation Department, Director, Assistant Director, or his designee, who is to provide the general administration of the Agreement. 3.0 SCOPE OF SERVICES 3.1 Service Provider shall provide those services for Central Winds Park Chemical Program, for the City of Winter Springs, as set forth in the "Scope of Work," attached hereto as Exhibit 'A' and fully incorporated herein by this reference, 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 Compensation. For the Services provided pursuant to the Agreement, the City agrees to pay Service Provider a sum not to exceed Seventy Thousand Six Hundred and Twenty Dollars ($70,620). If this Agreement is extended, the total annual amount paid to Service Provider shall not exceed the above mentioned number adjusted by the Producer Price Index as set forth in paragraph 2.1 of this Agreement. 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. 2 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 Ag reement. 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: 3 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. 4 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 Agreement 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. 5 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. 6 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 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. 7 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: Power Exterminators, Inc. 385 Center Pointe Circle Altamonte Springs, FL 32710 For City: City of Winter Springs Parks and Recreation Department 1126 East State Road 434 Winter Springs, FL 32708 Phone: (407) 327 -6597 Facsimile: (407) 327 -4763 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 8 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. * *Continued on next page ** 9 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 (Printed and Signed) Title Date CITY: CITY OF WINTER SPRINGS, FLORIDA A Florida municipal corporation KEVIN L. SMITH City Manager Date ATTEST: ANDREA LORENZO- LUACES, City Clerk 10 Exhibit 'A' — Scope of Work TECHNICAL SPECIFICATIONS SPECIFIC TASKS The Technical Specification of this project manual is designed to allow for each contractor bidding, to customize a chemical program for the property with the minimum requirements being pre- defined by the City. Therefore, we are asking that you tailor your comprehensive proposal to the specific field requirements for each specific area of the property and provide the highest quality program for each area based on the context and reputation of Central Winds Park as being an `Award Winning' National Facility. Keep in mind that you will be required to re -treat areas that do not respond to your initial applications, at no additional charge, in addition to the potential of replacements as a result of an inadequate and uncontrolled program. You are providing a service guarantee. 1. CHEMICAL PROGRAM - GENERAL OVERVIEW FERTILIZATION /PEST CONTROL- TURF The general program shall meet or exceed the University of Florida Cooperative Extension Services yearly Calendar for sod care and culture, and good horticultural practices standards. The program shall be based on soil samples taken at random from various areas of the site, in sufficient number so as to be characteristic of the areas to be fertilized. The cost of the securing and analyzing the soil samples shall be included in the bid. The results of the soils sampling shall be reported to the City representative. In addition to fertilization applications, services are to be performed for control of all damaging lawn insects, including but not limited to: Chinch Bugs, Mole Crickets, Sod Web Worms, Army Worms. Nematodes (as required and approved by the City), Fire Ants, and Fleas. TopChoice ® shall be applied in April to the specific areas shown in Attachment #1 - Applications Schedule. Treatment of Broadleaf Weeds and Sedge Weeds with a pre- emergent and /or selective herbicide are also included in the program. Disease applications shall be included and performed as needed. Soil amendments, nutrients, pesticides, fungicides, and any other chemicals deemed proper and beneficial, or are required to maintain the turf and plant material by the Contractor, shall be included in the program at no additional cost. All fertilizers shall always contain minor elements. A minimum of six (6) fertilization (3 granular) applications shall be applied on all St. Augustine grass annually at approximately two -month intervals. Additional spot treatments may be needed in certain areas due to various conditions that may occur. Such additional treatments shall be deemed to be included in the contract price. One (1) fertilization (granular) shall be applied to all irrigated Bahia grass (if applicable and within the project area) annually in mid - summer (unless otherwise specified). No chemical application shall be made to non - irrigated Bahia grass. Spot treatments of insecticide and/or fungicide may be necessary throughout the year due to varying field conditions. Such additional treatments shall be deemed to be included in the contract price. Bermuda and Paspalum turf fertilization and pesticide applications shall be scheduled in accordance with Attachment #1 - Applications Schedule, at minimum. Applications of fertilizer shall follow Cooperative Extension Service suggested guidelines and sound horticultural practices for each applicable turf variety. Any turf areas or landscape materials, killed or damaged as a result of over - fertilization or lack of chemical application will be re- established to an acceptable condition. SPECIFIC TURF CARE • St. Augustine This program shall be in accordance with the University of Florida Cooperative Extension Services Calendar for St. Augustine sod care, culture, and good horticultural practice as shown in Publication ENH 5. 11 • Bahiagrass This program shall be in accordance with the University of Florida Cooperative Extension Services Calendar for Bahiagrass sod care, culture, and good horticultural practice as shown in Publication ENH 6. • Seashore Paspalum This program shall be in accordance, at minimum, with the University of Florida Cooperative Extension Services Calendar for Seashore Paspalum sod care, culture, and good horticultural practice as shown in Publication ENH 897 and 'Suggestions for the care of Seashore Paspalum' by Environmental Turf, Inc. © 2004. • Bermudagrass This program shall be in accordance, at minimum, with the University of Florida Cooperative Extension Services Calendar for Bermudagrass sod care, culture, and good horticultural practice as shown in Publication ENH 19, keeping in mind that service specifications must be tailored to compensate for the heavy usage of our athletics leagues and training organizations. FERTILIZATION /PEST CONTROL -TREES AND SHRUBS The spraying of irrigated shrubs (and trees less than 4" caliper) shall be done in accordance with F.S. Chapter 482 Pest Control and suggested methods of the Cooperative Extension Service. A minimum of three (3) applications (2 granular) of fertilization, insect, and disease control material shall be applied to irrigated shrubs (and trees less than 4" caliper) during the contract period. A minimum of one (1) application (granular) of fertilization shall be applied to non - irrigated shrubs (and trees less than 4" caliper) during the contract period. Additional spot treatments deemed to be necessary for the effective control of harmful disease and insect infestations shall be applied as needed. These additional applications shall be deemed to be included in the contract price. PLANT REPLACEMENT The Contractor shall be responsible for replacing any plant materials or sod areas that die or become damaged to the point that the plant grade drops below Florida Number 1 as a result of neglect or damage by the Fertilization, Pest, or Disease Control Program operation. Replacement material shall be identical to plant species, quality, and specifications of the materials at the time the loss occurs. TURF, TREE, AND SHRUB CARE PROGRAM TURF ANALYSIS Turf analysis reports are to be provided to the City Representative at each service. Items to be evaluated are as follows: Overall Turf Condition (including but not limited to:) Color, grade, density, and maintenance condition Thatch Thatch problem evident, Thatch present, but no problem at this time, No thatch problem, Renovation recommended, and Vertical Cutting recommended 12 Presence of Grass - type Weeds (including but not limited to:) Annual bluegrass, Quackgrass Crabgrass, Sandbur Dallisgrass, Sedges, and Goosegrass, Smutgrass Presence of Broadleaf Weeds (including but not limited to:) Betony, Knotweed, Beggarwood, Black Medic, Lespendeza, Thistle, Buttonweed, Matchweed, Henbit, Centella, Oxalis, Spurge, Chickweed, Plantain, Ground Ivy. Dandelion, Pusley, Dollarweed, Purslane, Detection of Insects (including but not limited to:) Armyworm, Fire Ant, White Grub, Chinch Bug, Mole Cricket, Ox Beetle Cutworm Sod Webworm. Detection of Diseases (including but not limited to:) Brown Patch, Fairy Ring, Dollar Spot, Leaf Spot, Grey Leaf Spot, Necrotic Ring Spot, Pythium Blight Root Rot. TREATMENT Timely and prompt treatment is to be performed on all areas detected with problems and areas at risk. A 7 -10 day follow -up appointment is to be set with the City Representative to ensure eradication of disease or pest problems. Subsequent visits, if necessary, are to be scheduled until the problems no longer exist. DAMAGE /REPLACEMENT Damage to materials and any required replacements are to be addressed no later than ten (10) days from the date of detection. PROJECT PROGRAM In general, and at minimum, the turf program will consist of both pre and post emergent weed controls, fertilizer with potash, micronutrients and iron to encourage proper growth, root development and maintain a lush, green conditions that is expected. In addition, a disease, weed, pest and fungal control program shall be instituted that includes but is not limited to: treatment for broadleaf weeds, a blanket insecticide control to target specific pest populations especially sod webworm, chinchbugs and mole crickets, and a target specific fungicide for infected materials. Crabgrass can be addressed as required by applying a non - selective herbicide directly onto the infested turf areas while limiting application to only crabgrass infested areas. Chemicals for crabgrass treatment in St. Augustine are changing and new applications approved for treatment may be used as needed and/or specified by the City of Winter Springs. 13 The ornamental program will consist of insect controls to effectively control sucking and piercing insects such as aphids, lacebugs, whitefly,scale and trips. The insect control will be a combination of a granular systemic control, and liquid insecticides. Fertilization of micronutrients and iron shall be used consisting of a specially blended slow release granular fertilizer for timely feedings of plants. Liquid tree injections may be done on an as needed basis. The Contractor must stagger the treatments of the turf and the ornamental applications so that someone will be on the property twenty -four (24) times per year for inspections and applications. Service Provider shall notify the City's Project Manager at least (48 hours) prior to any chemical application under this agreement. After each treatment is performed, a detailed report shall be submitted to the Owner /Representative for analysis and discussion. * *End of Section ** 14 BID TABULATION Attachment 'B' - Bid Tabulation CITY OF WINTER SPRINGS, FL 1126 EAST STATE ROAD 434 WINTER SPRINGS, FL 32708 407 - 327 -1800 ITB NUMBER: ITB- 003 /11 /SR PROJECT NAME: CENTRAL WINDS PARK CHEMICAL PROGRAM Opened: 3:00 P.M. Closed: 3:05 P.M. Date: JANUARY 7, 2011 Called By: Steven Richart, Community Development Urban Beautification Manager Witnessed By: Alan Greene, Parks and Recreation Department Company Name: TruGreen Limited Partnership Address: 2175 N. Forsyth Road, Orlando, FL 32807 Base Bid: $ 64,500 Services: Chemical Company Name: D&A Building Services, Inc. Address: 321 Georgia Avenue, Longwood, FL 32750 Base Bid: $ 57,722 Services: Chemical Company Name: Kirkland's Property Management Services, LLC. Address: 224 Sterling Rose Court, Apopka, FL 32703 Base Bid: $ 96,996 Services: Chemical Company Name: Carol King Landscape Maintenance, Inc. Address: 7032 Old Cheney Hwy, Orlando, FL 32807 Base Bid: $ 96,324 Services: Chemical Company Name: Power Exterminators, Inc. Address: 385 Center Pointe Circle, Alt. Sprgs., FL 32710 Base Bid: $ 70,620 Services: Chemical Company Name: P &L Lawn Maintenance Address: 300 N. Goldenrod Road, Orlando, FL 32807 Base Bid: $ 95,388 Services: Chemical Company Name: JSM Services Address: P.O. Box 897, Lutz, FL 33548 Base Bid: $ 125,400 Services: Chemical