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2014 10 13 Consent 301 Stormwater Ponds Maintenance ContractCOMMISSION AGENDA ITEM 301 REQUEST: Informational Consent X Public Hearings Regular October 13, 2014 KS KL Regular Meeting City Manager Department The Public Works Department - Stormwater Division requesting authorization to enter into an agreement with The Lake Doctors, Inc. in the amount of $40,656 plus a 10% contingency, for aquatic weed control and maintenance services of City- maintained ponds. SYNOPSIS: The City's annual contract for aquatic weed control and maintenance at 86 City- maintained ponds was advertised for bidding in August 2014. Based on Staffs review of the four bids received, Staff is recommending awarding the annual contract to The Lake Doctors, Inc. at a contract amount of $40,656. CONSIDERATIONS: The City's annual contract for aquatic weed control and pond maintenance services was advertised for bidding in the Orlando Sentinel on August 31, 2014. Bid # ITB 007 /14 /ZP was opened on September 25, 2014 and the four (4) bids received were as follows: Contractor } Bid Amount for Annual Pond 1 ---- -- xxxxxxxxx xxxxxxxxx xxxxxxxxx xxxxxxxx xxxxxxxxx xxxxxxxxx Maintenance Services 1. The Lake Doctors, Inc. $40,656.001 ...... xxxxxxxxx xxxxxxxxx xxxxxxxx xxxxxxxxx xxxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxxx xxxxxxxxx xxxxxxxxx xxxxxxxx z 2. Lake Masters Aquatic Weed Control, Inc. $41,940.001 yv u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v v v. u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v u v 13. Lake and Wetland Management, Inc. $45,942.961 n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.... n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n.. n. .n..n..n..n..n..n..n........... } 4 Clarke Aquatic Services, Inc $49,117.481 Consent 301 PAGE 1 OF 3 - October 13, 2014 . Staff's bid evaluation determined that the low bidder, The Lake Doctors, Inc., has sufficient experience in the services to be provided, including past experience serving the City of Winter Springs. The contract is for the monthly maintenance of 86 stormwater lakes & ponds and 4 canals located throughout the City. The services under the contract include the following activities: • Algae and aquatic weed control in open water areas • Shoreline grass control to the waters' edge in non - vegetated areas • Maintaining vegetation in the bottom of dry ponds at a maximum height of 12- inches • Littoral shelf maintenance - wicking for the control of cattail and primrose willow • Water chemistry and bacteria testing, as needed by the contractor for the success of the control program • Triploid grass carp stocking (to control "Hydrilla" and slender "Spikerush ") based on a unit cost provided in the contract • Removal of all trash and other nonorganic materials (bottles, cans, litter, etc.) that are floating in the pond or at the water line will be conducted as part of each inspection • Overflow structures shall be cleared of weeds and debris at each inspection • Management reporting through the use of daily and monthly reporting forms • Pond #40 (Oak Forest Lake) and Pond #59 (Chelsea Woods Large) may need to be treated with `flouridone' or equivalent once per year, with the schedule to be determined by the City. A unit price for the application of `flouridone' or equivalent is part of the contract. • Pond #111A (Lake Jesup Shoreline at Reclaimed Water Plant) will be sprayed for the maintenance of invasive weeds. The contract period is for twelve months, starting in October 2014, with an option for the City to extend the contract for up to four additional one -year terms, contingent upon satisfactory job performance. In the event this contract is extended, the contract price may be increased to allow for consumer price increases based on Bureau of Labor and Statistics - Consumer Price Index not to exceed two percent. FISCAL IMPACT: The contract amount is $40,656 plus a 10% contingency, for a total authorization of $44,721.60, funded by the Stormwater Utility Fund. COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney /Staff, and is available on the City's Website, LaserFiche, and the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City's Website, LaserFiche, and the City's Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas /Agenda Item information, Homeowner's Associations/Representatives on file with the City, and all individuals who have requested such information. This Consent 301 PAGE 2 OF 3 - October 13, 2014 information has also been 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. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals. RECOMMENDATION: Staff recommends the City Commission authorize entering into an agreement with The Lake Doctors, Inc. in the amount of $40,656 plus a 10% contingency for aquatic weed control and maintenance services of City- maintained ponds, funded by the Stormwater Utility Fund, and authorize the City Manager and City Attorney to prepare and execute any and all applicable documents. ATTACHMENTS: 1. Exhibit A - Orlando Sentinel Legal Advertisement (1 page) 2. Exhibit B - Agreement (11 pages) Consent 301 PAGE 3 OF 3 - October 13, 2014 EXHIBIT A Odando Sent Published Daily ORANGE County, Florida STATE OF FLORIDA COUNTY OF SEMINOLE Before the undersigned authority personally appeared Sheri Schmitz / Adeliris DelValle / Brian Hall / Charity'Casas / Pam Arnold, who on oath says that he or she is an Advertising Representative of the ORLANDO SENTINEL, a DAILY newspaper published at the ORLANDO StNTINEL in ORANGE County, Florida; that the attached copy of advertisement, being a Legal Notice in the matter of 1 1120- Advertisement for Bid, BID NO. ITB 007 /14 /ZP was published in said newspaper in the issues of Aug 31, 2014. Affiant further says that the said ORLANDO SENTINEL is a newspaper published in said ORANGE County, Florida, and that the said newspaper has heretofore been continuously published in said ORANGE County, Florida, each day and has been entered as periodicals matter at the post office in ORANGE County, Florida, in said ORANGE County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that he or she has neither paid nor promised any person, firm or corporation any discount, rebate, commission or refund for the purpose of securing this advertisement for publication in the said newspaper. Signature of Affiant Sworn to and subscribed before me on this 2 day of September, 2014, by Sheri Schmitz / Adeliris DelValle / Brian Hall / Charity Casas / Pam Arnold, who is personally known to me or who has produced identification. Sahrre of Notary Pub(e-- °•-"'° is 'P DEBORAH M. TONEEy NOTARY LFR' '' STATE OF A '`' MY COMMISSIO65219 EXPIRES: Nove2017 Name of Notary, Typed, Printed, or Stamped 2623878 BID NO. ITB# 007/14/ZP EXHIBIT B AGREEMENT FORM Page 1 of 11 THIS AGREEMENT is made and entered into this _ day of 2014, 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 a corporation, hereinafter referred to as "Service Provider ". WITNESSETH: WHEREAS, City wishes to obtain Aquatic Weed Control and Maintenance of Certain Ponds on a continuing basis; and WHEREAS, Service Provider participated in the selection and negotiation process; and WHEREAS, Service Provider is willing to provide such Aquatic Weed Control and Maintenance of Certain Ponds for the City under the terms and conditions stated herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties covenant and agree as follows: 1.0 RECITALS 1.1 The foregoing recitals are deemed to be true and accurate and are fully incorporated herein by reference. 2.0 TERM AND DEFINITIONS 2.1 This contract shall be in effect for twelve (12) months commencing on the Effective Date. The City may extend this contract for up to four (4) additional one year terms, provided the City determines, in its discretion, that Service Provider has adequately performed during the previous term of this contract. In the event this contract is extended, the contract price may be increased to allow for consumer price increases based on Bureau of Labor and Statistics - Consumer Price Index not to exceed 2 (two) percent. The adjustment will be based on the seasonally adjusted CPI for All Urban Consumers for the annual contract period from the same period of the previous year and calculated 30 days prior to renewal. The Agreement may be canceled in whole or part by the City or the Service Provider, upon giving at least (30) days written notice prior to cancellation; EXCEPT as otherwise provided under Section 20 of this Agreement and 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. BID NO. ITB# 007/14/ZP Page 2 of 11 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 a 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 City Stormwater Utility Manager, or his /her designee, who is to provide the general administration of the contract. 3.0 SCOPE OF SERVICES 3.1 Service Provider shall provide Aquatic Weed Control and Maintenance of Certain Ponds, including the furnishing of all labor, equipment, tools, materials, incidentals and the performing of all operations necessary as described in the Statement of Work. 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 Stormwater Utility Manager. Service Provider shall complete all of said services in a timely manner and will keep City apprized of the status of work within 72 hours of any activity taking place. Should Service Provider fall behind on the established schedule, it shall employ such resources so as to comply with the schedule. BID NO. ITB# 007/14/ZP Page 3 of 11 5.2 No extension for completion of services shall be granted to Service Provider without City's prior written consent. 6.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF SERVICE PROVIDER 6.1 General Bid Services. The City shall only pay Service Provider for services actually performed based on the Bid Form. The total amount paid to Service Provider for the first year of this Agreement shall not exceed $ . If this contract is extended, the total annual amount paid to Service Provider shall not exceed that above mentioned number adjusted by the CPI as set forth in paragraph 2.1 of this contract. 6.2 Additional Services. From time to time during the term of this Agreement, City may request that Service Provider perform additional Services not required under the Project Manual. For those additional services agreed upon by the City and Service Provider in writing, City agrees to pay Service Provider a total amount equal to that mutually agreed upon by the parties in writing. 6.3 Payment. Upon receipt of a proper invoice from Service Provider, the City agrees to pay the Service Provider the invoice amount providing said amount accurately reflects the terms and conditions of this Agreement. Invoices may only be submitted on a monthly basis unless otherwise agreed by the City. Unless otherwise agreed in writing by the City, there shall be no other compensation paid to the Service Provider and its principals, employees, and independent professional associates and consultants in the performance of Work under this Agreement. The City agrees to make all payments due within thirty (30) days of receipt of a proper invoice delivered by Service Provider. The Service Provider may only bill the City for actual work performed. 7.0 RIGHT TO INSPECTION 7.1 City or its affiliates shall at all times have the right to review or observe the services performed by Service Provider. 7.2 No inspection, review, or observation shall relieve Service Provider of its responsibility under this Agreement. 8.0 AUDIT AND INSPECTIONS All Service Provider's records with respect to any matters covered by this Agreement shall be made available to the City, at any time during normal business hours, as often as the City deems necessary, to audit, examine, and make excerpts or transcripts of all relevant data. Any deficiencies noted in audit reports must be fully cleared by the Service Provider within seven (7) 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 within 72 hours of any work being performed. The report shall in a BID NO. ITB# 007/14/ZP Page 4 of 11 sufficient manner demonstrate that any funds expended were used to provide the agreed -upon Services. If the detail is not sufficient in the City Project Manager's reasonable discretion to permit the City to determine the Work performed or the manner in which it is being performed, the City may seek more detail from the Service Provider. 11.0 WARRANTY OF PROFESSIONAL SERVICES 11.1 The Service Provider (for itself and any of its employees, contractors, partners, and agents used to perform the Services) hereby warrants unto the City that all of its employees (and those of any of its contractors, partners, and agents used to perform the Services) have sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit of any Work, the Service Provider shall supervise and direct the Work, using its best skill and attention and shall enforce strict discipline and good order among its employees. The Service Provider shall comply with all laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on the performance of the Work. 12.0 CORPORATE REPRESENTATIONS BY SERVICE PROVIDER 12.1 Service Provider hereby represents and warrants to the City the following: a. Service Provider is duly registered and licensed to do business in the State of Florida and is in good standing under the laws of Florida, and is duly qualified and authorized to carry on the functions and operations set forth in this Agreement. b. The undersigned signatory for Service Provider has the power, authority, and the legal right to enter into and perform the obligations set forth in this Agreement and all applicable exhibits thereto, and the execution, delivery, and performance hereof by Service Provider has been duly authorized by the board of directors and /or president of Service Provider. In support of said representation, Service Provider agrees to provide a copy to the City of a corporate certificate of good standing provided by the State of Florida prior to the execution of this Agreement. C. Service Provider is duly licensed under all local, state and federal laws to provide the Services stated in paragraph 3.0 herein. In support of said representation, Service Provider agrees to provide a copy of all said licenses to the City prior to the execution of this Agreement. 13.0 WORK IS A PRIVATE UNDERTAKING 13.1 With regard to any and all Work performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and Service Provider is such that the Service Provider is an independent contractor and not an agent of the City. The Service Provider, its contractors, partners, agents, and their employees are independent contractors and not employees of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor, between the City, on one hand, and the Service Provider, its contractors, partners, employees, or agents, during or after the performance of the Work under this Agreement. 14.0 PROGRESS MEETING 14.1 City Project Manager may hold periodic progress meetings on a monthly basis, or more frequently if required by the City, during the term of work entered into under this Agreement. Service BID NO. ITB# 007/14/ZP Page 5 of 11 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 requirementsherein 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. BID NO. ITB# 007/14/ZP 18.0 DOCUMENTS Page 6 of 11 18.1 Public Records. It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing of the Service Provider and its independent contractors and associates related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or the Service Provider. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Service Provider is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City's City Manager. Upon request by the City, the Service Provider shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours of the Service Provider be open and freely exhibited to the City for the purpose of examination and /or audit. 18.2 The Service Provider acknowledges that the City is a Florida municipal corporation and subject to the Florida Public Records Law. Service Provider agrees that to the extent any document produced by Service Provider under this Agreement constitutes a Public Record, Service Provider shall comply with the Florida Public Records Law. 19.0 ASSIGNMENT 19.1 Service Provider shall not assign or subcontract this Agreement, or any rights or any monies due or to become due hereunder without the prior, written consent of City. 19.2 If upon receiving written approval from City, any part of this Agreement is subcontracted by Service Provider, Service Provider shall be fully responsible to City for all acts and /or omissions performed by the subcontractor as if no subcontract had been made. 19.3 If City determines that any subcontractor is not performing in accordance with this Agreement, City shall so notify Service Provider who shall take immediate steps to remedy the situation. 19.4 If any part of this Agreement is subcontracted by Service Provider, prior to the commencement of any Work by the subcontractor, Service Provider shall require the subcontractor to provide City and its affiliates with insurance coverage as set forth by the City. 20.0 TERMINATION; DEFAULT BY SERVICE PROVIDER AND CITY'S REMEDIES 20.1 The City reserves the right to immediately 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 seven (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 seven (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 BID NO. ITB# 007/14/ZP Page 7 of 11 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 BID NO. ITB# 007/14/ZP Page 8 of 11 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. BID NO. ITB# 007/14/ZP 33.0 NOTICE Page 9 of 11 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: For City: City of Winter Springs Stormwater Utility Manager 1126 East State Road 434 Winter Springs, FL 32708 Phone: (407) 327 -5989 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 BID NO. ITB# 007/14/ZP Page 10 of 11 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. BID NO. ITB# 007/14/ZP Page 11 of 11 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: ANDREA LORENZO - LUACES City Clerk SERVICE PROVIDER: Name Address Telephone CITY: CITY OF WINTER SPRINGS, FLORIDA By: Dated KEVIN L. SMITH City Manager