HomeMy WebLinkAbout2016 11 21 Consent 302 Tuscawilla Lighting and Beautification District Landscape Maintenance ContractCOMMISSION AGENDA
ITEM 302
Informational
Consent
X
Public Hearings
Regular
November 21, 2016 KS KL
Special Meeting City Manager Department
REQUEST:
The Public Works Department, Urban Beautification Division, requests that the City
Commission grant authorization to enter into an agreement with Brightview Landscape
Services, Inc. for the annual landscape maintenance of the Tuscawilla Lighting and
Beautification District (TLBD), RFP 008- 16 -SM, in the amount of $122,079.
SYNOPSIS:
The TLBD maintains the 23 medians of Winter Springs Boulevard, totaling approximately 3
miles, and the 10 entrance monuments into Tuscawilla. Landscape maintenance includes
mowing, edging, line trimming, tree /shrub care, mulching, chemical, and irrigation
maintenance of these areas. If awarded, the contract will start on December 1 st, 2016. Staff
is requesting that the Commission grant Staff the ability to renew the contract for five
consecutive one year terms based on contractor performance.
CONSIDERATIONS:
Eastwood Tuff Turf has held the landscape maintenance contract for TLBD for the past
three years. The TLBD board expressed concern that the landscape was not receiving
the level of detail and service that they desired and requested that the landscape
maintenance contract be put out to bid with revised specifications requesting a higher
level of service to include more frequent service days. The following proposals for
landscape maintenance services were received:
• Annan Landscape Company - $174,240
• Carol King Landscape Maintenance - $159,300
• Brightview Landscape Services - $149,079
Consent 302 PAGE 1 OF 3 - November 21, 2016
Eastwood Tuff Turf - $135,000
The board elected board member Tom Vagnini as their "landscape liaison" to assist staff
with the review and ranking off all landscape maintenance proposals. The review
committee consisted of the following:
Kipton Lockcuff, Utility/Public Works Director
Brian Fields, City Engineer
Stephanie Monica, Urban Beautification Manager /Arborist
Sara Miller, Urban Beautification Coordinator
Tom Vagnini -TLBD board member
The four landscape companies that submitted proposals were ranked 1 -4 based on such
factors as the size of their company, ability to provide the required level of service,
amount of equipment, current workload, quality of references, and price. References for
Brightview and Carol King were reviewed in person by Stephanie Monica and Tom
Vagnini and pictures provided to the rest of the review committee for consideration.
Brightview currently maintains the landscaping for the City of Ocoee, Baldwin Park,
and The Villages. Carol King currently maintains the length of Lake Nona Boulevard
from Narcoossee Road to the 417, the medians of International Drive from Sand Lake
Road south to Destination Parkway, and the office buildings of Dr. Philips, Inc. The
landscape companies were ranked as follows:
#1 - Brightview Landscape Services
#2 - Carol King Landscape Maintenance
#3 - Annan Landscape
#4 - Eastwood Tuff Turf
The current TLBD maintenance contract with service provided by Eastwood Tuff Turf
totals $65,840 annually. This includes weekly service from February 15th through
October 15th and biweekly service October 16th through February 14th. The contract
also includes one annual mulching. Pursuant to the board's request, the specifications
for the new contract include weekly service year round and twice weekly service from
April 1st to December 1st. Brightview's price of $149,079 reflects two annual
mulchings.
At their quarterly meeting held on October 19th, 2016, the TLBD board approved the
Brightview contract with just one annual mulching, bringing the total annual contract
price down to $122,079. If awarded, the Brightview contract would result in an annual
expenditure increase of $56,239. The increased price is due to the fact that weekly
service will be provided all year and twice weekly service will be provided 8 months out
of the year. The amount of mulch required to adequately cover Winter Springs
Boulevard and all the entrance monuments was also increased. If approved, Brightview
will begin work on December 1st, 2016.
FISCAL IMPACT:
The Brightview contract cost of $122,079 is within the budget of the TLBD Maintenance
Fund.
COMMUNICATION EFFORTS:
This Agenda Item has been electronically forwarded to the Mayor and City Commission,
Consent 302 PAGE 2 OF 3 - November 21, 2016
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
information has also been posted outside City Hall, posted inside City Hall with additional
copies available for the General Public, and posted at six (6) 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
Brightview Landscape Services, Inc. for the landscape maintenance of the Tuscawilla
Lighting and Beautification District in the amount of $122,079 annually plus a 10%
contingency for up to five consecutive one year terms.
ATTACHMENTS:
1. Orlando Sentinel RFP Advertisement (1 page)
2. Agreement Form (13 pages)
Consent 302 PAGE 3 OF 3 - November 21, 2016
Orlando Sentxl
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CITY OF WINTER SPRINGS REaUEST FOR
PROPOSALS
Land scape Maintenance Services for the
Tuscavvdla Lighting and Beautification
District
The City of Winter Springs, Florida,
Invites the submittal of proposals from
professional landscape maintenance
companies for landscape maintenance
services for the Tusca it la Lighting
and Beautification District (TLBD).
The TLBD service area consists
of the median of W nter Springs
Boulevard from TuskawiIIa Road
to Seneca Boulevard, which~ is
approximately 3 miles, along with 10
entrance monuments. The median
of Winter Springs Boulevard has
a 2 wire irrigation system and is
landscaped with St. Augustine turf,
mature canopy trees, and various
shrubs and groundcovers. The 10
entrance monuments have a traditional
irrigation system and are landscaped
with shrubs and groundcover. The
landscape maintenance services
shall consist of landscape, chemical,
and irrigation maintenance of areas
described above.
Landscape maintenance companies
Interested in providing these services
may download the RFP from: htfp:!}
www.winterspringsfl.org /E Wweb/gov/
bids purchasing.htm
Submittals are due by 2:00 PAA on
Wednesday, September 28th, 2016. Any
questions regarding this RFP shall be
directed to Stephanie Ntonica, Urban
Beautification Manager, at smonicad
winterspringsfl.org.
SE 554393489 W412016
Page 9 of 21
AGREEMENT FORM
THIS AGREEMENT is made and entered into this _ day of 2016, 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 Landscape Maintenance of Tuscawilla Lighting and
Beautification District on a continuing basis; and
WHEREAS, Service Provider participated in the selection and negotiation process; and
WHEREAS, Service Provider is willing to provide such Landscape Maintenance of
Tuscawilla Lighting and Beautification District 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 five (5) 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.
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
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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 Urban Beautification 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 Landscape Maintenance of Tuscawilla Lighting
and Beautification District 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 Urban Beautification Manager. Service Provider shall complete
all of said services in a timely manner and will keep City apprized of the status of work in the
monthly progress reports. Should Service Provider fall behind on the established schedule, it
shall employ such resources so as to comply with the schedule.
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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 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.
6.2 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 completion of
work by Service Provider. The Service Provider may only bill the City for actual work completed.
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.
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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. Progress reports shall be submitted with the invoice for
monthly maintenance services.
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
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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.
14.2 Contractor may be required to attend a quarterly meeting of the Tuscawilla
Lighting and Beautification District Board, held at the City Hall Commission Chambers at 5:15pm.
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
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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.
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.
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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
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.
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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.
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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:
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For Service Provider:
For City:
City of Winter Springs
Urban Beautification Manager
1126 East State Road 434
Winter Springs, FL 32708
Phone: (407) 327 -6584
Email: smonica @winterspringsfl.org
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,
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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 Proposal 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
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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.
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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