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HomeMy WebLinkAbout2003 04 14 Consent G Landscape Maintenance Services for Tuskawilla Road 3 Orl~ j~", (, COMMISSION AGENDA ITEM G CONSENT X INFORMATIONAL PUBLIC HEARING REGULAR April 14,2003 Meeting MG~ r /DEPT /Y' Authorization REQUEST: Public Works Requesting Authorization to Enter into a Contract Agreement for Landscape Maintenance Services for Tuskawilla Road - Rights of Way, Medians and Entrances. PURPOSE: The purpose of this Board item is to request authorization to enter into a contract agreement with Eastwood Tuff Turf of Central Florida for Landscape Maintenance Services for Tuskawilla Road - Rights of Way, Medians and Entrances at a cost of $44,400.00. CONSIDERA TIONS: This agreement is needed to continue contractual landscape maintenance services of Tuskawilla Road - Rights of Way, Medians and Entrances pursuant to the Interlocal Agreement executed with Seminole County on December 23, 1996. For consideration ofthe County installing the extensive landscaping and irrigation on Tuskawilla Road at no expense to the City, the City agreed to maintain the landscaping and irrigation in the Tuskawilla Road right of way from S.R. 434 to the median opening at the Church of the New Covenant near the southern limits of the Oak Forest wall. Bid #ITB-009-03/AH was opened on January 15,2003 with George Feltner Landscaping submitting the low bid of $31,491.00. Upon review of bid submittal, this bid was judged to be non- responsive, as the firm did not meet bid requirements. The second low bidder was Land Design Developers, Inc. at $36,309.00. Land Design Developers, Inc. was previously awarded the Landscape Maintenance Contract for Rights of Ways and Ponds bid #ITB-002-03/AH at $91,135.00 and has been servicing this contract since February 1, 2003. Land Design Developers, Inc. has faltered in some areas of their performance but not to the extent of default and there is concern the additional workload of Tuskawilla Road would compromise the service of the existing contract, thereby initiating the recommendation to award to third low bidder, Eastwood Tuff Turf of Central Florida at $44,400.00. Eastwood Tuff Turf of Central Florida was low bidder on the Facilities Landscape April 14,2003 Consent Agenda Item G Page 2. Maintenance Service bid #ITB-00I-03/AH at $37,416.00 and awarded the contract. They have been servicing that contract exceptionally since February 1,2003. The Public Works Department currently supervises five Landscape Maintenance Services contracts that are; 1) Facilities, 2) Rights of Ways & Ponds, and 3) SR 434 Medians, Rights of Ways & Ponds 4) TLBD landscape maintenance and fertilization and 5) Tuskawilla Road Landscape maintenance which includes the Oak Forest entrances. The scope of services for this contract includes weekly mowing during the peak growing periods, biweekly mowing during winter months, fertilization, pest control, mulching, shrub trimming, and trash pick up. The cost to maintain the four entrances to Oak: Forest was segregated in the bid. In addition to the aforementioned scope of services, the Oak Forest entrances will have the flowers in the planters changed four times per year. The cost to the Oak Forest Assessment District is $6,900 of the $44,400 bid. They have $9,500 budgeted for all entranceway maintenance. The contract period is for twelve months with an option for a second and third twelve-month period contingent on acceptable job performance with a yearly increase of 2% upon renewal. The contract requires a supplemental agreement if changes involve a net increase or decrease to the original contract of more than twenty five percent (25%). FUNDING: The scope of work for this contract encompasses two fund sources; Public Works Repairs and Maintenance Grounds and Oak Forest Maintenance Fund. The funding sources are as follows; Public Works (4410-54682) $37,500.00, Oak Forest Maintenance Fund (191-56810) $6,900.00. The bid cost for Public Works is under the $45,000 appropriated in this line code. The Oak Forest maintenance budget is $9,500. The funds for this project will be expended over the twelve-month contract period. RECOMMENDATION: It is recommended that authorization be given to enter into a contract agreement with Eastwood Tuff Turf of Central Florida for Bid #ITB-009-03/ AH, Landscape Maintenance Services for Tuskawilla Road - Rights of Way, Medians & Entrances at a cost of$44,400.00. April 14,2003 Consent Agenda Item G Page 3 IMPLEMENTATION SCHEDULE: The new landscape maintenance contract will commence on May 1, 2003 for a twelve-month period with an option for a second and third twelve-month period with a maximum yearly increase of 2% upon renewal. if work performance is satisfactory. ATTACHMENTS: 1. Agreement Form 2. City Clerk Bid #ITB-009-03/ AH Tabulation COMMISSION ACTION: BID NUMBER: ITB-009-03/AH TUSKA WILLA ROAD LANDSCAPE MAINTENANCE SERVICES RIGHTS OF WAY, MEDIANS, AND ENTRANCES BID CLOSING: JANUARY 15, 2003 Bid Closing Was Called By: Nancy Vobornik, Purchasing Coordinator Bid Opened: Bid Closed: 3 :02 p.m. 3 :09 p.m. Witnesses: Alan Hill, Public Works Department, Superintendent Holly Pierstorff, Assistant to the City Clerk Nine (9) Bids Received: 1. EASTWOOD TUFF TURF OF CENTRAL FLORIDA, INC. AGENT: JASON EASTWOOD, PRESIDENT ADDRESS: 220 WILLIAMS ROAD, WINTER SPRINGS, FLORIDA 32708 TELEPHONE: (407) 366-5847 FACSIMILIE: (407) 327-3747 BID AMOUNT: $44,400.00 2. AMERISCAPES LANDSCAPE MANAGEMENT SERVICE, INC. AGENT: ILLEGIBLE ADDRESS: POST OFFICE BOX 568762, ORLANDO, FLORIDA 32856 TELEPHONE: (407) 897-5252 FACSIMILIE: (407) 897-3255 BID AMOUNT: $45,215.00 3. ASHTON NURSERY & LANDSCAPING AGENT: CHERYL DURHAM, OWNER ADDRESS: 4755 IDDDEN LANE, ST. CLOUD, FLORIDA 34771 TELEPHONE: (407) 891-9166 FACSIMILE: (407) 891-5267 BID AMOUNT: $64,000.02 4. GEORGE FELTNER LANDSCAPING AGENT: GEORGE FELTNER ADDRESS: 1027 ASTOR COURT, APOPKA, FLORIDA 32712 TELEPHONE: (407) 880-8054 FACSIMLE: (407) 859-3815 BID AMOUNT: $31,491.00 5. LAND DESIGN DEVELOPERS, INC. AGENT: GREGORY BOUCHER, NEW BUSINESS DEVELOPMENT ADDRESS: 1043 SEMINOLA BOULEVARD, CASSELBERRY, FLORIDA 32707 TELEPHONE: (407) 699-4444 FACSIMLE: (407) 699-8529 BID AMOUNT: $36,309.06 6. AMERICAN SERVICES, INC. AGENT: KELLY CAUDILL, OWNER ADDRESS: 400 VENTURE DRIVE, SUITE B, SOUTH DAYTONA, FLORIDA 32119 TELEPHONE: (386) 761-2987 FACSIMLE: (386) 760-6515 BID AMOUNT: $46,005.00 7. P & L LAWN MAINTENANCE, INC. AGENT: LARRY COMAS, PRESIDENT ADDRESS: 7301 GARDNER STREET, WINTER PARK, FLORIDA 32792 TELEPHONE: (407) 679-2810 F ACSIMLE: (407) 679-1085 BID AMOUNT: $46,632.00 8. NEWMAN ENTERPRISES, INC. I DBA SOUTHERN GREENERY AGENT: MARK NEWMAN, PRESIDENT ADDRESS: 10925 TYSON ROAD, ORLANDO, FLORIDA 32832 TELEPHONE: (407)402-0338 FACSIMLE: (407) 384-7707 BID AMOUNT: $65,951.00 9. vn.A & SON LANDSCAPING CORPORATION AGENT: ILLEGIBLE ADDRESS: 1900 WILLIAMS ROAD, WINTER GARDEN, FLORIDA 34787 TELEPHONE: (407) 654-9415 FACSIMLE: (407) 654-9417 BID AMOUNT: $95,448.00 Holly Pierstorff, Assistant to the City Clerk City of Winter Springs Copy: Mr. Kip Lockcuff, Director, Public WorkslUtility Department Ms. Nancy Vobomik, Purchasing Department SECTION 00500 AGREEMENT FORM THIS AGREEMENT is made and entered into this 1st day of Mav. 2003, by and between the CITY OF WINTER SPRINGS, FLdf1lIDA, a Florida municipal corporation, hereinafter referred to as "City", located at 1126 East State Road 434, Winter Springs, FL 32708, and Eastwood Tuff Turf of Central Florida. Inc. a Florida corporation, 220 Williams Road. Wint~r SDrinas. FL 32708 hereinafter referred to as "Service Provider". WITNESSETH: WHEREAS, City.wishes to obtain Landscape Maintenance Services for Tuskawilla Road - Rights of Way Medians and Entrances oha continuing basis; and WHEREAS, ServlC;i6 Provider participated in the selection and negotiation process; and WHEREAS, Serv~c;e Provider is willing to provide such Landscape Maintenance Services for Tuskawilla Road - Rights of Way Medians iltl1d Entrances for the City under the terms and conditions stated herein. . NOW, THEREFqHE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the partie$iCOvenant and agree as follows: 1.0 RECITALS 1.1 reference. The forefi:lping recitals are deemed to be true and accurate and are fully incorporated herein by 2.0 TERM AND DEFI~ftTIONS 2.1 This conttJ~ct shall be in effect for twelve (12) months commencing on the Effective Date. The City may extend this contract for two (2) additional one year terms, provided the City determines, in its discretion, that Service Provider has adequately performed during the previous term of this contract. In the event this contract is extended, the contract prt<~ 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 30 days prior to renewal. The Agreement may be canceled in whole or part by the City or the Service Provider, upon giving at least (30) days written notice prior to cancellation; EXCEPT that non-performance on the part of the Service Provider will be grounds for immediate termination. Unless otherwise provided in said notice, all work being performed by Service Provider at the time of receipt of the notice shallJmmediately 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 amenci~(j from time to time, which shall constitute authorization for the Service Provider to providel,he landscape maintenance services approved by the City. b. "Effective:..Date" shall be the date on which the last signatory hereto shall execute this Agreeme~t,; and it shall be the date on which this Agreement shall go into effect. The Agreeme~(5hall not go into effect until said date. c. "Service Provider" shall mean Eastwood Tuff Turf of Central Florida. Inc. a Florida CorporatiQl1., and its principals, officers, employees, and agents. d. "Public R$'pord" shall have the meaning given in Section 119.011 (1), Florida Statutes. e. "Work" op i.~Services" shall be used interchangeably and shall include the performance of the work ~greed to by the parties in this Agreement. f. "City Proj~ct Manager" or "Designated Representative" or "Project Director" shall mean the Public WPJ1ks/Utilities Director for the City, or his designee, who is to provide the general administr$t1on of the contract. 3.0 SCOPE OF SERY,CES Service Provider: $hall provide Landscape Maintenance Services at Tuskawilla Road - Rights of Way, Medians and Entrances,. including the furnishing of all labor, equipment, tools, materials, incidentals and the performing of all operatio~s necessary as described in the Project Manual. 4.0 CHANGES IN T~SCOPE OF WORK 4.1 City maY.f1f'18ke 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 changei ~n total cost or schedule modifications. If the City and the Service Provider approve any change, the Contract will f:jj!i modified in writing to reflect the changes. All change orders shall be authorized in writing by City's and Service Pro~lder's designated representative. ;. 4.2 All of Citjy's amendments thereto shall be performed in strict accordance with the terms of this Agreement insofar as the*.Me applicable. 5.0 SCHEDULE 5.1 Service PI'(lvider 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 ~iClrk on at least a monthly basis or as otherwise reasonably requested by the City. Should Service Provider fall beh~M on the established schedule, it shall employ such resources so as to comply with the schedule. . . 5.2 No extenS&l)n for completion of services shall be granted to Service Provider without City's prior written consent. 6.0 METHODS OF P~YMENT FOR SERVICES AND EXPENSES OF SERVICE PROVIDER 6.1 General nid Services. The City shall only pay Service Provider for services actually performed based on the Bid Form. T~t;) total amount paid to Service Provider for the first year of this Agreement shall not exceed $44.400.00 Dollars. If this contract is extended, the total annual amount paid to Service Provider shall not exceed that above mentioned number adjusted by the Producer Price Index as set forth in paragraph 2.1 of this contract. 6.2 Additional Services. From time to time during the term of this Agreement, City may request that Service Provider perform: .a:dditional 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 upo~ b1Y 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 paym~nJs due within thirty (30) days of receipt of a proper invoice delivered by Service Provider. The Service Provider may:~mly bill the City for actual work performed. 7.0 RIGHT TO INSP~<;~ 7.1 City or its llffiliates 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 INS~fijCTIONS All Service Proviq~;r's records with respect to any matters covered by this Agreement shall be made available to the City, at any time dllrlng 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 a~(fit 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 PROFESSIONA4~iM AND STANDARD OF CARE 9.1 Service Pmvider shall do, perform and carry out in a professional manner all Services required to be p~formed by this Agreement. Service Provider shall also use the degree of care and skill in performing the Services ~ttlat are ordinarily exercised under similar circumstances by reputable members of Service Provider's profession wor~lng in the same or similar locality as Service Provider. 10.0 SUBMITTAL OF ~~~OGRESS 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 repOI'! 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 Providerr 11.0 WARRANTY OF ft~~OFESSIONAL SERVICES 11.1 The Serv!c:t~ Provider (for itself and any of its employees, contractors, partners, and agents used to perform the Services) hetnby warrants unto the City that all of its employees (and those of any of its contractors, partners, and agents us~J to perform the Services) have sufficient experience to properly complete the Services specified herein or as m~)I be performed pursuant to this Agreement. In pursuit of any Work, the Service Provider shall supervise and direct:Ule Work, using its best skill and attention and shaH enforce strict discipline and good order among its employees. Thle Service Provider shall comply with all laws, ordinances, rules, regulations, and lawful orders of any public authOjrlty bearing on the performance of the Work. 12.0 CORPORATE R~RESENTATIONS 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 goodi-~tanding under the laws of Florida, and is duly qualified and authorized to carry on the fun.ctions and operations set forth in this Agreement. b. The undersigned signatory for Service Provider has the power, authority, and the legal right to ~i1ter into and perform the obligations set forth in this Agreement and all applicabl$'.exhibits thereto, and the execution, delivery, and performance hereof by Service ~r~ivider has been duly authorized by the board of directors and/or president of Service PrQvider. In support of said representation, Service Provider agrees to provide a copy to thEI 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 ~g:rees to provide a copy of all said licenses to the City prior to the execution of this Agreement. ~ 13.0 WORK IS A PRI~~TE UNDERTAKING 13.1 With reg arc! to any and all Work performed hereunder, it is specifically understood and agreed to by and between the parties h~Jeto that the contractual relationship between the City and Service Provider is such that the Service Provider is an in~tpendent contractor and not an agent of the City. The Service Provider, its contractors, partners, agents, and th~i~' employees are independent contractors and not employees of the City. Nothing in this Agreement shall be interpr:Elted to establish any relationship other than that of an independent contractor, between the City, on one hand, and (he Service Provider, its contractors, partners, employees, or agents, during or after the performance of the Work ;under this Agreement. 14.0 PROGRESS ME~JING 14.1 City Proj~ct Manager may hold periodic progress meetings on a monthly basis, or more frequently if required by the City, durimg the term of work entered into under this Agreement. Service Provider's Project Manager and all other appropriate ~~rsonnel shall attend such meetings as designated by the City Project Manager. 15.0 SAFETY 15.1 Service Pmvider shall be solely and absolutely responsible and assume all liability for the safety and supervision of its principat.:1i, employees, contractors, and agents while performing Services provided hereunder. 16.0 INSURANCE 16.1 Liability iJl\mounts. During the term of this Agreement, Service Provider shall be responsible for providing the types of ins~hance and limits of liability as set forth below. a. The Service Provider shall maintain comprehensive general liability insurance in the minimum amount of $t~joo,ooo as the combined single limit for each occurrence to protect the Service Provider from :daims of property damages which may arise from any Services performed under this Agreem~,ht. whether such Services are performed by the Service Provider or by anyone directly emplqyed by or contracting with the Service Provider. b. The Service p'fovider shall maintain comprehensive automobile liability insurance in the minimum amount of $~,~OOO,ooo combined single limit bodily injury and minimum $1,000,000 property damage as t~Q combined single limit for each occurrence to protect the Service Provider from claims for d~,"ages for bodily injury, including wrongful death, as well as from claims from property dam~~le, which may arise from the ownership, use, or maintenance of owned and non- owned autonioibiles, including rented automobiles whether such operations be by the Service Provider or bY:~lnyone 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 ~tH~ minimum amount of $1,000,000 for all of its employees performing Work for the City pursuant !io this Agreement. 16.2 Special Roquirements. Current, valid insurance policies meeting the requirements herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of Insurance shall be provided to the: City by Service Provider upon the Effective Date of this Contract which satisfied the insurance requirements ofthis paragraph 16.0.. Renewal certificates shall be sent to the City 30 days prior to any expiration date. There shaH also be a 30-day advance written notification to the City in the event of cancellation or modification of any stipul~,ted 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 Independ~nt Associates and Consultants. All independent contractors or agents employed by Service Provider to perfQr~i1 any Services hereunder shall fully comply with the insurance provisions contained in these paragraphs for secttOlls 15 and 16. 17.0 COMPLIANCE WrrH LAWS AND REGULATIONS 17.1 Service Provider shall comply with all requirements of federal, state, and local laws, rules, regulations, standards, andlor ordinances applicable to the performance of Services under this Agreement. 18.0 DOCUMENTS 18.1 Public ~(N:ords. 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 khe possession or control of the City or the Service Provider. Said record, document, computerized information;ci:nd 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 Citylv1anager. Upon request by the City, the Service Provider shall promptly supply copies of said public records to the'C:ity. 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 th~City for the purpose of examination and/or audit. 18.2 The SelVico 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 con~itutes a Public Record; Service Provider shall comply with the Florida Public Records Law. 19.0 ASSIGNMENT 19.1 Service Prio,vider shall not assign or subcontract this Agreement, or any rights or any monies due or to become due hereunder w~hout the prior, written consent of City. 19.2 If upon n:!1G;I~iving written approval from City, any part of this Agreement is subcontracted by Service Provider, Service Provi~lhlr shall be fully responsible to City for all acts and/or omissions performed by the subcontractor as if no sub~lillntract had been made. 19.3 If City det4~rmines that any subcontractor is not performing in accordance with this Agreement, City shall so notify Service Pr~'(fder who shall take immediate steps to remedy the situation. 19.4 If any part,Clf this Agreement is subcontracted by Service Provider, prior to the commencement of any Work by the sUbcontractpr, Service Provider shall require the subcontractor to provide City and its affiliates with insurance coverage as set-forth by the City. 20.0 TERMINATION: ~~:FAUL T BY SERVICE PROVIDER AND CITY'S REMEDIES 20.1 The City rl9serves the right to revoke and terminate this Agreement and rescind all rights and privileges associated wit~ this Agreement, without penalty, in the following circumstances, each of which shall represent a default and brb~lch of this Agreement: a. Service Provid.elr 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 th~ ~efault complained of, unless, however, the nature of the default is such that it cannot, in the exerCise Qfreasonable diligence, be remedied within fourteen (14) calendar days, in which case the Service Provl,Oc9r shall have such time as is reasonably necessary to remedy the default, provided the Service Provi~Eir promptly takes and diligently pursues such actions as are necessary therefor; or b. .Service Provi~E~r is adjudicated bankrupt or makes any assignment for the benefit of creditors or Service Provider becdh'ies 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 hereiltl1der; or d. Service Provideir 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 uri,der this Agreement; or f. Service Provi(\~~r is experiencing a labor dispute which threatens to have a substantial, adverse impact upon perform~nce of this Agreement without prejudice to any other right or remedy City may have under this AgreemeM1:. 20.2 Notwithst~t1tding 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 apc:ordance with the provisions of this Agreement, for Work properly performed prior to the effective date of terminatitJfl. 21.0 FORCE MAJEU~~ 21.1 . Any delat or failure of either party in the performance of its required obligations hereunder shall be excused if and to the e)(jtent 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, ~r facilities; court injunction or order; federal and/or state law or regulation; order by any regulatory agency; or ca~i!l.e or causes beyond the reasonable control of the party affected; provided that prompt notice of such delay is gi'{lim by such party to the other and each of the parties hereunto shall be diligent in attempting to remove such cause or;a:auses. If any circumstance of Force Majeure remains in effect for sixty days, either party may terminate this Agree~ient. 22.0 GOVERNING LA~ & VENUE 22.1 This Agrell1ment is made and shall be interpreted, construed, governed, and enforced in accordance with the laws of the State:IIW Florida. Venue for any state action or litigation shall be Seminole County, Florida. Venue for any federal action or IiPllJlation shall be Orlando, Florida. 23.0 HEADINGS 23.1 Paragrapnheadings 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 ev~nt any portion or part thereof of this Agreement is deemed invalid, against public policy, void, or otherwise unenf~I~(ieable by a court of law, the parties, at the sole discretion and option of the City, shall negotiate an equitable adj(tstment in the affected provision of this Agreement. The validity and enforceability of the remaining parts of this Agrl~ement shall otherwise be fully enforceable. 25.0 INTEGRATION: f(lODIFICATION 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 bmween the parties relating to the subject matter hereof unless expressly referred to herein. Modifications of this Agre~rn.ent shall only be made in writing signed ~y both parties. 26.0 WAIVER AND EL;ECTION 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 ACW"NST 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 p,ij"ider, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award o,r, making of this Agreement. 29.0 NO JOINT VENTpJBg 29.1 Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party' I~i authorized to, nor shall either party act toward third persons or the public in any manner which would indicate any eJtAch relationship with the other party. 30.0 ATTORNEY'S Fel~~ 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 eiKtent permitted by law, to recover from the non-prevailing party the costs and expenses of such action including, buftllbt limited to, reasonable attorney's fees, whether at settlement, trial or on appeal. 31.0 COUNTERPARTfi\ 31.1 This AgrE1tliment may be executed in any number of counterparts, each of which when so executed and delivered shall be con:i.idered an original agreement; but such counterparts shall together constitute but one and the same instrument. ., 32.0 DRAFTING 32.1 City and ,$ervice Provider each represent that they have both shared equally in drafting this Agreement and no party Sliiall be favored or disfavored regarding the interpretation of this Agreement in the event of a dispute between the partie1ii. 33.0 NOTICE 33.1 Any notic$:S. required to be given by the terms of this Agreement shall be delivered by hand or mailed, postage prepaid to: . For Service ProviFtgu:: Eastwood Tuff Turf of Central Florida, Inc. 220 Williams Road Winter Springs, FL .32708 Phone: 407-366-58,47 Fax: 407-327-3747 For City: City of Winter Sp/ilngs Utilities/Public Worl<s Director 1126 East State RoM 434 Winter Springs, Fl,:.32708 Phone: (407) Sp-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 IM~.~U:!!IY 34.1 Nothing C90tained 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 INDEMNIFICATIQ~l 35.1 For all Services performed pursuant to this Agreement, the Service Provider agrees to the fullest extent permitted by law, to inden:inify and hold harmless the City and its commissioners, employees, officers, and city attorneys (individually and!n their official capacity) from and against all claims, losses, damages, personal injuries (including but not limited tqdeath), or liability (including reasonable attorney's fees through any and all administrative, trial and appellate procee~ltlgs), directly or indirectly arising from: a. any defauitunder this Agreement by Service Provider; b. any negligent act, omission or operation of work related to all Services performed under this Agretn1ent by Service Provider, and its employees, principals, agents, independent contracto~~; and consultants. c. the acts, e~rrors, omissions, intentional or otherwise, arising out of or resulting from Service Provider'~~tnd its employees. partners, contractors, and agents on the performance of the Services ij),~ing performed under this Agreement; d. Service ~l"(wider's, and its employees, partners, contractors, and agents failure to comply with the f:iI'~wisions of any federal, state, or local laws, ordinance, or regulations applicable to Servic~. 'Provider's and its employees, partners, contractors, and agents performance under thisilil.greement; e. any fraud ,and misrepresentation conducted by Service Provider and its employees, partners, (';tjntractors, and agents on the City under this Agreement. 35.2 The indemrUtication provided above shall obligate the Service Provider to defend at its own expense or to provide for such defeos!l', 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 nam~; and description that may be brought against the City or its commissioners, employees, officers, and City Attorne!y which may result from any negligent act, omission or operation of work related to the Services under this Agree~lflent whether the Services be performed by the Service Provider, or anyone directly or indirectly employed by thurn. In all events the City and its commissioners, employees, officers, and City Attorney shall be permitted to cho()!W legal counsel of its sole choice, the fees for which shall be reasonable and subject to and included with this indemnifkiation provided herein. 36.0 ORDER OF PRE~~;DENCE 36.1 In case of al\)I inconsistency in any of the documents bearing on the Agreement between the City and the Service Provider, the hll~onsistency 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 Agreemorlt; c. Exhibits to t~lsAgreement; and d. The Bid docur~lents. 36.2 Any inconsistency in the work description shall be clarified by the City and performed by the Service Provider. ' .. . 37.0 AGREEMENT 1NTeBPRETATION 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 the5.ervice Provider hereby agrees to abide by the City's interpretation and agrees to carry out the work in accordance wiHnhe decision of the City. 37.2 When the rnaterial, 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 coordinaUon 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. ThiS! City has full discretion to decide whether a substitute is reasonably equivalent. Service Provider must notify the crty prior to use of the substitute for a specified brand name and allow the City to make a determination before Servioe Provider uses the substitute. IN WITNESS Wt1~EREOF, the parties hereto caused this Agreement to be executed by Their duly authorized repr,~!~entatives as of the date first written above. SERVICE PROVIDER: ~S""-c.JOO<:P <J7:iFF ~~ Name ~.-.. .)0. <:- ~ V r '-<-~ (?... p Address t..t n --- s 4. t( ..- S-fi 'f '7 Telephone 9 ,.---~ CITY: CITY OF WINTER SPRINGS, FLO-RIDA . BY~~ RO~ D W. M EMORE City Manager ~ Dated ,y!;U/a3 A~~ By: .. .'. i?: - .:, . . Oto.V\ ~,Gd/e6l1le ~~CitYClerk ... r '1/111/0'3 .Cq.'"'5-~.d C WINTER SPRINGS UTILITY / PUBLIC WORKS DEPARTMENT 110 NORTH FLAMINGO AVENUE WINTER SPRINGS, FLORIDA 32708 Telephone (407) 327-2669 Fax (407) 327-4751 NOTICE OF AWARD FORM TO: Jason Eastwood, President Eastwood Tuff Turf of Central Florida, Inc. 220 Williams Road Winter Springs, FI 32708 PROJECT DESCRIPTION: Bid # ITB 009-03/AH Landscape Maintenance Services - Tuskawilla Road _ Rights of Way, Medians and Entrances The OWNER has considered the BID submitted by Eastwood Tuff Turf of Central Florida. Inc. for the above-described WORK in response to the Advertisement for Bids dated January 15. 2003, and Instructions to Bidders. You are hereby notified that your BID in the amount of $$44.400.00 for BID items contained in the Bid Schedule has been accepted. . You are required by the Instructions to Bidders to execute the Agreement and certificates of insurance within ten (10) calendar days from the date of this Notice to you. If you fail to execute said Agreement and to furnish said certificate of insurance within ten (10) calendar days from the date' of this Notice, said OWNER will be entitled to consider all your rights arising out of the OWNER's acceptance of your BID as abandoned and your BID BOND shall be forfeited. The OWNER will be entitled to such other rights as may be granted by law. You are required to return an acknowledged copy of this NOTICE OF AWARD to the OWNER. Dated this16, th day of April, 2003 OWNER:. /~ } j~j By ./IW ^-/~II " Ron McLemore "'f.~ City Manager ACCEPTANCE OF NOTICE Receipt and a~Ptance of the above NOTICE OF AWARD is hereby acknowledged by this the day of By '(- 9- ~/ Title ?1C6S~ r.