HomeMy WebLinkAboutBon Terre Group, The Agreement for Landscape Maintenance Services, Rights of Way and Ponds -2000 11 28
ATTACHMENT NO.1
AGREEMENT FOR LANDSCAPE MAINTENANCE SERVICES,
RIGHTS OF WAY AND PONDS
THIS AGREEMENT is made and entered into this 28th day of November
2000, 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 THE BON TERRE GROUP,INC., a Florida corporation, 1218 Alden Road,
Orlando, Florida 32803, hereinafter referred to as "Service Provider".
WITNESSETH:
WHEREAS, City wishes to obtain landscape maintenance services for rights of way and
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 landscape maintenance services for
rights of way and ponds to 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 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 price may be adjusted to
allow for consumer price increases based on Bureau of Labor and Statistics - Producer Price Index
not to exceed 2 (two) percent. The adjustment will be based on the annual contract period from the
same period of the previous year and calculated 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 ~on-performance on the part ofthe Service Provider will.
be grounds for immediate termination. Unless otherwise provided in said notice, all work being
performed by Service Provider at the time of receipt of the notice shall immediately cease and no
further work shall be provided by Service Provider under this contract.
2.2 Definitions. The following words and phrases used in this Agreement shall have
the following meaning ascribed to them unless the context clearly indicates otherwise:
a. "Agreement" or "Contract" shall be used interchangeably and shall
refer to this Agreement, as amended from time to time, which shall
constitute authorization for the Service Provider to provide the
landscaping 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 The Bon Terre Group, Inc., a Florida
corporation, and its principals, officers, employees, and agents.
d. "Public Record" shall havethe 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" shall mean the Public WorkslUtilities Director
for the City, or his designee.
3.0 SCOPE OF SERVICES
-3.1 Service Provider shall provide landscaping maintenance services for rights of ways
and ponds, including the furnishing of all labor, equipment and materials, and the performing of all
operations necessary as described in the attached Exhibit "A", Invitation for Sealed Bid, Bid Number
ITB-OOO-Ol/AH. Exhibit "A" is attached hereto and fully incorporated herein by this reference.
4.0 CHANGES IN THE SCOPEOF WORK
4.1 City may make changes in the Services at anytime by giving written notice to Service
Provider. If such changes increase (additional services) or decrease or eliminate any amount of
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Work, City and Service Provider will negotiate any change in total cost or schedule modifications.
If the City and the Service Provider approve any change, the Contract will be modified in writing
to reflect the changes. All change orders shall be authorized in writing by City's and Service
Provider's designated representative.
4.2 All of City's amendments thereto shall be performed in strict accordance with the
terms of this Agreement insofar as they are applicable.
5.0 SCHEDULE
5.1 Service Provider shall perform services in conformance with the schedule reasonably
established by the City Project Manager. Service Provider shall complete all of said services in a
timely manner and will keep City apprized of the status of work on at least a monthly basis or as
otherwise reasonably requested by the City. Should Service Provider fall behind on the established
schedule, it shall employ such resources so as to comply with the schedule.
5.2 No extension for completion of services shall be granted to Service Provider without
City's prior written consent.
6.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES
OF SERVICE PROVIDER
6.1 General Bid Services. The City shall only pay Service Provider for services actually
performed based on the Proposal Bid payment schedule set forth in Exhihit "B" which is attached
hereto and fully incorporated herein by this reference. The total amount paid to Service Provider for
the first year ofthis Agreement shall not exceed One Hundred Three Thousand Five Hundred Ninety
and 44/00 ($103,590.44) Dollars. If this contract is extended, the total annual amount paid to
Service Provider shall not exceed that abovementioned ilUmber adj usted by the Producer Price Index
as set forth in paragraph 2.1 ofthis 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 Exhibit "A". 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 ofa proper invoice from Service Provider, the City agrees to
pay the Service Provider the invoice amountproviding said amount accurately reflects the terms and
conditions ofthis 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 ofW ork under this Agreement. The City
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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
riecessary, to audit, examine, and make excerpts or transcripts of all relevant data. Any deficiencies
noted in audit reports must be fully cleared by the Service Provider within thirty (30) days after
receipt by the Service Provider. Failure of the Service Provider to comply with the above audit
requirements will constitute a material breach of this Agreement and may result, at the sole
discretion of the City, in the withholding of payment for services provided under this Agreement.
9.0 PROFESSIONALISM AND STANDARD OF CARE
9.1 Service Provider shall do, perform and carry out in a professional manner all
Services required to be performed by this Agreement. Service Provider shall also use the degree
of care and skill in performing the Services that are ordinarily exercised under similar circumstances
by reputable members of Service Provider's profession working in the same or similar locality as
Service Provider.
10.0 SUBMITTAL OF PROGRESS REPORTS
10.1 Upon request by the City, Service Provider shall submit a 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
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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,
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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 hearing 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 gQod standing under the laws of Florida, and is
duly qualified and ~uthorized 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: contra.ctors, 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 Seryice Provider, its contractors, partners, employees, or agents, during
or after the performance of thy Work under this Agreement.
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14.0 PROGRESS MEETING
14.1 City.Project Manager may hold periodic progress meetings on a monthly basis, or
more frequently if required by the City, during the term of work entered into under this Agreement.
Service Provider's Project Manager and all other appropriate personnel shall attend such meetings
as designated by the City Project Manager.
15.0 SAFETY
15.1 Service Provider shall be solely and absolutely responsible and assume all liability
for the safety and supervision of its principals, employees, contractors, and agents while performing
Services provided hereunder.
16.0 INSURANCE
16.1 Liability Amounts. During the term of this Agreement, Service Provider shall be
responsible for providing the types of insurance and limits ofliability 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 Provid~r 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 $1,000,000 property damage as the combined single limit
for each occurrence to protect the Service Provider from claims for damages for
bodily injury, including wrongful death, as well as from claims from property
damage, which may arise from the ownership, use, or maintenance of owned and
non-owned automobiles, including rented automobiles whether such operations
be by the Service Provider or by anyone directly or indirectly employed by the
Service Provider.
c. The Service Provider shall maintain, during the life ofthis Agreement, adequate
Workers' Compensation Insurance in at least such amounts as are required by law
and Employer's Liability Insurance in the minimum amount of$l ,000,000 for all
of its employees performing Work for the City pursuant to this Agreement.
16.2 Special Requirements. Current, valid insurance policies meeting the requirements
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herein identified shall be maintained during the term of this Agreement. A copy of a current
Certificate of Insurance shall be provided to the City by Service Provider upon the Effective Date
of this Contract which satisfied the insurance requirements of this paragraph 16.0. Renewal
certificates shall be sent to the City 30 days prior to any expiration date. There shall also be a 30-day
advance written notification to the City in the event of cancellation or modification of any stipulated
insurance coverage. The City shall be an additional named insured on all stipulated insurance
policies as its interest may appear, from time to time.
16.3 Independent Associates and Consultants. All independent contractors or agents
employed by Service Provider to perform any Services hereunder shall fully comply with the
insurance provisions contained in this paragraph.
17.0 COMPLIANCE WITH LAWS AND REGULATIONS
17.1 Service Provider shall comply with all requirements offederal, 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 ofthe
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 ifno 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 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:
20.2 Service Provider defaults in the performance of any material covenant or condition
of this Agreement and does not cure such other default within fourteen (14) calendar days after
written notice from the City specifying'the default complained of, unless, however, the nature ofthe
default is such that it cannot, in,the exercise of reasonable diligence, be remedied within fourteen
(14) calendar days, in which case the Service Provider shall have s,uch 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
20.3 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
20.4 Service Provider has acted negligently, as defined by general and applicable law, in
performing the Services hereunder; or
20.5 Service Provider has comrilittedany act of fraud upon the City; or
20.6 Service Provider has made a material misrepresentation of fact to the City while
performing its obligations under this Agreement.
20.7 Service Provider is experiencing a labor dispute which' threatens to have a
substantial, adverse impact upon performance ofthis Agreement without prejudice to any other right
or remedy City may have under this Agreement. '
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20.8 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.suchtermination, 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 ofthis 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 ofthe remaining parts of this Agreement shall otherwise
be fully enforceable.
25.0 INTEGRATION: MODIFICATIo'N
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
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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 ofthis Agreement shall onl y
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 ofthe provisions ofthis 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 paidor 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 ofthis 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,
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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
byhand or mailed, postage prepaid to:
For Service Provider:
GradyMitchell, Vice President
The Bon Terre Group, Inc.
1218 Alden Road
Orlando, Fl. 32803
Phone:' (407) 896-2623
Fax: (407) 696-7345
For City:
City of Winter Springs
- Utilities/Public Works Director
1126 East State Road 434
,Winter Springs, FL 32708
Ph~ne: (407) 327~5957
. 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
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34.1 Nothing contained in this Agreement shall be construed as a waiverofthe City's right
to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the
City's potential liability under state or federal law.
35.0 INDEMNIFICATION
35.1 For all Services performed pursuant to this Agreement, the Service Provider agrees to the
fullest extent permitted by law, to indemnify and hold harmless the City and its commissioners,
employees, officers, and city attorneys (individually and in their official capacity) from and against
all claims, losses, damages, personal injuries -(including but not limited to death), or liability
(including reasonable attorney's fees through any and all administrative, trial and appellate
proceedings), directly or indirectly arising from:
a. any default under this Agreement by Service Provider;
b. any negligent act, omission or operation of work related to all
Services performed under this Agreement by Service Provider, and
its employees, principals, agents, independent contractors, and
consultants.
c. the acts, errors, omissions, intentional or otherwise, arising out of or
resulting from Service Provider's and its employees, partners,
contractors, and agents on the performance of the Services being
performed under this Agreement;
d. Service Provider's, and its employees, partners, contractors, and
agents failure to comply with the provisions of any federal, state, or
local laws, ordinance, or regulations applicable to Service Provider's
and its employees, partners, contractors, and agents perfonnance
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 ofliability 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
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be permitted to choose legal counsei 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 including Exhibits "A" and "B";
d. The Bid documents (#ITB-OOl-Ol/AH)
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 ofthe 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 ifit is reasonably equivalent to the brand name specified. The City
has full discretion to decide whether a substitute is reasonably equivalent. Service Provider must
notify the City prior to use of the substitute for a specified brand name and allow the City to make
a determination before Service Provider uses the substitute.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
CITY:
/
CITY OF WINTER SPRING~~ FLORi'DA
By:
/~/J ?nrIL~J
RONALD W. MCLEMORE
~o~ City Manage~
. .~\
Dated: November 28, 2000
THE BON TERRE GROUP, INC.
By: ~ (J(~
GRADy MITC ELL '
Vice Presi ent
Dated:
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