HomeMy WebLinkAbout2002 07 22 Consent A Contract Agreement for Landscape Maintenance Services
COMMISSION AGENDA
.
ITEM A
CONSENT X
INFORMATIONAL
PUBLIC HEARING
REGULAR
July 22. 2002
Meeting
MGR ~PT ;#
Authorization
REQUEST: Public Works Requesting Authorization to Enter into a Contract Agreement for
Landscape Maintenance Services for SR 434 Medians & Rights of Way.
PURPOSE: The purpose of this Board item is to request authorization to enter into a contract
agreement with Millennium Lawn Maintenance and Landscape Design for Landscape
Maintenance Services for SR 434 Medians, Rights of Way & Ponds at a cost of$41,800,00.
.
CONSIDERA nONS:
.
This agr~ement is needed to continue contractual landscape maintenance services of the
S.R. 434 medians and rights of way in the City. The current contractor, Dora Landscaping
Company has opted to exercise the cancellation clause of the contract for Bid ITB-001-02/AH
awarded November 26,2001. The contract with Dora Landscaping Company will end August 2,
2002. The second bidder Millennium Lawn Maintenance and Landscape Design is willing to enter
into an agreement with the city for the remainder of Dora's contract.
The value of Dora's contract was $37,495.00 and Millennium's contract will be $41,800.00
representing a difference of$4,305.00. The Public Works Department has divided the Landscape
Maintenance Services into four (4) contracts; Facilities, Rights of Ways & Ponds, SR 434
Medians/Rights of Ways & Ponds, and Tuskawilla Road. This contract is for the S.R. 434
medians, rights of way, and ponds from Talmo Street to S.R. 417. FDOT reimburses the City
. I . ~.I.
$46,350 annually fdt',S.R. 434 maintenance of which approximately $35,000 is for landscape
maintenance.
July 22, 2002
Consent Agenda Item A
. Page 2
FDOT Maintenance Agreement
Landscape Maintenance
Reimbursement
Expense
$35,000
$41,800.00
FUNDING:
The funding source for this $41,800 contract is Public Works - Repair and Maintenance
Grounds (4410-54682). The bid costs are within the projected budget. 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
Millennium Lawn Maintenance and Landscape Design for Bid #ITB-OO 1-02/ AH, Landscape
. Maintenance Services for SR 434 Medians, Rights of Way & Ponds at a cost of$41,800.00 payable
from the Public Works - Repair and Maintenance Grounds (4410-54682) line code.
IMPLEMENTATION SCHEDULE:
The landscape maintenance contract will commence,on August 1,2002, for a twelve-month
period with an option for a second and third twelve-month period if the work performance is
satisfactory .
ATTACHMENTS:
1. Agreement Form
2. City Clerk Bid Summary #ITB-OO 1-02/ AH
".1., '..;,
COMMISSION ACTION:
.
.
.3.
Attachment No.1
BID NUMBER: ITB-001-02/AH
STATE ROAD 434 MEDIANS, RIGHTS OF WAY, AND PONDS
BID CLOSING: NOVEMBER 14, 2001
Bid Closing Was Called By:
Nancy Vobornik, Purchasing Coordinator
Bi4 Opened:
Bid Closed:
3: 00 p.m.
3: 04 p.m.
Witnesses:
Alan Hill, Superintendent, Public Works Department
Holly Pierstorff, Assistant To The City Clerk
Five (5) Bids Received:
1.
VISIONS CAPE LANDSCAPING SOLUTIONS, INC.
AGENT: DAVID 1. WATSON, PRESIDENT, 7041 GRAND NATIONAL DRIVE # 200, ORLANDO, FLORIDA
32819
TELEPHONE: (407) 355-0588 FACSIMILE: (407) 355-0589
BID AMOUNT: $63,474.00
2.
AMERISCAPES LANDSCAPE MANAGEMENT SERVICES, INC.
AGENT: WILLIAM P. BUTfERFIELD, PRESIDENT, P.O. BOX 568762, ORLANDO, FLORIDA 32856
TELEPHONE: NOT PROVIDED FACSIMILE: NOT PROVIDED
BID AMOUNT: $66,900.00
MILLENIUM LAWN MAINTENANCE AND LANDSCAPE DESIGN
AGENT: NAME NOT PROVIDED, 5525 COMMERCE DRIVE #8, ORLANDO, FLORIDA 32839
TELEPHONE: NOT PROVIDED FACSIMILE: NOT PROVIDED
BID AMOUNT: $41,800.00
4.
J.W. LOWERY'S ARCHITECTS LANDSCAPE
AGENT: NOTPROVIDED, 1710 SOUTH GUINYARD WAY, ORLANDO, FLORIDA 32805
TELEPHONE: (407) 295-7294 FACSIMILE: (407) 496-7768
BID AMOUNT: $103,700.00
5.
DORA LANDSCAPING COMPANY
AGENT: JAMES W. OYLER, PRESIDENT, 1323 EAST FIRST STREET, APOPKA, FLORIDA 32703
TELEPHONE: (407) 886-3103 FACSIMILE: (407) 886-6447
BID AMOUNT: $37, 495.00
Holly Pierstorff, Assistant To The City Clerk
City of Winter Springs
.
Copy:
.; ~ .~{". ;~h.
Mr. Kip Lockcuff, Director, Public Works Department
Ms. Nancy Vobornik, Purchasing Department
\Word\BIDS\RESULTS\FyOl02\ITB-OOI-02 AH.doc
Attachment No.2
.
AGREEMENT FORM
THIS AGREEMENT is made and entered into this 1st day of AU2:ust, 2002, 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
Millennium Lawn Maintenance and Landscape Desien a Florida Corporation, 5525 Commerce
Drive #8. Orlando. FI 32839 hereinafter referred to as "Service Provider".
WITNESSETH:
WHEREAS, City wishes to obtain Landscape Maintenance services for SR 434 Medians,
Right of Way and Ponds Bid # Irn 002-02/AH on a continuing basis; and
WHEREAS, Servic~ Provider participated in the selection and negotiation process; and
WHEREAS, Service Provider is willing to provide such Landscape Maintenance for SR 434
Medians, Right of Way and Ponds for the City under the terms and conditions stated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties covenant and agree as follows:
1.0 RECITALS
.
1.1 The foregoing recitals are deemed to be true and accurate and are fully incorporated
herein by reference.
2.0 TERM AND DEFINITIONS
2.1 This contract shall be in effect for twelve (12) months commencing on the Effective
Date. The City may extend this contract for 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 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.
"Agreemenfd,,~i' "Contr~ct" shall be used interchangeably and shall refer
to this Agreement, as amended from time to time, which shall constitute
authorization for the Service Provider to provide the landscape
maintenance services approved by the City.
.
b.
"Effective Date" shall be the date on which the last signatory hereto
shall execute this Agreement, and it shall be the date on which this
Agreement shall go into effect. The Agreement shall not go into effect
until said date.
.
c. "Service Provider" shall mean Millennium Lawn Maintenance and
Landscape Desilm a Florida Corporation, and its principals, officers,
employees, and agents.
d. "Public Record" shall have the meaning given in Section 119.011(1),
Florida Statutes.
e. "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in this Agreement.
f "City Project Manager" or "Designated Representative" or "Project Director" shall
mean the Public WorksfUtilities Director for the City, or his designee, who is to
provide the general administration of the contract.
3.0 SCOPE OF SERVICES
3.1 Service Provider shall provide landscape and irrigation maintenance services for
boulevard and entrance ways, including the furnishing of all labor, equipment, tools, materials,
incidentals and the performing of all operations necessary as described in the Project Manual.
4.0 CHANGES IN THE SCOPE OF WORK
. 4.1 City may make changes in the Services at any time by giving written notice to Service
Provider. If such changes increase (additional services) or decrease or eliminate any amount of Work,
City and Service Provider will negotiate any change in total cost or schedule modifications. If the City
and the Service Provider approve any change, the Contract will be modified in writing to reflect the
changes. All change orders shall be authorized in' writing by City's and Service Provider's designated
representative.
4.2 All of City's amendments thereto shall be performed in strict accordance with the terms
of this Agreement insofar as they are applicable.
5.0 SCHEDULE
5.1 Service Provider shall perform services in conformance with the schedule reasonably
established by the City Project Manager. Service Provider shall complete all of said services in a
timely manner and will keep City apprized of the status of work on at least a monthly basis or as
otherwise reasonably requested by the City. Should Service Provider fall behind on the established
schedule, it shall employ such resources so as to comply with the schedule.
5.2 No extension for completion of services shall be granted to Service Provider without
City's prior written consent.
. ,I " . ~ _I.
f ~. ;
.
6.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES
OF SERVICE PROVIDER
6.1 General Bid Services. The City shall only pay Service Provider for services actually
performed based on the Bid Form. Thetotal amount paid to Service Provider for the first year of this
.
Agreement shall not exceed $41.800.00 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 additional Services not required under the Project Manual. For
those additional services agreed upon by the City and Service Provider in .writing, City agrees to pay
Service Provider a total amount equal to that mutually agreed upon by the parties in writing.
6.3 Payment. Upon receipt of a proper invoice from Service Provider, the City agrees to
pay the Service Provider the invoice amount providing said amount accurately reflects the terms and
conditions of this Agreement. Invoices may only be submitted on a monthly basis unless otherwise
agreed by the City. Unless otherwise agreed in writing by the City, there shall be no other
compensation paid to the Service Provider and its principals, employees, and independent professional
associates and consultants in the performance of Work under this Agreement. The City agrees to
make all payments due within thirty (30) days of receipt of a proper invoice delivered by Service
Provider. The Service Provider may only bill the City for actual work performed.
7.0 RIGHT TO INSPECTION
7.1 City or its affiliates shall at all times have the right to review or observe the services
performed by Service Provider.
7.2 No inspection, review, or observation shall relieve Service Provider of its responsibility
under this Agreement.
. 8.0
AUDIT AND INSPECTIONS
All Service Provider's records with respect to any matters covered by this Agreement shall be
made available to the City, at any time during normal business hours, as often as the City deems
necessary, to audit, examine, and make excerpts or transcripts of all relevant data. Any deficiencies
noted in audit reports must be fully cleared by the Service Provider within thirty (30) days after receipt
by the Service Provider. Failure of the Service Provider to comply with the above audit requirements
will constitute a material breach of this Agreement and may result, at the sole discretion of the City, in
the withholding of payment for services provided under this Agreement.
9.0 PROFESSIONALISM AND STANDARD OF CARE
9.1 Service Provider shall do, perform and carry out in a professional manner all
Services required to be performed by this Agreement. Service Provider shall also use the degree of
care and skill in performing the Services that are ordinarily exercised under similar circumstances by
reputable members of Service Provider's profession working in the same or similar locality as Service
Provider.
10.0 SUBMITTAL OF PROGRESS REPORTS
.
10.1 Service ProVi~er shall submit a monthly written progress report as to the status of all
Work set forth in this Agreement. The report shall in a sufficient manner demonstrate that any funds
expended were used to provide the agreed-upon Services. If the detail is not sufficient in the City
Project Manager's reasonable discretion to permit the City to determine the Work performed or the
manner in which it is being performed, the City may seek more detail from the Service Provider.
11.0 WARRANTY OF PROFESSIONAL SERVICES
.
11.1 The Service Provider (for itself and any of its employees, contractors, partners,
and agents used to perform the Services) hereby warrants unto the City that all of its employees (and
those of any of its contractors, partners, and agents used to perform the. Services) have sufficient
experience to properly complete the Services specified herein or as may be performed pursuant to this
Agreement. In pursuit of any Work, the Service Provider shall supervise 'and direct the Work, using
its best skill and attention and shall enforce strict discipline and good order among its employees. The
Service Provider shall comply with all laws, ordinances, rules, regulations, and lawful orders of any
public authority bearing on the performance of theW ork.
12.0 CORPORATE REPRESENTATIONS BY SERVICE PROVIDER
b.
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.
The undersigned signatory for Service Provider has the power, authority,
and the legal right to enter into and perform the obligations set forth in this
Agreement and all applicable exhibits thereto, and the execution, delivery,
and performance hereof by Service Provider has been duly authorized by the
board of directors and/or president of Service Provider. In support of said
representation, Service Provider agrees to provide a copy to the City of a
corporate certificate of good standing provided by the State of Florida prior
to the execution of this Agreement.
.
c. Service Provider is duly licensed under all local, state and federal laws to
provide the Services stated in paragraph 3.0 herein. In support of said
representation, Service Provider agrees to provide a copy of all said licenses
to the City prior to the execution of this Agreement.
13.0 WORK IS A PRIVATE UNDERTAKING
13.1 With regard to any and all Work performed hereunder, it is specifically understood
and agreed to by and between the parties hereto that the contractual relationship between the City and
Service Provider is such that the Service Provider is an independent contractor and not an agent of the
City. The Service Provider, its contractors, partners, agents, and their employees are independent
contractors and not employees of the City. Nothing in this Agreement shall be interpreted to establish
any relationship other than that of an independent contractor, between the City, on one hand, and the
Service Provider, its contractors, partners, employees, or agents, during or after the performance of
the Work under this Agreement.
14.0 PROGRESS MEETING
. " I . r ~'"
I".
.
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 Managec
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$l,OOO,OOO as the combined single limit for each occurrence to
protect the Service Provider from claims of property damages which may arise
from any Services performed under this Agreement whether such Services are
performed by the Service Provider or by anyone directly employed by or
contracting with the Service Provider.
b. The Service Provider shall maintain comprehensive automobile liability insurance in
the minimum amount of $1,000,000 combined single limit bodily injury and
minimum $1,000,000 property damage as the combined single limit for each
occurrence to protect the Service Provider from claims for damages for bodily
injury, including wrongful death, as well as from claims from property damage,
which may arise from the ownership, use, or maintenance of owned and non-owned
automobiles, including rented automobiles whether such operations be by the
Service Provider or by anyone directly or indirectly employed by the Service
Provider.
.
c. The Service Provider shall maintain, during the life of this Agreement, adequate
Workers' Compensation Insurance in at least such amounts as are required by law
and Employer's Liability Insurance in the minimum amount of$l,OOO,OOO for all of
its employees performing Work for the City pursuant to this Agreement.
16.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. A copy of a current
Certificate of Insurance shall be provided to the City by Service Provider upon the Effective Date of
this 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 wrm LAWS AND REGULATIONS
.
17.1 Service Provider shall comply with all requirements of federal, state, and local laws,
rules, regulations, standards, and/or ordinances applicable to the performance of Services under this
Agreement.
.
.
.
18.0 DOCUMENTS
18.1 Public Records. It is hereby specifically agreed that any record, document,
computerized information and program, audio or video tape, photograph, or other writing of the
Service Provider and its independent contractors and associates related, directly or indirectly, to this
Agreement, may be deemed to be a Public Record whether in the possession or control of the City or
the Service Provider. Said record, document, computerized information and program, audio or video
tape, photograph, or other writing of the Service Provider is subject to the provisions of Chapter 119,
Florida Statutes, and may not be destroyed without the specific written approval of the City's City
Manager. Upon request by the City, the Service Provider shall promptly supply copies of said public
records to the City. All books, cards, registers, receipts, documents, and other papers in connection
with this Agreement shall at any and all reasonable times during the normal working hours of the
Service Provider be open and freely exhibited to the City for the purpose of examination and/or audit.
18.2 The Service Provider acknowledges that the City is a Florida municipal corporation and
subject to the Florida Public Records Law. Service Provider agrees that to the extent any document
produced by Service Provider under this Agreement constitutes a Public Record; Service Provider
shall comply with the Florida Public Records Law.
19.0 ASSIGNMENT
19.1 Service Provider shall not assign or subcontract this Agreement, or any rights or any
monies due or to become due hereunder without the prior, written consent of City.
19.2 If upon receiving written approval from City, any part of this Agreement is
subcontracted by Service Provider, Service Provider shall be fully responsible to City for all acts
and/or omissions performed by the subcontractor as 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:
a. Service Provider defaults in the performance of any material covenant or condition of this
Agreement and does not cure such other default within fourteen (14) calendar days after
written notice from the City specifying the default complained of, unless, however, the
nature of the default is such that it cannot, in the exercise of reasonable diligence, be
remedied within{o1:lrteen (14) calendar days, in which case the Service Provider shall have
such time as is reasonably necessary to remedy the default, provided the Service Provider
promptly takes and dil~gently pursues such actions as are necessary therefor; or
b.
.
c.
d.
e.
f
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
Service Provider has acted negligently, as defined by general and applicable law, in
performing the Services hereunder; or
Service Provider has committed any act of fraud upon the City; or
Service Provider has made a material misrepresentation of fact to the City while performing
its obligations under this Agreement; or
Service Provider is experiencing a labor dispute which threatens to have a substantial,
adverse impact upon performance of this Agreement without prejudice to any other right
or remedy City may have under this Agreement.
20.2 Notwithstanding the aforementioned, in the event of a default by Service Provider, the City
shall have the right to exercise any other remedy the City may have by operation of law, without
limitation, and without any further demand or notice. In the event of such termination, City shall be
liable only for the payment of all unpaid charges, determined in accordance with the provisions of this
Agreement, for Work properly performed prior to the effective date of termination.
21.0 FORCE MAJEURE
21.1 Any delay or failure of either party in the performance of its required obligations
hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm;
explosion; riot; war; sabotage; strikes (except involving Service Providers labor force); extraordinary
breakdown of or damage to City's affiliates' generating plants, their equipment, or facilities; court
injunction or order; federal and/or state law or regulation; order by any regulatory agency; or cause or
causes beyond the reasonable control of the party affected; provided that prompt notice of such delay
is given by such party to the other and each of the parties hereunto shall be diligent in attempting to
remove such cause or causes. If any circumstance of Force Majeure remains in effect for sixty days,
either party may terminate this Agreement.
.
22.0 GOVERNlNG 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 oflaw, the parties, at the sole discretion and
option of the City, shall negotiate an equitable adjustment in the affected provision of this Agreement.
The validity and enforceability of the remaining parts of this Agreement shall otherwise be fully
enforceable.
.
25.0 INTEGRATION: MODIFICATION
.
25.1 The drafting, execution, and delivery of this Agreement by the Parties have been
induced by no representations, statements, warranties, or agreements other than those expressed
herein. This Agreement embodies the entire understanding of the parties, and there are no further or
other agreements or understandings, written or oral, in effect between the parties relating to the
subject matter hereof unless expressly referred to herein. Modifications of this Agreement shall only
be made in writing signed by both parties.
26.0 WAIVER AND ELECTION OF REMEDIES
26.1 Waiver by either party of any terms or provision of this Agreement shall not be
considered a waiver of that term, condition, or provision in the future.
26.2 No waiver, consent, or modification of any of the provisions of this Agreement shall be
binding unless in writing and signed by a duly authorized rep~esentative 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 PROHIBmON 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 are 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 AgreemeQ.t may be executed in any number of counterparts, each of which when
. I ~. ".
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 Agre~ment shall be delivered by
hand or mailed, postage prepaid to:
For Service Provider:
For City:
City of Winter Springs
Public Works Superintendent
1126 East State Road 434
Winter Springs, FL 32708
Phone: (407) 327-7578
Facsimile: (407) 327-4751
33.2 Either party may change the notice address by providing the other party written notice
of the change.
34.0 SOVEREIGN IMMUNITY
34.1 Nothing contained in this Agreement shall be construed as a waiver of the City's right
to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the
City's potential liability under state or federal law.
.
35.0 INDEMNIFICATION
35.1 For all Services performed pursuant to this Agreement, the Service Provider agrees to the
fullest extent permitted by law, to indemnifY and hold harmless the City and its commissioners,
employees, officers, and city attorneys (individually and in their official capacity) from and against all
claims, losses, damages, personal injuries (including but not limited to death), or liability (including
reasonable attorney's fees through any and all administrative, trial and appellate proceedings), directly
or indirectly arising from:
a. any default under this Agreement by Service Provider;
b. any negligent act, omission or operation of work related to all Services
performed under this Agreement by Service Provider, and its
employees, principals, agents, independent contractors, and consultants.
c. the acts, errors, omissions, intentional or otherwise, arising out of or
resulting from Service Provider's and its employees, partners,
contractors, and agents on the performance of the Services being
performed under this Agreement;
.
d. Service Provider's, and its employees, partners, contractors, and agents
failure to comPly with the provisions of any federal, state, or local laws,
ordinance, or regulations applicable to Service Provider's and its
employees, partners, contractors, and agents performance under this
Agreement;
.
e. any fraud and misrepresentation conducted by Service Provider and its
employees, partners, contractors, and agents on the City under this
Agreement.
35.2 The indemnification provided above shall obligate the Service Provider to defend at its
own expense or to provide for such defense, at the option of the City, as the case may be, of any and
all claims of liability and all suits and actions of every name and description that may be brought
against the City or its commissioners, employees, officers, and City Attorney which may result from
any negligent act, omission or operation of work related to the Services under this Agreement whether
the Services be performed by the Service Provider, or anyone directly or indirectly employed by them.
In all events the City and its commissioners, employees, officers, and City Attorney shall be permitted
to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and
included with this indemnification provided herein.
36.0 ORDER OF PRECEDENCE
.
36.1 In case of any inconsistency in any of the documents bearing on the Agreement between
the City and the Service Provider, the inconsistency shall be resolved by giving precedence in the
following order:
a. Addenda to this Agreement subsequent to the Effective date of this
Agreement;
b. This Agreement;
c. Exhibits to this Agreement; and
d. The Bid documents.
36.2 Any inconsistency in the work description shall be clarified by the City and performed by
the Service Provider.
37.0 AGREEMENT INTERPRETATION
37.1 At its discretion, during the course of the work, should any errors, ambiguities, or
discrepancies be found in the Agreement or specifications, the City at its sole discretion will interpret
the intent of the Agreement and work descriptions and the Service Provider hereby agrees to abide by
the City's interpretation and agrees to carry out the work in accordance with the decision of the City.
37.2 When the material, article, or equipment is designated by a brand name and more than
one brand name is listed, it will be understood that the work is based on one brand name only. The
Service Provider will be responsible for all coordination necessary to accommodate the material,
article, or equipment being provided without additional cost to the City. A substitute material, article,
or equipment is allowed if it is reasonably equivalent to the brand name specified. The City has full
discretion to decide whether a substitute is reasonably equivalent. Service Provider must notifY the
City prior to use of the substitute for a specified brand name and allow the City to make a
determination before Servic~ ~,rovider uses the substitute.
~ ~ ,.,.r . .
.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by
Their duly authorized representatives as of the date first written above.
.
By:
.
.
SERVICE PROVIDER:
Name
Address
Telephone
CITY :
CITY OF WINTER SPRINGS, FLORIDA
By:
ATTEST:
ANDREA LORENZO-LUACES
City Clerk
Dated
RONALD W. McLEMORE
City Manager