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HomeMy WebLinkAboutGreener Grounds, Inc. - City Facilities Landscape Maintenance Agreement - 2013 08 15 AGREEMENT FOR LANDSCAPE MAINTENANCE SERVICES THIS AGREEMENT FOR LANDSCAPE MAINTENANCE SERVICES ("Agreement") is made and entered into by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation ("City"), located at 1126 East State Road 434, Winter Springs, Florida 32708, and Greener Grounds, LLC., authorized to conduct business in Florida ("Service Provider"), located at: 1255 Belle Avenue,#177,Winter Springs,FL 32708. WITNESSETH: WHEREAS, City wishes to obtain landscape maintenance services for the CITY FACILITIES for a limited time period; and WHEREAS, Service Provider participated in the selection and negotiation process;and WHEREAS, Service Provider is willing to provide such landscape maintenance services for the CITY FACILITIES,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 GENERAL PROVISIONS 1.1 Recitals. The foregoing recitals are deemed to be true and accurate and are fully incorporated herein by reference. 1.2 Engagement. The City hereby engages Service Provider and Service Provider agrees to perform the Services outlined in this Agreement for the stated fee arrangement. No prior or present agreements or representations shall be binding upon any of the parties hereto unless incorporated in this Agreement. 1.3 Due Diligence. Service Provider acknowledges that it has investigated prior to the execution of this Agreement and satisfied itself as to the conditions affecting the Services, the availability of materials and labor, the cost thereof, the requirements to obtain necessary insurance as set forth herein, and the steps necessary to complete the Services within the time set forth herein. Service Provider warrants unto the City that it has the competence and abilities to carefully and faithfully complete the Services within the time set forth herein. Service Provider will perform its Services with due and reasonable diligence consistent with sound professional practices. 2.0 TERM AND DEFINITIONS. 2.1 The term of this Agreement shall be for twelve (12)months, commencing on August 15,2013, and terminating at midnight on August 14, 2014, unless either party chooses to exercise its rights under Section 20, "Termination". The parties shall have the option to extend the term of this Agreement for five(5)one-year periods. Any such extension shall be by mutual written agreement of all parties and shall be executed no less than ninety (90) days prior to the expiration of this Agreement's current term. The City Manager or the City Manager's designee (hereinafter"City Manager")shall review the performance of the Service Provider annually at least ninety (90) days prior to the Agreement's anniversary date. The City manager shall recommend a one (1) year extension or termination. Should the Service Provider and City agree to extend the Agreement, the Service Provider may be entitled to an increase in rates in an amount not to exceed one half(1/2) the change in the Consumer Price Index(CPI) for the most recently available twelve (12)month period for All Urban Consumers (CPI-U) for All Items,U.S. City average,published by the Bureau of Labor Statistics of the U.S. Department of Labor for 1982-84, or the successor index to same. Said increase shall become effective beginning with the invoice for work performed after the start of the new Agreement period. 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: City Facilities Landscape Maintenance Agreement-2013 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 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 Greener Grounds, LLC., a Florida Corporation, and its principals,officers, employees,and agents. d. "Public Record" shall have the meaning given in Chapter 119,Florida Statutes. e. "Work" or"Services" shall be used interchangeably and shall include the performance of the work agreed to by the parties in this Agreement. f. "City Project Manager" or "Designated Representative" or "Project Director" shall mean the City's Urban Beautification Manager,or his/her designee,who is to provide the general administration of the Agreement. 3.0 SCOPE OF SERVICES Service Provider shall do,perform, deliver and carry out, in a professional manner, the type of services as set forth in the "Scope of Work," attached hereto as Exhibit `A' and fully incorporated herein by this reference, including but not limited to the furnishing of all labor,equipment,tools,materials,and incidentals. 4.0 AMENDMENTS AND MODIFICATIONS Any cardinal change in the terms and conditions set forth in this Agreement must be mutually agreed to by both the City and the Service Provider,and may be implemented only after this Agreement has been amended in writing. The City reserves the right to make changes in the work, including alterations, reductions therein, or additions thereto. Upon receipt by the Service Provider of the City's notification of a contemplated change,the Service Provider shall (1) if requested by the City, provide an estimate for the increase or decrease in cost due to the contemplated change, (2) notify the City of any estimated change in the completion date, and (3)advise the City in writing if the contemplated change shall affect the Service Provider's ability to meet the completion dates or schedules of this Agreement. If the City so instructs, in writing,the Service Provider shall suspend work on that portion of the work affected by a contemplated change,pending the City's decision to proceed with the change. If the City elects to make the change,the City shall issue an Amendment to this Agreement or Change Order and the Service Provider shall not commence work on any such change until such written amendment or change order has been issued and signed by each of the parties. 5.0 SCHEDULE 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 apprised 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. 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 Compensation. For the Services provided pursuant to the Agreement,the City agrees to pay Service Provider a sum not to exceed Twenty Seven Thousand Nine Hundred and Sixty Dollars ($27,960). If this Agreement is extended, the total annual amount paid to Service Provider shall not exceed the above mentioned number adjusted by the Producer Price Index as set forth in paragraph 2.1 of this Agreement. 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 City Facilities Landscape Maintenance Agreement-2013 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. 6.4 Truth-In-Negotiation Certificate. Signature of this Agreement by the Service Provider shall act as the execution of a truth-in-negotiation certificate certifying that the wage and rates and costs used to determine the compensation provided for in this Agreement are accurate,complete,and current as of the date of the Agreement. 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 The Service Provider shall maintain records on the City's projects, in accordance with generally accepted accounting principles and practices to substantiate all invoiced amounts. Said records will be available to the City during the Service Provider's normal business hours for a period of two (2) years after the Service Provider's final invoice for examination to the extent required to verify the direct costs(excluding established or standard allowances and taxes)incurred herein. Should such an audit by the City reveal monies owed to the City, the Service Provider shall reimburse the City for the cost of the audit and pay the principal overcharge amount owed the City plus interest accrued at the prime interest rate in effect on the date of discovery. Said interest rate shall apply to the principal overcharge amount revealed in the audit for the period from the original payment due date(s)to the payment by the Service Provider of all monies owed. 9.0 PROFESSIONALISM AND STANDARD OF CARE 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 Service Provider shall submit a monthly written progress report as to the status of all Work set forth in this Agreement. The report shall in a sufficient manner demonstrate that any funds expended were used to provide the agreed- upon Services. If the detail is not sufficient in the City Project Manager's reasonable discretion to permit the City to determine the Work performed or the manner in which it is being performed, the City may seek more detail from the Service Provider. Service Provider agrees to provide that information within a reasonable time period. 11.0 WARRANTY OF PROFESSIONAL SERVICES The Service Provider(for itself and any of its employees, Service Providers,partners,and agents used to perform the Services) hereby warrants unto the City that all of its employees (and those of any of its Service Providers, partners, and agents used to perform the Services)have sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit of any Work, the Service Provider shall supervise and direct the Work, using its best skill and attention and shall enforce strict discipline and good order among its employees. The Service Provider shall comply with all laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on the performance of the Work. City Facilities Landscape Maintenance Agreement-2013 12.0 CORPORATE REPRESENTATIONS BY SERVICE PROVIDER Service Provider hereby represents and warrants to the City the following: a. Service Provider is duly registered and licensed to do business in the State of Florida and is in good standing under the laws of Florida, and is duly qualified and authorized to carry on the functions and operations set forth in this Agreement. b. The undersigned signatory for Service Provider has the power,authority, and the legal right to enter into and perform the obligations set forth in this Agreement and all applicable exhibits thereto, and the execution, delivery, and performance hereof by Service Provider has been duly authorized by the board of directors and/or president of Service Provider. In support of said representation, Service Provider agrees to provide a copy to the City of a corporate certificate of good standing provided by the State of Florida prior to the execution of this Agreement. c. Service Provider is duly licensed under all local, state and federal laws to provide the Services stated in paragraph 3.0 herein. In support of said representation, Service Provider agrees to provide a copy of all said licenses to the City prior to the execution of this Agreement. 13.0 WORK IS A PRIVATE UNDERTAKING 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 Service Provider and not an agent of the City. The Service Provider, its Service Providers, partners, agents, and their employees are independent Service Providers and not employees of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent Service Provider, between the City, on one hand, and the Service Provider, its Service Providers, partners, employees, or agents, during or after the performance of the Work under this Agreement. 14.0 PROGRESS MEETING 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 Precautions shall be exercised at all times for the protection of all persons (including the City's employees) and property. The safety provisions of all applicable laws,regulations, and codes shall be observed. Hazards arising from the use of vehicles, machinery, and equipment shall be guided or eliminated in accordance with the highest accepted standard of safety. Service Provider shall be solely and absolutely responsible and assume all liability for the safety and supervision of its principals, employees, Service Providers,and agents while performing Services provided hereunder. 16.0 INSURANCE Service Provider shall maintain in full force and effect during the life of the Agreement, Worker's Compensation insurance covering all employees in performance of work under the Agreement. Service Provider shall make this same requirement of any of its sub-Service Providers. Service Provider shall indemnify and save the City harmless for any damage resulting to them for failure of either Service Provider or any sub-Service Provider to take out or maintain such insurance. The following are required types and minimum limits of insurance coverage which the Service Provider agrees to maintain during the term of this Agreement: COVERAGE MINIMUM LIMITS General and Auto Liability $500,000 per person/incident $1,000,000 incident Professional Liability(if applicable) $1,000,000 City Facilities Landscape Maintenance Agreement-2013 Worker's Compensation Statutory Neither Service Provider nor any sub-Service Provider shall commence work under this Agreement until they have obtained all insurance required under this section and have supplied the City with evidence of such coverage in the form of a Certificate of Insurance and endorsement. The City shall approve such certificates. All insurers shall be licensed to conduct business in the State of Florida. Insurers must have, at a minimum, a policyholders' rating of"A", and a financial class of "VII" as reported in the latest edition of Best's Insurance Reports, unless the City grants specific approval for an exception. All policies provided should be Occurrence, not Claims Made, forms. The Service Provider's insurance policies should be endorsed to add the City of Winter Springs as an Additional Insured. The Service Provider shall be responsible for all deductibles. All of the policies of insurance so required to be purchased and maintained shall contain a provision or endorsement that the coverage afforded shall not be cancelled,materially changed or renewal refused until at least thirty(30) calendar days written notice have been given to the City by certified mail. 17.0 COMPLIANCE WITH LAWS AND REGULATIONS In the performance of work and services under this Agreement, Service Provider agrees to comply with all Federal, State and Local laws and regulations now in effect, or hereinafter enacted during the term of this Agreement that are applicable to Service Provider, its employees, agents or subService Providers, if any, with respect to the work and services described herein. 18.0 PUBLIC RECORDS In accordance with section 119.0701, Florida Statutes, Service Provider agrees that all documents, transactions, writings, papers, letters, tapes, photographs, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to this Agreement or in connection with any funds provided by the City pursuant to this Agreement may be considered public records pursuant to Chapter 119, Florida Statutes. Service Provider agrees to keep and maintain any and all public records that ordinarily and necessarily would be required by the City in order to perform the services required by this Agreement. Service Provider also agrees to provide the public with access to public records on the same terms and conditions that the City would provide the records and at a cost that does not exceed the cost provided by Chapter 119, Florida Statutes or as otherwise provided by law. Service Provider shall also ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. In addition, Service Provider shall meet all requirements for retaining public records and transfer, at no cost, to the City all public records in possession of the Service Provider upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the City in a format that is compatible with the information technology systems of the City. If Service Provider does not comply with a public records request, the City shall have the right to enforce the provisions of this Paragraph. In the event that Service Provider fails to comply with the provisions of this Paragraph, and the City is required to enforce the provisions of this Paragraph, or the City suffers a third party award of attorney's fees and/or damages for violating the provisions of Chapter 119,Florida Statutes due to Service Provider's failure to comply with the provisions of this Paragraph,the City shall be entitled to collect from Service Provider prevailing party attorney's fees and costs, and any damages incurred by the City, for enforcing this Paragraph against Service Provider. And, if applicable, the City shall also be entitled to reimbursement of any and all attorney's fees and damages which the City was required to pay a third party because of Service Provider's failure to comply with the provisions of this Paragraph. This Paragraph shall survive the termination of this Agreement. 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 subService Provider as if no subcontract had been made. 19.3 If City determines that any subService Provider 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 subService Provider, Service Provider shall require the subService Provider to provide City and its affiliates with insurance coverage as set forth by the City. City Facilities Landscape Maintenance Agreement-2013 20.0 TERMINATION This Agreement may be terminated by the Service Provider upon thirty(30) days prior written notice to the City in the event of substantial failure by the City to perform in accordance with the terms of this Agreement through no fault of the Service Provider. It may also be terminated by the City with or without cause immediately upon written notice to the Service Provider. Unless the Service Provider is in breach of this Agreement,the Service Provider shall be paid for services rendered to the City's satisfaction through the date of termination. After receipt of a Termination Notice and except as otherwise directed by the City,the Service Provider shall: A. Stop work on the date and to the extent specified by the City. B. Terminate and settle all orders and subcontracts relating to the performance of the terminated work. C. Transfer all work in process, completed work and other material related to the terminated work to the City or approved designee. D. Continue and complete all parts of the work that have not been terminated. 21.0 FORCE MAJEURE 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. 21.0 GOVERNING LAW&VENUE 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 in the Middle District of Florida in Orlando,Florida. 22.0 HEADINGS 23.1 Paragraph headings are for the convenience of the parties only and are not to be construed as part of this Agreement. 23.0 SEVERABILITY 24.1 In the event any portion or part thereof of this Agreement is deemed invalid, against public policy, void, or otherwise unenforceable by a court of law,the parties,at the sole discretion and option of the City, shall negotiate an equitable adjustment in the affected provision of this Agreement. The validity and enforceability of the remaining parts of this Agreement shall otherwise be fully enforceable. 24.0 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. 25.0 THIRD PARTY RIGHTS Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City and Service Provider. City Facilities Landscape Maintenance Agreement-2013 • 26.0 PROHIBITION AGAJNST CONTINGENT FEES 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, oompuny, corporation, individual, or firm, other than a bona fide employee working solely for the Service Provider, any fec, cnmmiooiun, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. 28.0 NO JOINT VENTURE 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. 29.0 ATTORNEY'S FEES If any legal action or other proceeding is brought for the enforcement of this Ag7eement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorney's fees, court costs, and all expenses (including taxes) even if not taxable as court costs (including, without limitation, all such fees, costs and expenses incident to appeals), incurred in that action or proceeding, in addition to any other relief to which such party or parties may be entitled. 30.0 COUNTERPARTS This Ag7cemmen, 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. 31.0 DRAFTING 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. 32'0 NOTICES Any notices required to be given by the tej ins of this Agreement shall be delivered by hand or mailed, postage prepaid to: For Service Provider: Greener Grounds, LLC. l255 Belle Avenue,#l77 Winter Springs, FL 32708 (407)467-1086 For City: City of Winter Springs Urban Beautification Manager 1126 East State Road 434 Winter Springs,FL 32708 Phone: (487)3%7-]8*8x315 33.2 Either party may change the notice addr ss by providing the other party written notice of the change. 34.0 SOVEREIGN IMMUNITY Notwithstanding any other provision set forth in this A8Tocmcot, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 76828, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such,the City shall not be liable under this Agreement City Facilities Landscape Maintenance Agreement-2013 for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than two hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of three hundred thousand dollars ($300,000.00). This paragraph shall survive termination of this Agreement. 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 Service Providers,and consultants. c. the acts, errors, omissions, intentional or otherwise, arising out of or resulting from Service Provider's and its employees, partners, Service Providers, and agents on the performance of the Services being performed under this Agreement; d. Service Provider's, and its employees, partners, Service Providers, 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, Service Providers, and agents performance under this Agreement; e. any fraud and misrepresentation conducted by Service Provider and its employees, partners, Service Providers,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 City Facilities Landscape Maintenance Agreement-2013 descriptions and the Service Provider hereby agrees to abide by the City's interpretation and agrees to carry out the work in accordance with the decision of the City. 37.2 When the material, article, or equipment is designated by a brand name and more than one brand name is listed, it will be understood that the work is based on one brand name only. The Service Provider will be responsible for all coordination necessary to accommodate the material, article, or equipment being provided without additional cost to the City. A substitute material, article, or equipment is allowed if it is reasonably equivalent to the brand name specified. The City has full discretion to decide whether a substitute is reasonably equivalent. Service Provider must notify the City prior to use of the substitute for a specified brand name and allow the City to make a determination before Service Provider uses the substitute. 38.0 NONDISCRIMINATION The Service Provider warrants and represents that it complies with all Federal and State requirements concerning fair employment and will not discriminate by reason of race, color,religion, sex, age,national origin,or physical handicap. 39. ARREARS The Service Provider shall not pledge the City's credit or make it guarantor of payment or surety for any contract, debt, obligation,judgment, lien or any form of indebtedness. The Service Provider further warrants and represents that it has no obligation for indebtedness that would impair its ability to fulfill the terms of this Agreement. 40. WARRANTY The Service Provider warrants that skilled and competent personnel to the highest professional standards in the field shall perform all services. 41. INDEPENDENT SERVICE PROVIDER The Service Provider agrees that it is an independent Service Provider with respect to the services provided pursuant to this Agreement, and not an employee, agent, or servant of the City. All persons engaged in any of the work or services performed shall at all times, and in all places, be subject to the Service Provider's sole discretion, supervision, and control. The Service Provider shall exercise control over the means and manner in which it and its employees perform the work; the City's interest is in the results obtained. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the parties. 42. NONWAIVER No inspection by the City, nor any payment for or acceptance of the whole or part of the items in this Agreement, nor any extension of time,nor any possession taken by the City of the product or services hereunder shall operate as a waiver of(1) any provision of this Agreement, (2)the right to have it fully performed, (3) any power herein reserved by the City or (4) any right to damages under this Agreement. No waiver of any breach of this Agreement shall be held to be a waiver of any other breach. 43. EXCLUSIVITY This is not an exclusive Agreement. The City may,at its sole discretion,contract with other entities for work similar to that to be performed by the Service Provider hereunder. IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their duly authorized representatives as of the date first written above. [EXECUTION PAGE FOLLOWS] City Facilities Landscape Maintenance Agreement-2013 SERVICE PROVIDER: 9 K,1 r/ii,(N`-' Name(Printed and Signed) !'f �tVf\t✓✓ Tr/1".)- / 3 Date CITY: CITY OF WINTER SPRIN ,-FLORIDA A Florida municipal corps ation;` KEV P, L. SMIT .._— _ City anager r August 14, 2013 Date ATTEST: •NDRE• , 7 NZO-LUACES,City Clerk City Facilities Landscape Maintenance Agreement-2013