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HomeMy WebLinkAboutcocc_pws_us_lawns_initial_7mo_contract_20200218 PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered thisl8th day of Feb, 2020 by and between the CITY OF CAPE CANAVERAL, a Florida municipal corporation, whose principal address is 100 Polk Avenue, Cape Canaveral, Florida 32920 ("City"), and U.S. LAWNS OF BREVARD, a Florida corporation,whose principal address is 374 Commerce Parkway, Rockledge, FL 32955 ("Contractor"). WITN ESSETH: WHEREAS, the City sought bids for its "Mowing/Maintenance of City Landscaped Areas, Rights-of-Way, Water Reclamation Plant and Lift Stations and Mowing/Slope Mowing of the Central Ditch" contract; and WHEREAS, based on the bid specifications and contractor responses to same, the City's staff review team recommended to the City Council that Contractor be awarded bid; and WHEREAS, Contractor has the experience necessary to perform the required work for the City; and WHEREAS, the City and Contractor desire to memorialize their understanding regarding the scope of services to be performed by the Contractor as set forth in this Agreement; and WHEREAS, this Agreement is in the best interests of the health, safety and welfare of the citizens of the City of Cape Canaveral; and NOW THEREFORE, in consideration of the mutual promises contained herein, the City and Contractor hereby agree as follows: ARTICLE 1 — RECITALS The foregoing recitals are hereby deemed true and correct and are hereby incorporated herein by this reference. ARTICLE 2 — ENGAGEMENT The City hereby engages Contractor who 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 party hereto unless incorporated in this Agreement. ARTICLE 3 —TERM The term of this Agreement shall be for seven (7) months, commencing on March 1, 2020 and terminating at midnight on September 30, 2020, unless the City chooses to exercise their rights Professional Services Agreement City of Cape Canaveral/U.S. Lawns of Brevard Pagel of 10 under Article 27, 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 Contractor 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 Contractor and City agree to extend the Agreement, the Contractor 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 the same. Said increase shall become effective beginning with the invoice for work performed after the start of the new Agreement period. ARTICLE 4—AGREEMENT ADMINISTRATION Administration of the Agreement shall be under the general direction of Tim Carlisle, Public Works Services Deputy Director, who shall act as the City representative during the performance of this Agreement.The Agreement Administrator for the Contractor is Shawn Choron,who will also serve as the Contractor's day-to-day contact person. Each party to this Agreement agrees to provide written notification within fifteen (15) days, should the representative of either party change during the term of the Agreement. ARTICLE 5 —SCOPE OF SERVICES Contractor shall do, perform, deliver and carry out, in a professional manner, the types of services as set forth in Exhibit, Scope of Services, attached hereto and fully incorporated herein by this reference. ARTICLE 6— PAYMENT OF CONTRACTOR The City shall pay to Contractor $190,043.00 for mowing and maintenance of certain landscaped areas of the City and of the Central Ditch, as described in Exhibit, Scope of Services. The Contractor will invoice the City on a monthly basis. This is a not-to-exceed price Agreement. Invoices received from the Contractor pursuant to this Agreement shall be reviewed and approved by the Agreement Administrator, indicating that the services being invoiced are in conformity with the Agreement.The invoices shall be sent to the Finance Department for payment. Payments shall be processed consistent with the Florida Local Government Prompt Payment Act. Professional Services Agreement City of Cape Canaveral/U.S. Lawns of Brevard Page 2 of 10 ARTICLE 7—TRUTH-IN-NEGOTIATION CERTIFICATE Signature of this Agreement by the Contractor shall act as the execution of a truth-in-negotiation certificate certifying that the wage, 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. ARTICLE 8— INSURANCE In the performance of work and services under this Agreement, Contractor 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 Contractor, its employees, agents or subcontractors, if any, with respect to the work and services described herein. Contractor shall maintain in full force and effect during the life of the Agreement, Workers' Compensation insurance covering all employees in performance of work under the Agreement. Contractor shall make this same requirement of any of its subcontractors. Contractor shall indemnify and save the City harmless for any damages resulting to them for failure of either Contractor or any subcontractor to take out or maintain such insurance. The following are required types and minimum limits of insurance coverage which the Contractor agrees to maintain during the term of this Agreement: COVERAGE MININMUM LIMITS General and Auto Liability $500,000 per person/incident $1,000,000 incident Professional Liability (if applicable) $1,000,000 Workers' Compensation Statutory Neither Contractor nor any subcontractor shall commence work under this Agreement until they have obtained all insurance required under this section and have supplied the City's Agreement Administrator 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 Contractor's insurance policies should be endorsed to add the City of Cape Canaveral as an Additional Insured. The Contractor 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 has been given to the City by certified mail. Professional Services Agreement City of Cape Canaveral/U.S. Lawns of Brevard Page 3 of 10 ARTICLE 9— INDEMNIFICATION The Contractor shall indemnify and hold harmless the City, officers, servants and employees from and against any and all claims, liability, damages, losses, causes of action and cost, including, but not limited to, reasonable attorney's fees to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Contractor and other person employed by the Contractor in the performance of the Agreement. ARTICLE 10—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 guarded or eliminated in accordance with the highest accepted standard of safety.The Contractor and any subcontractors shall comply fully with all requirements of the Occupational Safety and Health Act (OSHA), and any other pertinent Federal, State or Local Statues, rules or regulations. The Contractor and any subcontractor shall bear full responsibility for payment of any fines or other punishments resulting from violation of any such statutes, rules or regulations. ARTICLE 11 — NONDISCRIMINATION The Contractor 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. ARTICLE 12 — DRUG FREE WORKPLACE In accordance with section 287.087, Florida Statutes, Contractor warrants that it is a drug free workplace. ARTICLE 13 —PUBLIC ENTITY CRIME INFORMATION STATEMENT A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in section 287.017, Florida Statutes,for CATEGORY TWO ($15,000.00) for a period of 36 months from the date of being placed on the convicted vendor list. Professional Services Agreement City of Cape Canaveral/U.S. Lawns of Brevard Page 4 of 10 ARTICLE 14— EXCUSABLE DELAYS The Contractor shall not be considered in default by reason of any failure in performances if such failure arises out of causes reasonably beyond the Contractor's control and without its fault or negligence. Such causes may include, but are not limited to: Acts of God; natural or public health emergencies; labor disputes; freight embargoes; and severe weather conditions. ARTICLE 15 —ARREARS The Contractor 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 Contractor further warrants and represents that it has no obligation for indebtedness that would impair its ability to fulfill the terms of this Agreement. ARTICLE 16—WARRANTY The Contractor warrants that skilled and competent personnel to the highest professional standards in the field shall perform all services. ARTICLE 17— INDEPENDENT CONTRATOR The Contractor agrees that it is an Independent Contractor 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 Contractor's sole direction, supervision, and control. The Contractor 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. ARTICLES 18—ASSIGNMENT This Agreement may not be assigned without the prior written consent of the City. Any attempt to assign this Agreement without prior written consent of the City shall render the Agreement null and void with respect to the attempted assignee.The City shall not unreasonably withhold consent provided that the Contractor provides the City with information it requires including, but not limited to, a sample contract from the proposed assignee, proposed fee schedule, operating history of the assignee and a contact person representing the assignee. This information shall be provided at least sixty (60) days prior to the target date for assignment by the Contractor ARTICLE 19—SUBCONTRACTORS No part of this Agreement shall be sublet without the prior written approval of the City. If the Contractor shall sublet any portion of this Agreement, the Contractor shall be fully responsible to Professional Services Agreement City of Cape Canaveral/U.S. Lawns of Brevard Page 5 of 10 the City for acts and omissions of a subcontractor, and of persons either directly or indirectly employed or retained by Contractor. The subcontractor is subject to the same contractual provision as is Contractor under the Agreement including, but not limited to, insurance requirements, records maintenance and audit requirements. ARTICLE 20 — 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 to 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. ARTICLE 21 —CONTINGENT FEES The Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Contractor, 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 Contractor, any fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or making of this Agreement. ARTICLE 22 —ACCESS AND AUDITS The Contractor 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 Contractor's normal business hours for a period of two (2) years after the Contractor's final invoice for examination to the extent required to verify the direct cost (excluding established or standard allowances and taxes) incurred herein. Should such an audit by the City reveal monies owed to the City, the Contractor 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 Contractor of all monies owed. ARTICLE 23 — ENTIRE AGREEMENT The City and the Contractor agree that this Agreement sets forth the entire agreement between the parties, and that there are not promises or understandings other than those stated herein. Professional Services Agreement City of Cape Canaveral/U.S. Lawns of Brevard Page 6 of 10 ARTICLE 24—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 Contractor,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 Contractor of the City's notification of a contemplated change, the Contractor 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 Contractor's ability to meet the completion dates or schedules of this Agreement. If the City so instructs, in writing, the Contractor 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 a Contract Amendment or Change Order and the Contractor shall not commence work on any such change until such written amendments or change order has been issued and signed by each of the parties. ARTICLE 25 —SEVERABILITY If a word, sentence, phrase, clause or paragraph herein shall be declared illegal, unenforceable, or unconstitutional, the said word, sentence, phrase, clause or paragraph shall be severed from this Agreement, and this Agreement shall be read as if said illegal, unenforceable, or unconstitutional word, sentence, phrase, clause or paragraph did not exist. ARTICLE 26— NOTICE All notices required in the Agreement shall be sent by certified mail, return receipt requested, and if sent to the City, shall be mailed to: Copy to: James Moore, Public Works Services Director Todd Morley, Interim City Manager City of Cape Canaveral City of Cape Canaveral PO Box 326 PO Box 326 Cape Canaveral, Florida 32920 Cape Canaveral, Florida 32920 And if sent to the Contractor, shall be mailed to: Brandon Silverstein, Owner U.S. Lawns of Brevard 374 Commerce Parkway Rockledge, FL 32940 Professional Services Agreement City of Cape Canaveral/U.S. Lawns of Brevard Page 7 of 10 ARTICLE 27—TERMINATION This Agreement may be terminated by the City upon thirty (30) days prior written notice to the Contractor in the event of substantial failure by the Contractor to perform in accordance with the terms of this Agreement through no fault of the City. Unless the Contractor is in breach of this Agreement, the Contractor 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 Contractor shall: A. Stop work on the date and to the extent specified. 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. ARTICLE 28— 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 Contractor hereunder. ARTICLE 29— REMEDIES The laws of the State of Florida shall govern this Agreement. Any and all legal action necessary to enforce the Agreement will be held in Brevard County, Florida. No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any party of any right, power or remedy hereunder shall preclude any other of further exercise thereof. ARTICLE 30—ATTORNEY'S FEES If any legal action or other proceeding is brought for the enforcement of this Agreement, 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 fee, court cost and all expenses (including taxes) even if not taxable as court cost (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. Professional Services Agreement City of Cape CanaveraUU.S. Lawns of Brevard Page 8 of 10 ARTICLE 31 —SOVEREIGN IMMUNITY Notwithstanding any other provision set forth in this Agreement, 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. As such, the City shall not be liable under this Agreement 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. ARTICLE 32 - DOCUMENTS Public Records: In accordance with section 119.0701, Florida Statutes, Contractor 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. Contractor 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. Contractor 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. Contractor 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, Contractor shall meet all requirements for retaining public records and transfer, at no cost, to the City all public records in possession of the Contractor 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 Contractor 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 Contractor 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 Contractor's failure to comply with the provisions of this Paragraph, the City shall be entitled to collect from Contractor prevailing party attorney's fees and costs,and any damages incurred by the City,for enforcing this Paragraph against Contractor. 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 Contractor's failure to comply with the provisions of this Paragraph. This Paragraph shall survive the termination of this Agreement. Professional Services Agreement City of Cape Canaveral/U.S. Lawns of Brevard Page 9 of 10 IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day and year first above written. CITY: City of Cape Canaveral, Florida, a Florida municipal corporation. Attest: C By: 4 dd Morley, I i y Manager By: �c � t Mia Goforth, City Clerk CONTRACTOR: U.S. Lawns of Brevard, a Florida corporation. WITNESSES: Print Name: /Fe- dish Print Name: SING.-ne, e{5 n Title: rcA-\'►anm VAG..nc4.5C.Y ) s‘41\ ,\NN*NA Print Named Professional Services Agreement City of Cape Canaveral/U.S. Lawns of Brevard Page 10 of 10