HomeMy WebLinkAboutblack's_spray_service_professional_services_agreement_2008 BLACK'S SPRAY SERVICE, INC.
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is made and
entered this 1 day of ,k.,N� , 2008 by and between the CITY OF CAPE
CANAVERAL, a Florida municipal corporation, whose principal address is 105 Polk
Avenue, Cape Canaveral, Florida, 32920 ( "City "), and BLACK'S SPRAY SERVICE,
INC., a Florida corporation, whose principal address is 3625 North Courtenay Parkway,
Merritt Island, Florida, 32953 ( "Contractor ").
WITNESSETH:
WHEREAS, the City recently sought bids for its "Fertilization, Insect, Disease,
and Weed Control of Turf Areas and Weed Control of the Central Ditch" contract; and
WHEREAS, Contractor submitted the lowest bid in response to the City's
invitation to bid and has previously performed work for the City to the satisfaction of 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 and Contractor hereby 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
This term of this Agreement shall be for one (1) year commencing on June 1, 2008 and
terminating at midnight on May 31, 2009, unless either party chooses to exercise its
rights under Article 27, Termination. The parties shall have the option to extend the term
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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 Kay McKee,
Streets Department Supervisor, who shall act as the City representative during the
performance of this Agreement. The Agreement Administrator for the Contractor is
Carlos Boyer, 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 type of
services as set forth in Exhibit "A," Scope of Services, attached hereto and fully
incorporated herein by this reference.
ARTICLE 6 — PAYMENT OF CONTRACTOR
The City shall pay to Contractor $33,980.00 for fertilization, insect control, and weed
control as described in Exhibit "A," 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 will be reviewed and
approved by the Agreement Administrator, indicating that the services being invoiced
are in conformity with the Agreement. The invoices will be sent to the Finance
Department for payment. Payments shall be processed consistent with the Florida
Local Government Prompt Payment Act.
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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 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.
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 regulation 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,
Worker's 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 damage
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 MINIMUM LIMITS
General and Auto Liability $500,000 per person /incident
$1,000,000 incident
Professional Liability (if applicable) $1,000,000
Worker's 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 contractors 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 have been given to the City by certified mail.
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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 costs, 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 Statutes, rules or regulations. The Contractor and any
subcontractors 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 e mployment and will not discriminate by reason of race,
color, religion, sex, age, national origin or physical handicap.
ARTICLE 12 — DRUG FEE WORKPLACE
In accordance with Florida Statues 287.087, the Contractor warrants that it is a drug
free workplace.
ARTICLE 13 — PU BLIC ENTIT 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 for CATEGORY TWO ($15,000.00) for a period of
36 months from the date of being placed on the convicted vendor list.
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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
fr 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 CONTRACTOR
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.
ARTICLE 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 60 days
prior to the target date for assignment by the Contractor.
ARTICLE 19 — SUBCONTRACTORS
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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
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responsible to 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 this 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 principals and practices to substantiate all invoiced
amounts. Said records will be available to the City during the Contractors normal
business hours for a period of two (2) years after the Contractors 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 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 form the original
payment due date(s) to the payment by the Contractor of all monies owed.
ARTICLE 23 — ENTIRE GREEMENT
The City and the Contractor agree that this Agreement sets forth the entire agreement
between the parties, and that there are no promises or understandings other than those
stated herein.
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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,
M1 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 amendment 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:
Walter Bandish, Public Works Director Mr. Bennett Boucher, City Manager
City of Cape Canaveral City of Cape Canaveral
P.O. Box 326 P.O. Box 326
Cape Canaveral, Florida 32920 Cape Canaveral, Florida 32920
And if sent to the Contractor, shall be mailed to:
Black's Spray Service, Inc.
Attn: Carlos Boyer
P.O. Box 540201
Merritt Island, Florida 32954 -0201
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ARTICLE 27 — TERMINATION
This Agreement may be terminated by the Contractor 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 Contractor. It may also be
terminated by the City with or without cause immediately upon written notice to the
Contractor. 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 statue 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 — ATTORNEYS' 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 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.
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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 one hundred thousand dollars ($100,000.00), 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 two hundred thousand dollars ($200,000.00). This
paragraph shall survive termination of this Agreement.
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: B �C. QGt.•+��
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Rocky Randels Mayor
Su n St Is, City lerk
CONTRACTOR:
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Black's Spray Service, Inc.,
a Florida corporation.
WITNESSES:
By:
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Exhibit A
Scope Of Services
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