2023-07-18 VII. D. RFQ No. PW 03-32-05-23, Exhibit 8 • Exhibit 8
07/18/2023
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF OKEECHOBEE
AND
NUNEZ LAWNCARE AND (LANDSCAPING INC.
THE PROFESSIONAL SERVICES AGREEMENT (this "Agreement") is made effective
as of the 1st clay of August, 2023 (the "Effective Date"), by and between the CITY OF
OKEECHOBEE, a Florida municipal corporation, whose principal address is 55 SE 3rd
Avenue, Room 100, Okeechobee, FL 34974 (hereinafter the "City"), and Nunez Lawncare
and Landscaping Inc., a Florida Corporation, whose address is 3650 SE 36 Ave,
Okeechobee, FL 34974 (hereinafter, the "Contractor").
WHEREAS, the Contractor will perform services on behalf of the City, all as further set
forth during negotiations with the City, attached hereto as Exhibit A ("Scope of
Services"); and
WHEREAS, the Contractor and City, through mutual negotiation, have agreed upon a fee
for the Services; and
WHEREAS, the City desires to engage the Contractor to perform the Services and
provide the deliverables as specified below.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained
herein, the Contractor and the City agree as follows:
1. Scope of Services.
1.1 Contractor shall provide the Services set forth in the attached Exhibit
A, incorporated herein by reference.
1.2 Contractor shall furnish all reports, documents, information obtained
pursuant to this Agreement, and recommendations during the term of
this Agreement (hereinafter "Deliverables").
2. Term/Commencement Date.
2.1 This Agreement shall become effective upon the Effective Date and shall
remain in effect until September 30, 2023, unless earlier terminated in
accordance with Paragraph 8. The City shall have the right to renew the
term of the Agreement for two (2) additional one (1) year terms, and
amend the terms and conditions, upon written notice to Contractor at
least 30 days prior to expiration of the term.
2.2 Contractor agrees that time is of the essence and Contractor shall
complete the Services within the term of this Agreement, unless
extended by the City Administrator.
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3. Compensation and Payment.
3.1 Compensation for Services provided by Contractor shall be in
accordance with the Rate Schedule and Compensation and Payment
Terms attached hereto as Exhibit B.
3.2 Contractor shall deliver an invoice to City no more often than once per
month detailing Services completed and the amount due to Contractor
under this Agreement. Fees shall be paid in arrears each month,
pursuant to the Contractor's invoice, which shall be based upon the
percentage of work completed for each task invoiced. The City shall pay
the Contractor in accordance with the Florida Prompt Payment Act after
approval and acceptance of the Services by the City Administrator.
4. Subcontractors.
4.1 The Contractor shall be responsible for all payments to any
Subcontractors and shall maintain responsibility for all work related to
the Services.
4.2 Contractor may only utilize the services of a particular subcontractor with
the prior written approval of the Public Works Director, which approval
shall be granted or withheld in the Public Works Director's sole and
absolute discretion.
5. Citv's Responsibilities.
5.1 City shall make available any maps, plans, existing studies, reports, staff
and representatives, and other data pertinent to the Services and in
possession of the City, and provide criteria requested by Contractor to
assist Contractor in performing the Services.
5.2 Upon Contractor's request, City shall reasonably cooperate in arranging
access to public information that may be required for Contractor to
perform the Services.
6. Contractor's Responsibilities.
6.1 The Contractor shall exercise the same degree of care, skill and diligence
in the performance of the Services as is ordinarily provided by a Contractor
under similar circumstances. If at any time during the term of this
Agreement or within two (2)years from the completion of this Agreement, it
is determined that the Contractor's Deliverables or Services are incorrect,
not properly rendered, defective, or fail to conform to City requests, the
Contractor shall at Contractor's sole expense, immediately correct its
Deliverables or Services.
6.2 The Contractor hereby warrants and represents that at all times during the
term of this Agreement it shall maintain in good standing all required
licenses, certifications and permits required under Federal, State and local
laws applicable to and necessary to perform the Services for City as an
independent contractor of the City.
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7. Termination.
7.1 The City may terminate this Agreement without cause by providing no
fewer than sixty (60) calendar days written notice to the Contractor, or
immediately with cause.
7.2 Upon receipt of the City's written notice of termination, Contractor shall
immediately stop work on the project unless directed otherwise by the
Public Works Director.
7.3 In the event of termination by the City, the Contractor shall be paid for all
work accepted by the Public Works Director up to the date of termination,
provided that the Contractor has first complied with the provisions of
Paragraph 15.5.
8. Insurance.
8.1 Contractor shall secure and maintain throughout the duration of this
agreement insurance of such types and in such amounts not less than
those specified below as satisfactory to City, naming the City as an
Additional Insured, underwritten by a firm rated A-X or better by A.M.
Best and qualified to do business in the State of Florida. The insurance
coverage shall be primary insurance with respect to the City, its officials,
employees, agents and volunteers naming the City as additional insured.
Any insurance maintained by the City shall be in excess of the
Contractor's insurance and shall not contribute to the Contractor's
insurance. The insurance coverages shall include at a minimum the
amounts set forth in this section and may be increased by the City as it
deems necessary or prudent.
a Commercial General Liability coverage with limits of liability of not
less than a $1,000,000 per Occurrence combined single limit for
Bodily Injury and Property Damage. This Liability Insurance shall
also include Completed Operations and Product Liability coverages
and eliminate the exclusion with respect to property under the care,
custody and control of Contractor. The General Aggregate Liability
limit and the Products/Completed Operations Liability Aggregate
limit shall be in the amount of$2,000,000 each.
b. Workers Compensation and Employer's Liability insurance, to apply
for all employees for statutory limits as required by applicable State
and Federal laws. The policy(ies) must include Employer's Liability
with minimum limits of$1,000,000.00 each accident. No employee,
subcontractor or agent of the Contractor shall be allowed to provide
Services pursuant to this Agreement who is not covered by Worker's
Compensation insurance.
c Business Automobile Liability with minimum limits of$1,000,000 per
Occurrence, combined single limit for Bodily Injury and Property
Damage. Coverage must be afforded on a form no more restrictive
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than the latest edition of the Business Automobile Liability policy,
without restrictive endorsements, as filed by the Insurance Service
Office, and must include Owned, Hired, and Non-Owned Vehicles.
8.2 Certificate of Insurance. Certificates of Insurance shall be provided to
the City, reflecting the City as an Additional Insured (except with respect
to professional Liability Insurance and Worker's Compensation
Insurance), no later than ten (10) days after award of this Agreement
and prior to the execution of this Agreement by City and prior to
commencing Services. Each certificate shall include no less than (30)
thirty-day advance written notice to the City prior to cancellation,
termination, or material alteration of said policies or insurance. The
Contractor shall be responsible for assuring that the insurance
certificates required by this Section remain in full force and effect for the
duration of this Agreement, including any extensions or renewals that
may be granted by the City. The Certificates of Insurance shall not only
name the types of policy(ies) provided, but also shall refer specifically to
this Agreement and shall state that such insurance is as required by this
Agreement. The City reserves the right to inspect and return a certified
copy of such policies, upon written request by the City. If a policy is due
to expire prior to the completion of the Services, renewal Certificates of
Insurance shall be furnished thirty (30) calendar days prior to the date of
their policy expiration. Each policy certificate shall be endorsed with a
provision that not less than thirty (30) calendar days' written notice shall
be provided to the City before any policy or coverage is cancelled or
restricted. Acceptance of the Certificate(s) is subject to approval of the
City.
8.3 Additional Insured. Except with respect to Professional Liability
Insurance and Worker's Compensation Insurance, the City is to be
specifically included as an Additional Insured for the liability of the City
resulting from Services performed by or on behalf of the Contractor in
performance of this Agreement. The Contractor's insurance, including
that applicable to the City as an Additional Insured, shall apply on a
primary basis and any other insurance maintained by the City shall be
in excess of and shall not contribute to the Contractor's insurance. The
Contractor's insurance shall contain a severability of interest provision
providing that, except with respect to the total limits of liability, the
insurance shall apply to each Insured or Additional Insured (for
applicable policies) in the same manner as if separate policies had been
issued to each.
8.4 Loss Payee. The City is to be specifically named as a loss payee under
the Contractor's Professional Insurance policy so that the City will be a
third-party beneficiary entitled to receive all money payable under the
relevant policy for any claims, damages, or losses in connection with,
related to, or arising from Contractor's Services or performance pursuant
to this Agreement.
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8.5 Deductibles. All deductibles or self-insured retentions must be declared
to and be reasonably approved by the City. The Contractor shall be
responsible for the payment of any deductible or self-insured retentions
in the event of any claim.
8.6 The provisions of this section shall survive termination of this
Agreement.
9. Nondiscrimination.
During the term of this Agreement, Contractor shall not discriminate against
any of its employees or applicants for employment because of their race,
color, religion, sex, or national origin, and to abide by all Federal and State
laws regarding nondiscrimination.
10. Attorney Fees and Waiver of Jury Tria(.
10.1 In the event of any litigation arising out of this Agreement, the prevailing
party shall be entitled to recover its attorneys' fees and costs,including
the fees and expenses of any paralegals, law clerks and legal
assistants, and including fees and expenses charged for representation
at both the trial and appellate levels.
10.2 IN THE EVENT OF ANY LITIGATION ARISING OUT OF THIS
AGREEMENT, EACH PARTY HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS
RIGHT TO TRIAL BY JURY.
11. Indemnification.
11.1 Contractor shall indemnify and hold harmless the City, its officers,
agents and employees, from and against any and all demands, claims,
losses, suits, liabilities, causes of action, judgment or damages, arising
from Contractor's negligent acts, errors, or omissions arising out of the
performance or nonperformance of any provision of this Agreement,
including, but not limited to, liabilities arising from contracts between the
Contractor and third parties made pursuant to this Agreement.
Contractor shall reimburse the City for all its expenses including
reasonable attorneys' fees and costs incurred in and about the defense
of any such claim or investigation and for any judgment or damages
arising from Contractor's negligent performance or non-performance of
this Agreement.
11.2 The provisions of this section shall survive termination of this
Agreement.
12. Notices/Authorized Rearesentatives.
Any notices required by this Agreement shall be in writing and shall be
deemed to have been properly given if transmitted by hand-delivery, by
registered or certified mail with postage prepaid return receipt requested, or
by a private postal service, addressed to the parties (or their successors) at
the following addresses:
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For the City: Public Works Director
City of Okeechobee
55 SE 3rd Avenue, Room 101
Okeechobee, FL 34974
With a copy to: John J. Fumero, Esq.
City Attorney
Nason Yeager Gerson Harris & Fumero, PA
750 Park of Commerce Blvd., Suite 210
Boca Raton, FL 33487
For the Contractor: Nunez Lawncare and Landscaping Inc.
c/o Cristal Nunez
4833 NE 122nd Drive
Okeechobee, FL 34972
13. Governing Laws.
This Agreement shall be construed in accordance with and governed by the
laws of the State of Florida. Venue for any proceedings arising out of this
Agreement shall be proper exclusively in Okeechobee County, Florida.
14. Entire Agreement/Modification/Amendment.
14.1 This writing contains the entire Agreement of the parties and
supersedes any prior oral or written representations. No
representations were made or relied upon by either party, other than
those that are expressly set forth herein.
14.2 No agent, employee, or other representative of either party is
empowered to modify or amend the terms of this Agreement, unless
executed with the same formality as this document.
14.3 Contractor represents that is an entity validly existing and in good
standing under the laws of Florida. The execution, delivery and
performance of this Agreement by Contractor have been duly
authorized, and this Agreement is binding on Contractor and
enforceable against Contractor in accordance with its terms. No
consent of any other person or entity to such execution, delivery and
performance is required.
15. Ownership and Access to Records and Audits.
15.1 Contractor acknowledges that all inventions, innovations,
improvements, developments, methods, designs, analyses, drawings,
reports, compiled information, and all similar or related information
(whether patentable or not) which relate to Services to the City which
are conceived, developed or made by Contractor during the term of this
Agreement ("Work Product") belong to the City. Contractor shall
promptly disclose such Work Product to the City and perform all actions
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reasonably requested by the City (whether during or after the term of
this Agreement) to establish and confirm such ownership (including,
without limitation, assignments, powers of attorney and other
instruments).
15.2 Contractor agrees to keep and maintain public records in Contractor's
possession or control in connection with Contractor's performance
under this Agreement. Contractor additionally agrees to comply
specifically with the provisions of Section 119.0701, Florida Statutes.
Contractor shall ensure that public records that are exempt or
confidential and exempt from public records disclosure requirements
are not disclosed, except as authorized by law, for the duration of the
Agreement, and following completion of the Agreement until the records
are transferred to the City.
15.3 Upon request from the City's custodian of public records, Contractor
shall provide the City with a copy of the requested records or allow the
records to be inspected or copied within a reasonable time at a cost that
does not exceed the cost provided by Chapter 119, Florida Statutes,or
as otherwise provided by law.
15.4 Unless otherwise provided by law, any and all records, including but not
limited to reports, surveys, and other data and documents provided or
created in connection with this Agreement are and shall remain the
property of the City.
15.5 Upon completion of this Agreement or in the event of termination by
either party, any and all public records relating to the Agreement in the
possession of the Contractor shall be delivered by the Contractor to the
City Administrator, at no cost to the City, within seven (7) days. All such
records stored electronically by Contractor shall be delivered to the City
in a format that is compatible with the City's information technology
systems. Once the public records have been delivered upon completion
or termination of this Agreement, the Contractor shall destroy any and
all duplicate public records that are exempt or confidential and exempt
from public records disclosure requirements.
15.6 Any compensation due to Contractor shall be withheld until all records
are received as provided herein.
15.7 Contractor's failure or refusal to comply with the provisions of this
section shall result in the immediate termination of this Agreement by
the City.
Notice Pursuant to Section 119.0701(21(a). Florida Statutes
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO
THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS CONTRACT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS.
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Custodian of Records: Lane Earnest-Gamiotea, CMC
Mailing address: 55 SE 3rd Avenue, Room 100
Okeechobee, FL 34974
Telephone number: 863-763-3372
Email: Iamiotea@cityofokeechobee.com
16. Nonassianability.
This Agreement shall not be assignable by Contractor unless such
assignment is first approved by the City Administrator. The City is relying
upon the apparent qualifications and expertise of the Contractor, and such
firm's familiarity with the City's area, circumstances, and desires.
17. Severability.
If any term or provision of this Agreement shall to any extent be held invalid
or unenforceable, the remainder of this Agreement shall not be affected
thereby, and each remaining term and provision of this Agreement shall be
valid and be enforceable to the fullest extent permitted by law.
18. Independent Contractor.
The Contractor and its employees, volunteers and agents shall be and
remain an independent contractor and not an agent or employee of the City
with respect to all of the acts and services performed by and under the terms
of this Agreement. This Agreement shall not in any way be construed to
create a partnership, association or any other kind of joint undertaking,
enterprise, or venture between the parties.
19. Compliance with Laws.
The Contractor shall comply with all applicable laws, ordinances, rules,
regulations, and lawful orders of public authorities in carrying out Services
under this Agreement, and in particular shall obtain all required permits from
all jurisdictional agencies to perform the Services under this Agreement at its
own expense.
20. E-Verify.
Contractor has verified that its employees are authorized to work in the U.S.
and certifies that a good faith effort has been made to properly identify
employees by timely reviewing and completing appropriate documentation,
including but not limited to the Department of Homeland Security, U.S.
Citizenship, and Immigration Services Form 1-9. Answers to questions
regarding E-Verify as well as instructions on enrollment may be found at the
E-Verify website: www.uscis.gov/e-verify. Contractor shall expressly require
any subcontractors performing work or providing services pursuant to this
contract to likewise utilize the U.S. Department of Homeland Security's E-
Verify system to verify the employment eligibility of all new employees hired
by the subcontractor during the contract term.
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21. Waiver.
The failure of either party to this Agreement to object to or to take affirmative
action with respect to any conduct of the other which is in violation of the
terms of this Agreement shall not be construed as a waiver of the violation
or breach, or of any future violation, breach, or wrongful conduct.
22. Survival of Provisions.
Any terms or conditions of either this Agreement that require acts beyond the
date of the term of the Agreement, shall survive termination of the
Agreement, shall remain in full force and effect unless and until the terms or
conditions are completed and shall be fully enforceable by either party.
23. Prohibition of Contingency 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(s), company, corporation, individual or firm, other than a bona
fide employee working solely for the Contractor, any fee, Council,
percentage, gift, or any other consideration, contingent upon or resulting
from the award or making of this Agreement.
24. Public Entity Crimes Affidavit.
Contractor shall comply with Section 287.133, Florida Statutes (Public Entity
Crimes Statute), notification of which is hereby incorporated herein by
reference, including execution of any required affidavit.
25. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original and such counterparts shall constitute one and
the same instrument.
[Signature pages follow.]
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date
written below their signatures.
FOR THE CONTRACTOR:
By:
Name:
Title:
Date Executed:
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day
and date first above written.
FOR THE CITY:
CITY OF OKEECHOBEE,
a Florida municipal corporation
Dowling R. Watford Jr., Mayor
Date:
ATTEST:
Lane Gamiotea, CMC
City Clerk
Approved as to Form and Legal Sufficiency:
John J. Fumero, Esq.
Nason Yeager Gerson Harris & Fumero, P.A.
City Attorney
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EXHIBIT A
LANDSCAPE MAINTENANCE SCOPE OF SERVICES
The Contractor submitted a Request for Qualifications (RFQ) on May 11, 2023, and was
awarded the RFQ by the City Council on June 20, 2023. Council directed staff to negotiate
a Scope of Services from August 1, 2023, to September 30, 2023, as agreed upon during
negotiations not to exceed $35,000.
The work is described as follows:
General ground landscape maintenance in Flagler Park, City Hall Park, Endcaps along
Park Street, and Centennial Park including but not limited to mowing, trimming, edging,
weeding, pruning, trimming of plants, shrubs/bushes, and adding mulch where needed.
In addition, mowing medians along 441.
The selected Contractor will be responsible for the entire scope of work, hiring licensed
Subcontractors, and paying for all plans and permits from the City of Okeechobee and/or
other agencies.
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EXHIBIT B
RATE SCHEDULE AND COMPENSATION AND PAYMENT TERMS
The Rate Schedule for Services performed pursuant to this Agreement are as follows:
SERVICE DESCRIPTION AMOUNT
Tree or Palm Labor ANSI A300 Standard Practices $350/hr
Tree Crew Man Hours for 3-4 Crew Members
Landscaping Labor Crew Landscape crew hours: $225/hr.
This labor cost is per hour calculating 4-5 crew
Irrigation Labor Irrigation Master Tech Labor Hours $65/hr
Irrigation Helper Irrigation helper $45/hr
Mulch Labor Labor for Mulch Laying $60/hr
Fertilizer Fertilizer Treatment TBD on area