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2015-16 Heritage Day Amusement RidesRESOLUTION 2015 -16 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA ACCEPTING THE PROPOSAL SUBMITTED BY BIG FUN, INC. FOR THE HERITAGE DAY 2015 AMUSEMENT RIDES AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE AN AGREEMENT RELATING TO SUCH SERVICES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village issued a Request for Proposals for the Heritage Day 2015 amusement rides; and WHEREAS, Village Administration recommended accepting the proposal submitted by Big Fun Inc., a Florida corporation, at a total cost not to exceed $40,100.00; and WHEREAS, the Village Council determines that the acceptance of the proposal recommended by Village Administration is in the best interests of the Village and its residents. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA as follows: Section 1. The foregoing recitals are ratified as true and incorporated herein. Section 2. The Village Council hereby accepts the proposal submitted by Big Fun, Inc. for the Heritage Day 2015 amusement rides at a total cost not to exceed $40,100, with funds expended from Village Account No. A8229 -35650 ( "Special Events — Heritage Weekend Expense "). Section 3. The Village Council further authorizes and directs the Mayor and Village Clerk to execute a contract with Big Fun, Inc. to perform such services in accordance with the terms and conditions set forth in the Request for Proposals issued by the Village, a copy of which is attached hereto and incorporated herein. Section 4. This Resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED THIS 12th DAY OF FEBRUARY, 2015. (Village Sc=at) ATTEST: VILLAGE CLERK co 0, 4 Alr� MAYOR CONTRACT This Contract is made as of the day of 'Feb r✓ar `1 , 2015, by and between the VILLAGE OF NORTH PALM BEACH, a Florida municipal corporation, hereinafter referred to as the VILLAGE, and BIG FUN, INC., a Florida corporation authorized to do business in the State of Florida, hereinafter referred to as CONTRACTOR, whose Federal Employer I.D. is 20- 1152264. In consideration of the promises and mutual covenants herein contained, it is hereby agreed that CONTRACTOR shall provide to the VILLAGE all goods and services requested under Request for Proposals for Heritage Day Amusement Rides and as further stated in CONTRACTOR's Proposal and pursuant to the terms and conditions of this Contract. ARTICLE 1. SERVICES OF CONTRACTOR. A. CONTRACTOR shall provide all goods and services as stated in the RFP and CONTRACTOR's Proposal, as incorporated herein by reference, to that degree of care and skill ordinarily exercised, under similar circumstances, by reputable members of its profession practicing in the same or similar locality at the time the services are provided. CONTRACTOR shall provide the following rides (in addition to two generators): Super Swinger, Cliff Hanger, Rock Star, Rio Grande Train, Surf City Fun House, Kiddie Swing, Fun Slide, Cross Country Adventure, Monkey Mayhem, and Zero Gravity. CONTRACTOR certifies that it is licensed to perform the requested services in the State of Florida and Palm Beach County and shall comply with all applicable federal, state and local laws, ordinances, rules and regulations. B. CONTRACTOR shall provide the required goods and services in accordance with the following: 1. CONTRACTOR shall stage all rides /attractions at the VILLAGE's designated location so that they are ready for inspection by the State of Florida on Friday, March 27, 2015. 2. In the event of inclement weather, CONTRACTOR shall provide the required services at the VILLAGE's designated location on Sunday March 29, 2015. 3. If inclement weather continues and the VILLAGE, in its sole discretion, decides not to conduct the Heritage Day festivities, the VILLAGE shall pay CONTRACTOR for the documented and verified costs of goods and services actually provided, not to exceed the maximum compensation set forth in Article 4. 4. CONTRACTOR shall obtain all required permits and inspections. To the extent permitted by law, the VILLAGE shall waive all VILLAGE permit and inspection fees. 5. CONTRACTOR shall be responsible for maintaining, storing and protecting all rides /attractions from all acts of nature, theft, vandalism or other means of damage or destruction. 6. CONTRACTOR shall be responsible for removing and clearing the rides /attractions on the day of the festivities. ov ARTICLE 2. PERIOD OF SERVICE. A. CONTRACTOR shall provide all goods and services in accordance with the terms of the RFP and this Contract. Time is of the essence. B. In the event of unpreventable acts or occurrences wholly beyond the control of and unattributable to CONTRACTOR or the VILLAGE, including, by way of example, acts of God, fire, flood, riots, war, terrorist activities, drought conditions, hurricanes or other severe and unforeseen storm events ( "Force Majeure Events "), prevent the CONTRACTOR from performing the services contemplated by this Contract, the CONTRACTOR shall be excused from performance under the terms of this Contract and the VILLAGE shall be relieved from payment for such services. C. Notwithstanding the foregoing, CONTRACTOR shall not be entitled to an increase in the agreed to compensation in this Contract or payment or compensation of any kind from the VILLAGE for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference or hindrance from any cause whatsoever. Provided, however, that this provision shall not preclude recovery or damages by CONTRACTOR for hindrances or delays due solely to fraud, bad faith or active interference on the part of the VILLAGE or its agents. ARTICLE 3. VILLAGE'S REPRESENTATIVE. Unless otherwise specified by the VILLAGE, the VILLAGE's representative shall be the Village Parks and Recreation Director. ARTICLE 4. COMPENSATION AND METHOD OF PAYMENT. A. The VILLAGE agrees to compensate CONTRACTOR for the provision of all goods and services set forth in the RFP and as stated in CONTRACTOR's proposal in an amount not to exceed Forty Thousand One Hundred Dollars and Zero Cents ($40,100.00). B. The VILLAGE shall pay CONTRACTOR a deposit of up to fifty percent (50 %) within ten (10) days after execution of this Contract by the VILLAGE. The balance of the compensation due to the CONTRACTOR shall be paid subsequent to the Heritage Day event upon satisfactory completion of all services. C. CONTRACTOR shall submit an invoice(s) to the VILLAGE for the remainder of the compensation. All invoice(s) received from CONTRACTOR pursuant to this Contract will be reviewed and approved by the VILLAGE's representative, indicating that goods and services have been provided and rendered in conformity with the Contract and then will be sent to the Finance Department for payment. Invoices will normally be paid within thirty (30) days following the VILLAGE representative's approval. D. Services undertaken or expenses incurred that exceed the amount set forth in this Contract without prior written authorization from the VILLAGE shall be the sole liability of CONTRACTOR. E. CONTRACTOR waives consequential or incidental damages for claims, disputes or other matters in question arising out of or relating to this Contract. F. In order for both parties herein to close their books and records, CONTRACTOR will clearly state "final invoice" on CONTRACTOR's final /last billing to the VILLAGE. This certifies that all goods have been provided and services performed and all charges have been invoiced to the VILLAGE. Since this account will thereupon be closed, any and other further charges if not properly included in this final invoice are waived by CONTRACTOR. The VILLAGE will not be liable for any invoice from CONTRACTOR submitted thirty (30) days after the provision of the required goods and services. G. If the VILLAGE disputes any invoice or part of an invoice, VILLAGE shall notify CONTRACTOR of such dispute within fifteen (15) days of receipt of the invoice. VILLAGE reserves the right to off -set, reduce or withhold any payment to CONTRACTOR in accordance with the terms and conditions of this Contract ARTICLE 5. INDEMNIFICATION. A. To the fullest extent permitted by applicable laws and regulations, the CONTRACTOR shall indemnify and save harmless and defend the VILLAGE, its officials, agents, servants, and employees from and against any and all claims, liability, losses, and/or causes of action arising out of or in any way related to the services furnished by the CONTRACTOR pursuant to this Contract, including, but not limited to, those caused by or arising out of any act, omission, negligence or default of the CONTRACTOR and /or its subcontractors, agents, servants or employees. B. The CONTRACTOR shall not be required to indemnify the VILLAGE, its officials, agents, servants and employees when the occurrence results solely from the wrongful acts or omissions of the VILLAGE, its officials, agents, servants and employees. The terms of this Section shall survive completion of all services, obligations and duties provided for in this Contract as well as the termination of this Agreement for any reason. C. Nothing contained in this Contract shall create a contractual relationship with or a cause of action in favor of a third party against either the VILLAGE or the CONTRACTOR, nor shall this Contract be construed a waiver of sovereign immunity beyond the limited waiver provided in § 768.28, Florida Statutes. ARTICLE 6. PERSONNEL. A. CONTRACTOR represents that it has, or will secure at its own expense, all necessary personnel required to perform the Work under this Contract. Such personnel shall not be employees of or have any contractual relationship with the VILLAGE. B. All of the Work required hereunder shall be performed by CONTRACTOR or under its supervision, and all personnel engaged in performing the Work shall be fully qualified and, if required, authorized or permitted under state and local law to perform such Work. C. All of CONTRACTOR's personnel (and all sub - contractors) while on VILLAGE premises, will comply with all VILLAGE requirements governing conduct, safety, and security. -3- 1 "&10 ARTICLE 7. TERMINATION. This Contract may be cancelled by CONTRACTOR upon ninety (90) days prior written notice to the VILLAGE's representative in the event of substantial failure by the VILLAGE to perform in accordance with the terms of this Contract through no fault of CONTRACTOR. It may also be terminated, in whole or in part, by the VILLAGE, with or without cause, upon thirty (30) days written notice to CONTRACTOR. Unless CONTRACTOR is in breach of this Contract, CONTRACTOR shall be paid for services rendered to the VILLAGE's satisfaction through the date of termination. If the amount owed for services rendered is less than the deposit paid by the VILLAGE pursuant to Section 4.13, CONTRACTOR shall refund the remainder of the deposit. ARTICLE 8. FEDERAL AND STATE TAX. The VILLAGE is exempt from payment of Florida State Sales and Use Tax. CONTRACTOR shall not be exempted from paying sales tax to its suppliers for materials used to fill contractual obligations with the VILLAGE, nor is CONTRACTOR authorized to use the VILLAGE's Tax Exemption Number in securing such materials. ARTICLE 9. INSURANCE. Prior to commencing any Work, CONTRACTOR shall provide certificates evidencing insurance coverage as required in the RFP. All insurance, other than Worker's Compensation, to be maintained by CONTRACTOR shall specifically include the VILLAGE as an Additional Insured and shall require thirty (30) day prior notice to the VILLAGE in the event of cancellation. ARTICLE 10. SUCCESSORS AND ASSIGNS. The VILLAGE and CONTRACTOR each binds itself and its partners, successors, executors, administrators, and assigns to the other party of this Contract and to the partners, successors, executors, administrators and assigns of such other party, in respect to all covenants of this Contract. Except as above, neither the VILLAGE nor CONTRACTOR shall assign, sublet, convey or transfer its interest in this Contract without the written consent of the other. Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of the VILLAGE which may be a party hereto, nor shall it be construed as giving any rights or benefits hereunder to anyone other than the VILLAGE and CONTRACTOR. ARTICLE 11. GOVERNING LAW, VENUE AND REMEDIES. A. This Contract shall be governed by the laws of the State of Florida. Any and all legal action necessary to enforce the Contract will be held in Palm Beach County. B. 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 or further exercise thereof. ARTICLE 12. INDEPENDENT CONTRACTOR RELATIONSHIP. CONTRACTOR is, and shall be, in the performance this Contract, an Independent Contractor, and not an employee, agent, or servant of the VILLAGE. All persons engaged in any of the work performed pursuant to this Contract shall at all times, and in all places, be subject to CONTRACTOR's sole direction, supervision, and control. CONTRACTOR shall exercise control over the means and manner in which it and its employees perform the Work. ARTICLE 13. NONDISCRIMINATION. CONTRACTOR warrants and represents that all of its employees are treated equally during employment without regard to race, color, religion, disability, sex, age, national origin, ancestry, marital status, or sexual orientation. ARTICLE 14. ENFORCEMENT COSTS. If any legal action or other proceeding is brought for the enforcement of this Contract, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Contract, 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 awarded 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. ARTICLE 15. AUTHORITY TO PROVIDE REQUIRED SERVICES. CONTRACTOR hereby represents and warrants that it has and will continue to maintain all licenses and approvals required to conduct its business and provide the services required under this Contract, and that it will at all times conduct its business and provide the services required under this Contract in a reputable manner. Proof of such licenses and approvals shall be submitted to the VILLAGE's representative upon request. ARTICLE 16. SEVERABILITY. If any term or provision of this Contract, or the application thereof to any person or circumstances shall, to any extent, be held invalid or unenforceable, to remainder of this Contract, or the application of such terms or provision, to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and every other term and provision of this Contract shall be deemed valid and enforceable to the extent permitted by law. ARTICLE 17. MODIFICATIONS OF WORK. A. The VILLAGE reserves the right to make changes in the Work, including alterations, reductions therein or additions thereto. Upon receipt by CONTRACTOR of the VILLAGE's notification of a contemplated change, CONTRACTOR shall, in writing, provide a detailed estimate for the increase or decrease in cost due to the contemplated change. B. If the VILLAGE elects to make the change, the VILLAGE shall initiate a Contract Amendment and CONTRACTOR shall not commence work on any such change until such written amendment is signed by CONTRACTOR and approved and executed by the VILLAGE. ARTICLE 18. PROTECTION OF WORK AND PROPERTY. A. CONTRACTOR shall continuously maintain adequate protection of all goods and services provided pursuant to this Contract from damage, and shall protect the VILLAGE's property from injury or loss arising in connection with the Contract. Except for any such damage, injury, or loss, except that which may be directly due to errors caused by the VILLAGE or employees of the VILLAGE, CONTRACTOR shall provide any necessary materials to maintain such protection. B. CONTRACTOR will also take every necessary precaution to ensure the safety of the VILLAGE, public and other guests and invitees thereof at or near the areas where services are being performed and throughout the completion of such services. ARTICLE 19. NOTICE. All notices required in this Contract shall be sent by certified mail, return receipt requested, and if sent to the VILLAGE shall be mailed to: Village of North Palm Beach Attn: James P. Kelly, Village Manager 501 U.S. Highway One North Palm Beach, FL 33408 and if sent to CONTRACTOR shall be mailed to: Big Fun, Inc. Attn: Michael Doolan, President P.O. Box 699 Jensen Beach, FL 34958 The foregoing names and addresses may be changed if such change is provided in writing to the other party. ARTICLE 20. ENTIRETY OF CONTRACTUAL AGREEMENT. The VILLAGE and CONTRACTOR agree that this Contract sets forth the entire agreement between the parties, and that there are no promises or understandings other than those stated herein. None of the provisions, terms and conditions contained in this Contract may be added to, modified, superseded or otherwise altered, except by written instrument executed by the parties hereto. ARTICLE 21. TERMINOLOGY AND CAPTIONS. All pronouns, singular, plural, masculine, feminine or neuter, shall mean and include the person, entity, firm or corporation to which they relate as the context may require. Wherever the context may require, the singular shall mean and include the plural and the plural shall mean and include the singular. The term "Contract" as used herein, as well as the terms "herein ", "hereof', "hereunder ", "hereinafter" and the like mean this Contract in its entirety and all exhibits, amendments and addenda attached hereto and made a part hereof. The captions and paragraph headings are for reference and convenience only and do not enter into or become a part of the context of this Contract, nor shall such headings affect the meaning or interpretation of this Contract. ARTICLE 22. WAIVER. Failure of a party to enforce or exercise any of its right(s) under this Contract shall not be deemed a waiver of that parties' right to enforce or exercise said right(s) at any time thereafter. ARTICLE 23. PREPARATION. This Contract shall not be construed more strongly against either party regardless of who was more responsible for its preparation. ARTICLE 24. MATERIALITY. All provisions of the Contract shall be deemed material. In the event CONTRACTOR fails to comply with any of the provisions contained in this Contract or exhibits, amendments and addenda attached hereto, said failure shall be deemed a material breach of this Contract and VILLAGE may at its option and without notice terminate this Contract. ARTICLE 25. EXHIBITS AND CONTRACT DOCUMENTS. Each exhibit and document referred to in this Contract forms an essential part of this Contract. The exhibits and other contract documents, if not physically attached, including, but not limited to the RFP and the CONTRACTOR's proposal, should be treated as part of this Contract and are incorporated herein by reference. ARTICLE 26. LEGAL EFFECT. This Contract shall not become binding and effective until approved by the Village Council of the Village of North Palm Beach. ARTICLE 27. SURVIVABILITY. Any provision of this Contract which is of a continuing nature or imposes an obligation which extends beyond the term of this Contract shall survive its expiration or earlier termination. ARTICLE 28. WAIVER OF SUBROGATION. CONTRACTOR hereby waives any and all rights to Subrogation against the VILLAGE, its officers, employees and agents for each required policy. When required by the insurer, or should a policy condition not permit an insured to enter into a pre -loss agreement to waive subrogation without an endorsement, then CONTRACTOR shall agree to notify the insurer and request the policy be endorsed with a Waiver of Transfer of Rights of Recovery Against Others, or its equivalent. This Waiver of Subrogation requirement shall not apply to any policy, which a condition to the policy specifically prohibits such an endorsement, or voids coverage should CONTRACTOR enter into such an agreement on a pre -loss basis. ARTICLE 29. INSPECTOR GENERAL CONTRACTOR is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Contract, and in furtherance thereof, may demand and obtain records and testimony from CONTRACTOR and its subcontractors. CONTRACTOR understands and agrees that in addition to all other remedies and consequences provided by law, the failure of CONTRACTOR or its subcontractors to fully cooperate with the Inspector General when requested may be deemed by the VILLAGE to be a material breach of the Contract Documents justifying termination. ARTICLE 30. PUBLIC RECORDS. CONTRACTOR shall comply with Chapter 119, Florida Statutes, regarding access to public records. Failure of compliance may be grounds for termination by the VILLAGE. Pursuant to Section 119.0701, Florida Statutes, CONTRACTOR shall: A. Keep and maintain public records that ordinarily and necessarily would be required by the VILLAGE in order to perform the services. B. Provide the public with access to public records on the same terms and conditions that the VILLAGE would provide the records and at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law. C. Ensure that public records that are exempt or confidential from public records disclosure requirements are not disclosed except as authorized by law. D. Meet all requirements for retaining public records and transfer, at no cost to the VILLAGE all public records in possession of the CONTRACTOR upon termination of the contract 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 VILLAGE in a format that is compatible with the information technology system of the VILLAGE. ARTICLE 31. REPRESENTATIONSBINDING AUTHORITY. The persons executing this Contract represent that they have the full power, authority and legal right to execute and deliver this Contract and perform all of its obligations under this Contract. [Remainder of page blank signatures on next page] _g. P410 IN WITNESS WHEREOF, the VILLAGE and CONTRACTOR hereto have made and executed this Contract as of the day and year first above written. CONTRACTOR: B Print Name: X ci Ow Title: VILLA E OF NORTH PALM BEACH BY: ARRYL A REY MAYOR ATTEST: BY: MELISSA TEAL VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: BY: VILLAGE ATTORNEY