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2016-39 Tennis Court Maintenance ContractRESOLUTION 2016 -39 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA ACCEPTING THE PROPOSAL SUBMITTED BY SPLASH & SWING, LLC FOR TENNIS COURT MAINTENANCE SERVICES AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE A CONTRACT FOR SUCH SERVICES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village advertised a Request for Proposals ( "RFP ") for Tennis Court Maintenance Services; and WHEREAS, the Village received one proposal in response to the RFP; and WHEREAS, Village Administration recommended accepting the proposal submitted by Splash & Swing, LLC and the Village Council determines that acceptance of the proposal is in the best interests of the residents and citizens of the Village of North Palm Beach. 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 Splash & Swing, LLC at an annual cost of $42,000.00, with funds to be expended from Village Account No. A8050 -33190 (Parks & Recreation (Tennis) — Professional Services). Section 3. The Village Council further authorizes the Mayor and Village Clerk to execute a Contract for Tennis Court Maintenance Services with Splash & Swing, LLC, a copy of which is attached hereto and incorporated herein by reference. Section 4. This Resolution shall take effect immediately upon adoption. PASSED AND ADOPTED THIS 14TH DAY OF JULY, 2016. (Village Seal) ATTEST: low CONTRACT FOR TENNIS COURT MAINTENANCE SERVICES VILLAGE OF NORTH PALM BEACH This Contract is made as of the 14th day of July, 2016, by and between the VILLAGE OF NORTH PALM BEACH, a municipal corporation organized and existing under the laws of the State of Florida, by and through its Village Council, hereinafter referred to as the VILLAGE, and Splash & Swing, LLC, a Florida limited liability company, hereinafter referred to as the CONTRACTOR, whose Federal I.D. is 27- 0305803. In consideration of the promises and mutual covenants herein contained, it is hereby agreed that the CONTRACTOR shall provide to the VILLAGE all work necessary for tennis court maintenance pursuant to the terms and conditions of this Contract. SECTION 1: GOODS AND SERVICES OF THE CONTRACTOR. A. The CONTRACTOR shall provide all goods and services necessary for tennis court maintenance as required under the VILLAGE's Request for Proposals and the CONTRACTOR's proposal thereto, which are incorporated herein by reference and 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. B. The goods and services to be provided by the CONTRACTOR shall be commenced subsequent to the execution and approval of this Contract and upon written notice from the VILLAGE to proceed. SECTION 2: TERM OF CONTRACT. A. This Contract shall be for an initial term of three (3) years from the date first Nwitten above unless earlier terminated in accordance with the terms and conditions stated herein. The initial term of this Contract shall automatically extend for an additional two (2) years unless either party notifies the other party at least ninety (90) days prior to the end of the initial term that it does not desire to have the Contract automatically extend for another two (2) years. B. The 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. SECTION 3: VILLAGE'S REPRESENTATIVE. Unless otherwise specified by the VILLAGE, the VILLAGE's representative shall be the Director of Parks and Recreation. The Village Manager or Village Representative shall have the right at all reasonable times during the term of this Contract to inspect or otherwise evaluate the work being performed thereunder and the premises in which it is being performed. Page 1 of 9 SECTION 4: COMPENSATION AND METHOD OF PAYMENT. A. The VILLAGE agrees to compensate the CONTRACTOR in accordance with CONTRACTOR's proposal attached hereto and incorporated by reference herein. The total annual compensation paid by the VILLAGE to CONTRACTOR shall not exceed Forty -two thousand dollars ($42,000.00). B. In order for both parties herein to close their books and records, CONTRACTOR will clearly state "final invoice" on the CONTRACTOR's final/last billing to the VILLAGE. This certifies that all goods and services have been properly 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 the CONTRACTOR. The VILLAGE will not be liable for any invoice from the CONTRACTOR submitted thirty (30) days after the provision of all goods and services. SECTION 5: INDEMNIFICATION. A. The CONTRACTOR shall indemnify and save harmless and defend the VILLAGE, its agents, servants, and employees from and against any and all claims, liability, losses, and /or cause of action which may arise from any negligent act or omission of the CONTRACTOR, its agents, servants, or employees in the performance of services under this Contract. B. The CONTRACTOR further agrees to indemnify, save harmless and defend the VILLAGE, its agents, servants and employees from and against any claim, demand or cause of action of whatsoever kind or nature arising out of any conduct or misconduct of the CONTRACTOR its agents, servants, or employees not included in the paragraph above and for which the VILLAGE, its agents, servants or employees are alleged to be liable. 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 CONTRACTOR, nor shall this Contract be construed a waiver of sovereign immunity beyond the waiver provided in § 768.28, Florida Statutes. SECTION 6: PERSONNEL. A. The CONTRACTOR represents that it has, or will secure at its own expense, all necessary personnel, which may include the hiring of Village employees, required to perform the services under this Contract. B. All of the services required hereunder shall be performed by the CONTRACTOR or under its supervision, and all personnel engaged in performing the services shall be fully qualified and, if required, authorized or permitted under state and local law to perform such services. C. All of the CONTRACTOR's personnel (and all sub - contractors) while on VILLAGE premises, will comply with all VILLAGE requirements governing conduct, safety, and security. Page 2 of 9 SECTION 7: TERMINATION. This Contract may be cancelled by the CONTRACTOR upon thirty (30) 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 the CONTRACTOR. It may also be terminated, in whole or in part, by the VILLAGE without cause upon thirty (30) days written notice to the CONTRACTOR. The VILLAGE may also terminate this Contract with written notice of cause to the CONTRACTOR, who fails to cure such cause within ten (10) days of the receipt of the VILLAGE's notice. Unless the CONTRACTOR is in breach of this Contract, the CONTRACTOR shall be paid for services rendered to the VILLAGE's satisfaction through the date of termination. After receipt of a Termination Notice and except as otherwise directed by the VILLAGE, 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 progress, completed work, and other materials related to the terminated work to the VILLAGE; and D. Continue and complete all parts of the work that have not been terminated. SECTION 8: FEDERAL AND STATE TAX. The VILLAGE is exempt from payment of Florida State Sales and Use Tax. Unless purchased directly by the VILLAGE, the CONTRACTOR shall not be exempted from paying sales tax to its suppliers for materials used to fill contractual obligations with the VILLAGE, nor is the CONTRACTOR authorized to use the VILLAGE's Tax Exemption Number in securing such materials. SECTION 9: INSURANCE. A. Prior to commencing any work, the CONTRACTOR shall provide certificates evidencing insurance coverage as required hereunder. All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida. The Certificates shall clearly indicate that the CONTRACTOR has obtained insurance of the type, amount, and classification as required for strict compliance with this Section and that no material change or cancellation of the insurance shall be effective without thirty (30) days' prior written notice to the VILLAGE's representative. Failure to comply with the foregoing requirements shall not relieve the CONTRACTOR of its liability and obligations under this Contract. B. The CONTRACTOR shall maintain, during the life of this Contract, commercial general liability, including contractual liability insurance in the amount of $500,000 per occurrence or $1,000,000 in aggregate to protect the CONTRACTOR from claims for damages for bodily and personal injury, including wrongful death, as well as from claims of property damages which Page 3 of 9 may arise from any operations under this Contract, whether such operations be by the CONTRACTOR or by anyone directly employed by or contracting with the CONTRACTOR. C. The parties to this Contract shall carry Workers' Compensation Insurance and Employer's Liability Insurance for all employees as required by Florida Statutes. In the event that a party does not carry Workers' Compensation Insurance and chooses not to obtain same, then such party shall in accordance with Section 440.05, Florida Statutes, apply for and obtain an exemption authorized by the Department of Insurance and shall provide a copy of such exemption to the VILLAGE. D. All insurance, other than Worker's Compensation, to be maintained by the CONTRACTOR shall specifically include the VILLAGE as an Additional Insured. SECTION 10: SUCCESSORS AND ASSIGNS. The VILLAGE and the 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 the 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 the CONTRACTOR. SECTION 11: DISPUTE RESOLUTION LAW VENUE AND REMEDIES. 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. 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. SECTION 12: INDEPENDENT CONTRACTOR RELATIONSHIP. The CONTRACTOR is, and shall be, in the performance of all Services under this Contract, an Independent CONTRACTOR, and not an employee, agent, or servant of the VILLAGE. All persons engaged in any of the services performed pursuant to this Contract 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 Services. Page 4 of 9 SECTION 13: ACCESS AND AUDITS. The CONTRACTOR shall maintain adequate records to justify all charges, expenses, and costs incurred in estimating and performing the Services for at least three (3) years after completion of this Contract. The VILLAGE shall have access to such books, records, and documents as required in this section for the purpose of inspection or audit during normal business hours, at the CONTRACTOR's place of business. In no circumstances will CONTRACTOR be required to disclose any confidential or proprietary information regarding its products and service costs. SECTION 14: NONDISCRIMINATION. The 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. SECTION 15: 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. SECTION 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. SECTION 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 the CONTRACTOR of the VILLAGE's notification of a contemplated change, the CONTRACTOR shall, in writing: (1) provide a detailed estimate for the increase or decrease in cost due to the contemplated change, (2) notify the VILLAGE of any estimated change in the completion date, and (3) advise the VILLAGE if the contemplated change shall effect the CONTRACTOR's ability to meet the completion dates or schedules of this Contract. Page 5 of 9 B. If the VILLAGE so instructs in writing, the CONTRACTOR shall suspend work on that portion of the work affected by the contemplated change, pending the VILLAGE's decision to proceed with the change. C. If the VILLAGE elects to make the change, the VILLAGE shall initiate a Contract Amendment and the CONTRACTOR shall not commence work on any such change until such written amendment is signed by the CONTRACTOR and approved and executed by the Village of North Palm Beach. SECTION 18: PUBLIC ENTITY CRIMES. CONTRACTOR acknowledges and agrees that 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, proposal, or reply on a contract to provide any goods or services to a public entity; may not submit a bid, proposal, or reply on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids, proposals, or replies on leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, sub- contractor, or CONTRACTOR 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 Statues, for CATEGORY TWO for a period of 36 months following the date of being placed on the convicted vendor list. The CONTRACTOR will advise the VILLAGE immediately if it becomes aware of any violation of this statute. SECTION 19: PROTECTION OF WORK AND PROPERTY. A. The CONTRACTOR shall continuously maintain adequate protection of all work 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, the CONTRACTOR shall provide any necessary materials to maintain such protection. B. The 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 work is being accomplished during and throughout the completion of all work. SECTION 20: WARRANTY /GUARANTY. CONTRACTOR warrants that its goods and services under this Contract will be free of defects in materials and workmanship for a period of one year following the provision of said goods and services. SECTION 21: COMPLIANCE WITH LAWS. CONTRACTOR shall, in performing the services contemplated by this Contract, faithfully observe and comply with all federal, state and local laws, ordinances and regulations that are applicable to the services to be rendered under this Contract. Page 6 of 9 SECTION 22: 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 the CONTRACTOR shall be mailed to: Splash & Swing, LLC Attn: Christopher Vazquez, Owner /Operator 155 Galicia Way #102 Jupiter, FL 33458 The foregoing names and addresses may be changed if such change is provided in writing to the other party. SECTION 23: ENTIRETY OF CONTRACTUAL AGREEMENT. The VILLAGE and the 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. In the event of a conflict between this Contract and the VILLAGE's Request for Proposal and the CONTRACTOR's proposal, this Contract shall take precedence with the VILLAGE's Request for Proposal taking precedence over the CONTRACTOR's proposal. All such documents shall be read in a manner so as to avoid a conflict. SECTION 24: 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. SECTION 25: PREPARATION. This Contract shall not be construed more strongly against either party regardless of who was more responsible for its preparation. SECTION 26: 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. Page 7 of 9 SECTION 27: 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. SECTION 28: 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. CONTRACTOR understands and agrees that in addition to all other remedies and consequences provided by law, the failure of CONTRACTOR to fully cooperate with the Inspector General when requested may be deemed by the VILLAGE to be a material breach of this Contract justifying its termination. SECTION 29: PUBLIC RECORDS. 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 AT: (561) 841 -3355; NPBCLERK(IcVILLAGE- NPB.ORG; OR 501 U.S. HIGHWAY ONE, NORTH PALM BEACH, FL 33408. In performing services pursuant to this Contract, CONTRACTOR shall comply with all relevant provisions of Chapter 119, Florida Statutes. As required by Section 119.0701, Florida Statutes, CONTRACTOR shall: A. Keep and maintain public requires required by the VILLAGE to perform the service. B. Upon request from the VILLAGE's custodian of public records, provide the VILLAGE with a copy 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 in Chapter 119, Florida Statutes, or as otherwise provided by law. C. 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 Contract term and following completion of the Contract if the CONTRACTOR does not transfer the records to the VILLAGE. Page 8 of 9 D. Upon completion of the Contract, transfer, at no cost, to the VILLAGE all public records in possession of CONTRACTOR or keep and maintain public records required by the VILLAGE to perform the services. If CONTRACTOR transfers all public records to the VILLAGE upon completion of the Contract, CONTRACTOR shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If CONTRACTOR keeps and maintains public records upon completion of the Contract, CONTRACTOR shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the VILLAGE, upon request from the VILLAGE's custodian of public records, in a format that is compatible with the information technology systems of the VILLAGE. IN WITNESS WI HEREOF, the VILLAGE and CONTRACTOR hereto have made and executed this Contract as of the day and year first above written. CONTRACTOR Y• Cwy�Aqv On. `h's Print Name: Position:��� V1L :' ATTEST: BY: L{i MELISSA TEAL, VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: BY: VILLAGE ATTORNEY Page 9 of 9