R2018-17 Golf Course Renovation Services ContractRESOLUTION 2018-17
A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
NORTH PALM BEACH, FLORIDA, ACCEPTING THE PROPOSAL SUBMITTED
BY XGD SYSTEMS, LLC D/B/A TDI GOLF FOR GOLF COURSE RENOVATION
SERVICES AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO
EXECUTE A CONTRACT RELATING TO SUCH SERVICES; PROVIDING
FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on December 15, 2017, the Village issued a Request for Proposals for Golf Course
Renovation Services ("RFP"); and
WHEREAS, the Village received five proposals in response to the RFP; and
WHEREAS, Village Administration recommended accepting the highest -ranked and lowest cost
proposal submitted by XGD Systems, LLC d/b/a TDI Golf; and
WHEREAS, the Village Council determines that the adoption of this Resolution 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 accepts the proposal submitted by XGD Systems, LLC d/b/a
TDI Golf to provide golf course renovation services at a total cost not to exceed $1,404,259.19
(including alternate items — Latitude 36 sod, cart paths, curbing and parking areas), with funds
expended from Account No. L8045-66210 (Golf/Golf Course Maintenance — Construction and
Major Renovation). The Village Council further authorizes the Mayor and`Village Clerk to
execute a contract with XGD Systems, LLC d/b/a TDI Golf for the performance of such services,
a copy of which is attached hereto and incorporated herein.
Section 3. All resolutions or parts of resolutions in conflict with this Resolution are hereby
repealed to the extent of such conflict.
Section 4. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED THIS 22ND DAY OF FEBRUARY, 2018.
(Village Seal)
ATTEST:
VILLAGE CLERK
q � al"
MAYOR
CONTRACT
This Contract is made as of the ` �day of L(�2018.("Effective Date"), by
and between the VILLAGE OF NORTH PALM BEACH, a mun ipal corporation organized and
existing under the laws of the State of Florida, hereinafter referred to as VILLAGE, and, XGD
SYSTEMS, LLC D/B/A TDI GOLF, a Florida limited liability company, hereinafter referred to
as the CONTRACTOR, whose Federal I.D. is 20-1254730.
In consideration of the promises and mutual covenants herein contained, it is hereby agreed that
the CONTRACTOR shall provide to the VILLAGE all goods and services requested under the
Request for Proposals for Golf Course Renovation Services — Golf and Country Club for
the Village of North Palm Beach ("RFP") and as further stated in CONTRACTOR's Proposal
and pursuant to the terms and conditions of this Contract.
ARTICLE 1. SERVICES OF THE CONTRACTOR.
A. CONTRACTOR shall provide all goods and services as stated in the RFP and the
Specifications referenced therein in accordance with the Proposal (hereinafter referred to as
"Work"), which are 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 Work is provided.
B. The Work provided by CONTRACTOR shall be commenced subsequent to the execution
and approval of this Contract and upon written notice from the VILLAGE to proceed.
ARTICLE 2. TERM OF CONTRACT.
A. This Contract and shall remain in effect until the Work is completed, accepted, paid for
by the VILLAGE and the warranty period has expired. All Work shall be completed by August
15, 2018.
B. CONTRACTOR shall not be considered in default by reason of any failure in
performance of the Work if such failure arises out of causes reasonably beyond the control of
CONTRACTOR or its subcontractors and without their fault or negligence. Such causes
include, but are not limited to: acts of God; natural or public health emergencies; labor disputes;
freight embargoes; unreasonable utility provider delays, unreasonable permitting delays and
abnormally severe and unusual weather conditions.
C. Upon CONTRACTOR's request, the VILLAGE shall consider the facts and extent of any
failure to perform the Work and, if CONTRACTOR's failure to perform was without it or its
subcontractor's fault or negligence, the Contract schedule and/or any other affected provision of
this Contract shall be revised accordingly; subject to the VILLAGE's rights to change, terminate,
or stop any or all of the work at any time.
ARTICLE 3. VILLAGE'S REPRESENTATIVE.
Unless otherwise specified by the VILLAGE, the VILLAGE's representative shall be the
Village's Director of Golf.
Page 1 of 10
ARTICLE 4. COMPENSATION AND METHOD OF PAYMENT.
A. The VILLAGE agrees to compensate CONTRACTOR in accordance with
CONTRACTOR's Proposal in response to the RFP (including alternate additions in the form of
the Latitude 36 sod, cart paths, curbing and parking areas). The total and cumulative amount of
this Contract shall not exceed One Million Four Hundred and Four Thousand Two Hundred
and Fifty -Nine Dollars and Nineteen Cents ($1,404,259.19). Upon execution of the Contract
by the VILLAGE, the VILLAGE shall pay to CONTRACTOR the required ten percent (10%)
deposit for the purchase of the turf materials.
B. CONTRACTOR shall submit an invoice(s) to the VILLAGE for said compensation on
the date and time mutually agreed upon by the VILLAGE and CONTRACTOR. 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.
C. Work undertaken or expenses incurred that exceeds an amount set forth in this Contract
without prior written authorization from the VILLAGE shall be the liability of CONTRACTOR.
D. CONTRACTOR waives consequential or incidental damages for claims, disputes or
other matters in question arising out of or relating to this Contract.
E. 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 Work has 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 CONTRACTOR. The VILLAGE will not
be liable for any invoice from CONTRACTOR submitted thirty (30) days after the provision of
the Work.
F. If the VILLAGE fails to make any payment due CONTRACTOR for the Work under this
Contract within forty-five (45) days after CONTRACTOR's transmittal of its invoice to the
VILLAGE, CONTRACTOR may, after giving notice to the VILLAGE, suspend the Work under
this Contract until it has been paid in full all amounts due.
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, 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 CONTRACTOR pursuant to this
Contract, including, but not limited to, those caused by or arising out of any act, omission,
Page 2 of 10
negligence or default of CONTRACTOR and/or its subcontractors, agents, servants or
employees.
B. CONTRACTOR shall not be requiredto 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 Contract 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 CONTRACTOR, nor shall this
Contract be construed a waiver of sovereign immunity beyond the 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.
ARTICLE 7. TERIVIINATION.
This Contract may be cancelled by CONTRACTOR upon ten (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 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 the CONTRACTOR. Unless CONTRACTOR is in breach of this Contract, the
CONTRACTOR shall be paid for Work rendered to the VILLAGE's satisfaction through the
date of termination.
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 Documents. All insurance, other than Worker's Compensation,
to be maintained by CONTRACTOR shall specifically include the VILLAGE as an Additional
Page 3 of 10
Insured.
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 parry, 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 of all Work under 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. ACCESS AND AUDITS.
CONTRACTOR shall maintain adequate records to justify all charges, expenses, and costs
incurred in estimating and performing the Work 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 ARTICLE for the purpose of inspection or audit during normal business hours, at
CONTRACTOR's place of business. Under no circumstances will CONTRACTOR be required
to disclose any confidential or proprietary information regarding its products and service costs.
ARTICLE 14. 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.
Page 4 of 10
ARTICLE 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.
ARTICLE 16. AUTHORITY TO PRACTICE.
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 Work under this
Contract, and that it will at all times conduct its business and provide the Work under this
Contract in a reputable manner. Proof of such licenses and approvals shall be submitted to the
VILLAGE's representative upon request.
ARTICLE 17. 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 18. MODIFICATIONS OF WORK.
The VILLAGE reserves the right to make changes in the Work, including alterations, reductions
therein or additions thereto, based on the unit prices set forth in CONTRACTOR's Proposal.
ARTICLE 19. PROTECTION OF WORK AND PROPERTY.
A. CONTRACTOR shall continuously maintain adequate protection of all Work from
damage, and shall protect the VILLAGE's property and adjacent private and public 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 work is being
accomplished during and throughout the completion of all work.
Page 5 of 10
ARTICLE 20. 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: Andrew Lukasik, Village Manager
Village of North Palm Beach
501 U.S. Highway One
North Palm Beach, FL 33408
and if sent to CONTRACTOR shall be mailed to:
XGD Systems, LLC d/b/a TDI Golf
Attn: Geoff Corlett, CEO
415 N.W. Flagler Avenue, Unit 302
Stuart, FL 34994
The foregoing names and addresses may be changed if such change is provided in writing to the
other party.
ARTICLE 21. 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 22. 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 23. 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.
Page 6 of 10
ARTICLE 24. PREPARATION.
This Contract shall not be construed more strongly against either party regardless of who was
more responsible for its preparation.
ARTICLE 25. 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 26. EXHIBITS AND CONTRACT DOCUMENTS.
Each exhibit and other contract documents referred to in this Contract forms an essential part of
this Contract. The exhibits and other contract documents, if not physically attached, should be
treated as part of this Contract and are incorporated herein by reference. In the event of
conflicts, the order of precedence shall be this Contract, then the RFP and then
CONTRACTOR'S Proposal.
ARTICLE 27. LEGAL EFFECT.
This Contract shall not become binding and effective until approved by the Village Council of
the Village of North Palm Beach.
ARTICLE 28. 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 29. DEFAULT.
A. Notwithstanding anything contained in this Contract to the contrary, the parties agree that
the occurrence of any of the following shall be deemed a material event of default and shall be
grounds for termination:
The filing of any judgment lien against the assets of CONTRACTOR related to
the performance of this Contract which is not satisfied, discharged or contested in
a court of law within thirty (30) days from the date of notice to the
CONTRACTOR; or
2. The filing of a petition by or against CONTRACTOR for relief under the
Bankruptcy Code, or for its reorganization or for the appointment of a receiver or
trustee of CONTRACTOR or CONTRACTOR's property; or an assignment by
CONTRACTOR for the benefit of creditors; or the taking possession of the
property of CONTRACTOR by any governmental officer or agency pursuant to
statutory authority for the dissolution or liquidation of CONTRACTOR; or if a
temporary or permanent receiver or trustee shall be appointed for
CONTRACTOR or for CONTRACTOR's property and such temporary or
Page 7 of 10
permanent receiver or Trustee shall not be discharged within thirty (30) days from
the date of appointment.
3. Due to circumstances within the control of the CONTRACTOR, CONTRACTOR
fails to provide the Work under this Contract on schedule as agreed to by
CONTRACTOR in this Contract.
B. CONTRACTOR shall provide written notice to the VILLAGE of the occurrence of any
event of default within five (5) days of CONTRACTOR's receipt of notice or knowledge of any
such default.
ARTICLE 30. WARRANTY.
CONTRACTOR warrants that all Work, including goods and services, provided under this
Contract will be free of defects in material and workmanship for a period of one (1) year
following completion of the Work and successful final inspection. Should any Work fail to
comply with this warranty during the warranty period of one (1) year, upon written notification
from the VILLAGE, CONTRACTOR shall immediately repair or replace said defective
materials and/or workmanship at CONTRACTOR's sole expense.
ARTICLE 31. REPRESENTATIONS/BINDING 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.
ARTICLE 32. TIME IS OF THE ESSENCE/LIQUIDATED DAMAGES.
Time is of the essence in all respects under this Contract, and the parties agree that the
VILLAGE will suffer financial loss if the work contemplated herein is not completed within the
time specified, including any authorized extensions. The parties also recognize the delays,
expense and difficulties involved in proving in a legal proceeding the actual loss suffered by the
VILLAGE if the work is not completed on time. Accordingly, instead of requiring any such
proof, the VILLAGE and CONTRACTOR agree that as liquidated damages for delay (but not as
a penalty) CONTRACTOR shall pay to the VILLAGE an amount equal to $1,000.00 per day for
each calendar day that expires after the time specified for completion. Liquidated damages may
be deducted from payments due to CONTRACTOR.
ARTICLE 33. 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.
Page 8 of 10
ARTICLE 34. PUBLIC RECORDS.
IF CONTRACTOR : HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CON'TAC'T'
THE CUSTODIAN OF PUBLIC RECORDS AT: (561) 841-3355;
NPBCLERK@)ffLLAGE-NPB.ORG; OR 501 J.S. 1-UGHWAY 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 1.19.0701, Florida Statutes,
CONTRACTOR. shall:'"
beep and maintain public records required �by the VILLAGE to perform the service.
2. Uponn 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.
3. 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.
4. 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 WHEREOF, the VILLAGE and CONTRACTOR hereto have made and executed:
this Contract as of the day and year first above written.
CONTRACTOR:
BY:
Print Name:
Title: l' r
Page 9 of 10
VILLAGE OF NORTH PALM BEACH
BY: 0 �
DARRYL C. ADBICEY
MAYOR
ATTEST:
BY:
MELISSA TEAL,
VILLAGE CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
BY:
VILLAGE ATTORNEY
Page 10 of 10