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R2018-76 Floating Docks ContractRESOLUTION 2018-76 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, ACCEPTING THE PROPOSAL SUBMITTED BY GOLDEN MANUFACTURING, INC. FOR THE SUPPLY OF FLOATING DOCKS ON THE NORTH SIDE OF THE ANCHORAGE PARK MARINA AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE A CONTRACT RELATING TO SUCH SERVICES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village issued a Request for Proposals for Anchorage Park Marina Improvements (floating docks on the north side of the Anchorage Park Marina) ("RFP"); and WHEREAS, the Village received two proposals in response to the RFP and because both proposals were considerably above the budgeted cost, Village Administration requested revised proposals based on reduced square footage; and WHEREAS, Village Administration recommended accepting the highest -ranked and lowest cost revised proposal submitted by Golden Manufacturing, Inc.; 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 Golden Manufacturing, Inc. for the supply of floating docks on the north side of the Anchorage Park Marina in accordance with the modified proposal at a cost not to exceed $293,543.73 with $269,257.50 expended from Account No. K8028-66210 (Recreation Capital Projects — Construction and Major Renovation) and $24,286.23 expended from Account No. U8028-66210 (Recreation Grants — Construction and Major Renovation). The Village Council further authorizes the Mayor and Village Cleric to execute a contract with Golden Manufacturing, Inc., a copy of which is attached hereto and incorporated herein. Section 3. This Resolution shall take effect immediately upon its adoption. PAo.,;F.n AND AnnPTFD THIS 27TH DAY OF SEPTEMBER. 2018. (Village Seal) ATTEST: VILLAGE CLERK CONTRACT This Contract is made as of the ��( day of 018, by and between the VILLAGE OF NORTH PALM BEACH, a Florida municipal corporation, hereinafter referred to as the VILLAGE, and GOLDEN MANUFACTURING, INC., a Florida corporation, hereinafter referred to as CONTRACTOR, whose Federal Employer I.D. is 65-0921885. 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 Anchorage Park Marina Improvements and as further stated in CONTRACTOR's Proposal and pursuant to the terms and conditions of this Contract. ARTICLE 1. SERVICES OF THE CONTRACTOR. The CONTRACTOR shall provide all goods and services as stated in the Proposal Documents (Modified Proposal dated August 14, 2018) and the Scope of Work (Modified Dock Replacement Plan) referenced therein, which are incorporated herein by reference, in accordance with the CONTRACTOR's Proposal 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. ARTICLE 2. TERM/COMMENCEMENT DATE This Contract shall become effective as of the date set forth above and shall remain in effect until all work is completed and the warranty period has expired. CONTRACTOR shall commence work within ten (10) calendars days of the VILLAGE's issuance of a Notice to Proceed and shall achieve substantial completion within ninety (90) calendar days thereafter. Any variation to the terms and conditions set forth herein shall be in writing and signed by both parties. 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 the CONTRACTOR in accordance with the Modified Proposal submitted by the CONTRACTOR. CONTRACTOR'S Proposal is incorporated herein by reference. The total and cumulative amount of this contract shall not exceed the amount of funds budgeted for these services nor shall said fees exceed the amounts as set forth in the Modified Proposal, a copy of which is attached hereto and incorporated herein. 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. 1 C. 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. 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 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. 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 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 Section 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. 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. 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 Proposal Documents. All insurance, other than Worker's Compensation, to be maintained by CONTRACTOR shall specifically include the VILLAGE as an Additional Insured. ARTICLE 10. PAYMENT AND PERFORMANCE BOND. A. CONTRACTOR be required to furnish a payment and performance bond with a carrier duly licensed and authorized to do business in the State of Florida, equal to one hundred percent of the total amount of the contract to assure faithful performance and timely payments to all persons providing labor, materials or supplies used in the performance of the work. B. CONTRACTOR shall be required at all times to have a valid payment and performance bond in force covering the work being performed. A failure to have such a bond in force at any time shall constitute a default on the part of CONTRACTOR. A bond written by a surety, who becomes disqualified to do business in the State of Florida, shall automatically constitute a failure on the part of the selected proposer to meet the above requirements. ARTICLE 11. 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 12. 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 13. 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 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. 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 parry or parties may be entitled. ARTICLE 16. 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 in the Proposal Documents, 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 $500.00 per day for each calendar day that expires after the time specified for completion. Liquidated damages may be deducted from payments due to the CONTRACTOR. 11 ARTICLE 17. 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 18. 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 19. 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 20. 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 21. 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: Village Manager 501 U.S. Highway One North Palm Beach, FL 33408 5 and if sent to CONTRACTOR shall be mailed to: Golden Manufacturing, Inc. Attn: Michael Shanley 17611 East Street Fort Myers, FL 33917 The foregoing names and addresses may be changed if such change is provided in writing to the other party. ARTICLE 22. 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 23. 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 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. ARTICLE 25. PREPARATION. This Contract shall not be construed more strongly against either party regardless of who was more responsible for its preparation. ARTICLE 26. 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 27. 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 2 the Request for Proposals and the CONTRACTOR's Proposal, should be treated as part of this Contract and are incorporated herein by reference. ARTICLE 28. LEGAL EFFECT. This Contract shall not become binding and effective until approved by the Village Council of the Village of North Palm Beach. ARTICLE 29. 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 30. 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 immediate termination: 1. 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 CONTRACTORs 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 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 goods and services required pursuant to 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 31. 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 7 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 32. 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 33. 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@VILLAGE-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 119.070 1, Florida Statutes, CONTRACTOR shall: 1. Keep and maintain public records required by the VILLAGE to perform the service. 2. 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. 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. 8 ARTICLE 34. 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. 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: Matthew Sloan Title: \j BY: MELISSA TEAL, VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: BY: - - - - -- =--' VILLAGE ATTORNEY 7