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R2019-12 Decorative Lighting for Country Club Clubhouse ProjectRESOLUTION 2019-12 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA APPROVING A CONTRACT AWARD TO SPARK LIGHTING CORP. FOR THE DECORATIVE LIGHTING FOR THE NEW COUNTRY CLUB CLUBHOUSE AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE THE CONTRACT ON BEHALF OF THE VILLAGE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village issued an Invitation to Bid for Decorative Lighting for the New Country Club Clubhouse ("ITB"); and WHEREAS, the Village received two bids in response to the to the ITB, and Village Staff recommended accepting the lowest responsive bid submitted by Spark Lighting Corp.; 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 hereby approves a Contract with Spark Lighting Corp. for the purchase of decorative lighting for the new Country Club clubhouse in the amount of $37,183.20, with funds expended from K7600-66210 (Country Club Clubhouse Project — Construction and Major Renovation). The Village Council further authorizes the Mayor and Village Clerk to execute the Contract with Spark Lighting Corp., a copy of which is attached hereto and incorporated herein. Section 3. This Resolution shall be effective immediately upon adoption. PASSED AND ADOPTED THIS 24ri-1 DAY OF JA''TT T A 7-1 X7 �n� n (Village Seal) ATTEST: \�__i VILLAGE CLERK CONTRACT This Contract is made as of the day of4,441�(l , 2019, by and between the VILLAGE OF NORTH PALM BEACH, a municipal corporation organized and existing under the laws of the State of Florida, hereinafter referred to as VILLAGE, and SPARK LIGHTING CORP., a New York corporation authorized to do business in the State of Florida, hereinafter referred to as the CONTRACTOR, whose Federal I.D. is 45-3928708. 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 Invitation to Bid for new Decorative Lighting and as further stated in CONTRACTOR's Bid Proposal and pursuant to the terms and conditions of this Contract. ARTICLE 1. SERVICES OF THE CONTRACTOR. A. The CONTRACTOR shall provide all goods (new and in the original manufacturer's box) and shall include all accessories necessary and as stated in the Bid Documents referenced therein in accordance with the Bid Proposal (hereinafter referred to as "Work"), which are incorporated herein by reference. B. The Work provided by the CONTRACTOR shall be commenced subsequent to the execution and approval of this Contract and upon receipt of Purchase Order and, if required, Deposit. ARTICLE 2. PERIOD OF SERVICE. This Contract and the provision of all Work hereunder shall be completed by the CONTRACTOR and delivered .during the month of June 2019. All warranty work will be handled by the CONTRACTOR, if needed, until the expiration of the one (1) year warranty. ARTICLE 3. VILLAGE'S REPRESENTATIVE. Unless otherwise specified by the VILLAGE, the VILLAGE's representative shall be the Village Purchasing Manager. ARTICLE 4. COMPENSATION AND METHOD OF PAYMENT. A. The VILLAGE agrees to compensate the CONTRACTOR in accordance with CONTRACTOR's Bid Proposal in response to the ITB. The total and cumulative amount of this Contract shall not exceed Thirty -Seven Thousand One Hundred Eighty -Three Dollars and Twenty Cents ($37,183.20). B. CONTRACTOR shall invoice the VILLAGE on the form provided as Exhibit "A" and include such information as requested in Exhibit "A". Invoices received from the CONTRACTOR pursuant to this Contract will be reviewed and approved by the VILLAGE's representative, indicating that the Decorative Lighting has been delivered in conformity with the Contract and then will be sent to the Finance Department for payment. Work shall be invoiced when the Decorative Lighting is accepted by the VILLAGE's representative. 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 the 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. 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. ARTICLES. 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. TERMINATION. This Contract may be cancelled by the CONTRACTOR upon ten (10) 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, with or without cause, upon ten (10) days written notice to the CONTRACTOR. ARTICLE 7. FEDERAL AND STATE TAX. The VILLAGE is exempt from payment of Florida State Sales and Use Tax. The CONTRACTOR shall not be exempted from paying sales tax to its suppliers for materials used -2- to fill contractual obligations with the VILLAGE, nor is the CONTRACTOR authorized to use the VILLAGE's Tax Exemption Number in securing such materials. ARTICLE 8. 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 CQNTRACTOR. ARTICLE 9. 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 10. INDEPENDENT CONTRACTOR RELATIONSHIP. The 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 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 Work. ARTICLE 11. ACCESS AND AUDITS. The 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 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. ARTICLE 12. 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. -3- ARTICLE 13. 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 14. AUTHORITY TO PRACTICE. The 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 15. 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 16. 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 and if sent to the CONTRACTOR shall be mailed to: The foregoing names and addresses may be changed if such change is provided in writing to the other party. -4- ARTICLE 17. 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. ARTICLE 18. 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 19. 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 20. PREPARATION. This Contract shall not be construed more strongly against either party regardless of who was more responsible for its preparation. ARTICLE 21. 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 22. 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. ARTICLE 23. LEGAL EFFECT. This Contract shall not become binding and effective until approved by the Village Council of the Village of North Palm Beach. 152 ARTICLE 24. 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 25. 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 delivery and acceptance of the system(s), subject to the conditions set forth in the Specifications. 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. The CONTRACTOR shall provide the VILLAGE with copies of all manufacturer warranties and certify that the Work complies with the conditions set forth in such warranties, if any. ARTICLE 26. TIME IS OF THE ESSENCE/LIOUIDATED 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 delivery of decorative lighting is not completed by June 28, 2019. 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 $100.00 per day for each calendar day that expires after June 28, 2019. Liquidated damages may be deducted from payments due to the CONTRACTOR. ARTICLE 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. ARTICLE 28. 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 29. INSPECTOR GENERAL CONTRACTOR is aware that the Inspector General of Palm Beach County has the authority to SM 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 rerriedies 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. 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: Brenda Friedman ATTEST: BY:�19y_jk7p MELISSA TEAL, VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: VILLAGE ATTORNEY -7- EXHIBIT "A" INVOICE FORM Invoice to be standard invoice provided by CONTRACTOR referencing the purchase order number and describing what the payment covers.