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R2019-44 Golf Course Maintenance Services ContractRESOLUTION 2019-44 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA APPROVING A CONTRACT FOR GOLF COURSE MAINTENANCE SERVICES WITH BRIGHTVIEW GOLF MAINTENANCE, INC. AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE THE CONTRACT ON BEHALF OF THE VILLAGE; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on April 12, 2019, the Village advertised a Request for Proposals for Golf Course Maintenance Services ("RFP"); and WHEREAS, the Village received seven sealed proposals in response to the RFP, and the Evaluation Committee evaluated the proposals and recommended accepting the top-ranked proposal submitted by BrightView Golf Maintenance, Inc., with the inclusion of Comprehensive Nematode Treatment; and WHEREAS, the Village Council determines that execution of the Contract with BrightView Golf Maintenance, Inc. is in the best interests of the Village and its residents. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA as follows: Section 1. The foregoing recitals are ratified as true and incorporated herein. Section 2. The Village Council of the Village of North Palm Beach, Florida, hereby approves a Contract for Golf Maintenance Services with BrightView Golf Maintenance, Inc. at a total annual cost, including Comprehensive Nematode Treatment, of $1,289,849.00, with funds expended from Account No. L8045-33491 (Golf Course Maintenance — Contractual Services), and authorizes the Mayor and Village Clerk to execute the Contract, 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 All resolutions or parts of resolutions in conflict with this Resolution are hereby repealed to the extent of such conflict.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 adoption. PASSED AND ADOPTED THIS 23' DAY OF MAY, 2019. (Village Seal). MAYOR ATTEST: VILLAGE CLERK CONTRACT This Contract is made as of the W31f&V day of 10,4,61 , 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 the VILLAGE, and BRIGHTVIEW GOLF MAINTENANCE, INC., a California corporation authorized to do business in the State of Florida, hereinafter referred to as CONTRACTOR, whose Federal I.D. is 95-2999239. 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 the Request for Proposals for Golf Course Maintenance Services ("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 CONTRACTOR shall provide all goods and services as stated in the RFP and the Scope of Work referenced therein, in accordance with 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. In addition to the Scope of Work set forth in the RFP, CONTRACTOR shall perform the Comprehensive Nematode Treatment set forth in the Proposal. ARTICLE 2. TERM/COMMENCEMENT DATE A. This Contract shall commence upon the VILLAGE's issuance of a Notice to Proceed, in consultation with CONTRACTOR, and shall remain in effect for a period three (3) years from October 1, 2019, unless earlier terminated in accordance with Article 8. This Contract shall automatically extend for two (2) additional one (1) year terms unless either party notifies the other party at least ninety (90) days prior to the end of the initial term or the first renewal term that it does not desire to have the Contract automatically extended. B. 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. ARTICLE 3. VILLAGE'S REPRESENTATIVE Unless otherwise specified by the VILLAGE, the VILLAGE's representative shall be the Village Director of Golf/Head Golf Professional. The Village Manager or the 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. Contract 1 ARTICLE 4. COMPENSATION AND METHOD OF PAYMENT A. Generally - The VILLAGE agrees to compensate the CONTRACTOR in accordance with the Proposal submitted by CONTRACTOR. CONTRACTOR'S Proposal is incorporated herein by reference. The total and cumulative annual amount of this Contract, including the Comprehensive Nematode Treatment, shall not exceed One Million Two Hundred Eighty -Nine Thousand Eight Hundred Forty -Nine Dollars and No Cents ($1,289,849.00). The amount of compensation for services performed prior to October 1, 2019 shall be prorated based on the annual amount. B. Payments - Invoices received from CONTRACTOR pursuant to this Contract will be reviewed and approved by the VILLAGE'S representative, indicating that services have been rendered in conformity with the Contract and then will be sent to the Finance Department for payment. CONTRACTOR will invoice the VILLAGE in advance for each payment period. Invoices will normally be paid within thirty (30) days following the VILLAGE representative's approval. 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, negligence or default of CONTRACTOR and/or its subcontractors, agents, servants or employees. B. CONTRACTOR shall not be required to indemnify or defend 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 limited waiver provided in § 768.28, Florida Statutes. ARTICLE 6. PERSONNEL A. CONTRACTOR represents that it has, or will secure at its own expense, all necessary personnel required to perform the Work under this Contract. Such personnel shall not be employees of or have any contractual relationship with the VILLAGE. B. All of the Work required hereunder shall be performed by CONTRACTOR or under its supervision, and all personnel engaged in performing the Work shall be fully qualified and, if required, authorized or permitted under state and local law to perform such Work. C. All of CONTRACTOR's personnel (and all sub -contractors) while on VILLAGE premises, will comply with all VILLAGE requirements governing conduct, safety, and security. Contract 2 ARTICLE 7. INSURANCE A. Prior to execution of this Contract by the VILLAGE, 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 CONTRACTOR has obtained insurance of the type, amount, and classification as required for strict compliance with this Article 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. Compliance with the foregoing requirements shall not relieve CONTRACTOR of its liability and obligations under this Contract. B. CONTRACTOR shall maintain, during the term of this Contract, commercial general liability, including contractual liability insurance, in the amount of $1,000,000 per occurrence or $2,000,000 in aggregate to protect the selected respondent from claims for damages for bodily and personal injury, including wrongful death, as well as from claims of property damages which may arise from any operations under a resulting contract, whether such operations be performed by the selected respondent or by anyone directly employed by or contracting with the selected respondent. C. CONTRACTOR shall maintain, during the term of this Contract, comprehensive automobile liability insurance in the minimum amount of $1,000,000 combined single limit for bodily injury and property damages liability to protect CONTRACTOR from claims for damages for bodily and personal injury, including death, as well as from claims for property damage, which may arise from the ownership, use, or maintenance of owned and non -owned automobiles, including rented automobiles whether such operations be by CONTRACTOR or by anyone directly or indirectly employed by CONTRACTOR. D. 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. E. All insurance, other than Worker's Compensation, to be maintained by CONTRACTOR shall specifically include the VILLAGE as an "Additional Insured". ARTICLE 8. TERMINATION This Contract may be cancelled by 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 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. After receipt of a Termination Notice and except as otherwise directed by the VILLAGE, CONTRACTOR shall: A. Stop work on the date and to the extent specified. Contract 3 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. D. Continue and complete all parts of the work that have not been terminated. ARTICLE 9. FEDERAL AND STATE TAX A. The VILLAGE is exempt from payment of Florida State Sales and Use Tax. Unless purchased directly by the VILLAGE, 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. B. The VILLAGE reserve the right to purchase goods, materials and equipment through the direct purchase option outlined in the RFP, which is incorporated herein by reference. CONTRACTOR agrees that the amount of the compensation shall be reduced by the cost paid by the Village for the goods, materials, or equipment and the sales tax saved by the VILLAGE directly purchasing such items. Adjustment in compensation pursuant to this section shall not require and written amendment of this Contract. ARTICLE 10. SUCCESSORS AND ASSIGNS The VILLAGE and CONTRACTOR each binds itself and its partners, successors, executors, administrators, and assigns to the other party of this Contract and to the partners, successors, executors, administrators and assigns of such other party, in respect to all covenants of this Contract. Except as above, neither the VILLAGE nor CONTRACTOR shall assign, sublet, convey or transfer its interest in this Contract without the written consent of the other. Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of the VILLAGE which may be a party hereto, nor shall it be construed as giving any rights or benefits hereunder to anyone other than the VILLAGE and CONTRACTOR. ARTICLE 11. GOVERNING LAW, VENUE AND REMEDIES A. This Contract shall be governed by the laws of the State of Florida. Any and all legal action necessary to enforce the Contract will be held in Palm Beach County. B. No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any party of any right, power, or remedy hereunder shall preclude any other or further exercise thereof. C. The VILLAGE and CONTRACTOR knowingly, voluntarily and intentionally waive any right they may have to a trial by jury with respect to any litigation arising out of or in connection with this Contract. Contract 4 ARTICLE 12. EXCUSABLE DELAYS CONTRACTOR shall not be considered in default by reason of any failure in performance 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; and abnormally severe and unusual weather conditions. 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 13. INDEPENDENT CONTRACTOR RELATIONSHIP A. CONTRACTOR is, and shall be, in the performance of all work, services and/or activities under this Contract, an Independent Contractor, and not an employee, agent, or servant of the VILLAGE. All persons engaged in any of the work, services and/or activities 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, and in all respects CONTRACTOR'S relationship and the relationship of its employees, agents, or servants to the VILLAGE shall be that of an Independent Contractor and not as employees or agents of the VILLAGE. B. CONTRACTOR does not have the power or authority to bind the VILLAGE in any promise, agreement or representation other than as specifically provided for in this Contract. 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 party or parties may be entitled. ARTICLE 16. AUTHORITY TO CONDUCT BUSINESS CONTRACTOR hereby represents and warrants that it has and will continue to maintain all licenses and approvals required to conduct its business, and that it will at all times conduct its business activities in a reputable manner. Proof of such licenses and approvals shall be submitted to the VILLAGE'S representative upon request. Contract 5 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. PUBLIC ENTITY CRIMES As provided in F.S. 287.132-133 by entering into this Contract or performing any work in furtherance hereof, CONTRACTOR certifies that it, its affiliates, suppliers, subcontractors and any other contractors who will perform hereunder, have not been placed on the convicted vendor list maintained by the State of Florida Department of Management Services within the thirty-six (36) months immediately preceding the date hereof. This notice is required by Section 287.133(3)(a), Florida Statutes. 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: (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 CONTRACTOR's ability to meet the completion dates or schedules of this Contract. B. If the VILLAGE so instructs in writing, 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 CONTRACTOR shall not commence work on any such change until such written amendment is signed by CONTRACTOR and approved and executed by the Village of North Palm Beach. 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 501 U.S. Highway One North Palm Beach, Florida 33408 Attention: Andrew Lukasik and if sent to CONTRACTOR shall be mailed to: BrightView Golf Maintenance, Inc. 24151 Ventura Boulevard Calabasas, CA 91302 Attention: Greg Pieschala, President Contract 6 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 in accordance with Article 19 - Modifications of Work. ARTICLE 22. PROTECTION OF WORK AND PROPERTY 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, CONTRACTOR shall provide any necessary materials to maintain such protection. ARTICLE 23. WAIVER Failure of the VILLAGE to enforce or exercise any right(s) under this Contract shall not be deemed a waiver of VILLAGE'S right to enforce or exercise said right(s) at any time thereafter. 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. CONTRACT DOCUMENTS AND CONTROLLING PROVISIONS This Contract incorporates the terms of the Request for Proposals issued by the VILLAGE and the Proposal Response submitted by CONTRACTOR, and CONTRACTOR agrees to be bound by all the terms and conditions set forth in the aforementioned documents. To the extent that a conflict exists between this Contract and the remaining documents, the terms, conditions, covenants, and/or provisions of this Contract shall prevail. Wherever possible, the provisions of such documents shall be construed in such a manner as to avoid conflicts between provisions of the various documents. ARTICLE 27. DEFAULT 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: Contract 7 A. The filing of a lien by any subcontractor or third tier subcontractor including, but not limited to material men, suppliers, or laborers, upon any property, right of way, easement or other interest in land or right to use within the territorial boundaries of the VILLAGE which lien is not satisfied, discharged or contested in a court of law within thirty (30) days from the date of notice to CONTRACTOR; B. 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 CONTRACTOR; or C. 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 permanent receiver or Trustee shall not be discharged within thirty (30) days from the date of appointment. CONTRACTOR shall provide written notice to the VILLAGE of the occurrence of any event of default within ten (10) days of CONTRACTOR's receipt of notice of any such default. ARTICLE 28. ACCESS AND AUDITS 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 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 29. LEGAL EFFECT This Contract shall not become binding and effective until approved by the Village Council of the Village of North Palm Beach and executed by its designated representative. ARTICLE 30. REPRESENTATIONSBINDING AUTHORITY CONTRACTOR represents that the person executing this Contract has the power, authority and legal right to execute and deliver this Contract and perform all of its obligations under this Contract. Contract 8 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 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 the 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 CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: (561) 841-3355; NPBCLERKgVILLAGE-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: A. Keep and maintain public records 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 CONTRACTOR does not transfer the records to the VILLAGE. Contract 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 WHEREOF, the VILLAGE and CONTRACTOR hereto have made and executed this Contract for golf course maintenance services as of the day and year first above written. CONTRACT R BRIGHT7IE L TE FE, INC. BY. Print Name:-�-� Title: V .� � o VILLAGE OF NORTH PALM BEACH BY: k.,,w DARRYL A REY, MAYOR ATTEST: BY: �- MELI S S A TEAL, VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: BY: VILLAGE ATTORNEY Contract 10