2009-34 Golf Course Maintenance Services Contract AmendmentRESOLUTION 2009-34
• A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
NORTH PALM BEACH, FLORIDA, APPROVING AN AMENDED
CONTRACT FOR GOLF COURSE MAINTENANCE SERVICES WITH
INTERNATIONAL GOLF MAINTENANCE, INC. AND AUTHORIZING THE
MAYOR AND VILLAGE CLERK TO EXECUTE SAME; PROVIDING FOR
CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, in July, 2007, the Village issued a Request for Proposals for Golf Course Maintenance
Services and based on the proposals submitted, entered into a Contract for Golf Course Maintenance
Services with International Golf Maintenance, Inc. ("Contract"); and
WHEREAS, the Contract provided for an initial term of two-years, with automatic renewals for
additional one year terms unless otherwise terminated by either party as set forth therein; and
WHEREAS, prior to expiration of the initial term of the Contract, the Village and International Golf
Maintenance, Inc. negotiated an Amended Contract providing for, among other things, a reduction in
the oornpensation paid by the Village; and
WHEREAS, the Amended Contract will replace and supersede the initial Contract in its entirety; and
WHEREAS, the Village Council determines that the approval of the Amended Contract is in the best
interests ofthe residents and citizens of the Village ofNorth 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 the Amended Contract for Golf Course
Maintenance Services with International Golf Maintenance, Inc., a copy of which is attached
hereto and incorporated herein, and authorizes the Mayor and Village Clerk to execute the
Amended Contract on behalf of the Village.
Section 3. All resolutions or parts of resolution in conflict with this Resolution are hereby
repealed to the extent of such conflict.
Section 4.
This Res~lutinn shall he effective immediately unnn arinntinn_
PASSED AND ADOPTED THIS 28th DAY OF M
(Village Seal)
• ATTEST:
VILLAGE CLERK
AMENDED CONTRACT FOR GOLF COURSE MAINTENANCE SERVICES
FOR THE VILLAGE OF NORTH PALM BEACH
This Contract is made as of the ~~ day of ~ 2009, by and between the
VILLAGE OF NORTH PALM BEACH, a municipal corporation organized and existing under the laws of
the State of Florida, by and through its Village Council, hereinafter referred to as the VILLAGE, and
INTERNATIONAL GOLF MAINTENANCE, INC., a Florida corporation, hereinafter referred to as the
CONTRACTOR, whose Federal LD. is 59-3489578.
In consideration of the promises and mutual covenants herein contained, it is hereby agreed that the
CONTRACTOR shall provide to the VILLAGE all work necessary for the maintenance of the Village
Municipal Golf Course pursuant to the terms and conditions of this Contract.
SECTION 1: GOODS AND SERVICES OF THE CONTRACTOR.
A. The CONTRACTOR shall provide all goods and services necessary for the maintenance of the Village
Municipal Golf Course as required under the VILLAGE's Request for Proposal ("RFP") and the
CONTRACTOR'S proposal thereto ("Proposal"). A copy of the RFP is attached hereto as Exhibit "A" and is
incorporated herein by reference. A copy of the Proposal is attached hereto as Exhibit "B" and is
incorporated herein by reference.
B. The CONTRACTOR shall perform the services contemplated by this Contract to that degree of care and
skill ordinarily exercised, under similar circumstances, by reputable members of its profession practicing in
the same or similar locality at the time the services are provided.
C. At any time during the term of this Contract, but no more than four (4) times in any twelve (12) month
period, the VILLAGE shall have the absolute right to request that the condition and maintenance of the Golf
Course be inspected by a certified, independent agronomist to be mutually selected by the VILLAGE and the
CONTRACTOR. Should the VLLLAGE and the CONTRACTOR fail to agree to the selection of an
agronomist, the agronomist shall be selected by Nicklaus Design, LLC. The VILLAGE shall bear all costs
associated with such inspections and the preparation of a written report. The CONTRACTOR shall prepare
and provide the VILLAGE with a corrective action plan and implement any recommendations or deficiencies
noted by the agronomist within ten (10) days after receipt of the agronomist's report.
SECTION 2: TERM OF CONTRACT.
A. This Contract shall be for an initial term of two (2) years from October 1, 2009 through September 30,
2011, unless earlier terminated in accordance with the terms and conditions stated herein. The VILLAGE
shall have the option to extend the term of the Contract for an additional one (1) year period through
September 30, 2012 by providing the CONTRACTOR written notice of same by April 1, 2011. The total
compensation paid by the VILLAGE to the CONTRACTOR during this additional one (1) year term shall be
negotiated between the parties. Should the VILLAGE and the CONTRACTOR fail to agree upon the total
compensation amount by June 1, 2011, the Agreement shall expire on September 30, 201 l as set forth above.
B. Except as specifically provided herein, the CONTRACTOR shall not be entitled to an increase in the
agreed to compensation in this Contract or payment or compensation of any kind from the VILLAGE for
direct, indirect, consequential, impact or other costs, expenses or damages.
SECTION 3: VILLAGE'S REPRESENTATIVE. Unless otherwise specified by the VILLAGE, the
VILLAGE'S representative shall be Mike Gray, Director of Golf Operations. The Village Manager or Village
Representative shall have the right at all reasonable times during the term of this Contract to inspect or
otherwise evaluate the work being performed thereunder.
SECTION 4: COMPENSATION AND METHOD OF PAYMENT.
A. The VILLAGE agrees to compensate the CONTRACTOR in accordance with CONTRACTOR'S
Proposal.
B. The total amount of compensation to be paid by the VILLAGE to the CONTRACTOR on an annual basis
(from October 1St to September 30`") shall be $1,153,888.00, which represents the total cost of providing the
services outlined in the Proposal, inclusive of personnel, supplies, equipment and any and all related costs.
C. CONTRACTOR shall invoice the VILLAGE on the first day of each month, commencing October 1,
2009, an amount equal to one-twelfth (1/121") of the annual compensation due. Payment for same shall be due
on the fifteenth (1St") day of each month.
D. In order for both parties herein to close their books and records, CONTRACTOR will clearly state "final
invoice" on the CONTRACTOR'S finaUlast billing to the VILLAGE. This certifies that all goods and
services have been properly performed and all charges have been invoiced to the VILLAGE. Since this
account will thereupon be closed, any and other further charges if not properly included in this final invoice
are waived by the CONTRACTOR. The VILLAGE will not be liable for any invoice from the
CONTRACTOR submitted thirty (30) days after the provision of all goods and services.
SECTION 5: ADJUS~T~Ni~NT TO Aiy'i`iuAL CObu ENSATION.
Effective October 1, 2010, the total amount of compensation to be paid by the VILLAGE to the
CONTRACTOR shall be increased by two and one-half percent (2'/z%) as a one-time cost of living
adjustment.
SECTION 6: INDEMNIFICATION.
A. The CONTRACTOR shall indemnify and save harmless and defend the VILLAGE, its agents, servants,
and employees from and against any and all claims, liability, losses, and/or cause of action which may arise
from any negligent act or omission of the CONTRACTOR, its agents, servants, or employees in the
performance of services under this Contract.
B. The CONTRACTOR further agrees to indemnify, save harmless and defend the VILLAGE, its agents,
servants and employees from and against any claim, demand or cause of action of whatsoever kind or nature
arising out of any conduct or misconduct of the CONTRACTOR its agents, servants, or employees not
included in the paragraph above and for which the VILLAGE, its agents, servants or employees are alleged to
be liable.
C. Nothing contained in this Contract shall create a contractual relationship with or a cause of action in favor
of a third party against either the VILLAGE or CONTRACTOR, nor shall this Contract be construed a waiver
of sovereign immunity beyond the waiver provided in § 768.28, Florida Statutes.
SECTION 7: PERSONNEL.
A. The CONTRACTOR represents that it has, or will secure at its own expense, all necessary personnel,
required to perform the services under this Contract.
B. All of the services required hereunder shall be performed by the CONTRACTOR or under its
supervision, and all personnel engaged in performing the services shall be fully qualified and, if required,
authorized or permitted under state and local law to perform such services.
C. All of the CONTRACTOR'S personnel (and all sub-contractors) while on VILLAGE premises, will
comply with all VILLAGE requirements governing conduct, safety, and security.
D. All of CONTRACTOR's personnel who were not previously VILLAGE employees shall undergo the
standard VILLAGE background investigation. The VILLAGE shall conduct such background investigation
on behalf of CONTRACTOR and CONTRACTOR shall reimburse the VILLAGE for all costs associated
with such investigation.
SECTION 8: TERMINATION.
A. Termination with cause. The CONTRACTOR may terminate this Contract upon thirty (30) days prior
written notice to the VILLAGE'S representative in the event of substantial failure by the VILLAGE to
perform in accordance with the terms of this Contract through no fault of the CONTRACTOR. The
VILLAGE may terminate this Contract with written notice of cause to the CONTRACTOR, who fails to cure
such cause within five (5) days of the receipt of the VILLAGE'S notice. After receipt of a Termination
Notice and except as otherwise directed by the VILLAGE, the CONTRACTOR shall:
l . Stop work on the date and to the extent specified; and
2. Terminate and settle all orders and subcontracts relating to the performance of the terminated work.
B. Termination without cause. The Contract may also be terminated by the VILLAGE or by the
CONTRACTOR without cause upon ninety (90) days written notice to the other party.
C. Unless the CONTRACTOR is in breach of this Contract, the CONTRACTOR shall be paid for services
rendered to the VILLAGE'S satisfaction through the date of termination.
SECTION 9: FEDERAL AND STATE TAX. The VILLAGE is exempt from payment of Florida State
Sales and Use Tax. Unless purchased directly by the VILLAGE, the CONTRACTOR shall not be exempted
from paying sales tax to its suppliers for materials used to fill contractual obligations with the VILLAGE, nor
is the CONTRACTOR authorized to use the VILLAGE's Tax Exemption Number in securing such materials.
SECTION 10: INSURANCE.
A. Prior to commencing any work, the CONTRACTOR shall provide certificates evidencing insurance
coverage as required hereunder. All insurance policies shall be issued by companies authorized to do
business under the laws of the State of Florida. The Certificates shall clearly indicate that the
CONTRACTOR has obtained insurance of the type, amount, and classification as required for strict
compliance with this Section and that no material change or cancellation of the insurance shall be effective
without thirty (30) days' prior written notice to the VILLAGE'S representative. Failure to comply with the
foregoing requirements shall not relieve the CONTRACTOR of its liability and obligations under this
Contract.
B. The CONTRACTOR shall maintain, during the life of this Contract, commercial general liability,
including contractual liability insurance in the amount of $500,000 per occurrence or $1,000,000 in aggregate
to protect the CONTRACTOR from claims for damages for bodily and personal injury, including wrongful
death, as well as from claims of property damages which may arise from any operations under this Contract,
whether such operations be by the CONTRACTOR or by anyone directly employed by or contracting with
the CONTRACTOR.
C. The CONTRACTOR shall maintain, during the life of this Contract, comprehensive automobile liability
insurance in the minimum amount of $500,000 combined single limit for bodily injury and property damages
liability to protect the 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 the
CONTRACTOR or by anyone directly or indirectly employed by the 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 the CONTRACTOR shall
specifically include the VILLAGE as an Additional Insured.
SECTION 11: 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 part;, in respect to all covenants
of this Contract. Except as above, neither the VILLAGE nor the CONTRACTOR shall assign, sublet, convey
or transfer its interest in this Contract without the written consent of the other. Nothing herein shall be
construed as creating any personal liability on the part of any officer or agent of the VILLAGE which may be
a party hereto, nor shall it be construed as giving any rights or benefits hereunder to anyone other than the
VILLAGE and the CONTRACTOR.
SECTION 12: DISPUTE RESOLUTION LAW, VENUE AND REMEDIES. This Contract shall be
governed by the laws of the State of Florida. Any and all legal action necessary to enforce the Contract will
be held in Palm Beach County. No remedy herein conferred upon any party is intended to be exclusive of any
other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No single
or partial exercise by any party of any right, power, or remedy hereunder shall preclude any other or further
exercise thereof.
SECTION 13: INDEPENDENT CONTRACTOR RELATIONSHIP. The CONTRACTOR is, and shall be,
in the performance of all Services under this Contract, an Independent CONTRACTOR, and not an employee,
agent, or servant of the VILLAGE. All persons engaged in any of the Services performed pursuant to this
Contract shall at all times, and in all places, be subject to the CONTRACTOR'S sole direction, supervision,
and control. The CONTRACTOR shall exercise control over the means and manner in which it and its
employees perform the Services.
SECTION 14: ACCESS AND AUDITS. The CONTRACTOR shall maintain adequate records to justify all
charges, expenses, and costs incurred in estimating and performing the Services for at least three (3) years
after completion of this Contract. The VILLAGE shall have access to such books, records, and documents as
required in this section for the purpose of inspection or audit during normal business hours, at the
CONTRACTOR'S place of business. In no circumstances will CONTRACTOR be required to disclose any
confidential or proprietary information regarding its products and service costs.
SECTION 15: NONDISCRIMINATION. The CONTRACTOR warrants and represents that all of its
employees are treated equally during employment without regard to race, color, religion, disability, sex, age,
national origin, ancestry, marital status, or sexual orientation.
SECTION 16: ENFORCEMENT COSTS. If any legal action or other proceeding is brought for the
enforcement of this Contract, or because of an alleged dispute, breach, default or misrepresentation in
connection with any provisions of this Contract, the successful or prevailing party or parties shall be entitled
to recover reasonable attorney's fees, court costs and all expenses (including taxes) even if not taxable as
court awarded costs (including, without limitation, all such fees, costs and expenses incident to appeals),
incurred in that action or proceeding, in addition to any other relief to which such party or parties may be
entitled.
SECTION 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.
SECTION 18: MODIFICATIONS OF WORK.
A. The VILLAGE reserves the right to make changes in the work, including alterations, reductions therein or
additions thereto. Upon receipt by the CONTRACTOR of the VILLAGE's notification of a contemplated
change, the CONTRACTOR shall, in writing. (i) provide a detailed esti~~-ate for the increase or decrease in
cost due to the contemplated change, (2) notify the VILLAGE of any estimated change in the completion
date, and (3) advise the VILLAGE if the contemplated change shall effect the CONTRACTOR'S ability to
meet the completion dates or schedules of this Contract.
B. If the VILLAGE so instructs in writing, the CONTRACTOR shall suspend work on that portion of the
work affected by the contemplated change, pending the VILLAGE'S decision to proceed with the change.
C. If the VILLAGE elects to make the change, the VILLAGE shall initiate a Contract Amendment and the
CONTRACTOR shall not commence work on any such change until such written amendment is signed by the
CONTRACTOR and approved and executed by the Village of North Palm Beach.
SECTION 19: PUBLIC ENTITY CRIMES. CONTRACTOR acknowledges and agrees that a person or
affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime
may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may
not submit a bid, proposal, or reply on a contract with a public entity for the construction or repair of a public
building or public work; may not submit bids, proposals, or replies on leases of real property to a public
entity; may not be awarded or perform work as a contractor, supplier, sub-contractor, or CONTRACTOR
under a contract with any public entity; and may not transact business with any public entity in excess of the
threshold amount provided in Section 287.017, Florida Statues, for CATEGORY TWO for a period of 36
months following the date of being placed on the convicted vendor list. The CONTRACTOR will advise the
VILLAGE immediately if it becomes aware of any violation of this statute.
SECTION 20: PROTECTION OF WORK AND PROPERTY.
A. The CONTRACTOR shall continuously maintain adequate protection of all work from damage, and shall
protect the VILLAGE'S property from injury or loss arising in connection with the Contract. Except for any
such damage, injury, or loss, except that which may be directly due to errors caused by the VILLAGE or
employees of the VILLAGE, the CONTRACTOR shall provide any necessary materials to maintain such
protection.
B. The CONTRACTOR will also take every necessary precaution to ensure the safety of the VILLAGE,
public and other guests and invitees thereof at or near the areas where work is being accomplished during and
throughout the completion of all work.
SECTION 21: WARRANTY/GUARANTY. CONTRACTOR warrants that its goods and services under
this Contract will be free of defects in materials and workmanship for a period of one year following the
provision of said goods and services.
SECTION 22: COMPLIANCE WITH LAWS. CONTRACTOR shall, in performing the services
contemplated by this Contract, faithfully observe and comply with all federal, state and local laws, ordinances
and regulations that are applicable to the services to be rendered under this Contract.
SECTION 23: 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: ,Timmy Knight, Village Manager
Village Hall
501 U.S. Highway One
North Palm Beach, FL 33408
and if sent to the CONTRACTOR shall be mailed to:
International Golf Maintenance, Inc.
Attn: Greg A. Plotner, Executive Vice President
8390 ChampionsGate Boulevard, #Z00
ChampionsGate, FL 33896
The foregoing names and addresses may be changed if such change is provided in writing to the other party.
SECTION 24: ENTIRETY OF CONTRACTUAL AGREEMENT. The VILLAGE and the CONTRACTOR
agree that this Contract sets forth the entire agreement between the parties, and that there are no promises or
understandings other than those stated herein. None of the provisions, terms and conditions contained in this
Contract may be added to, modified, superseded or otherwise altered, except by written instrument executed
by the parties hereto. In the event of a conflict between this Contract and the VILLAGE's RFP and the
CONTRACTOR'S proposal, this Contract shall take precedence. All such documents shall be read in a
manner so as to avoid a conflict.
SECTION 25: WAVER. Failure of a party to enforce or exercise any of its right(s) under this Contract
shall not be deemed a waiver of that parties' right to enforce or exercise said right(s) at any time thereafter.
SECTION 26: PREPARATION. This Contract shall not be construed more strongly against either party
regardless of who was more responsible for its preparation.
6
SECTION 27: 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.
SECTION 28: 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 apre-loss agreement
to waive subrogation without an endorsement, then CONTRACTOR shall agree to notify the insurer and
request the policy be endorsed with a Waiver of Transfer of Rights of Recovery Against Others, or its
equivalent. This Waiver of Subrogation requirement shall not apply to any policy, which a condition to the
policy specifically prohibits such an endorsement, or voids coverage should CONTRACTOR enter into such
an agreement on a pre-loss basis.
SECTION 29: FORCE MAJEURE.
A. In the event of unpreventable acts or occurrences wholly beyond the control of and unattributable to the
CONTRACTOR, including, by way of example, acts of God, fire, flood, riots, war, terrorist activities,
hurricanes or other severe and unforeseen storm events ("Force Majeure Events"), prevent the
CONTRACTOR from performing the services contemplated by this Contract, the CONTRACTOR shall be
excused from performance under the terms of this Contract during the duration of the Event and the
VILLAGE shall be relieved from payment for such services.
B. If a Force Majeure Event merely impedes the CONTRACTOR'S ability to perform the services
contemplated by this Contract or if the CONTRACTOR is assisting in the recovery of a Force Majeure Event,
the VILLAGE shall not be relieved from payment for such services provided that CONTRACTOR provides
the VILLAGE with written notice and a plan to achieve the goals set forth ir. the Main±enance G»idelines and
comply with all other provisions of the Contract.
C. The parties agree that should any Force Majeure Event destroy or damage any Golf Course facilities,
including, but not limited to, trees and landscaping, the VILLAGE shall be solely responsible for replacement
of such facilities provided that such destruction or damage arose through no fault of the CONTRACTOR.
SECTION 29: REPLACEMENT OF GOLF COURSE SUPERINTENDENT.
If, during the term of this Contract, the CONTRACTOR replaces the Golf Course Superintendent at the North
Palm Beach Country Ciub, due to termination, resignation or any other reason, the CONTRACTOR shall
allow the Village to participate in the selection process for the replacement Golf Course Superintendent and
shall provide the VILLAGE with a list of at least three (3) qualified candidates for the position and an
opportunity to meet with such persons. Prior to offering employment as Golf Course Superintendent to any
individual, the CONTRACTOR shall obtain the consent of the Village Manager, such consent not to be
unreasonably withheld.
SECTION 30: AMENDMENT/RESTATEMENT
This Contract is an amendment and restatement of the Contract for Golf Maintenance Services for the Village
of North Palm Beach dated September 27, 2007 in its entirety.
[Remainder of page intentionally left blank]
7
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.
INTERNATIONAL GOLF MAINTENANCE, INC.
By:
Print Name: C~QIr;~(e ~ ~~.~~2
Position: ~EC_~'~J~ \~_
W(I~pT[N~p~E~gSSED BY: ~~qr +p' ~j^
~dN/~ U 5 °Q "~ 6J' ~Y'i
Print Name:
VILLAGE T AL BEACH
BY: a
DA MORRIS
MA YOR
ATTEST:
BY: ~~
VI LAGS CLE
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
BY:
VILLAGE ATTORNEY
8
VILLAGE RFP AND CONTRACTOR'S PROPOSAL
TO BE ATTACHED AS EXHIBITS
9