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2007-014 Bid Award Pool HeatersRESOLUTION 2007-14 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF '" NORTH PALM BEACH, FLORIDA ACCEPTING THE BID SUBMITTED BY ROYAL PALM POOLS LLC FOR POOL HEATERS TO BE INSTALLED AT THE NORTH PALM BEACH POOL FACILITY AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE AN AGREEMENT WITH ROYAL PALM POOLS LLC. AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village issued an Invitation for Sealed Bids for Village Pool Heaters and installation of the same; and WHEREAS, upon opening the one bid received, Village Staff recommended accepting the bid submitted by Royal Palm Pools LLC at a cost not to exceed $58,426.00, to be expended from Village account # A8051-66490 (Machinery and Equipment) _ $58,426.00 WHEREAS, the Village Council determines that the acceptance of the bid submitted by Royal Palm Pools LLC is in the best interests of the Village. 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 accepts the bid submitted by Royal Palm Pools LLC for Pool Heaters and installation of the same, at a total cost not to exceed $58,426.00, and hereby authorizes the Mayor and Village Clerk to execute an agreement with Royal Palm Pools LLC for the purchase of Pool Heaters and the installation of the same, as evidenced by the Agreement attached as Exhibit "A". Section 3. This resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED THIS 25TH DAY OF JANUARY, 2007. (Village Seal) ATTEST: `" VILLAGE CLERK CONTRACT FOR VILLAGE POOL HEATERS This Contract is made as of the d5 ~vl day of ~,4!!/G(.dJZ 2007 by and between the VILLAGE OF NORTH rALM EEACH, calm Beach Count ,Florida a~Political Subdivision of the State of Florida, by and through its Village Council, hereinafter referred to as the VILLAGE, and ROYAL PALM POOLS, LLC., a limited liability corporation authorized to do business in the State of Florida, hereinafter referred to as the CONTRACTOR, whose Federal LD. is 65-0629406. 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 Invitation to Bid for the Village Pool Heaters ("ITB" hereafter) and as further stated in CONTRACTOR'S responsive bid to the ITB and pursuant to the terms and conditions of this Contract. SECTION 1 -SERVICES OF THE CONTRACTOR. A. The CONTRACTOR shall provide all goods and services as stated in ITB and CONTRACTOR'S bid 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. B. The goods and services to be provided by the CONTRACTOR shall be commenced subsequent to the execution and approval of this Contract and upon written notice from the VILLAGE to proceed. SECTION 2 -PERIOD OF SERVICE A. This Contract and the provision of all work, material and equipment hereunder to complete the project by CONTRACTOR shall be for a period of sixty (601 days or for such other period of time agreed to in writing by the parties in accordance with the terms and conditions of this Contract from the date of a Notice to Proceed from the VILLAGE. B. Upon approval of this Contract by the VILLAGE's Council, CONTRACTOR shall have ten (10) business days to obtain the required Public Construction Bond in accordance with § 255.05, Florida Statutes, and provide a copy to the VILLAGE. If the Public Construction Bond is acceptable to the VILLAGE, VILLAGE will issue a Notice to Proceed to the CONTRACTOR. If CONTRACTOR needs additional time to secure the required Public Construction Bond, said time will be taken from the period of sixty (60) days to complete the project. C. The 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 the CONTRACTOR or its subcontractors and without their fault or negligence. Such causes include, but are not limited to: acts of God; natural or public health emergencies; labor disputes; freight embargoes; unreasonable utility provider delays, unreasonable permitting delays and abnormally severe and unusual weather conditions. 1 ~~~ D. Upon the CONTRACTOR's request, the VILLAGE shall consider the facts and extent of any failure to perform the work and, if the 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. E. Notwithstanding the foregoing, 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, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference or hindrance from any cause whatsoever. Provided, however, that this provision shall not preclude recovery or damages by the CONTRACTOR for hindrances or delays due solely to fraud, bad faith or active interference on the part of the VILLAGE or its agents. Otherwise, the CONTRACTOR shall be entitled only to extensions of the schedule in this Contract as the sole an exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided above. SECTION 3: VILLAGE'S REPRESENTATIVE. Unless otherwise specified by the VILLAGE, the VILLAGE's representative shall be Mark Hodgkins. SECTION 4: COMPENSATION AND METHOD OF PAYMENT. A. 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 goods and services have been provided and 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. B. Services undertaken or expenses incurred by the exceeding an amount set forth in this Contract without prior written authorization from the VILLAGE shall be the liability of the CONTRACTOR. C. CONTRACTOR waives consequential or incidental damages for claims, disputes or other matters in question arising out of or relating to this Contract. D. In order for both parties herein to close their books and records, CONTRACTOR will clearly state "final invoice" on the CONTRACTOR's final/last billing to the VILLAGE. The CONTRACTOR will be required to have a final inspection and written Ap royal from the VILLAGE before this final invoice will be paid. 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. 2 --.. 5` E, If the VILLAGE fails to make any payment due the CONTRACTOR for services and expenses under this Contract within forty-five (45) days after the CONTRACTOR's transmittal of its invoice to the VILLAGE, the CONTRACTOR may, after giving notice to the VILLAGE, suspend services under this Contract until it has been paid in full all amounts due. F. 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. SECTION 5. Use of Documents. A. All documents, including but not limited to drawings, specifications, plans, reports, other items and data or programs stored electronically (collectively referred to as "Documents" hereafter), prepared by the CONTRACTOR and CONTRACTOR's sub-contractors under this Contract shall be considered a "Work for Hire" and the exclusive property of the VILLAGE. To the extent such Documents may not be deemed a "Work for Hire" under applicable law, CONTRACTOR and CONTRACTOR's sub-contractors will assign to VILLAGE all right, title and interest in and to CONTRACTOR'S and/or CONTRACTOR'S sub-contractors' copyright(s) for such Documents. CONTRACTOR shall execute and deliver to VILLAGE such instruments of transfer and take such other action that VILLAGE may reasonable request, including, without limitation, executing and filing, at VILLAGE'S expense, copyright applications, assignments and other documents required for the protection of VILLAGE'S right to such Documents. The CONTRACTOR shall retain copies of the Documents for a period of three (3) years from the date of completion of the Project. The VILLAGE grants to the CONTRACTOR and CONTRACTOR'S sub-contractors the right and/or limited license to use a portion of the Documents prepared by the CONTRACTOR or the CONTRACTOR'S sub-contractors in future projects of the CONTRACTOR or the CONTRACTOR'S sub-contractors with said right and/or limited license to use a portion at CONTRACTOR'S or CONTRACTOR's sub-contractor's own risk and without any liability to VILLAGE. B. Any modifications made by the VILLAGE to any of the CONTRACTOR'S Documents, or any use, partial use or reuse of the Documents without written authorization or adaptation by the CONTRACTOR will be at the VILLAGE'S sole risk and without liability to the CONTRACTOR. Any electronic files not containing an electronic seal are provided only for the convenience of the VILLAGE, and use of them is at the VILLAGE'S sole risk. SECTION 6: INDEMNIFICATION. A. The CONTRACTOR shall indemnify and hold harmless the VILLAGE, and its officers and employees, from liabilities, damages, losses, and costs, including but not limited to, reasonable attorney's fees (at the trial and appellate levels), to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the CONTRACTOR and other persons employed or utilized by the CONTRACTOR in the performance of a Project. 3 ~L B. 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. Such personnel shall not be employees of or have any contractual relationship with the VILLAGE. 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. SECTION 8: SUB-CONTRACTORS. A. The VILLAGE reserves the right to reject the selection of a particular sub-contractor and approve all qualifications of any sub-contractor in order to make a determination as to the capability of the sub-contractor to perform properly under this Contract. The CONTRACTOR is encouraged to seek minority and women business enterprises for participation in subcontracting opportunities. Rejection of a proposed sub-contractor may result in a change in pricing unless such rejection is due solely to poor performance. In any event, said rejection shall in no way obligate VILLAGE to accept such change in pricing but VILLAGE may, in its sole discretion, agree to same. B. If asub-contractor fails to perform or make progress, as required by this Contract, and it is necessary to replace the sub-contractor to complete the work in a timely fashion, the CONTRACTOR shall promptly do so, subject to acceptance of the new sub-contractor by the VILLAGE. C. All sub-contractors providing services to the CONTRACTOR under this Contract will also be required to provide their own insurance coverage identical to those contained in this Contract. In the event that asub-contractor does not have insurance or does not meet the insurance limits as stated in this Contract, the CONTRACTOR shall indemnify and hold harmless the VILLAGE for any claim in excess of the sub-contractor's insurance coverage, arising out of the negligent acts, errors or omissions of the sub-contractor. D. The VILLAGE will make no attempt to fix the scope of services for any of the CONTRACTOR's sub-contractors. The CONTRACTOR shall be solely responsible for 4 ~` fixing the scope of services for the CONTRACTOR'S sub-contractors and the responsibilities of each. SECTION 9: TERMINATION. A. This Contract may be cancelled by the 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 the CONTRACTOR. It may also be terminated, in whole or in part, by the VILLAGE, with or without cause, upon thirty (30) days written notice to the CONTRACTOR. Unless 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. After receipt of a Termination Notice and except as otherwise directed by the VILLAGE, the CONTRACTOR shall: 1. Stop work on the date and to the extent specified. 2. Terminate and settle all orders and subcontracts relating to the performance of the terminated work. 3. Transfer all work in progress, completed work, and other materials related to the terminated work to the VILLAGE. 4. Continue and complete all parts of the work that have not been terminated. SECTION 10: FEDERAL AND STATE TAX. The VILLAGE is exempt from payment of Florida State Sales and Use Tax. The VILLAGE will sign an exemption certificate submitted by the CONTRACTOR. 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. SEC'T'ION 11: INSURANCE AND PUBLIC CONSTRUCTION BOND. A. Prior to commencing any work, the CONTRACTOR shall provide certificates evidencing insurance coverage as required hereunder and the Public Construction bond. Al] 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. The Public Construction Bond shall meet the requirements stated in Section 255.05, F.S. Failure to comply with the foregoing requirements shall not relieve the CONTRACTOR of its liability and obligations under this Contract. 5 ~G \ 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 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 12: 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 CONTRACTOR. SECTION 13: DISPUTE RESOLUTION LAW VENUE AND REMEDIES. A. All claims arising out of this Contract or its breach shall be submitted first to mediation in accordance with the local rules for mediation in Palm Beach County, Florida. The parties shall share the mediator's fee equally. The mediation shall be held in Palm Beach County, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. B. 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 6 ~ t, 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 14: 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 15: 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 16: 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 17: ENFORCEMENT COSTS. Except for mediation, 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 maybe entitled. SECTION 18: 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 Services under this Contract, and that it will at all times conduct its business and provide the Services under this Contract in a reputable manner. Proof of such licenses and approvals shall be submitted to the VILLAGE'S representative upon request. SECTION 19: 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, 7 ~~ 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 20: 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: (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 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 21: 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 22: 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. Until acceptance of the work by the VILLAGE, the VILLAGE's property shall be under the charge and care of the CONTRACTOR and the CONTRACTOR shall take every necessary precaution against injury or damage to the work by the action of elements or from 8 .~ /~~G' l.,/ any other cause whatsoever, and the CONTRACTOR shall repair, restore and make good, without additional work occasioned by any of the above causes before its completion and acceptance. C. 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 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: Mark Hodgkins Village Hall 501 US Highway 1 North Palm Beach, FL 33408 and if sent to the CONTRACTOR shall be mailed to: Royal Palm Pools, LLC Attn: Scott Curtis 16333 Temple Blvd. Loxahatchee, FL 33470 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. SECTION 25: TIME AND LIQUIDATED DAMAGES. A. Time is of the essence in all respects under this Contract B. The VILLAGE and CONTRACTOR also recognize the delays, expense and difficulties involved in proving in a legal or other proceeding, the actual loss suffered by the VILLAGE if the work is not completed on time. Accordingly, instead of requiring any such proof, VILLAGE and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall pay VILLAGE two hundred fifty dollars ($250.001 for each calendar day that expires after the time specified above for fmal completion of the work and readiness for final payment. C. Liquidated damages due to the VILLAGE may be withheld, reduced or set-off from 9 ~~. payments due to the CONTRACTOR, or may be collected from the CONTRACTOR or its surety or sureties. These provisions for liquidated damages shall not prevent the VILLAGE from terminating the CONTRACTOR's right to proceed as provided herein or from seeking and enforcing any other remedy under this Contract or available at law. SECTION 26: 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. SECTION 27: 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. SECTION 28: PREPARATION. This Contract shall not be construed more strongly against either party regardless of who was more responsible for its preparation. SECTION 29: 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. SECTION 30: 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. SECTION 31: CONTRACT DOCUMENTS AND CONTROLLING PROVISIONS. This Contract consists of the ITB, the CONTRACTOR'S bid to the VILLAGE, this Contract and any and all exhibits thereto. The CONTRACTOR agrees to be bound by all the terms and conditions set forth in the aforementioned documents. To the extent that there exists a conflict between this Contract (and Exhibit "A") and the remaining contract documents, the terms, conditions, covenants, and/or provisions of this Contract (including Exhibit "A") shall prevail with the ITB taking precedence over CONTRACTOR'S proposal. Wherever possible, the provisions of such documents shall be construed in such a manner as to avoid conflicts between provisions of the various documents. SECTION 32: LEGAL EFFECT. This Contract shall not become binding and effective until approved by the Village Council of the Village of North Palm Beach. 10 ~'_ ~, ~~ SECTION 33: 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 34: DEFAULT. A. Notwithstanding anything contained in this Contract to the contrary, the parties agree that the occurrence of any of the following shall be deemed a material event of default and shall be grounds for termination: 1. The filing of a lien by any sub-CONTRACTOR, sub-contractor or third tier sub-contractor including, but not limited to materialmen, 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 the CONTRACTOR; 2.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 3.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. 4.Due to circumstances within the control of the CONTRACTOR, CONTRACTOR fails to provide Services under this Contract on schedule as agreed to by CONTRACTOR in this Contract. B. CONTRACTOR shall provide written notice to the VILLAGE of the occurrence of any event of default within five (5) days of CONTRACTOR's receipt of notice or knowledge of any such default. SECTION 35: 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 11 -,~,. ~U}l specifically prohibits such an endorsement, or voids coverage should CONTRACTOR enter into such an agreement on a pre-loss basis. SECTION 36: REPRESENTATIONS/BINDING AUTHORITY. SCOTT CURTIS has full power, authority and legal right to execute and deliver this Contract and perform all of its obligations under this Contract. By signing this Contract, SCOTT CURTIS hereby represents to the VILLAGE that he/she has the authority and full legal power to execute this Contract and any and all documents necessary to effectuate and implement the terms of this Contract on behalf of the party for whom he or she is signing and to bind and obligate such party with respect to all provisions contained in this Contract. f THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANKI 12 /" tai IN WITNESS WHEREOF, the VILLAGE and CONTRACTOR hereto have made and executed this Contract for Village Pool Heaters as of the day and year first above written. ROYAL PALM POOLS, LLC. BY: Print Name: ~'~ l i ~ ~ ~~, S Position: ~(~/ni E ~ VILLA O~i.~TORTI~.PALM BEACH DAVID 13~1'~ORI~IS, MAYOR ATTEST: MELISSA TEAL, VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY~ VILLAGE ATTORNEY 13 EXHIBIT "A" INVOICE FORM AND REQUIREMENTS (FORM ATTACHED) 14 APPLICATION FOR PAYMENT NO. To: VILLAGE OF NORTH PALM BEACH (OWNER) From: ROYAL PALM POOLS, LLC (CONTRACTOR) Contract: Village Pool Heaters OWNER's ITB for Village Pool Heaters For Work accomplished through the date o£ , 2007. I. Original Contract Price: 2. Net change by Change Orders and Written Amendments (+ or -): 3. Current Contract Price (1 plus 2): 4. Total completed and stored to date: 5. Retainage (per Agreement): (_%) of completed Work, material and eq$ ipment purchased: 6. Total completed and stored to date less retainage (4 minus 5): 7. Less previous Application for Payments: S. DUE THIS APPLICATION (6 MINUS 7): Accompanying Documentation: CONTRACTOR'S Certification: The undersigned CONTRACTOR certifies that (1) all previous progress payments received from OWNER on account of Work done and goods purchased under the Contract referred to above have been applied on account to discharge CONTRACTOR's legitimate obligations incurred in connection with Work, materials and equipment covered by prior Applications for Payment numbered 1 through inclusive; (2) title of all Work, materials and equipment incorporated in said Work or otherwise listed in or covered by this Application for Payment will pass to OWNER at time of payment free and clear of all Liens, security interests and encumbrances, and (3) all Work, materials and equipment covered by this Application for Payment are in accordance with the Contract Documents and not defective. Dated State of County of Subscribed and sworn to before me this day of , 2007 Notary Public My Commission expires: By: Contractor Payment of the above AMOUNT DUE THIS APPLICATION is recommended. Dated By: Owner -Village of North Palm Beach 15