HomeMy WebLinkAboutStephens Equipment Rental 5-2015LEISURE SERVICES
EQUIPMENT LEASE AGREEMENT
THIS AGREEMENT is made this 8th day of May, 2015 ("Effective Date"), by and between the
CITY OF CAPE CANAVERAL, FLORIDA, a Florida municipal corporation, whose address is 105 Polk
Avenue, Cape Canaveral Florida, 32920 ("City"), and Michael D. (Billy) Stephens, whose address is 2972
Glenridge Circle, Merritt Island, Florida 32953 ("Owner").
WHEREAS, the City has certain recreational facilities available for use by the public; and
WHEREAS, the Owner desires to offer use of a Tennis Tutor ball machine ("Equipment") for the
benefit of the public using the City's recreational facilities; and
WHEREAS, the City desires to allow the Owner to offer such Equipment to the public under the
terms and conditions set forth in this Agreement.
IN CONSIDERATION of the mutual covenants and provisions hereof, and other good, diverse,
and valuable considerations, the receipt. and sufficiency all or which is hereby acknowledged, the parties
desiring to be legally bound do hereby agree as follows:
ARTICLE 1
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I-1 EggAgLMEg. The City hereby engages the Owner and the Owner agrees to offer the
Equipment outlined in EXIIJBIT "A" for the stated fee arrangement. No prior or present agreements or
representations shall be binding upon any of the parties hereto unless incorporated in this Agreement.
1.2 Due Diligtnce, The Owner acknowledges that he/she has conducted an investigation prior
to execution of this Agreement and satisfied himself/lierself as to the conditions affecting the Equipment,
the availability of its use, the cost thereof, liability protections set forth herein, and the steps necessary to
lease the Equipment herein.
ARTICLE 2
REGISTRATION FEES COMPE.NSjVr.1ON & PAY ENT" TERM.,S
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2.1 Rental Fees, Rental fees for Equipment shall be $10.00 per hour.
2.2 Compensation. Owner and City agree to divide the registration fees derived from the
Equipment rental provided hereunder as follows:
(a) Owner shall receive 75 % of the registration fees derived from the Equipment rental
minus all applicable sales tax per transaction.
(b) The City shall receive 25 % of the registration fees derived from the Equipment rental.
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(c) No other compensation shall be due Owner for the Equipment provided under this
Agreement, unless specifically agreed to by the City in advance and in writing.
2.3 EAyMjflj_j=. The City shall collect all fees from custorners. Rental fees paid by check
shall be made payable to the City. The City shall forward a reconciliation report and Owner's share of the
rental fees, to Owner, on a monthly basis. Owner agrees that if rental time does not exceed 50% of the
allotted 60 minute period, Owner is not entitled to any compensation and any rental fees paid for the use
of Equipment shall be refunded.
ARTICLE 3
GENERAL CONDITIONS OF LEASE
3.1 Provision of Eguipment is a Private Undertakin . With regard to any and all Equipment
leased hereunder, it is specifically understood and agreed to by and between the parties hereto that the
contractual relationship between the City and the Owner is such that the Owner is an independent Supplier
and not an agent of the City. Nothing in this Agreement shall be interpreted to establish any relationship
other than that of an independent supplier between the City and the Owner during or after the execution of
the .Equipment lease under this Agreement.
3.2 'Warranty of Ownership, The Owner hereby warrants unto the City that he/she has sufficient
rights to lease out the Equipment specified herein. The Owner shall comply with all laws, ordinances, rules,
and regulations in the leasing of the Equipment. The Owner shall be responsible for taxes, fees, license
fees required by law, including but not limited to occupational fees and assume all costs incident to the
rental of the Equipment, except as provided herein.
3.3 City's Responsibilities. The City shall cooperate with the Owner by:
(a) Storing Equiprnent,The City shall not be responsible for any loss or damage of
equipment stored by the City.
(b) Locking and securing the Recreation Complex, or any other location where
Equipment is kept:.
(d) Arranging for access to leased Equipment according to terms outhri.ed in this
Agreement.
(e) Withholding required sales tax from each rental transaction.
(f) Ensure that monthly compensation is for -warded to the Owner.
ARTICLE 4
SUBCONTRACTS® ASSIGNMENT
4.1 Unless otherwise specifically required by this
Agreement, the Owner shall not assign, sublet, or transfer any rights to Equipment under or interest in
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(including, but without limitations, moneys that may become due) this Agreement without the written
consent of the City, except to the extent that any assignment, sublet, or transfer is mandated by law or the
effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written
consent to any assignment, no assignment will release or discharge the assignor from any duty or
responsibility under this Agreement. Further, the Owner shall not subcontract any portion or all of the
Equipment without the written consent of the City. Nothing under this Agreement shall be construed to
give any rights or benefits in this Agreement to anyone other than the City and the Owner, and all duties
and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit. of the
City and the Owner and not for the beriefit of any other party.
ARTICLE 5
5.1 Governing Law- Venue. This Agreement shall be governed by the law of the State of
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Florida. Venue of all disputes shall be properly placed in Brevard County, Florida. The parties agree that
the Agreement was consummated in Brevard County, and the location of the Equipment is Brevard County.
If any dispute concerning this Agreement arises under Federal law, the venue will be Orlando, Florida.
5.2 Notices, All notices, demands, requests, instructions, approvals, and claims shall be in
writing. All notices of any type hereunder shall be given by U.S. mail or by hand delivery to an individual
authorized to receive mail for the below listed individuals, all to the following individuals at the following
locations:
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David I.. Greene, City Manager
City of Cape Canaveral
105 Polk Avenue
Cape Canaveral, Fl. 32920
(321) 868-1220 ext 211 (Phone)
(321) 868-1248 (Fax)
TO THE OWNER:
Michael D. (Billy) Stephens
2972 Glenridge Circle
Merritt Island, FL 32953
321-867-6075
inichael.d.stephens C(vnasa.gov
Notice shall be deemed to have been given and received on the date the notice is physically received if
given by hand delivery, or if notice is given by first class U.S. mail, postage prepaid, then notice shall be
deemed to have been given upon the date said notice was deposited in the U.S. Mail addressed in the manner
set forth above. Any party hereto by giving notice in the manner set forth herein may unilaterally change
the name of the person to whom notice is to be given or the address at which notice is to be received.
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5.3 Public Records . In accordance with section 119,0701, Florida Statutes, Owner agrees that
all docurnents, transacl ' ions, writings, papers, letters, tapes, pholographs, sound recordings, data processing
sofiware, or other material, regardless of the physical form, characteristics, or means oftransinission, made
or received pursuant to this Agreement. or In connection with any funds provided by the City pursuant to
this Agreement may be considered public records pursuant to Chapter 119, Florida Statutes. Owner agrees
to keep and maintain any and all public records that ordinarily and necessarily would be required by the
City in order to perform the services required by this Agreement. Owner also agrees to provide the public
with access to public records on the same ternis and conditions that the City won](] provide the records and
at a cost that does not exceed the cost provided by Chapter 119, F'Iorida Statutes or as otherwise provided
by law. Owner shall also ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law. In addition, Owner shall
meet all requirements for retaining public records and transfer, at no cost, to the City all public records in
possession of the Owner upon termination of this Agreement and destroy any duplicate public records that
are exempt or confidential and exempt frorn public records disclosure requirements. All records stored
electronically must be provided to the City in a format that is compatible with the information technology
systems of the City. If Owner does not comply with a public records request, the City shall have the right
to enforce the provisions of this Paragraph. In the event that Owner fails to comply with the provisions of
this Paragraph, and the City is required to enforce the provisions of this Paragraph, or the City suffers a
third party award of attorney's fees and/or damages for violating the provisions of Chapter 119, Florida
Statutes due to Owner's failure to Comply With the provisions of this Paragraph, the City shall be entitled
to collect from Owner prevailing party attorney's fees and costs, and any damages incurred by the City, for
enforcing this Paragraph against Owner. And, it'applicable, the City shall also be entitled to reimbursement
of any and all attorney's fees and damages which the City was required to pay a third party because of
Owner's failure to comply with the provisions of this Paragraph. This Paragraph shall survive the
termination of this Agreement.
5.4 Amendment 2f Agreement. Modifications or changes in this Agrecaleril must be in
writing and executed by the parties bound to this Agreement.
5.5 Sever !Lbj!jjy. If a word, sentence, or paragraph herein shall be declared illegal,
unenforceable, or unconstitutional, the said word, sentence., or, paragraph shall be severed from this
Agreement, and this Agreement shall be read as if said illegal, unenforceable, or unconstitutional word,
sentence, or paragraph did not exist.
5.6 AAgftporntj°s f+ecs, Should any litigation arise concerning this Agreement between the
Parties hereto., the parties agree to bear their own costs avid attorney's fees.
5.7 LEnthMeemen, This Agreement represents the entire and integrated Agreement
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between the parties and supersedes all prior negotiations, representations, or Agreements, either oral or
written, and all such matters shall be deemed merged into this Agreement.
5.8 Sovere,i n Immun , Notwithstanding any other provision set forth in this Agreement,
nothing contained in this Agreement shall be construed as a waiver of tyle City's right to Sovereign
Immunity under Section 768.28, Florida Statutes or other limitations imposed ori the City's potential
liability under state or federal law. As such, Owner agrees that the City shall not be liable under this
Agreement for punitive damages or interest for the period before judgment, 1, urther, the City shall net be
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liable for any claim or judgment, or portion thereof, to any one person for more than two hundred thousand
dollars ($200,000.00), or any claim or judgment, or portion thereof, which., when totaled with all other
claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or
occurrence, exceeds the sum of three hundred thousand dollars ($300,000,00), This paragraph shall survive
termination of this Agreement.
ARTICLE 6
PROTECTION OF PERSONS AND PROPERTY; _INSURANCE
6.1 Indemnification and Hold Harmless, For all Equipment leased pursuant to this
Agreement, the Owner agrees to the fullest extent permitted by law, to indemnify and hold harmless the
City and its employees, officers, and attorneys from and against all claims, losses, damages, personal
injuries (including but not limited to death), or liability (including reasonable attorney's fees), directly or
indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, arising out of or
resulting from Owner's actions relating to the lease of any Equipment provided pursuant to this Agreement.
The indemnification provided above shall obligate the Owner to defend at his/her own expense or
to provide for such defense, at the option of the City, as the case may be, of any and all claims of liability
and all suits and actions of every name and description that may be brought against the City or its
employees, officers, and attorneys which may result from the Equipment under this Agreement. In all events
the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable
and subject to and included with this indemnification provided herein. This paragraph 6.1 shall survive
termination of this Agreement.
ARTICLE 7
TERMINATION OF THE AGREEMENT
7.1 Termination by City. The City may terminate this Agreement with five (5) days written
notice to Owner. Such termination shall be at City's sole discretion.
7.2 Termination bv Owner. With at least five (5) days written notice to the City, Owner may
terminate this Agreement if the City fails to comply with the terms and conditions of this Agreement.
7.3 Termination by Consent. This Agreement may be terminated by the mutual written
consent of both parties at any time, and without penalty.
7.4 Upon Termination. Upon termination of this Agreement, the City shall remit to the
Owner its portion of any rental fees not yet remitted. Owner shall be entitled to no additional compensation.
Upon notice of termination, the Owner shall cease all Equipment rentals being provided hereunder.
7.5 Waiver. Failure of the City to insist upon performance within any time period or upon a
proper level or quality of performance shall not act as a waiver of the City's right to later claim a failure to
perform on the part of the Owner,
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ARTICLE 8
TERM OF AGREEMENT
8A Term, The term of this Agreement shall commence on the Effective Date of this
Agreement and end on May 8, 2018, unless extended by mutual written agreement of the parties.
ARTICLE 9
CONFLICTS
9.1 Conflicts. In the event that a conflict arises as to the contents of Exhibit "A" and the
Agreement, the Agreement shall govern.
Signature page to follow.
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IN WITNESS IIF: OF, the parties hereto caused this Agreement to be executed as of the
date first written above.
ATTEST:
Title: 'A- ell, � �A
STATE OF FLORIDA
COUNTY OF BREVARD
CITY:
CITY OF CAPE CANAVERAL, FLORIDA
David Greene, City Manager
Date:
--V�L
Print Name: k'A , 0-^-9 1.)
The foregoing instrument was acknowledged before me this 8th day of May, 2015, by Michael D. (Billy)
Stephens who executed the foregoing instrument and acknowledged before me that he/she executed. the
same for the us and purposes therein expressed and who is personally known to me or _L._ who
F, %7jf , . I q..3
has produced 5 3 11- -'20 . . . . . - as identification.
_-- A
(NOTARY SEAL)
ANGELA M. APPERSON
MY COMMISSION # FF 095122
EXPIRES: Apdi 13, 2018
Bonded Thru Wary Public Underwri em
Notar)4Public Signa2re
Printed Name:
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EXHIBIT"A"
EQUIPMENT TO BE LEASED
Scope of EqUiRment Lease. The Owner agrees to provide the following Equipment to the City:
(a) Owner agrees to offer the use of a Tennis Tutor ball machine to the public on an ongoing basis.
The dates and times of availability shall be specified by the City.
(b) Owner shall put -chase and provide all maintenance needed to sustain Equiptnent.
(c) Photos of Equipment:
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