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HomeMy WebLinkAboutcocc_ls_flohanasurfschoolAttachment #1 Vendor Agreement Page 11 of 24 VENDOR AGREEMENT THIS AGREEMENT is made this day of c L, r— , 20LO("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 L��� whose address is ui(441. Cir:,J,\- , , Florida ("Vendor"). RECITALS: WHEREAS, the Vendor desires to offer ("Services") for the benefit of the public using the sand beach areas within the City's jurisdictional boundaries; and WHEREAS, the City desires to allow the Vendor to offer such Services 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 GENERAL PROVISIONS 1.1 E.. ignement. The City hereby engages the Vendor for the stated fee arrangement and the Vendor agrees to perform the Services outlined in the Request for Proposal, attached hereto as EXHIBIT "A", which is fully incorporated herein by this reference. No prior or present agreements or representations shall be binding upon any of the parties hereto unless incorporated in this Agreement. 1.2 Due Diligence. The Vendor acknowledges that he/she has conducted an investigation prior to execution of this Agreement and satisfied himself/herself as to the conditions affecting the Services, the availability of materials and labor, the cost thereof, the requirements to obtain necessary insurance as set forth herein, and the steps necessary to complete the Services herein. The Vendor warrants unto the City that he/she has the competence and abilities to carefully and faithfully complete the Services set forth herein. The Vendor shall perform the Services with due and reasonable diligence consistent with sound professional practices. Page 12 of 24 Attachment #1 Vendor Agreement Page 11 of 24 1.3 Consultants Competitive Negotiation Act Services. The Vendor warrants unto the City that the services being performed pursuant to this Agreement do not constitute professional services as defined by Section 287.055(2) (a), Florida Statutes. ARTICLE 2 PAYMENT TERMS 2.1 Franchise Fee - Payment Terms. The annual Franchise Fee for Vendor's right to operate under this Agreement shall be Five Hundred and no/100 Dollars ($500.00). The franchise fee shall be payable to the City and shall be due and owing upon the Effective Date of this Agreement and upon the Effective Date of any renewal term exercised hereunder. Vendor shall not be authorized to conduct services under this Agreement until said franchise fee is paid in full to the City. ARTICLE 3 GENERAL CONDITIONS OF SERVICES 3.1 Provision of Services is a Private Undertaking; No Joint Venture. With regard to any and all Services performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and the Vendor is such that the Vendor is not an agent of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor between the City and the Vendor during or after the performance of the Services under this Agreement. Nothing herein shall be deemed to create a joint venture or principal -agent relationship between City and Vendor, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other party. 3.2 Warranty of Services. The Vendor hereby warrants unto the City that he/she has sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. The Vendor shall comply with all laws, ordinances, rules and regulations in the performance of the Services. The Vendor shall pay all taxes, fees and license fees required by law, including but not limited to occupational fees and withholding taxes and assume all costs incident to the Services, except as provided herein. ARTICLE 4 SUBCONTRACTS; ASSIGNMENT Page 13 of 24 4.1 Assignment and Subcontracting. Unless otherwise specifically required by this Agreement, the Vendor shall not assign, sublet or transfer any rights or Services under or interest in (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 shall release or discharge the assignor from any duty or responsibility under this Agreement. Further, the Vendor shall not subcontract any portion or all of the Services 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 Vendor, and all duties and responsibilities undertaken pursuant to this Agreement shall be for the sole and exclusive benefit of the City and the Vendor and not for the benefit of any other party. ARTICLE 5 MISCELLANEOUS PROVISIONS 5.1 Governing Law; ITVenue. This Contract shall be governed by the laws of the State of 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 site of the Services is Brevard County. If any dispute concerning this Contract arises under Federal law, the venue shall 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: TO THE CITY: Todd Morley City Manager City of Cape Canaveral 100 Polk Avenue Cape Canaveral, FL 32920 Phone (321) 868-1220 x218 FAX (321) 868-1248 TO THE VENDO Name: Address: (-Oct (-7-7--* Page 14 of 24 Telephone: Fax: 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, 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. 5.3 Public Record. Pursuant to Section 119.0701, Florida Statutes, and other applicable public records laws, Vendor agrees that any records, documents, transactions, writings, papers, letters, computerized information and programs, maps, books, audio or video tapes, films, photographs, data processing software, writings or other material(s), regardless of the physical form, characteristics, or means of transmission, of Vendor related, directly or indirectly, to the services provided to the City under this Agreement and made or received pursuant to law or ordinance or in connection with the transaction of official business by the City, may be deemed to be a public record, whether in the possession or control of the City or Vendor. Said records, documents, transactions, writings, papers, letters, computerized information and programs, maps, books, audio or video tapes, films, photographs, data processing software, writings or other material(s), regardless of the physical form, characteristics, or means of transmission of Vendor are subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City's designated custodian of public records. IF THE VENDOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE VENDOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, THE CITY CLERK, AT (321) 868-1220 x.207, m.goforth@cityofcapecanaveral.org, City Clerk's Office, 100 Polk Avenue, Cape Canaveral, FL 32920. Vendor is required to and agrees to comply with public records laws. Vendor shall keep and maintain all public records required by the City to perform the services as agreed to herein. Vendor shall provide the City, upon request from the City Clerk, copies of 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 by law. Vendor shall 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 Agreement term. Upon completion of the Agreement, Page 15 of 24 Vendor shall transfer to the City, at no cost, all public records in possession of Vendor, provided the transfer is requested in writing by the City Clerk. Upon such transfer, Vendor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. However, if the City Clerk does not request that the public records be transferred, Vendor shall continue to keep and maintain the public records upon completion of the Agreement and shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City Clerk, in a format that is compatible with the information technology systems of the City. Should the City not possess public records relating to this Agreement which are requested to be inspected or copied by the City or any other person, the City shall immediately notify Vendor of the request and Vendor shall then provide such records to the City or allow the records to be inspected or copied within a reasonable time. If Vendor does not comply with a public records request, the City may enforce this Section to the extent permitted by law. Vendor acknowledges that if Vendor does not provide the public records to the City within a reasonable time, Vendor may be subject to penalties under Section 119.10, Florida Statutes. The Vendor acknowledges that if a civil action is filed against Vendor to compel production of public records relating to this Agreement, the court may assess and award against Vendor the reasonable costs of enforcement, including reasonable attorney fees. All public records in connection with this Agreement shall, at any and all reasonable times during the normal business hours of Vendor, be open and freely exhibited to the City for the purpose of examination, audit, or otherwise. Failure by Vendor to grant such public access and comply with public records laws and/or requests shall be grounds for immediate unilateral cancellation of this Agreement by the City upon delivery of a written notice of cancellation. If Vendor fails to comply with this Section, and the City must enforce this Section, or the City suffers a third party award of attorney's fees and/or damages for violating Chapter 119, Florida Statutes, due to Vendor's failure to comply with this Section, the City shall collect from Vendor prevailing party attorney's fees and costs, and any damages incurred by the City, for enforcing this Section against Vendor. And, if applicable, the City shall also be entitled to reimbursement of all attorneys' fees and damages which the City had to pay a third party because of Vendor's failure to comply with this Section. The terms and conditions set forth in this Section shall survive the termination of this Agreement. 5.4 Amendment of Agreement. reement. Modifications or changes in this Agreement must be in writing and executed by the parties bound to this Agreement. 5.5 Severabili . 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 Contract, and this Contract shall be read as if said illegal, unenforceable or unconstitutional word, sentence or paragraph did not exist. Page 16 of 24 5.6 Attorney's Fees. Should any litigation arise concerning this Agreement between the parties hereto, the parties agree to bear their own costs and attorney's fees unless otherwise expressly provided herein. 5.7 Entire Agreement. This Agreement represents the entire and integrated Agreement 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 Sovereign n Immunity. The City intends to avail itself of the benefits of Section 768.28, Florida Statutes and any other statutes and common law governing sovereign immunity to the fullest extent possible. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes or other limitations imposed on the City's potential liability under state or federal law. As such, Vendor agrees that the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be 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). 5.9 Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City and Vendor, unless this Agreement expressly states otherwise. ARTICLE 6 PROTECTION OF PERSONS AND PROPERTY: INSURANCE 6.1 Worker's Compensation. Upon the effective date of this Agreement, Vendor shall provide proof of worker's compensation insurance in the minimum amount required by law (if required). 6.2 General Liability. Insurance Requirements: Upon award, the Vendor shall be required to obtain and furnish to the City, prior to the contract being effective, Certificates of Insurance approved by the City. All insurance policies shall be with insurers with an acceptable Page 17 of 24 rating, registered and licensed to do business in the State of Florida. The Vendor shall be required to name the City as an additional named insured with the following minimum coverages: a. Workers' Compensation: Is required in accordance with the applicable provisions of Florida Law. b. Comprehensive General Liability Insurance: Shall be maintained by the Vendor with minimum limits not less than the following: $1,000,000 Bodily Injury and Property Damage — each occurrence $1,000,000 Personal and Advertising Injury — each occurrence $2,000,000 General Aggregate $2,000,000 Products/Completed Operations Aggregated Limit $ 5,000 Medical Payment $ 100,000 Fire Damage Legal Liability Coverage shall include contractual liability and Vendor's liability. c. Automobile Liability Insurance: Shall be maintained by the Vendor with a combined single limit of not less than $1,000,000 bodily injury and property damage in accordance with the laws of the State of Florida, as to the ownership, maintenance and use of all owned, non -owned, leased or hired vehicles. (The above requirements may be reduced in the final contract at the City's sole discretion.) 6.3 Requirements. This paragraph shall be applicable to Sections 6.1 and 6.2. The insurance required by this Article shall include the liability and coverage provided herein, or as required by law, whichever requirements afford greater coverage. All of the policies of insurance so required to be purchased and maintained for the certificates (or other evidence thereof) shall contain a provision or endorsement that the coverage afforded shall not be canceled, materially changed or renewal refused until at least thirty (30) days' prior written notice has been given to the City and the Vendor by certified mail, return receipt requested. All such insurance shall remain in effect until final payment. Unless agreed to by the City to the contrary, the City shall be named on the foregoing insurance policies as "additional insured". The Vendor shall cause its insurance carriers to furnish insurance certificates specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies shall be canceled without thirty (30) days' prior written notice to the City in compliance with other provisions of this Agreement. For all Services performed pursuant to this Agreement, the Vendor shall continuously maintain such insurance as required by Sections 6.1, 6.2, and 6.3. In the event Vendor fails to maintain said insurance, City, at its option, may elect to terminate this Agreement by written notice to Vendor. Page 18 of 24 6.4 Indemnification and Hold Harmless. For all Services performed pursuant to this Agreement, the Vendor 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 Vendor's performance of any Services provided pursuant to this Agreement. The indemnification provided above shall obligate the Vendor 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 Services under this Agreement whether the Services be performed by the Vendor or anyone directly or indirectly employed by them. 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. The Vendor specifically assumes potential liability for actions brought by Vendor's own employees against the City and, solely for the purpose of this indemnification and defense, Vendor specifically waives its entitlement, if any, to immunity under Section 440.11, Florida Statutes. This waiver has been specifically and mutually negotiated by the parties. This paragraph 6.4 shall survive termination of this Agreement. 6.5 Standard of Care. In performing its Services hereunder, the Vendor shall use that degree of care and skill ordinarily exercised, under similar circumstances by reputable persons providing the same or similar services. ARTICLE 7 TERMINATION OF THE CONTRACT 7.1 Termination for Convenience _by.._Ci The City Council may terminate this Agreement with thirty (30) days written notice to Vendor. Such termination shall be at City Council's sole discretion. 7.2 Termination for Cause b Cite, Vendor acknowledges and agrees that if, through any cause, the Vendor fails to fulfill in a timely and proper manner its obligations under this Agreement, or if the Vendor shall violate any of the provisions of this Agreement, the City Manager or City Manager's designee may upon written notice to the Vendor, terminate the right of the Vendor to proceed under this Agreement, or with such Page 19 of 24 part or parts of the Agreement as to which there has been default, and may hold the Vendor liable for any damages caused to the City by reason of such default and termination. In the event of such termination, the Vendor shall not be relieved of liability to the City for damages sustained by the City by reason of any breach of this Agreement by the vendor. 7.3 Termination by Vendor. With at least thirty (30) days written notice to the City, Vendor may terminate this Agreement if the City fails to comply with the terms and conditions of this Agreement. 7.4 Termination_.. by Consent. This Agreement may be terminated by the mutual written consent of both parties at any time, and without penalty. 7.5 Upon Termination,. Upon termination of this Agreement, Vendor shall be entitled to no additional compensation. Upon notice of termination, the Vendor shall cease all Services being provided hereunder. 7.6 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 Vendor. ARTICLE 8 TERM OF AGREEMENT 8.1 Term. The term of this Agreement shall commence on the Effective Date of this Agreement and end on Zo2.4inless 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. IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed as of the date first written above. ATTEST: CITY: CITY OF CAPE CANAVERAL, FLORIDA Page 20 of 24 Title: ATTEST: Title: STATE OF FLORIDA COUNTY OF BREVARD VENDOR: Print Name: The foregoing instrument was acknowledged before me, by means of 0 physical presence or ❑ online notarization, this day of t .20t, by Z A 0 oli , who executed the foregoing instrument and acknowledged before me that he/she executed the same for the uses and purposes therein expressed and who is personally known to me or who has produced— U ......... as identification and who did take an oath. Notary Public Signature Typed or Printed Notary Name: Page 21 of 24 part or parts of the Agreement as to which there has been default, and may hold the Vendor liable for any damages caused to the City by reason of such default and termination. In the event of such termination, the Vendor shall not be relieved of liability to the City for damages sustained by the City by reason of any breach of this Agreement by the vendor. 7.3 Termination by Vendor. With at least thirty (30) days written notice to the City, Vendor may terminate this Agreement if the City fails to comply with the terms and conditions of this Agreement. 7.4 Termination by Consent. This Agreement may be terminated by the mutual written consent of both parties at any time, and without penalty. 7.5 Upon Termination. Upon termination of this Agreement, Vendor shall be entitled to no additional compensation. Upon notice of termination, the Vendor shall cease all Services being provided hereunder. 7.6 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 Vendor. ARTICLE 8 TERM OF AGREEMENT 8.1 Term. The term of this Agreement shall commence on the Effective Date of this Agreement and end on '2:02-'7Gnless 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. IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed as of the date first written above. ATTEST: CITY: CITY OF CAPE CANAVERAL, FLORIDA Page 20 of 24 Attachment #2 Drug -Free Workplace Program Form Page 22 of 24 DRUG-FREE WORKPLACE PROGRAM RFP #2020 - 01 To be considered for a Contract for this RFP, each Proposer must have a Drug -Free Workplace Program in-place. In order to have a drug-free workplace program, a Proposer shall: 1. Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing or possession of a controlled substance is prohibited in the workplace and specifying the actions that shall be taken against employees for violations of such prohibition. 2. Inform employees about the dangers of drug abuse in the workplace, the Proposer's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. 3. Give each employee engaged in providing the commodities or contractual services a copy of the statement specified in subsection (1) above. 4. In the statement specified in subsection (1) above, notify the employees that, as a condition of working on the commodities or contractual services, the employee shall abide by the terms of the statement and shall notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of Chapter 893 or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days after such conviction. 5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, by any employee who is so convicted. 6. Make a good faith effort to continue to maintain a drug-free workplace through implementation of this section. As the person authorized to sign the statement, I certify that this Proposer complies fully iii' he above requirements. mature Proposer Printed Name Name of Company Page 23 of 24 Proposer Attachment #2 Drug -Free Workplace Program Form Page 22 of 24