HomeMy WebLinkAboutHealth First, Inc. Donation Agreement CAPE CANAVERAL
DONATION AGREEMENT
THIS DONATION AGREEMENT ("Agreement") is made and entered into on this 16th day
of December , 2014, by and between the CITY OF CAPE CANAVERAL, a Florida Municipal
Corporation, whose address is 105 Polk Avenue,Cape Canaveral, Florida 32920("City"), and HEALTH
FIRST, INC., a Florida Non-Profit Corporation, whose address is 6450 US Highway 1, Rockledge,
Florida 32955 ("Donor").
WITNESSETH:
WHEREAS, the City Council of the City of Cape Canaveral desires to have a positive health
impact on its community;and
WHEREAS, the City Council desires to purchase and install fitness equipment clusters within
the footprint of a City Park for the purpose of providing a means for such positive health impact on its
community, as well as to provide a community gathering place and a cultural attraction for residents and
visitors of the City;and
WHEREAS,the City Council believes that providing fitness equipment clusters on City property
in a central location such as Xeriscape Park will attract residents and visitors and will mutually benefit the
wellbeing of the residents,visitors and the City alike;and
WHERAS, the projected cost of the purchase and installation of the fitness equipment is
approximately twenty-thousand, seven-hundred dollars($20,700.00);and
WHEREAS,the Donor desires to donate ten-thousand dollars($10,000.00)to help offset the cost
of the City's purchase and installation of the fitness equipment cluster in the City Park;and
WHEREAS, the City Council desires to publicly acknowledge Donor for its provision of
donation funds for the fitness equipment clusters in the City Park.
NOW THEREFORE, in consideration of the provisions contained in this Agreement, and other
good and valuable consideration which the parties acknowledge,the parties agree as follows:
1.0 Incorporation of Recitals: The foregoing recitals are true and correct and by this reference are fully
incorporated into this Agreement.
2.0 Donation of Funds and Acknowledgment. Donor agrees to the following:
2.1 Donation. Donor agrees to donate to the City the sum of Ten-Thousand Dollars and 00/100
($10,000.00) ("Donation"). The Donation shall be paid in two annual installments of Five-
Thousand Dollars and 00/100 ($5,000.00) each, to be payable on October 1, 2014 and
October 1, 2015, respectively. The City shall utilize the Donation to help off-set the costs
associated with the City's purchase and installation of four fitness equipment clusters
("Equipment") to be located within the City's Xeriscape Park. Such Equipment shall
remain the sole and exclusive property of the City.
2.2 Acknowledgment of Donor. The City shall acknowledge the Donor via at least four signs,
which signs shall be located near the Equipment at Xeriscape Park ("Signs"). The size,
design, and location of the Signs shall be in the City's sole discretion. Each of the Signs
shall state that the Equipment is provided by the City of Cape Canaveral in partnership with
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Health First, Inc. The Signs shall remain for so long as the Equipment is maintained at
Xeriscape Park. In the event the City removes or replaces the Equipment, the City shall be
relieved of its obligations under this Agreement and may remove the Signs. However,
should the Equipment purchased be moved to a new location and the Equipment is still in
public use, the Signs shall be relocated along with the equipment. The Signs shall remain
the sole and exclusive property of the City.
The City reserves the right to cancel or remove the Signs without notice to Donor for
nonpayment of the Donation set forth in Subsection 2.1 herein.
3.0 No Assignment. This Agreement shall not be assigned or transferred without the express written
consent of the other party.
4.0 Public Records. In accordance with section 119.0701, Florida Statutes, Donor agrees that all
documents, transactions, writings, papers, letters, tapes, photographs, sound recordings, data
processing software, or other material, regardless of the physical form, characteristics, or means of
transmission,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. Each party agrees to keep and maintain any and all public records that ordinarily
and necessarily would be required in order to perform the services required by this Agreement. Each
party also agrees to provide the public with reasonable access to public records and at a cost that
does not exceed the cost provided by Chapter 119, Florida Statutes or as otherwise provided by law.
Each party 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,
both parties shall meet all requirements for retaining public records and transfer, at no cost, to the
other party all public records in possession of the other party upon termination of this Agreement and
destroy any duplicate public records that are exempt or confidential and exempt from public records
disclosure requirements. All records stored electronically must be provided to the other party in a
format that is mutually agreed upon. If a party does not comply with a public records request, the
other party shall have the right to enforce the provisions of this Paragraph. In the event that a party
fails to comply with the provisions of this Paragraph, and the other party is required to enforce the
provisions of this Paragraph, or the other party suffers a third party award of attorney's fees and/or
damages for violating the provisions of Chapter 119, Florida Statutes due to a party's failure to
comply with the provisions of this Paragraph,the prevailing party shall be entitled to collect from the
other party attorney's fees and costs, and any damages incurred by enforcing this Paragraph. And, if
applicable, the prevailing party shall also be entitled to reimbursement of any and all attorney's fees
and damages which were required to pay a third party because of the other party's failure to comply
with the provisions of this Paragraph. This Paragraph shall survive the termination of this
Agreement.
5.0 Third Party Rights. This Agreement is not a third party beneficiary contract and shall not in any
respect whatsoever create any rights on behalf of any third parties.
6.0 Legal Representation. The parties acknowledge that Brown, Garganese, Weiss& D'Agresta, P.A.,
and the attorneys therein, have acted as counsel for City in connection with this Agreement and the
transactions contemplated herein, and have not given legal advice to any party hereto other than City.
7.0 Severability. If any provision of this Agreement is held to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless remain in full force and effect, unless the absence of the
invalid, void or unenforceable provision or provisions causes this Agreement to fail in its essential
purposes.
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8.0 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with
the laws of the State of Florida. The parties further agree that in any dispute between them relating to
this Agreement, exclusive state court jurisdiction shall be in the trial courts located in Brevard
County, Florida, and exclusive federal court jurisdiction shall be in Orlando, Florida, any objections
as to jurisdiction or venue in such courts being expressly waived.
9.0 Attorney's Fees. In the event any litigation or controversy arises out of or in connection with this
Agreement between the parties hereto, the prevailing party in such litigation or controversy shall be
entitled to recover from the other party or parties all reasonable attorney's fees and paralegal fees,
expenses and suit costs, including those associated with any appellate or post judgment collection
proceedings.
10.0 Non-Waiver. No delay or failure by either party to exercise any right under this Agreement,and no
partial or single exercise of that right, shall constitute a waiver of that or any other right, unless
otherwise expressly provided herein.
11.0 Notices. Any notice, request, instruction, or other document to be given as part of this Agreement
shall be in writing and shall be deemed given under the following circumstances: when delivered in
person; or upon confirmed receipt or refusal after being deposited in the United States Mail, postage
prepaid, certified or registered; or upon confirmed receipt or refusal after being deposited with a
recognized overnight mail or courier delivery service; and addressed as follows (or to such other
person or at such other address,of which any party hereto shall have given written notice as provided
herein):
To City: City Manager
City of Cape Canaveral
P.O. Box 326
Cape Canaveral,Florida 32920
PH: (321)868-1230
To Donor: Matthew Gerrell, VP/Marketing
Health First, Inc.
6450 US Highway 1
Rockledge, Florida 32955
PH: (321)434-4333
With a copy to: David Mathias, Sr. VP/Corporate Counsel
Health First, Inc.
6450 Highway US 1
Rockledge,Florida 32955
PH: (321)434-4355
12.0 Counterparts. This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered, shall be an original; but such counterparts shall together constitute
but one and the same instrument.
13.0 Interpretation. The parties have participated in the drafting of all parts of this Agreement, and have
each had an opportunity to review this Agreement with legal counsel. As a result, it is the intent of
the parties that no portion of this Agreement shall be interpreted more harshly against either of the
parties as the drafter.
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14.0 Independent Contractor. Donor shall be considered an independent contrator under this
Agreement.
15.0 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.
16.0 Sovereign Immunity. 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, 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). This
paragraph shall survive termination of this Agreement.
17.0 Indemnification and Hold Harmless. Each party agrees, to the fullest extent permitted by law, to
indemnify and hold harmless the other party and its affiliates, 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 through any and all administrative, trial, post judgment
and appellate proceedings),directly and proximately arising from its negligent acts or omissions.
The indemnification provided above shall obligate the indemnifying party to defend at its own
expense or to provide for such defense, at the sole option of the indemnified party, 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 indemnified party or its affiliates, employees, officers, and attorneys which
may result from performance under this Agreement whether performed by the indemnifying party or
anyone directly or indirectly employed or hired by them. In all events the indemnifying party is
permitted to choose legal counsel of its sole choice,the fees for which shall be subject to and included
with this indemnification provided herein, as long as said fees are reasonable. This paragraph shall
survive termination of this Agreement. In no event shall either party enter into any settlement
agreement without the other party's written consent, which consent shall not be unreasonably
withheld.
18.0 Donor's Signatory. The undersigned person executing this Agreement on behalf of each party
hereby represents and warrants that he/she has the full authority to sign this Agreement and to fully
bind their principal to the terms and conditions set forth in this Agreement.
19.0 Effective Date. This Agreement shall become effective upon full execution by both parties hereto.
The Agreement shall not be effective against any party until said date.
20.0 Unforeseen Circumstances. If all or part of the Donation cannot be usefully or practically applied
for the purposes stated herein, or if such purposes cannot be achieved because of a future change in
law or unforeseen circumstances, it may be used for any related purpose which in the opinion of the
City Council will most nearly accomplish the City's purposes,and Donor will receive recognition for
the donation commensurate with the intent in paragraph 2.2, above. In the alternative, the City
Council reserves the right, in its sole and absolute discretion, to refund the Donation and terminate
this Agreement for any reason and without penalty.
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(Execution Page Follows]
IN WITNESS WHEREOF,the parties hereto have executed this agreement on the day and year
first written above.
CITY:
THE CITY OF CAPE CANAVERAL,FLORIDA,a
Florida municipal corporation.
By: D0,4
David L.Greene,City Manager
Date: /2-//6/7e(
ATTEST:
By: ►'lA
A gels Appe ty Clerk
DONOR:
HEALTH FIRS I.►
Matthew Gerrell,Vice President,
Marketing& Communications
Date: �/ `—//�
STATE OF FLORIDA
COUNTY OF BREVARD
The foregoing instrument was acknowledged before me this l day of
, 2014, by Me o 6erl&i/, as 0 P P+1r, ,,4i 'Ir-CtaV1►+i of
HEALTH FIRST,INC.. a Florida Non-Profit Corporation,who is </ personally known to me or
produced as identification.
(NOTARY SEAL)
(---(]Iotary ublic Signature) ti
(Print Name)
Notary Public, State of \Qc . 0111-
Commission
Commission No.:
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