2011-06 Heritage Day Amusement Rides Contract•
RESOLUTION 2011-06
A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
NORTH PALM BEACH, FLORIDA ACCEPTING THE PROPOSAL
SUBMITTED BY BIG FUN, INC. FOR HERITAGE DAY 2011 AMUSEMENT
RIDES AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO
EXECUTE AN AGREEMENT RELATING TO SUCH SERVICES; AND
PROVIDING FOR AN EFFECTIVE DATE.
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WHEREAS, the Village issued a Request for Proposals for Heritage Day 2011 amusement rides; and
WHEREAS, upon opening and evaluating the two proposals received, Village Administration
recommended accepting the proposal submitted by Big Fun Inc., a Florida corporation, at a total
cost not to exceed $36,650.00; and
WHEREAS, the Village Council determines that the acceptance of the proposal recommended
by Village Administration is in the best interests of the Village and its residents.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE
OF NORTH PALM BEACH, FLORIDA as follows:
Section 1. The foregoing recitals are ratified as true and incorporated herein.
Section 2. The Village Council hereby accepts the proposal submitted by Big Fun, Inc. for
the Heritage Day 2011 amusement rides at a total cost not to exceed $36,650.00, with funds
expended from Village Account No. A8229-35650 ("Heritage Day").
Section 3. The Village Council further authorizes and directs the Mayor and Village Clerk to
execute a contract with Big Fun, Inc. to perform such services in accordance with the terms and
conditions set forth in the Request for Proposals issued by the Village.
Section 4. This resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED THIS 10th DAY OF FEBRUARY, 2011.
(Village Seal)
ATTEST:
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VILLAGE CLE
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MAYOR
CONTRACT
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This Contract is made as of the day of 2011, by and between
the VILLAGE OF NORTH PALM BEACH, a Florida municipal corporation, hereinafter
referred to as the VILLAGE, and Big Fun, Inc. a Florida corporation or partnership
authorized to do business in the State of Florida, hereinafter referred to as
CONTRACTOR, whose Federal Employer I.D. is 20-1152264.
In consideration of the promises and mutual covenants herein contained, it is hereby
agreed that CONTRACTOR shall provide to the VILLAGE all goods and services
requested under Request for Proposals for Heritage Day Amusement Rides and as further
stated in CONTRACTOR's Proposal and pursuant to the terms and conditions of this
Contract.
ARTICLE 1. SERVICES OF CONTRACTOR
A. CONTRACTOR shall provide all goods and services as stated in the RFP and
CONTRACTOR'S Proposal, as incorporated herein by reference, to that degree of caze
and skill ordinarily exercised, under similaz circumstances, by reputable members of its
profession practicing in the same or similaz locality at the time the services are provided.
CONTRACTOR certifies that it is licensed to perform the requested services in the State
of Florida and Palm Beach County and shall comply with all applicable federal, state and
local laws, ordinances, rules and regulations.
B. CONTRACTOR shall provide the required goods and services in accordance with
the following:
CONTRACTOR shall stage all rides/attractions at the VILLAGE's designated
location so that they aze ready for inspection by the State of Florida on Friday,
April 1, 2011.
2. In the event of inclement weather, CONTRACTOR shall provide the required
services at the VILLAGE's designated location on Sunday, Apri13, 2011.
3. If inclement weather continues and the VILLAGE, in its sole discretion, decides
not to conduct the Heritage Day festivities, the VILLAGE shall pay
CONTRACTOR for the actual costs of goods and services actually provided, not
to exceed the maximum compensation set forth in Article 4.
4. CONTRACTOR shall obtain all required permits and inspections. To the extent
permitted by law, the VILLAGE shall waive all VILLAGE permit and inspection
fees.
5. CONTRACTOR shall be responsible for maintaining, storing and protecting all
rides/attractions from all acts of nature, theft, vandalism or other means of
damage or destruction.
6. CONTRACTOR shall be responsible for removing and clearing the
rides/attractions on the day of the festivities.
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ARTICLE 2. PERIOD OF SERVICE.
A. CONTRACTOR shall provide all goods and services in accordance with the
terms of the RFP and this Contract. Time is of the essence.
B. CONTRACTOR shall not be considered in default by reason of any failure in
performance of the Work if such failure arises out of causes reasonably beyond the
control of CONTRACTOR or its subcontractors and without their fault or negligence.
Such causes include, but aze not limited to: acts of God; natural or public health
emergencies; labor disputes; freight embargoes; and abnormally severe and unusual
weather conditions.
C. Notwithstanding the foregoing, 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 CONTRACTOR for hindrances or delays due solely to fraud, bad faith or
active interference on the part of the VILLAGE or its agents.
ARTICLE 3. VILLAGE'S REPRESENTATIVE.
Unless otherwise specified by the VILLAGE, the VILLAGE'S representative shall be the
Village Pazks and Recreation Director.
ARTICLE 4. COMPENSATION AND METHOD OF PAYMENT.
A. The VILLAGE agrees ~ to compensate CONTRACTOR for the provision of all
goods and services set forth in the RFP and as stated in CONTRACTOR'S proposal in an
amount not to exceed Thirty-Six Thousand Six Hundred and Fifty Dollars and no cents
($36,650.00).
B. The VILLAGE shall pay CONTRACTOR a deposit of up to fifty percent (50%)
within ten (10) days after execution of this Contract by the VILLAGE. The balance of
the compensation due to the CONTRACTOR shall be paid subsequent to the Heritage
Day event upon satisfactory completion of all services.
C. CONTRACTOR shall submit an invoice(s) to the VILLAGE for the remainder of
the compensation. All invoice(s) received from 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. Invoices will normally be
paid within thirty (30) days following the VILLAGE representative's approval.
D. Services undertaken or expenses incurred that exceed the amount set forth in this
Contract without prior written authorization from the VILLAGE shall be the sole liability
of CONTRACTOR.
E. CONTRACTOR waives consequential or incidental damages for claims, disputes
or other matters in question arising out of or relating to this Contract.
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F. In order for both parties herein to close their books and records, CONTRACTOR
will clearly state "final invoice" on CONTRACTOR's finaUlast billing to the VILLAGE.
This certifies that all goods have been provided and services 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
CONTRACTOR. The VILLAGE will not be liable for any invoice from
CONTRACTOR submitted thirty (30) days after the provision of the required goods and
services.
G. 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
ARTICLE 5. INDENINIFICATION.
A. To the fullest extent permitted by applicable laws and regulations, the
CONTRACTOR shall indemnify and save harmless and defend the VILLAGE, its
officials, agents, servants, and employees from and against any and all claims, liability,
losses, and/or causes of action arising out of or in any way related to the services
furnished by the CONTRACTOR pursuant to this Contract, including, but not limited to,
those caused by or arising out of any act, omission, negligence or default of the
CONTRACTOR and/or its subcontractors, agents, servants or employees.
B. The CONTRACTOR shall not be required to indemnify the VILLAGE, its
officials, agents, servants and employees when the occurrence results solely from the
wrongful acts or omissions of the VILLAGE, its officials, agents, servants and
employees. The terms of this Section shall survive completion of all services, obligations
and duties provided for in this Contract as well as the termination of this Agreement for
any reason.
C. Nothing contained in this Contract shall create a contractual relationship with or a
cause of action in favor of a third parry against either the VILLAGE or the
CONTRACTOR, nor shall this Contract be construed a waiver of sovereign immunity
beyond the limited waiver provided in § 768.28, Florida Statutes.
ARTICLE 6. PERSONNEL.
A. CONTRACTOR represents that it has, or will secure at its own expense, all
necessary personnel required to perform the Work under this Contract. Such personnel
shall not be employees of or have any contractual relationship with the VILLAGE.
B. All of the Work required hereunder shall be performed by CONTRACTOR or
under its supervision, and all personnel engaged in performing the Work shall be fully
qualified and, if required, authorized or permitted under state and local law to perform
such Work.
C. All of CONTRACTOR's personnel (and all sub-contractors) while on VILLAGE
premises, will comply with all VILLAGE requirements governing conduct, safety, and
security.
ARTICLE 7. TERNIINATION.
This Contract may be cancelled by CONTRACTOR upon ninety (90) 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
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 CONTRACTOR. Unless
CONTRACTOR is in breach of this Contract, CONTRACTOR shall be paid for services
rendered to the VILLAGE's satisfaction through the date of termination. If the amount
owed for services rendered is less than the deposit paid by the VILLAGE pursuant to
Section 4.B, CONTRACTOR shall refund the remainder of the deposit.
ARTICLE 8. FEDERAL AND STATE TAX.
The VILLAGE is exempt from payment of Florida State Sales and Use Tax.
CONTRACTOR shall not be exempted from paying sales tax to its suppliers for
materials used to fill contractual obligations with the VILLAGE, nor is CONTRACTOR
authorized to use the VILLAGE's Tax Exemption Number in securing such materials.
ARTICLE 9. INSURANCE.
Prior to commencing any Work, CONTRACTOR shall provide certificates evidencing
insurance coverage as required in the RFP. All insurance, other than Worker's
Compensation, to be maintained by CONTRACTOR shall specifically include the
VILLAGE as an Additional Insured and shall require thirty (30) day prior notice to the
VILLAGE in the event of cancellation.
ARTICLE 10. SUCCESSORS AND ASSIGNS.
The VILLAGE and 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 parry, in respect
to all covenants of this Contract. Except as above, neither the VILLAGE nor
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 CONTRACTOR.
ARTICLE 11. GOVERNING LAW, VENUE AND REMEDIES.
A. 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.
B. No remedy herein conferred upon any parry is intended to be exclusive of any
other remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. No single or partial exercise by any party of any right,
power, or remedy hereunder shall preclude any other or further exercise thereof.
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ARTICLE 12. INDEPENDENT CONTRACTOR RELATIONSHIP.
CONTRACTOR is, and shall be, in the performance this Contract, an Independent
Contractor, and not an employee, agent, or servant of the VILLAGE. All persons
engaged in any of the work performed pursuant to this Contract shall at all times, and in
all places, be subject to CONTRACTOR's sole direction, supervision, and control.
CONTRACTOR shall exercise control over the means and manner in which it and its
employees perform the Work.
ARTICLE 13. NONDISCRIMINATION.
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.
ARTICLE 14. ENFORCEMENT COSTS.
If any legal action or other proceeding is brought for the enforcement of this Contract, or
because of an alleged dispute, breach, default or misrepresentation in connection with any
provisions of this Contract, the successful or prevailing party or parties shall be entitled
to recover reasonable attorney's fees, court costs and all expenses (including taxes) even
if not taxable as court awarded costs (including, without limitation, all such fees, costs
and expenses incident to appeals), incurred in that action or proceeding, in addition to any
other relief to which such party or parties may be entitled.
ARTICLE 15. AUTHORITY TO PROVIDE REQUIRED SERVICES.
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
required under this Contract, and that it will at all times conduct its business and provide
the services required under this Contract in a reputable manner. Proof of such licenses
and approvals shall be submitted to the VILLAGE's representative upon request.
ARTICLE 16. SEVERABILITY.
If any term or provision of this Contract, or the application thereof to any person or
circumstances shall, to any extent, be held invalid or unenforceable, to remainder of this
Contract, or the application of such terms or provision, to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be affected, and every
other term and provision of this Contract shall be deemed valid and enforceable to the
extent permitted by law.
ARTICLE 17. 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 CONTRACTOR of
the VILLAGE'S notification of a contemplated change, CONTRACTOR shall, in writing,
provide a detailed estimate for the increase or decrease in cost due to the contemplated
change.
B. If the VILLAGE elects to make the change, the VILLAGE shall initiate a
Contract Amendment and CONTRACTOR shall not commence work on any such ~~
change until such written amendment is signed by CONTRACTOR and approved and
executed by the VILLAGE.
ARTICLE 18. PROTECTION OF WORK AND PROPERTY.
A. CONTRACTOR shall continuously maintain adequate protection of all goods and
services provided pursuant to this Contract 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, CONTRACTOR shall provide
any necessary materials to maintain such protection.
B. 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
services are being performed and throughout the completion of such services.
ARTICLE 19. 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: Jimmy Knight, Village Manager
501 U.S. Highway One
North Palm Beach, FL 33408
and if sent to CONTRACTOR shall be mailed to:
Big Fun, Inc.
Attn: Michael Doolan, President
P.O. Box 699
Jensen Beach, FL 34958
The foregoing names and addresses may be changed if such change is provided in writing
to the other parry.
ARTICLE 20. ENTIRETY OF CONTRACTUAL AGREEMENT.
The VILLAGE and 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.
ARTICLE 21. TERNIINOLOGY 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 aze 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.
ARTICLE 22. 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.
ARTICLE 23. PREPARATION.
This Contract shall not be construed more strongly against either party regardless of who
was more responsible for its prepazation.
ARTICLE 24. 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.
ARTICLE 25. EXHIBITS AND CONTRACT DOCUMENTS.
Each exhibit and document referred to in this Contract forms an essential part of this
Contract. The exhibits and other contract documents, if not physically attached,
including, but not limited to the RFP and the CONTRACTOR's proposal, should be
treated as part of this Contract and are incorporated herein by reference.
ARTICLE 26. LEGAL EFFECT.
This Contract shall not become binding and effective until approved by the Village
Council of the Village of North Palm Beach.
ARTICLE 27. SURVIVABILITY.
Any provision of this Contract which is of a continuing nature or imposes an obligation
which extends beyond the term of this Contract shall survive its expiration or earlier
termination.
ARTICLE 28. WAIVER OF SUBROGATION.
CONTRACTOR hereby waives any and all rights to Subrogation against the VILLAGE,
its officers, employees and agents for each required policy. When required by the
insurer, or should a policy condition not permit an insured to enter into apre-loss
agreement to waive subrogation without an endorsement, then CONTRACTOR shall
agree to notify the insurer and request the policy be endorsed with a Waiver of Transfer
of Rights of Recovery Against Others, or its equivalent. This Waiver of Subrogation
requirement shall not apply to any policy, which a condition to the policy specifically
prohibits such an endorsement, or voids coverage should CONTRACTOR enter into such
an agreement on a pre-loss basis.
ARTICLE 29. REPRESENTATIONS/BINDING AUTHORITY.
The persons executing this Contract represent that they have the full power, authority and
legal right to execute and deliver this Contract and perform all of its obligations under
this Contract.
IN V~ITNESS WHEREOF, the VILLAGE and CONTRACTOR hereto have made and
executed this Contract as of the day and year first above written.
VILLAGE OF NORTH PALM BEAC
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BY:
WII,LIAM L. M L
MAYOR
ATTEST:
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BY: l~
MELI A TEAL,
VILLAGE CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
BY•
VILLAGE ATTORNEY
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