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Contract 2020-049A#2020-49-A DocuSign Envelope ID: 7B4A23A1-DB3D-48BB-8933-DECFED5D3870 AGREEMENT NO. 101 - 4,9 FOR PREVENTATIVE MAINTENANCE AND REPAIRS FOR HVAC EQUIPMENT THIS AGREEMENT, is made and entered into this � day of&5\J\ 2020, by and between the CITY OF CLERMONT, FLORIDA, a municipal 4rporation under the laws of the State of Florida whose address is: 685 W. Montrose Street, Clermont, Florida, (hereinafter referred to as "CITY"), and FOLSOM SERVICES, INC. whose address is: 25 East 1 P Street, Saint Cloud, FL 34769, (hereinafter referred to as "CONTRACTOR"). WHEREAS, Osceola County through the public procurement process awarded an Agreement for preventative maintenance and repairs for HVAC equipment, Osceola County Contract RFP-20-11102-TP; WHEREAS, CITY desires to utilize the above -referenced awarded bid, CONTRACTOR's response thereto and Agreement in accordance with CITY's procurement policy; and WHEREAS, CONTRACTOR desires to enter into a contract with CITY based on the terms and conditions of the Osceola County Contract RFP-20-11102-TP; WITNESSETH: That the parties hereto, for the consideration hereinafter set forth, mutually agree as follows: ARTICLE I — SCOPE OF WORK The CONTRACTOR shall furnish preventative maintenance and repairs for HVAC equipment as described in the Osceola County Contract RFP-20-11102-TP, which is attached hereto and incorporated herein as Exhibit "A" and shall perform everything required by this Agreement and the other exhibits attached hereto. Provided, however, that nothing herein shall require CITY to purchase or acquire any items or services from CONTRACTOR that is not specified in the CITY's purchase order. To the extent of a conflict between this Agreement and Exhibit "A", the terms and conditions of this Agreement shall prevail and govern. In all instances the CITY purchasing policy, resolutions and ordinances shall apply. ARTICLE II — THE CONTRACT SUM CITY shall pay CONTRACTOR, for the faithful performance of the Agreement as set forth in the Agreement documents and the Unit Price Schedule as set forth in Exhibit `13% attached hereto and incorporated herein. ARTICLE III — TERM AND TERMINATION 1. This Agreement is to become effective upon execution by both parties, and shall remain in effect until April 1, 2023, unless terminated or renewed by the Osceola County. Notwithstanding any other provision of this Agreement, CITY may, upon written notice to CONTRACTOR, terminate this Agreement: a) without cause and DocuSign Envelope ID: 7B4A23A1-DB3D-48BB-8933-DECFED5D3870 for CITY's convenience upon thirty (30) days written notice to CONTRACTOR b) if CONTRACTOR is adjudged to be bankrupt; c) if CONTRACTOR makes a general assignment for the benefit of its creditors; d) CONTRACTOR fails to comply with any of the conditions of provisions of this Agreement; or e) CONTRACTOR is experiencing a labor dispute, which threatens to have a substantial, adverse impact upon the performance of this Agreement, without prejudice to any other right or remedy CITY may have under this Agreement. In the event of such termination, CITY shall be liable only for the payment of all unpaid charges, determined in accordance with the provisions of this Agreement, for work, properly performed and accepted prior to the effective date of termination. 2. Upon mutual Agreement of the parties, this Agreement may be renewed when in the best interest of the County. ARTICLE IV — PROVISION OF SERVICES AND COMPLETION OF WORK 1. The CONTRACTOR shall only provide to CITY preventative maintenance and repairs for HVAC equipment upon receipt of an authorized order from CITY and shall provide the requested items in the timeframe and as set forth in RFP-20- 11102-TP or in the specific purchase order or authorized order submitted by CITY. Nothing herein shall obligate CITY to purchase any specific amount of product from CONTRACTOR or create an exclusive purchase agreement between CITY and CONTRACTOR. CITY shall not be obligated or required to pay for any items received until such time as CITY has accepted the items in accordance with the order provided to CONTRACTOR. 2. CONTRACTOR, upon receipt of an order hereunder, shall immediately notify CITY if it has an issue or question related to the fulfillment of the order or whether there will be any delay in providing the items requested. Failure of CONTRACTOR to so notify CITY will preclude CONTRACTOR from seeking payment of any kind for any items that were delayed in delivery. Upon receipt of notification of the delay, CITY may at its sole option cancel the order and seek the items from any available source. 3. It is expressly understood and agreed that the passing, approval and/or acceptance of any preventative maintenance and repairs for HVAC equipment herein by CITY or by any agent or representative as in compliance with the terms of this Contract shall not operate as a waiver by the CITY of strict compliance with the terms of this Contract and the CITY may require the CONTRACTOR replace the accepted preventative maintenance and repairs for HVAC equipment so as to comply with the warranties and specifications hereof. 4. COMPANY specifically acknowledges that this Contract does not bind or obligate CITY to purchase any minimum quantity of product during the term hereof. K DocuSign Envelope ID: 7B4A23A1-DB3D-48BB-8933-DECFED5D3870 ARTICLE V — PAYMENTS In accordance with the provisions fully set forth in the Contract Documents, CONTRACTOR shall submit an invoice to CITY upon completion of the services and delivery of products to CITY as set forth in the applicable purchase order. CITY shall make payment to the CONTRACTOR for all accepted deliveries and undisputed product delivered and services provided, within thirty (30) calendar days of receipt of the invoice. ARTICLE VI — DISPUTE RESOLUTION - MEDIATION Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to voluntary arbitration or the institution of legal or equitable proceedings by either party. 2. The CITY and CONTRACTOR shall endeavor to resolve claims, disputes and other matters in question between them by mediation. 3. The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in Clermont, Lake County, Florida, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement Agreements in any court having jurisdiction thereof. ARTICLE VII — INSURANCE AND INDEMNIFICATION RIDER 1. Worker's Compensation Insurance — The CONTRACTOR shall take out and maintain during the life of this Agreement, Worker's Compensation Insurance for all its employees connected with the work of this Project and, in case any work is sublet, the CONTRACTOR shall require the subCONTRACTOR similarly to provide Worker's Compensation Insurance for all of the subCONTRACTOR employees unless such employees are covered by the protection afforded by the CONTRACTOR. Such insurance shall comply with the Florida Worker's Compensation Law. In case any class of employees engaged in hazardous work under this Agreement at the site of the Project is not protected under the Worker's Compensation statute, the CONTRACTOR shall provide adequate insurance, satisfactory to the CITY, for the protection of employees not otherwise protected. 2. CONTRACTOR's Commercial General Liability Insurance — The CONTRACTOR shall take out and maintain during the life of this Agreement, Commercial General Liability and Business Automobile Liability Insurance as shall protect it from claims for damage for personal injury, including accidental death, as well as claims for property damages which may arise from operating under this Agreement whether such operations are by itself or by anyone directly or indirectly employed by it, and the amount of such insurance shall be as follows: 3 DocuSign Envelope ID: 7B4A23A1-DB3D-48BB-8933-DECFED5D3870 (a) CONTRACTOR's Commercial General Liability, $1,000,000 Each, ($2,000,000 aggregate). Liability Coverages, Bodily Injury Occurrence, & Property Damage Combined Single Limit (b) Automobile Liability Coverages, $1,000,000 Each, Bodily Injury & Property Damage Occurrence, Combined Single Limit (c) Excess Liability, Umbrella Form $2,000,000 Each Occurrence, Combined Single Limit Insurance clause for both BODILY INJURY AND PROPERTY DAMAGE shall be amended to provide coverage on an occurrence basis. 3. Indemnification Rider (a) To the fullest extent permitted by law, the CONTRACTOR shall indemnify and hold harmless the CITY and its employees from and against all claims, damages, losses and expenses, including but not limited to reasonable attorney's fees, arising out of or resulting from its performance of the Work, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) , and (2) is caused in whole or in part by any negligent act or omission of the CONTRACTOR, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not such acts are caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right to obligation of indemnity which would otherwise exist as to any party or person described in this Article.; however, this indemnification does not include the sole acts of negligence, damage or losses caused by the CITY and its other contractors. (b) In any and all claims against the CITY or any of its agents or employees by any employee of the CONTRACTOR, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligations under this Paragraph shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the CONTRACTOR or any subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. (c) The CONTRACTOR hereby acknowledges receipt of ten dollars and other good and valuable consideration from the CITY for the indemnification provided herein. 4 DocuSign Envelope ID: 7B4A23A1-DB3D-48BB-8933-DECFED5D3870 ARTICLE VIII — NOTICES All notices shall be in writing and sent by United States mail, certified or registered, with return receipt requested and postage prepaid, or by nationally recognized overnight courier service to the address of the party set forth below. Any such notice shall be deemed given when received by the party to whom it is intended. CONTRACTOR: Folsom Services, Inc. 25 East 131" Street Saint Cloud, FL 34769 Attn: William Folsom OWNER: City of Clermont Attn: Darren S. Gray, City Manager 685 W. Montrose Street Clermont, FL 34711 ARTICLE IX — MISCELLANEOUS 1. Attorneys' Fees — In the event a suit or action is instituted to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover such sum as the Court may adjudge reasonable as attorneys' fees at trial or on any appeal, in addition to all other sums provided by law. 2. Waiver — The waiver by city of breach of any provision of this Agreement shall not be construed or operate as a waiver of any subsequent breach of such provision or of such provision itself and shall in no way affect the enforcement of any other provisions of this Agreement. 3. Severability — If any provision of this Agreement or the application thereof to any person or circumstance is to any extent invalid or unenforceable, such provision, or part thereof, shall be deleted or modified in such a manner as to make the Agreement valid and enforceable under applicable law, the remainder of this Agreement and the application of such a provision to other persons or circumstances shall be unaffected, and this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. 4. Amendment — Except for as otherwise provided herein, this Agreement may not be modified or amended except by an Agreement in writing signed by both parties. 5. Entire Agreement — This Agreement including the documents incorporated by reference contains the entire understanding of the parties hereto and supersedes all prior and contemporaneous Agreements between the parties with respect to the performance of services by CONTRACTOR. 5 DocuSign Envelope ID: 7B4A23A1-DB3D-48BB-8933-DECFED5D3870 6. Assignment — Except in the event of merger, consolidation, or other change of control pursuant to the sale of all or substantially all of either party's assets, this Agreement is personal to the parties hereto and may not be assigned by CONTRACTOR, in whole or in part, without the prior written consent of city. 7. Venue — The parties agree that the sole and exclusive venue for any cause of action arising out of this Agreement shall be Lake County, Florida. 8. Applicable Law — This Agreement and any amendments hereto are executed and delivered in the State of Florida and shall be governed, interpreted, construed and enforced in accordance with the laws of the State of Florida. 9. Public Records — Contractor expressly understands records associated with this project are public records and agrees to comply with Florida's Public Records law, to include, to: (a) Keep and maintain public records that ordinarily and necessarily would be required by the CITY in order to perform the services contemplated herein. (b) Provide the public with access to public records on the same terms and conditions that the CITY would provide the records and at a cost that does not exceed the cost provided in this Florida's Public Records law or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (d) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all public records in possession of CONTRACTOR upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. CONTRACTOR shall use reasonable efforts to provide all records stored electronically to the CITY in a format that is compatible with the information technology systems of the CITY. (e) IF CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTRACTOR SHALL CONTACT THE CITY'S CUSTODIAN OF PUBLIC RECORDS AT CITY CLERK'S OFFICE, (352) 241-7331. 2 DocuSign Envelope ID: 7B4A23A7-DB3D-48BB-8933-DECFED5D3870 ARTICLE X — AGREEMENT DOCUMENTS The Agreement Documents, as listed below are herein made fully a part of this Agreement as if herein repeated. Document Precedence: l . This Agreement 2. Purchase Order / Notice To Proceed 3. An applicable Contractor Quote or Statement of Work 4. All documents contained in the Osceola County Contract RFP-20-11102-TP; IN WITNESS WHEREOF, the parties hereto have executed this Agreement on IN 0 4, thiscin day of 2020. City of Clermont Gail L. Ash, Mayor Atte t: Tracy Ackroyd Howe, City Clerk 7 DocuSign Envelope ID: 7B4A23A1-DB3D-48BB-8933-DECFED5D3870 FOLSOM SERVICES, INC DocuSigned by: I" U WM, rd's wt (Signature) William Folsom pres. (Name & Title Printed or Typed) Attest: Corporate Secretary (Name Printed or Typed)