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HomeMy WebLinkAboutContract 2023-110ADocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E AGREEMENT No. 2023-110 PARTS AND SERVICES FOR HEAVY DUTY TRUCKS AND INDUSTRIAL EQUIPMENT THIS AGREEMENT, is made and entered into this 25th day of October 2023, by and between the CITY OF CLERMONT, FLORIDA, a municipal corporation under the laws of the State of Florida whose address is: 685 W. Montrose Street, Clermont, Florida, (hereinafter referred to as "CITY"), and ORLANDO FREIGHTLINER, INC., whose address is: 2455 South Orange Blossom Trail, Apopka, Florida 32703, (hereinafter referred to as "CONTRACTOR"). WHEREAS, Osceola County through the public procurement process awarded an Agreement for, Parts and Services for Heavy Duty Trucks and Industrial Equipment Contract Contract Number AR-23-13747-MB; 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 Number AR-23-13747-MB; WITNESSETH: That the parties hereto, for the consideration hereinafter set forth, mutually agree as follows: SCOPE OF WORK The CONTRACTOR shall furnish parts and services for heavy duty trucks and industrial equipment as described in the Osceola County Contract Number AR-23-13747-MB, 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. 2. THE CONTRACT SUM CITY shall pay CONTRACTOR, for the faithful performance of the Agreement as set forth in the Agreement documents and the Price Schedule as set forth in Exhibit "B", attached hereto and incorporated herein. 3. TERM AND TERMINATION A. This Agreement is to become effective upon execution by both parties, and shall remain in effect until June 30, 2026 unless terminated or renewed by Osceola County. B. Notwithstanding any other provision of this Agreement, CITY may, upon written notice to CONTRACTOR, terminate this Agreement: a) without cause and for CITY's DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E Piggyback Agreement Parts and Services for Heavy Duty Trucks and Industrial Equipment Contract 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. 4. PROVISION OF SERVICES AND COMPLETION OF WORK A. The CONTRACTOR shall only provide to CITY the services contained under the Scope of Work upon receipt of an authorized order from CITY and shall provide the requested items in the timeframe and as set forth in Osceola County Contract Number AR-23- 13747-MB 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. B. 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. C. It is expressly understood and agreed that the passing, approval, and/or acceptance of any gasoline, diesel, kerosene, LP gas, and bio-diesel 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 gasoline, diesel, kerosene, LP gas, and bio-diesel so as to comply with the warranties and specifications hereof. D. COMPANY specifically acknowledges that this Contract does not bind or obligate CITY to purchase any minimum quantity of product during the term hereof. DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E Piggyback Agreement Parts and Services for Heavy Duty Trucks and Industrial Equipment Contract 5. 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. 6. DISPUTE RESOLUTION - MEDIATION A. 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. B. The CITY and CONTRACTOR shall endeavor to resolve claims, disputes and other matters in question between them by mediation. C. 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. 7. INSURANCE AND INDEMNIFICATION RIDER 7.1. 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. 7.2. 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: A. CONTRACTOR's Commercial General Liability, $1,000,000 Each, ($2,000,000 aggregate). Liability Coverages, Bodily Injury Occurrence, & Property Damage Combined Single Limit 2 DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E Piggyback Agreement Parts and Services for Heavy Duty Trucks and Industrial Equipment Contract 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 The insurance clause for both BODILY INJURY AND PROPERTY DAMAGE shall be amended to provide coverage on an occurrence basis. 7.3. 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. 8. 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. DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E Piggyback Agreement Parts and Services for Heavy Duty Trucks and Industrial Equipment Contract A. CONTRACTOR: • ORLANDO FREIGHTLINER • Attn: Tod Chapman, Parts Representative • 2455 South Orange Blossom Trail, Apopka, Florida 32703 A. OWNER: • City of Clermont • Attn: Brian Bulthuis, City Manager • 685 W. Montrose Street, Clermont, FL 34711 9. MISCELLANEOUS 9.1. 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. 9.2. 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. 9.3. 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. 9.4. 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. 9.5. 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. 4 DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E Piggyback Agreement Parts and Services for Heavy Duty Trucks and Industrial Equipment Contract 9.6. Assi _ ng ment Except in the event of a 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. 9.7. 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. 9.8. 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. 9.9. 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. 10. AGREEMENT DOCUMENTS DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E Piggyback Agreement Parts and Services for Heavy Duty Trucks and Industrial Equipment Contract The Agreement Documents, as listed below are herein made fully a part of this Agreement as if herein repeated. Document Precedence: A. This Agreement B. Purchase Order / Notice To Proceed C. An applicable Contractor Quote or Statement of Work D. All documents contained in the Osceola County Contract Number AR-23-13747-MB. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this 3rd day of Novemeber 2023. CITY OF CLERMONT ---DocuSigned by: Tim Murry, Mayor ATTEST: DocuSigned by: T 44e,y AGkI d "ol— ',—�D-TF-34-9... Tracy Ackroyd Howe, City Clerk 0 DocuSign Envelope ID: 551A026C-OB93-4550-A05E-27613284CA9E ORLANDO FREIGIUMNER, INC. IL 17 B (Signature) Print Name: A o Title: P�4� Date: 4ctkZ3 DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E AGREEMENT THIS AGREEMENT is made by and between OSCEOLA COUNTY, a political subdivision of the State of Florida, 1 Courthouse Square, Kissimmee, Florida 34741, hereinafter referred to as the "COUNTY", and ORLANDO FREIGHTLINER, INC., 2455 SOUTH ORANGE BLOSSOM TRAIL, APOPKA, FLORIDA 32703, hereinafter referred to as the "CONTRACTOR". WITNESSETH: WHEREAS, the COUNTY has competitively solicited for parts and service for County owned machines, heavy duty trucks, and industrial equipment utilizing Detroit Diesel Engines, Mercedes Engines, and Allison Transmissions, Pursuant to AR-23-13747-MB; and WHEREAS, the CONTRACTOR has exhibited by its response to the solicitation that it is capable of providing the required services; and WHEREAS, the parties hereto have agreed to the terms and conditions cited herein based on said solicitation. NOW, THEREFORE, in consideration of the mutual covenants, terms, and provisions contained herein, the parties agree as follows: SECTION 1. TERM. The term of this Agreement shall begin on July 1, 2023, and continue through June 30, 2026, and may be extended when in the best interest of the County. SECTION 2. SCOPE OF SERVICES. The CONTRACTOR will furnish and install all necessary labor, materials, and equipment to complete the services set forth in Exhibit "A" which is attached hereto and incorporated herein. SECTION 3. OBLIGATIONS OF THE CONTRACTOR. Obligations of the CONTRACTOR shall include, but not be limited to, the following: A. It is understood that the CONTRACTOR shall provide and pay for all labor, tools, materials, permits, equipment, transportation, supervision, and any and all other items or services, of any type whatsoever, which are necessary to fully complete and deliver the services requested by the COUNTY, and shall not have the authority to create, or cause to be filed, any liens for labor and/or materials on, or against, the COUNTY, or any property owned by the COUNTY. Such lien, attachment, or DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E encumbrance, until it is removed, shall preclude any and all claims or demands for any payment expected by virtue of this Agreement. B. The CONTRACTOR will ensure that all of its employees, agents, sub -contractors, representatives, volunteers, and the like, fully comply with all of the terms and conditions set herein, when providing services for the COUNTY in accordance herewith. C. The CONTRACTOR shall be solely responsible for the means, methods, techniques, sequences, safety programs, and procedures necessary to properly and fully complete the work set forth in the Scope of Services. D. The CONTRACTOR will maintain an adequate and competent staff, and remain authorized to do business within the State of Florida. The CONTRACTOR may subcontract the services requested by the COUNTY: however, the CONTRACTOR is fully responsible for the satisfactory completion of all subcontracted work. SECTION 4. STANDARD OF CARE. A. The CONTRACTOR has represented to the COUNTY that it possesses a level of knowledge, experience, and expertise that is commensurate with firms in the areas of practice required for the services to be provided. By executing this Agreement, the CONTRACTOR agrees that the CONTRACTOR will exercise that degree of care, knowledge, skill, and ability as any other similarly situated contractor possessing the degree of skill, knowledge, experience, and expertise within the local area, working on similar activities. The CONTRACTOR shall perform the services requested in an efficient manner, consistent with the COUNTY's stated scope of services and industry standards. B. The CONTRACTOR covenants and agrees that it and its employees, agents, sub- contractors, representatives, volunteers, and the like, shall be bound by the same standards of conduct as stated above. SECTION S. COMPENSATION. A. The amount to be paid under this Agreement for services rendered will not exceed One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) annually, for a total not to exceed amount of Four Hundred Fifty Thousand and 00/100 Dollars ($450,000.00) for the term of this Agreement, in accordance with the pricing schedule set forth in Exhibit "B" which is attached hereto and made a binding part hereof. rev 8.2020 DocuSign Envelope ID: 551A026C-OB93-4550-A05E-27613284CA9E B. Compensation for services completed by the CONTRACTOR will be paid in accordance with section 218.70, Florida Statutes, Florida's Prompt Payment Act. C. Services to be performed in accordance with this Agreement are subject to the annual appropriation of funds by the COUNTY. In its sole discretion, the COUNTY reserves the right to forego use of the CONTRACTOR for any project which may fall within the Scope of Services listed herein. In the event the COUNTY is not satisfied with the services provided by the CONTRACTOR, the COUNTY will hold any amounts due until such time as the CONTRACTOR has appropriately addressed the problem. SECTION 6. TERMINATION. Either party may terminate this Agreement, with or without cause, given thirty (30) days written notice to the other party. SECTION 7. PAYMENT WHEN SERVICES ARE TERMINATED. A. In the event of termination of this Agreement by the COUNTY, and not due to the fault of the CONTRACTOR, the COUNTY shall compensate the CONTRACTOR for all services performed prior to the effective date of termination. B. In the event of termination of this Agreement due to the fault of the CONTRACTOR, or at the written request of the CONTRACTOR, the COUNTY shall compensate the CONTRACTOR for all services completed, prior to the effective date of termination, which have resulted in a usable product, or otherwise tangible benefit to the COUNTY. All such payments shall be subject to an off -set for any damages incurred by the COUNTY resulting from any delay occasioned by early termination. This provision shall in no way be construed as the sole remedy available to the COUNTY in the event of breach by the CONTRACTOR. SECTION 8. INSURANCE. A. The CONTRACTOR shall not commence any work in connection with an agreement until it has obtained all of the following types of insurance and has provided proof of same to the COUNTY, in the form of a certificate prior to the start of any work, nor shall the CONTRACTOR allow any subcontractor to commence work on its subcontract until all similar insurance required of the subcontractor has been so obtained and approved. All insurance policies shall be with insurers qualified and doing business in Florida. B. The CONTRACTOR shall maintain the following types of insurance, with the respective minimum limits: 1. AUTOMOBILE PUBLIC LIABILITY: Combined Property Damage and Bodily Injury, One Million Dollars ($1,000,000.00) — Any Auto; rev 8.2020 DocuSign Envelope ID: 551A026C-OB93-4550-A05E-27613284CA9E 2. GENERAL LIABILITY: One Million Dollars ($1,000,000.00) each occurrence; 3. DAMAGE to RENTED PREMISES — Fifty Thousand Dollars ($50,000.00), Any single occurrence; 4. MEDICAL EXPENSES: Five Thousand Dollars ($5,000.00) — Any one person; 5. PERSONAL & ADVERTISING INJURY: One Million Dollars ($1,000,000.00), 6. GENERAL AGGREGATE: One Million Dollars ($1,000,000.00); 7. PRODUCTS — COMPLETED OPERATIONS AGGREGATE: One Million Dollars ($1,000,000.00) 8. EXCESS/UMBRELLA COVERAGE: One Million Dollars ($1,000,000.00); and, 9. WORKERS' COMPENSATION: Employers' liability insurance which covers the statutory obligation for all persons engaged in the performance of the work required hereunder with limits not less than $1,000,000.00 per occurrence. Evidence of qualified self-insurance status will suffice for this subsection. The CONTRACTOR understands and acknowledges that it shall be solely responsible for any and all medical and liability costs associated with an injury to itself and/or to its employees, sub -contractors, volunteers, and the like, including the costs to defend the COUNTY in the event of litigation against same. C. The CONTRACTOR shall name the "Osceola County Board of County Commissioners" as additional insured, to the extent of the services to be provided hereunder, on all required insurance policies, and provide the COUNTY with proof of same. D. The CONTRACTOR shall provide the COUNTY's Procurement Services with a Certificate of Insurance evidencing such coverage for the duration of this Agreement. Said Certificate of Insurance shall be dated and show: a. The name of the insured CONTRACTOR, b. The specified job by name and job number, c. The name of the insurer, d. The number of the policy, e. The effective date, f. The termination date, g. A statement that the insurer will mail notice to the COUNTY at least thirty (30) days prior to any material changes in the provisions or cancellation of the policy. rev 8.2020 DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E h. The Certificate Holders Box must read as follows. Any other wording in the Certificate Holders Box shall not be acceptable: Osceola County Board of County Commissioners c/o Director of Human Resources 1 Courthouse Square, Suite 4200 Kissimmee, Florida 34741 E. Receipt of certificates or other documentation of insurance or policies or copies of policies by the COUNTY, or by any of its representatives, which indicates less coverage than is required, does not constitute a waiver of the CONTRACTOR's obligation to fulfill the insurance requirements specified herein. F. The CONTRACTOR shall ensure that any sub-contractor(s), hired to perform any of the duties contained in the Scope of Services of this Agreement, maintain the same insurance requirements set forth herein. In addition, the CONTRACTOR shall maintain proof of same on file and made readily available upon request by the EKel11►iti'� G. The COUNTY shall be exempt from, and in no way liable for, any sums of money which may represent a deductible in any insurance policy. The payment of such deductible shall be the sole responsibility of the CONTRACTOR and/or subcontractor providing such insurance. H. All insurance carriers shall have an AM Best Rating of at least A- and a size of VII or larger. The General Liability and Workers' Compensation policies shall have a waiver of subrogation in favor of Osceola County. The liability policies shall be Primary/Non-Contributory. SECTION 9. COUNTY OBLIGATIONS. At the CONTRACTOR's request, the COUNTY agrees to provide, at no cost, all pertinent information known to be available to the COUNTY to assist the CONTRACTOR in providing and performing the required services. SECTION 10. ENTIRE AGREEMENT. This Agreement, including referenced exhibits and attachments hereto, constitutes the entire agreement between the parties and shall supersede, replace and nullify any and all prior agreements or understandings, written or oral, relating to the matters set forth herein, and any such prior agreements or understandings shall have no force or effect whatsoever on this Agreement. rev 8.2020 DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E SECTION 11. APPLICABLE LAW VENUE JURY TRIAL. The laws of the State of Florida shall govern all aspects of this Agreement. In the event it is necessary for either party to initiate legal action regarding this Agreement, venue shall lie in Osceola County, Florida. The parties hereby waive their right to trial by jury in any action, proceeding or claim, arising out of this Agreement, which may be brought by either of the parties hereto. SECTION 12. PUBLIC RECORDS. A. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT THE FOLLOWING: Public Information Office 1 Courthouse Square, Suite 4400 Kissimmee, Florida 34741 407 742-0100 BCCPIO@osceola.org B. The CONTRACTOR understands that by virtue of this Agreement all of its documents, records and materials of any kind, relating to the relationship created hereby, shall be open to the public for inspection in accordance with Florida law. If CONTRACTOR will act on behalf of the COUNTY, as provided under section 119-011(2), Florida Statutes, the CONTRACTOR, subject to the terms of section 287.058(1)(c), Florida Statutes, and any other applicable legal and equitable remedies, shall: 1. Keep and maintain public records required by the COUNTY to perform the service. 2. Upon request from the COUNTY'S custodian of public records, provide the COUNTY with a copy 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 Florida law. 3. 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 contract term and following completion of the contract if the CONTRACTOR does not transfer the records to the COUNTY. 4. Upon completion of the contract, transfer, at no cost, to the COUNTY all public records in possession of the CONTRACTOR or keep and maintain public records rev 8.2020 DocuSign Envelope ID: 551A026C-OB93-4550-A05E-27613284CA9E required by the COUNTY to perform the service. If the CONTRACTOR transfers all public records to the COUNTY upon completion of the contract, the CONTRACTOR shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirement. If the CONTRACTOR keeps and maintains public records upon completion of the contract, the CONTRACTOR shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the COUNTY, upon request from the COUNTY'S custodian of public records, in a format that is compatible with the information technology systems of the county. 5. If the CONTRACTOR does not comply with a public records request, the COUNTY shall enforce the contract provisions in accordance with the contract. SECTION 13. INDEPENDENT CONTRACTOR. This Agreement does not create an employee/employer relationship between the parties. It is the parties' intention that the CONTRACTOR, its employees, sub -contractors, representatives, volunteers, and the like, will be an independent contractor and not an employee of the COUNTY for all purposes, including, but not limited to, the application of the following, as amended: the Fair Labor Standards Act minimum wage and overtime payments, the Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the State of Florida revenue and taxation laws, the State of Florida workers' compensation laws, the State of Florida unemployment insurance laws, and the Florida Retirement System benefits. The CONTRACTOR will retain sole and absolute discretion in the judgment of the manner and means of carrying out the CONTRACTOR's activities and responsibilities hereunder. SECTION 14. APPLICABLE LICENSING. The CONTRACTOR, at its sole expense, shall obtain all required federal, state, and local licenses, occupational and otherwise, required to successfully provide the services set forth herein. SECTION 15. COMPLIANCE WITH ALL LAWS. The CONTRACTOR, at its sole expense, shall comply with all laws, ordinances, judicial decisions, orders, and regulations of federal, state, county, and municipal governments, as well as their respective departments, commissions, boards, and officers, which are in effect at the time of execution of this Agreement or are adopted at any time following the execution of this Agreement. rev 8.2020 DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E SECTION 16. INDEMNIFICATION. The CONTRACTOR agrees to be liable for any and all damages, losses, and expenses incurred, by the COUNTY, caused by the acts and/or omissions of the CONTRACTOR, or any of its employees, agents, sub -contractors, representatives, volunteers, or the like. The CONTRACTOR agrees to indemnify, defend and hold the COUNTY harmless for any and all claims, suits, judgments or damages, losses and expenses, including but not limited to, court costs, expert witnesses, consultation services and attorney's fees, arising from any and all acts and/or omissions of the CONTRACTOR, or any of its employees, agents, sub -contractors, representatives, volunteers, or the like. Said indemnification, defense, and hold harmless actions shall not be limited by any insurance amounts required hereunder. SECTION 17. SOVEREIGN IMMUNITY. The COUNTY expressly retains all rights, benefits and immunities of sovereign immunity in accordance with Section 768.28, Florida Statutes. Notwithstanding anything set forth in any section, article or paragraph of this Agreement to the contrary, nothing in this Agreement shall be deemed as a waiver of sovereign immunity or limits of liability which may have been adopted by the Florida Legislature or may be adopted by the Florida Legislature, and the cap on the amount and liability of COUNTY for damages, attorney fees and costs, regardless of the number or nature of claims in tort, equity or contract, shall not exceed the dollar amount set by the Florida Legislature for tort. Nothing in this Agreement shall inure to the benefit of any third party for the purpose of allowing any claim against the COUNTY which would otherwise be barred under the Doctrine of Sovereign Immunity or operation of law. SECTION 18. BANKRUPTCY OR INSOLVENCY. If the CONTRACTOR shall file a Petition in Bankruptcy, or if the same shall be adjudged bankrupt or insolvent by any Court, or if a receiver of the property of the CONTRACTOR shall be appointed in any proceeding brought by or against the CONTRACTOR, or if the CONTRACTOR shall make an assignment for the benefit of creditors, or proceedings shall be commenced on or against the CONTRACTOR's operations of the premises, the COUNTY may terminate this Agreement immediately notwithstanding the notice requirements of Section 6 hereof. SECTION 19. BINDING EFFECT. This Agreement shall be binding upon and ensure to the benefit of the parties hereto, their heirs, personal representatives, successors, and/or assigns. SECTION 20. ASSIGNMENT. This Agreement shall only be assignable by the CONTRACTOR upon the express written consent of the COUNTY. rev 8.2020 DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E SECTION 21. SEVERABILITY. All clauses found herein shall act independently of each other. If a clause is found to be illegal or unenforceable, it shall have no effect on any other provision of this Agreement. It is understood by the parties hereto that if any part, term, or provision of this Agreement is by the courts held to be illegal or in conflict with any law of the State of Florida or the United States, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term, or provision held to be invalid. SECTION 22. WAIVER. Failure of the parties to insist upon strict performance of any of the covenants, terms, provisions, or conditions of this Agreement, or to exercise any right or option herein contained, shall not be construed as a waiver of a relinquishment for the future of any such covenant, term, provision, condition, or right of election, but same shall remain in full force and effect. SECTION 23. NOTICE. The parties hereto agree and understand that written notice, mailed or delivered to the last known mailing address, shall constitute sufficient notice to the COUNTY and the CONTRACTOR. All notices required and/or made pursuant to this Agreement to be given to the COUNTY and the CONTRACTOR shall be in writing and given by way of the United States Postal Service, first class mail, postage prepaid, addressed to the following addresses of record: COUNTY: Osceola County Attention: Procurement Services 1 Courthouse Square, Suite 2300 Kissimmee, Florida 34741 CONTRACTOR: Orlando Freightliner, Inc. 2455 South Orange Blossom Trail Apopka, Florida 32703 SECTION 24. MODIFICATION. The covenants, terms, and provisions of this Agreement may be modified by way of a written instrument, mutually accepted by the parties hereto. In the event of a conflict between the covenants, terms, and/or provisions of this Agreement and any written Amendment(s) hereto, the provisions of the latest executed instrument shall take precedence. rev 8.2020 DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E SECTION 25. HEADINGS. All headings of the sections, exhibits, and attachments contained in this Agreement are for the purpose of convenience only and shall not be deemed to expand, limit or change the provisions contained in such sections, exhibits, and attachments. SECTION 26. ADMINISTRATIVE PROVISIONS. In the event the COUNTY issues a purchase order, memorandum, letter, or any other instrument addressing the services, work, and materials to be provided and performed pursuant to this Agreement, it is hereby specifically agreed and understood that any such purchase order, memorandum, letter, or other instrument is for the COUNTY's internal purposes only, and any and all terms, provisions, and conditions contained therein, whether printed or written, shall in no way modify the covenants, terms, and provisions of this Agreement and shall have no force or effect thereon. SECTION 27. CONFLICT OF INTEREST. The CONTRACTOR warrants that the CONTRACTOR has not employed or retained any company or person, other than a bona fide employee working solely for the CONTRACTOR, to solicit or secure this Agreement, and that the CONTRACTOR has not paid or agreed to pay any person, company, corporation, individual, or firm any fee, commission, percentage, gift, or any other consideration, contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this Paragraph, the COUNTY shall have the right to terminate this Agreement immediately, without liability and without regard to the notice requirements of Section 6 hereof. SECTION 28. PUBLIC ENTITY CRIMES. As required by section 287.133, Florida Statutes, the CONTRACTOR warrants that it is not on the convicted contractor list for a public entity crime committed within the past thirty six (36) months. The CONTRACTOR further warrants that it will neither utilize the services of, nor contract with, any supplier, sub -contractor, or contractor in connection with this Agreement for a period of thirty six (36) months from the date of being placed on the convicted contractor list. SECTION 29. EMPLOYMENT ELIGIBILITY VERIFICATION (E-VERIFY) Pursuant to Florida Statutes, Section 448.095, the CONTRACTOR shall be registered with and utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility status of all employees performing work under this Agreement as well as all newly hired employees. In addition, the CONTRACTOR shall require any and all subcontractors performing work in accordance with this Agreement to register with and utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility status of all employees performing work under this Agreement as well as all newly hired rev 8.2020 DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E employees. Any such subcontractor shall provide an affidavit to the CONTRACTOR stating that the subcontractor does not employ, contract with or subcontract with any ineligible individuals and the CONTRACTOR must keep a copy of said affidavit for the duration of this Agreement. Violation of this section is subject to immediate termination of this Agreement without regard to any notice otherwise required herein. In the event the COUNTY incurs costs as a result of the CONTRACTOR'S breach of this provision, any and all such costs shall be paid by the CONTRACTOR immediately upon receipt of notice of the same from the COUNTY. Information on registration for and use of the E-Verify Program may be obtained at the Department of Homeland Security website: http://www.dhs.gov/E-Verify. SECTION 30. JOINT AUTHORSHIP. This Agreement shall be construed as resulting from joint negotiation and authorship. No part of this Agreement shall be construed as the product of any one of the parties hereto. SECTION 31. EQUAL OPPORTUNITY EMPLOYER. The CONTRACTOR is an Equal Opportunity Employer and will comply with all equal opportunity employment laws. The CONTRACTOR will further ensure that all sub -contractors it utilizes in providing the services required hereunder will comply with all equal opportunity employment laws. SECTION 32 AUDITING, RECORDS, AND INSPECTION. In the performance of this Agreement, the CONTRACTOR shall keep books, records, and accounts of all activities, related to the Agreement, in compliance with generally accepted accounting procedures. Throughout the term of this Agreement, books, records, and accounts related to the performance of this Agreement shall be open to inspection during regular business hours by an authorized representative of the COUNTY, and shall be retained by the CONTRACTOR for a period of three years after termination or completion of the Agreement, or until the full County audit is complete, whichever comes first. The COUNTY shall retain the right to audit the books during the three-year retention period. All books, records, and accounts related to the performance of this Agreement shall be subject to the applicable provisions of the Florida Public Records Act, Chapter 119, Florida Statutes. The COUNTY also has the right to conduct an audit within sixty (60) days from the effective date of this Agreement to determine whether the CONTRACTOR has the ability to fulfill its contractual obligations to the satisfaction of the COUNTY. The COUNTY has the right to terminate this Agreement based upon its findings in this audit without regard to the termination provision set forth herein. SECTION 33. PROJECT MANAGERS. The COUNTY and the CONTRACTOR have identified individuals as Project Managers, listed below, who shall have the responsibility for managing the work performed under this rev 8.2020 DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E Agreement. The person or individual identified by the CONTRACTOR to serve as its Project Manager for this Agreement, or any replacement thereof, is subject to prior written approval and acceptance of the COUNTY. If the COUNTY or CONTRACTOR replace their current Project Manager with another individual, an amendment to this agreement shall not be required. The COUNTY will notify the CONTRACTOR, in writing, if the current COUNTY Project Manager is replaced by another individual. A. The COUNTY Project Manager's contact information is as follows: Daniel Bean, Interim Fleet Manager Osceola County Fleet Management Department 3860 Old Canoe Creek Road Saint Cloud, Florida 34769 Phone: 407-742-7545 Email: Daniel.bean@osceola.org B. The CONTRACTOR Project Manager's contact information is as follows: Tod Chapman, Parts Representative Orlando Freightliner, Inc. 2455 South Orange Blossom Trail Apopka, Florida 32703 Phone: 407-859-6799 Email: tchapman@orlandofreightliner.com SECTION 34. PUBLIC EMERGENCIES. It is hereby made a part of this Agreement that before, during, and after a public emergency, disaster, hurricane, tornado, flood, or other acts of God, Osceola County shall require a "First Priority" for goods and services. It is vital and imperative that the health, safety, and welfare of the citizens of Osceola County are protected from any emergency situation that threatens public health and safety as determined by the COUNTY. The CONTRACTOR agrees to rent/sell/lease all goods and services to the COUNTY or governmental entities on a "first priority" basis. The COUNTY expects to pay contractual prices for all products and/or services under this Agreement in the event of a disaster, emergency, hurricane, tornado, flood, or other acts of God. Should the CONTRACTOR provide the COUNTY with products and/or services not under this Agreement, the COUNTY expects to pay a fair and reasonable price for all products and/or services rendered or contracted in the event of a disaster, emergency, hurricane, tornado, flood, or other acts of God. SIGNATURE PAGE TO FOLLOW rev 8.2020 DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement effective the later of the dates that each party signed this Agreement. BOARD OF COUNTY COMMISSIONERS OF OS LA COUNTY, FLORIDA By: County Manager/Designee Date: 6/26/2023 ORLANDO FREIGHTLINER, INC. By: Print: ac�r Title: Date: STATE OF FLORIDA COUNTY OF ks The foregoing instrument was executed before me thist day of 2023, by ''0'd,f ,r" .,3 as C of Orlando Freightliner, Inc., who personally swore or affirmed that he/she is authorized to execute this Agreement and thereby bind the Corporation, and who is personally known to me OR has produced f e e- 4 v as identification. NOTARY PUBLIC, State of Florida (stamp) ' "LN" RUM CMMMO 4Ad :Expires Mlay 19, 2026 rev 8.2020 DocuSign Envelope ID: 551AO26C-0B93-4550-AO5E-27613284CA9E Exhibit "A" Scope of Services Scope of Services: CONTRACTOR will provide OEM (Original Equipment Manufacturer) Service and Parts for COUNTY owned machines, heavy duty trucks, and other industrial equipment utilizing Detroit Diesel Engines and Mercedes Engines, to include, but not limited to, Gradall Excavating Equipment, Fire Apparatus, Construction Equipment, and Generators. 2. Supplier Certifications: CONTRACTOR shall be trained and certified to provide OEM Parts and Service for Detroit Diesel Engine and Mercedes Engines. Location: CONTRACTOR must have a Parts and Service Center/Location within 100 miles of Osceola Fleet Services located at: 3860 Old Canoe Creek Road, Saint Cloud, Florida 34769. 4. Delivery: It is understood that items ordered by the COUNTY shall be made within (4) four hours of order placement unless otherwise specified or agreed upon by authorized personnel. Next day shipping shall be made available for items out of stock or stocked outside of the local area. Items ordered shall be delivered between the hours of 6:00 AM and 2:30 PM, Monday through Friday to: Osceola County Fleet Services 3860 Old Canoe Creek Road Saint Cloud, Florida 34769 The COUNTY reserves the right to change or add locations for delivery throughout the term of the awarded contract. All deliveries shall be "Inside Delivery" at specified locations. Delivery must be inspected by the County to confirm the quantity and content of the delivery is consistent with the quantity and content of the order. 5. Quality: All Parts and Materials shall be of first use, and free of any defects such as cracks, splits, wear, corrosion, or other deficiencies not noted herein. The CONTRACTOR shall represent and warrant that the parts, materials, supplies, or other are New OEM, and not used or reconditioned, unless agreed upon by authorized personnel. The County Contract Manager may approve the Contractor to utilize or provide equivalent non - OEM parts to facilitate repairs when deemed appropriate and necessary. 6. Warranty: All Parts and Materials shall be guaranteed for a minimum of 90 days from the date of purchase, and the CONTRACTOR shall supply and honor all manufacturers' warranties. All repairs performed by the CONTRACTOR will come with a minimum warranty of 90 days for both parts and labor. 7. Service: The COUNTY will send vehicles and equipment out for repairs and service. The CONTRACTOR will provide service based on the hourly labor rate in Exhibit "B" attached hereto rev 8.2020 DocuSign Envelope ID: 551A026C-OB93-4550-A05E-27613284CA9E for service for both a standard and overtime or after-hours rate. Any overtime rates shall only be used with prior approval from the County Contract Manager. 8. Contractor Responsibilities: The CONTRACTOR shall employ Factory Trained and Certified Technicians to complete COUNTY work and repairs. The CONTRACTOR shall be an authorized warranty repair center for the OEM for which they are submitting a bid. All repair work requested by the COUNTY shall be considered critical and be given the utmost attention and priority. 9. Packaging and Returns: Parts and materials returned by the COUNTY to the CONTRACTOR shall not incur shipping, handling, open package, and/or restocking charges of fees. Any items ordered and received in error by the COUNTY shall be returned at the County's expense. There shall be no minimum required order quantities or dollar amounts. The COUNTY reserves the right to return parts for full credit that have become obsolete withing the COUNTY fleet. 10. Pricing: CONTRACOTR shall only provide pricing for which they are manufacturer trained and certified to provide OEM parts and service. The CONTRACTOR shall provide confirmation of OEM certification upon request. The labor rate shall include all miscellaneous fees to include but not be limited to, shop supplies, environmental fees, and disposal fees. The CONTRACTOR shall not charge any additional fees in addition to or over and above the stated labor rate. 11. Catalogue/Electronic Price Listing: The CONTRACTOR shall obtain new catalogs published and provide the COUNTY with the corresponding pricing sheet. Name and effective dates of catalog shall be stated on the bid schedule and a copy of each catalog or electronic link for on-line catalog shall be submitted with the bid response to be considered for award. The successful Bidder shall be responsible for submitting each successive catalog to Procurement Services and the Corrections Department throughout the term of the contract at least twenty (20) days prior to the effective date. Discounts will be taken off the most current catalog submitted. Catalogs and its corresponding pricing sheet can only be updated once annually; however, the discounts submitted on price sheet must remain firm throughout the Agreement term. 12. Price Increases: All Bid prices on the Bidding Pages shall not be increased through the first anniversary of the contract. Requests for changes in bid prices may be considered annually at time of contract renewal and shall be submitted in writing not less than sixty (60) days prior to the proposed date of change, and then only in the same proportion that changes have occurred on the manufacturer's latest published price lists, discount schedules, federal price index, or other means of positive verification. The County shall have the right to accept or reject any proposed change(s) in any of the originally offered prices or discount. rev 8.2020 DocuSign Envelope ID: 551AO26C-OB93-4550-AO5E-27613284CA9E Exhibit "B" Pricing Schedule 1Lot l — Detroit Diesel Engine/Mercedes Truck Engine OEM Parts and Service Parts Discount Item Description Discount % off List Price 1. Detroit Diesel OEM Parts 10% 2. Mercedes Truck Engine OEM Parts 10% 3. Aftermarket Brands (OEM Quality) 10% Labor Rates 1. Service Labor Rate (Per Labor Hour) $192.00 2. Mobile Labor Rate (Per Labor Hour) (if available) N/A 3. Overtime or After -Hours Labor Rate (Per Labor Hour) N/A rev 8.2020