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2191 Sanford Mayfair Management Inc. Agreement (SMM)AGREEMENT BETWEEN THE CITY OF SANFORD AND SANFORD MAYFAIR MANAGEMENT INC. THIS AGREEMENT (hereinafter the "Agreement") is made and entered into this day of ed-e-45ru&ryl, 2020, by and between the City of Sanford, Florida, a Florida - -municipality, (hereina er referred to as the "CITY"), whose mailing address is 300 North Park Avenue, Sanford, Florida 32771, and Sanford Mayfair Management Inc., a Florida non-profit corporation, whose principal address is Post Office Box XXXX, Sanford, Florida 32771, (hereinafter referred to as the "SMM"). The City and SMM may be collectively referenced herein as the "parties". WHEREAS, the CITY owns certain real property commonly known as the Mayfair Golf Club, currently an 18 -hale golf course, clubhouse, a driving range, chipping and putting greens, lockers and showers, a practice bunker and other amenities which may include a restaurant, all of which are located at 3536 Country Club Rd, Sanford, Florida 32773 (the "Club"); and WHEREAS, the Club shall be a public facility unless otherwise provided and agreed by the CITY; and WHEREAS, the CITY desires to retain SMM for the work identified in the Scope of Services as set forth in this Agreement; and WHEREAS, the CITY desires to retain SMM to provide comprehensive Club management and maintenance operations relative to the Club; and WHEREAS, the CITY desires to retain SMM for certain performance necessary to support the activities, programs and projects of the CITY relative to the Club upon the terms and conditions hereinafter set forth, and SMM is desirous of performing and providing such goods/services upon said terms and conditions; and WHEREAS, the CITY desires to retain SMM to provide all labor, materials, equipment, facilities and services in accordance with, but not limited to, the guidelines in the Scope of Work; and WHEREAS, this Agreement is not subject to the provisions of the Consultants Competitive Negotiations Act, and WHEREAS, the CITY desires to use the expertise and knowledge of the employees engaged by SMM; and WHEREAS, SMM recognizes the importance to the public of strict adherence to all laws, rules and regulations with particular regard to safety procedure and processes; and NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is agreed by and between the parties hereto as follows: WITNESSETH: SECTION 1. RECITALS. The above statements are true and form a material part of this Agreement upon which the parties have relied. SECTION 2. AUTHORITY. (a). Each party hereto represents to the other that it has undertaken all necessary actions to execute this Agreement, and that it has the legal authority to enter into this Agreement and to undertake all obligations imposed on it. The persons executing this Agreement for each party certify that they are authorized to bind the party fully to the terms of this Agreement. (b). Notwithstanding anything in this Agreement to the contrary, the CITY and SMM may enter into Memorandums of Understanding (MOUs) when deemed necessary to address operational, management, financial or other issues pertaining to the Club. The CITY's designated representative, as hereinafter set forth shall have the authority to act on behalf of the CITY as to such MOUs. (c). Notwithstanding anything in this Agreement that could be construed in any way to the contrary, SMM shall not have authority, apparent or otherwise, to obligate the CITY beyond the limits set forth herein and shall advise all vendors of its limited authority in that regard. SECTION 3. GENERAL PROVISIONS. (a). The term the "SMM" as used in this Agreement is hereby defined herein as that person or entity, including employees, servants, partners, principals, agents and assignees providing services under this Agreement. (b). This Agreement is for Club management and maintenance operations relating to the Club as set forth herein and as otherwise directed by the CITY to include all labor and materials that may be required. (c). Time is of the essence of the lawful performance of the duties and obligations contained in this Agreement. The parties covenant and agree that they shall diligently and expeditiously pursue their respective obligations set forth in this Agreement. (d). When the term "law" is used herein, said phrase shall include statutes, codes, rule and regulations of whatsoever type or nature enacted or adopted by a governmental entity of competent jurisdiction. 21Pa4_e_. (e). It is agreed that nothing herein contained is intended or should be construed in any manner as creating or establishing a relationship of co-partners between the parties, or as constituting SMM (including, but not limited to, its officers, employees, and agents) the agent, representative, or employee of the CITY for any purpose, or in any manner, whatsoever. SMM is to be and shall remain forever an independent entity with respect to all services performed under this Agreement. (f), Persons employed by SMM in the provision and performance of the goods and services and functions pursuant to this Agreement shall have no claim to pension, workers' compensation, unemployment compensation, civil service or other employee rights or privileges granted to the CITY's officers and employees either by operation of law or by the CITY. (g). No claim for goods or services furnished by SMM not specifically provided for herein shall be honored by the CITY. SECTION 4. SCOPE OF SERVICES. (a). SMM shall provide the goods and services as generally set forth and described in this Section. (b). SMM shall safely, diligently and in a professional and timely manner perform, with its own equipment and assets, the goods and services as required by this Agreement. (c). Unless modified in writing by the parties hereto, the duties of SMM shall not be construed to exceed the provision of the goods and services pertaining to this Agreement. (d). Management And Maintenance Scopes of Services. This Scope of Services represents services, personnel, equipment and resources necessary to accomplish professional management of Club and all required maintenance services at the Club which shall be accomplished by SMM and shall include any and all labor, equipment, supplies and manpower necessary to provide management maintenance services to include, but not be limited to, the following: (1). Administrative Services. (A). Overall management of club operations and employees. (B). Ordering of inventory for the golf shop and restaurant. (C)/ Cost of goods analysis for the golf shop and restaurant (D). All employee payroll functions. (E). Administration of employee benefits. (F). Accounts payable functions. (G). Accounts receivable functions. 3 1 P a ge (H). Analysis of adherence to budgetary goals. (I). Produce monthly statements of operating results. (j). Prepare annual budget for CITY approval. (K). Recruit hire and train employees for the operation of the Club. (2). Golf Shop Services. (A). Welcoming players to the Club. (B). Customer transactions through point of sale system. (C). Tee time booking/ tee time and rate management. (D). Stocking and managing golf shop merchandise. (E). Golf club repair services. (F). Golf event services such as organization and scoring. (G). Providing golf tournaments for members and patrons. (H). Providing handicap services for members and patrons. (I). Golf instruction for men women and children. (j). Implementation of grow the game programs to expand player base. (K). Implement and enforce policies and procedures. (L). Hire and train new staff as needed. (3). Outside Services. (A). Welcoming guests and assigning golf carts. (B). Starter/guest services to ensure pace of play standards. (C). Range setup and clearing. (D). Golf cart fleet management. (E). Golf cart fleet maintenance. (F). Securing equipment before closing on a daily basis. (4). Restaurant And Kitchen Services. (A). Hire and train staff regarding food & beverage service and safety. (B). Maintenance of restaurant and kitchen equipment. (C). Procurement and safe storage of food and beverage items for resale. (D). Preparation of food and beverage in compliance with food safety requirements and alcohol service laws. (E). Hosting events. (F). Employ strategies to increase food and beverage sales and profits. (G). Provide beverage cart service on the Club as appropriate. 41 P a (Te (H). Cleaning and care of restaurant and kitchen surfaces. (5). Marketing Services. Promote the Club using social media, provide membership and player packages. Update Club Website. Implement email database and newsletter marketing. SMM shall create, direct, and implement an annual marketing plan for the Club as part of the Annual Budget. The marketing plan for the Club will include a market analysis, a summary of golf programs to include rates, membership structure, and strategies for increasing play, engagement and yield with the purpose of achieving the budgeted financial goals and other marketing - related goals. Marketing systems shall include, but not be limited to, internet (web site, e-mail, e-commerce); electronic tee sheet program (reservation system, customer database, POS); credit card processing; and branding materials (graphic design, collateral, photography); customer acquisition programs, including advertising (print, electronic, display); direct marketing (direct mail, broadcast e-mail); promotional offers; and community and vendor partnerships and sponsorships; customer retention programs, including special events and programs; promotional offers; membership events and programs; sales programs; and quality assurance programs, including activities such as customer surveying; on-site visits and telephone sales calls; Web site development, management and web hosting and content management system; and creative design services. (6). Establish Rates. Establish correct market rates for before, during and after renovations. (7). Implement Player Development Programs. Engage in a wide array of activities and implement programs that will develop players at the Club in the game of golf and ensure loyalty to playing at the Club. (8). Club Maintenance Program. Engage in a comprehensive program of actions to include, but not be limited to the following, in order to ensure top quality playing conditions at the Club. S1I'atie (A) Greens maintenance. (B) Mowing. (C) Aerification. (D) Verticutting. (E) Top dressing. (F) Fertilization. (G) Overseeding. (H) Bunkers maintenance. (1) Weed control. (J) Insect control. (K) Tees, fairways and approaches maintenance. (L) Litter control and maintenance of trash receptacles (M) Sweeping. (N) Sand bunker maintenance. (0) Edging. (P) Tree and shrub maintenance. (Q) Irrigation systems maintenance. (R) Maintenance of equipment (S) Course set-up including, but not limited to, cups and tees. (T) Building maintenance (U) Mulching. (V) General miscellaneous maintenance. (e). All revenues and income of any nature derived directly or indirectly from the Club or from the use or operation thereof, including, but not limited to, green fees, gross sales proceeds from the sale of green fees, memberships or annual passes to the Club, monthly dues from annual pass holders of the Club, rental fees for golf carts, golf clubs and other rental items, range balls, food and beverage revenues (including mandatory service charges, revenue generated from space rentals and from meetings, banquets, parties, receptions, tournaments and other group gatherings) merchandise sales, and the proceeds paid for any business interruption, use, occupancy or similar insurance policy claim shall be accounted for by SMM. Likewise all operating expenses shall be accounted for which shall, include, but not be limited to, the following, salaries, wages, employee benefits, and payroll expenses, marketing, advertising, and promotional expenses; purchase and replacement, as necessary, of inventories of maintenance parts and supplies, food stores, restaurant and bar supplies; purchase and replacement, as necessary of office supplies, computers, printers, facsimile machines, photocopiers, postage, printing, routine office expenses and services incurred in the operation of the Club; insurance premiums and taxes; auditing, accounting costs, computer fees; utilities, including, but not limited to, all electric, gas, and water costs, and any other private utility charges incurred in connection with the operation of the Club; and any and all other goods and services necessary to manage, administer and maintain the Club. SMM shall prepare and deliver to the CITY, on an accrual basis and in accordance with generally accepted accounting principles (GAAP), regular monthly and annual financial statements which shall include an operating level balance sheet (bank account balances, inventory, accounts payable, accounts receivable if applicable, accrued payables, gift certificate 61Pai.�e balances), a profit and loss statement for the current month and year to date activity, statement of cash flows, payroll ledgers, accounts payable listing, general ledger activity and comments regarding monthly activity and variances to the Annual Budget. SMM shall provide all accounting data and reports in electronic form. SMM shall not be responsible for the accounting or tax reporting requirements of the CITY, including but not limited to, the depreciation, amortization or addition of assets and equipment, the CITY's equity, debt service principle, loan amortization, accounting treatment relating to any full or partially refundable membership initiation fees or deposits, or payment of any invoices which relate to a period prior to the effective date of this Agreement. The CITY shall provide SMM opening entry data for the balance sheet within 45 days of the Effective Date. Final monthly operating statements shall be furnished to CITY by the 20th day following the last day of each month, and annual operating statements shall be furnished by the 45th day following the last day of each fiscal year. At the CITY's discretion, the annual operating statement shall be audited and prepared by a certified public accountant chosen by the CITY, the cost of which shall be an operating expense of the Club. This audit shall be performed at the Club site, and SMM shall make every reasonable effort to comply with the auditor's requests. (f). Without limiting the foregoing, SMM shall manage all activities of the Club that are included in the Annual Budget and approved by the CITY. Subject to the terms of this Agreement, and the approved Annual Budget, SMM shall have the broad and general authority and responsibility to accomplish the following: (1) Manage the Club and use commercially reasonable efforts to comply with the approved Annual Budget. (2). Implement the policies and standards of the Club, as approved by CITY. (3). Establish high quality maintenance standards approved by CITY and funded in the Annual Budget. (4). Manage and supervise all day-to-day operations of the Club including, but not limited to, tee time reservations, collecting green and cart fees, clubhouse operations, outside services, course maintenance, managing tournaments and events, payroll and benefits administration, accounting and financial reporting, etc. (5). Hire, train, and supervise all employees required to carry out SMM' responsibilities. (6). Manage payment of all Club operating expenses as identified in the Annual Budget; (7). Determine hours of operations, dress code requirements, establish outside services and instruction programs. _ __ 71Pag_e (8). Acquire all goods and services necessary to carry out SMM' responsibilities; (9). Market the Club to achieve objectives as required by the CITY. (10). Obtain licenses and other operating permits. (11). Negotiate contracts for maintenance equipment and carts to be approved and executed by CITY. (12). Comply with all insurance and legal requirements of the Club as mandated by the CITY. (13). Make repairs and other improvements to keep the Club in good order. (14). Manage and operate the pro shop and all food and beverage operations in connection with the operation of the Club. (15). All personnel employed at the Club shall at all times be employees of SMM. SMM shall, as an expense of the Club, hire, promote, supervise, direct and train all SMM' employees at the Club, fix their compensation and fringe benefits, and, generally, establish and maintain all policies relating to employment and employment benefits. (16). SMM agree that it will not discriminate against any employee or applicant for employment for work under the Agreement because of race, color, religion, sex, age, national origin, or disability and shall take affirmative steps to ensure that applicants are employed, and employees are treated during employment without regard to race, color, religion, sex, age, national origin, or disability. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment advertisement, layoff or termination; rates of pay or their forms or compensation; and selection for training, including apprenticeship. SMM shall also ensure that no person shall on the basis of race, color, national origin , sex, age, disability, family or religious status, as provided by Title VI of the Civil Rights Act of 9964, the Civil Rights Restoration Act of 9987, the Florida Civil Rights Act of 1992 and other nondiscrimination authorities, be excluded from participation in, and denied the benefits of, or be otherwise subjected to discrimination or retaliation under any program or activity in accordance with the CITY's Title VI Nondiscrimination Policy, Plan and Procedures. (17). SMM shall obtain merchandise for the pro shop at the Club and food and beverage items, all in accordance with the Annual Budget. (18). SMM shall supervise and manage the Club operations to include, but not be limited to, golf prop shop, maintenance, food and beverage, membership sales efforts, practice facilities, administration, employees and other ancillary services at the Club. (19). SMM shall, in preparation of Annual Budget, develop a list of required equipment and a purchase/lease schedule and maintain in good working condition and order the equipment at the Club including, but not limited to, the Club and all physical structures which are part of the Club, and all vehicles and other maintenance equipment necessary to the maintenance and operation of the Club in the normal course of business. (20). SMM shall arrange for the procurement, on behalf of the CITY and as an operating expense of the Club, all operating supplies, operating equipment, inventories and services as are deemed necessary to the normal and ordinary course of operation of the Club and to operate the Club in accordance with the Annual Budget. In purchasing operating supplies, operating equipment and inventories the cost thereof shall be competitive. (21). SMM shall establish, administer, and maintain the payroll procedure and systems for SMM employees at the Club and shall be responsible for overseeing the benefits to, and handling the appropriate payroll deductions for, individual employees. All employees of the Club shall be employees of SMM, and SMM shall comply with Federal and State employment laws. (22). SMM shall establish new vendor accounts with appropriate credit limits. (23). SMM shall, periodically, consult with the CITY regarding the Club and its operations at a time, date and place designated by the CITY. (26). Subject to any relevant Florida Alcoholic Beverage Control ("ABC") licensing requirements, the CITY, or SMM shall maintain at all times (except for required application periods, if any) a valid liquor license on the premises, and SMM shall comply with all relevant ABC laws regarding the use of such license. (27). SMM shall apply for and use its commercially reasonable efforts to obtain and maintain, all licenses, permits, and accreditations required in connection with the management and operation of the Club. The. CITY will reasonably cooperate with SMM in applying for, obtaining, and maintaining such licenses (including liquor licenses), permits, and accreditations. (28). SMM may not institute any legal action without the prior written consent of the CITY. SECTION 5. SMM UNDERSTANDING OF GOODS/SERVICES REQUIRED. 9(Page Execution of this Agreement by SMM is a representation that SMM is familiar with the goods and services to be provided or performed and with local conditions. SMM has informed the CITY, and hereby represents to the CITY, that its employees will have extensive experience in performing and providing the services and goods described in this Agreement, and that it is well acquainted with the work conditions and the components that are properly and customarily included within such projects and the requirements of laws, ordinance, rules, regulations or orders of any public authority or licensing entity having jurisdiction over the CITY's projects. Execution of this Agreement shall be an affirmative and irrefutable representation by SMM to the CITY that SMM is fully familiar with any and all requisite work conditions of the provisions of the goods and services. SECTION 6. SMM RESPONSIBILITIES. (a). SMM shall be responsible for the professional quality, accepted standards, technical accuracy, neatness of appearance of employees, employee conduct, safety, and the coordination of all goods and services furnished by SMM under this Agreement as well as the conduct of its staff, personnel, employees and agents. For purposes of the Patient Protection and Affordable Care Act of 2090, including, but not limited to, Code Section 4980H (the "Employer Mandate"), SMM hereby agrees that it is the common law employer of any personnel provided by SMM to the CITY. SMM agrees to provide "affordable," "minimum value" health coverage to any and all Personnel determined to be "full-time employees" (as those terms are defined under the Employer Mandate). In no event shall the CITY be considered the common law employer or a joint employer of personnel for purposes of the Employer Mandate. SMM shall provide to the CITY a list of employees working days, times and assignments and the CITY may request and SMM shall provide employee addresses and drivers' licenses. All SMM employees shall at all times when performing work wear a uniform shirt which, at a minimum, provides the name or any "dba" or similar name of SMM. SMM shall work closely with the CITY on all aspects of the provision of the goods and services and planning and operation of the Club in every respect and element. With respect to services, SMM shall be responsible for the professional quality, technical accuracy, competence, methodology, accuracy and the coordination of all documents, analysis, reports and data. (b). SMM shall pay all vendors of the Club subject to the availability of funds in accordance with the terms of the Agreement. SMM shall provide separate budgeting, bookkeeping and reporting services to the CITY for the Club. Copies of all books and records shall be kept at the Club. All books, records, software, data, programs, manuals and the like shall remain the property of the CITY and SMM shall be entitled, but not obligated, to keep a copy of said books, records, software, data, programs, manuals and the like for its own records as it desires. (c). Neither the CITY's review, approval or acceptance of, nor payment for, any of the goods and services required shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement and SMM shall be and remain liable to the CITY in accordance with applicable _ _ _ 10_1Pave law for all damages to the CITY caused by SMM' negligent or improper performance or failure to perform any of the goods and services furnished under this Agreement. (d). The rights and remedies of the CITY, provided for under this Agreement, are in addition to any other rights and remedies provided by law. (e). Time is of the essence in the performance of all goods and services provided by SMM under the terms of this Agreement. SECTION 7. CITY RIGHTS AND RESPONSIBILITIES. (a). The CITY shall reasonably cooperate with SMM in a timely fashion at no cost to SMM as set forth in this Section. (b). The CITY shall furnish a CITY representative, as appointed by the designated representative to administer, review and coordinate the provision of services. (c). The CITY shall make CITY personnel and equipment available where, in the CITY's reasonable opinion, they are required and necessary to assist SMM. The availability and necessity of said personnel to assist SMM shall be determined solely at the discretion of the CITY. (d). Notwithstanding any other provision of this Agreement, the CITY shall not be obligated for SMM' performance hereunder or by any provision of this Agreement during any of the CITY's future fiscal years unless and until the CITY's City Commission appropriates funds for this Agreement in the CITY's budget for each such future fiscal year and approves an Annual Budget for the Club. In the event that funds are not appropriated for this Agreement, then this Agreement shall terminate as of September 30 of the last fiscal year for which funds were appropriated. The CITY shall notify SMM in writing of any such non -allocation of funds at the earliest possible date. Notwithstanding anything herein to the contrary, the CITY shall be obligated to pay SMM for any services that it provides or any other request of the CITY irrespective as to whether the CITY's City Commission has appropriated funds for this Agreement in the CITY's budget for such fiscal year. (e). The CITY shall transmit instructions, relevant information, and provide interpretation and definition of CITY policies and decisions with respect to any and all materials and other matters pertinent to the services covered by this Agreement. (f). The CITY shall give written notice to SMM whenever the CITY's designated representative knows of a development that affects the goods and services provided and performed under this Agreement, timing of SMM' provision of goods and services, or a defect or change necessary in the goods and services of SMM. (g). The rights and remedies of the CITY provided for under this Agreement are in addition to any other rights and remedies provided by law. _ _ 11 (I'a�e (h). The prevailing party to any legal action relating to this Agreement shall be entitled to recover any and all of its legal costs including, but not limited to, attorney fees and other legal costs that it may incur in any such legal actions. (1). The failure of the CITY to insist in any instance upon the strict performance of any provision of this Agreement, or to exercise any right or privilege granted to the CITY hereunder shall not constitute or be construed as a waiver of any such provision or right and the same shall continue in force. (j). Neither the CITY's review, approval or acceptance of, nor payment for, any of the goods and services required shall be construed to operate as a waiver of any rights under this Agreement nor or any cause of action arising out of the performance of this Agreement and SMM shall be and always remain liable to the CITY in accordance with applicable law for any and all damages to the CITY or the public caused by SMM' negligent or reckless provision or performance of any of the goods and services furnished under this Agreement. (k). All deliverable analysis, reference data, survey data, plans, trademark, copyright, invention, intellectual property and reports or any other form of written instrument or document that may result from SMM' services to the CITY or have been created during the course of SMM' performance under this Agreement shall become the property of the CITY. SECTION 8. COMPENSATION. (a). SMM shall be compensated in accordance with the funding of the Annual Budget as approved and funded by the CITY. The CITY shall deposit funds into the account(s) of SMM in order to provide for the requisite funding necessary to accomplish the approved programs and activities of the Club. SMM shall pay all operating expenses for the Club on behalf of CITY from the funds provided to SMM in order to implement the Annual Budget. (b). With regard to the Annual Budget, SMM shall prepare and deliver to CITY no later than May 1 st of each Fiscal Year a proposed Annual Budget for the following fiscal year including but not limited to: (1). An Annual Operating Budget, including revenues and operating expenses and labor burden (to include rates of pay and any incentive or commission structures) for each department of the Club; a merchandise buying plan for the pro shop; a comparison to the annual operating budget for the immediately preceding year and a projection of anticipated monthly revenues and expenses and cash flows for the Club for the following fiscal year, including, without limitation, a reasonable contingency and anticipated working capital requirements for the Club for the year. 12 1 P a e (2). A recommended capital expenditures budget for the next fiscal year. (3). A Policies and Procedures Outline for the Club, including, without limitation, operating policies, proposed hours of operation, standards for operations and quality of service standard. (4). An Agronomic Plan including staffing assumptions, chemical and fertilization applications including planned agronomic practices. (5). A Marketing Plan. (c). SMM and the CITY shall use their mutual best efforts to agree upon the Annual Budget for the following year on or before fiscal year end; provided, however, that the CITY shall have the final approval and final decision-making authority over the Annual Budget. (d). The CITY shall provide SMM with written confirmation of its approval of the Annual Budget within ninety (90) days of SMM' submission of the proposed Annual Budget to the CITY. If the CITY does not provide the written confirmation or rejection within the aforementioned sixty (60) day period, the Annual Budget shall be deemed approved. (e). The CITY acknowledges that the financial and operational performance of the Club could be affected by circumstances or events beyond SMM' control. SMM shall not be deemed to have made any guarantee, warranty, or representation with the Annual Budget. In the event that a condition should exist in, on, or about the Club of an emergency nature which, in SMM' discretion, after discussions with the CITY's designated representative, requires immediate action to preserve and protect the Club, to better assure the Club's continued operation, or to protect the Club's customers, guests, or employees, then SMM may take such steps and to make all reasonable expenditures necessary to repair and correct any such condition, whether or not provisions have been made in the applicable Annual Budget for any such expenditures. Any single unbudgeted expenditure that exceeds $10,000 will require prior approval from the CITY's designated representative. (f). Each party may, from time to time, propose to the other party, in writing, during the course of the year, such changes or amendments to the Annual Budget as such party may consider necessary or appropriate, and SMM and the CITY shall use their mutual best efforts to act upon such proposal within thirty (30) days after such proposal is made. Any such change or amendment is subject to the CITY's prior written approval. SMM shall secure the prior approval of the CITY for total expenditures which exceed the total expenditure amount approved in the Annual Budget. However, as reasonably may be necessary, SMM may allocate funds from an individual expense line item to another expense line item within the Annual Budget. 13 1 P a e SECTION 9. INVOICE PROCESS. (a). Invoices, which are in an acceptable form to the CITY, and without disputable items, which are received by the CITY, will be processed for payment within thirty (30) days of receipt by the CITY. All invoices shall be submitted in a manner which implements the Annual Budget of the Club. (b). SMM will be notified of any disputable items contained in invoices submitted by SMM within fifteen (30) days of receipt by the CITY with an explanation of the deficiencies. (c). The CITY and SMM will make every effort to resolve all disputable items contained in SMM' invoices. (d). Each invoice shall reference this Agreement and billing period. (e). The Florida Local Government Prompt Payment Act shall apply when applicable. A billing period represents the dates in which SMM completed goods and services referenced in an invoice. (f). Invoices shall be transmitted directly to the following member of CITY staff: Finance Director City of Sanford City Hall 300 North Park Avenue Sanford, Florida 32771 SECTION 10. COMMENCEMENTIIMPLEMENTATION SCHEDULE OF AGREEMENT. (a). SMM shall commence the provision of goods and services as described in this Agreement upon execution of this Agreement. (b). SMM and the CITY agree to make every effort to adhere to the schedules required by the CITY. However, if SMM is delayed at any time in the provision of goods and services by any act or omission of the CITY, or of any employee, tumult of the CITY, or by any other SMM employed by the CITY, or by changes ordered by the CITY, or by strikes, lock outs, fire, unusual delay in transportation, terrorism, unavoidable casualties, or any other causes of force majeure not resulting from the inactions or actions of SMM and beyond SW control, or by delay authorized by the CITY, or by any cause which the CITY shall decide to justify the delay, the time of completion shall be extended for such amount of time as is reasonably necessary to provide such goods or services. SECTION 11. DESIGNATED REPRESENTATIVESINOTICES. 14 1 P a ge Z�' (a). The CITY designates the City Manager or his/her designated representative, to represent the CITY in all matters pertaining to and arising from the work and the performance of this Agreement. (b). The City Manager, or his/her designated representative, shall have the following responsibilities: (1) Examination of all work and rendering, in writing, decisions indicating the CITY's approval or disapproval within a reasonable time so as not to materially delay the work of SMM. (2) Transmission of instructions, receipt of information, and interpretation and definition of CITY's policies and decisions with respect to design, materials, and other matters pertinent to the work covered by thisAgreement. (3) Giving prompt written notice to SMM whenever the CITY official representative knows of a defect or change necessary in the Scope of Services of this Agreement. (4) Coordinating and managing SMM' preparation of any necessary applications to governmental bodies, to arrange for submission of such applications. (c). Until further notice from the City Manager, the designated representative for this Agreement is: City Manager City of Sanford City Hall 300 North Park Avenue Sanford, Florida 32771 (d). SMM' designated representative is: irr�rt Ir".— Sanford Sanford Mayfair Management Inc., Post Office Box XXXX Sanford, Florida 32771 (e). Whenever either party desires to give notice unto the other, it must be given by written notice, sent by registered United States mail, with return receipt requested, addressed to the party for whom it is intended, at the place last specified, and the place for giving of notice shall remain such until it shall have been changed by written notice in compliance with the provisions of this Section. __ 151F'age (f). Written notice requirements of this Agreement shall be strictly construed, and such requirements are a condition precedent to pursuing any rights or remedies hereunder. SMM agrees not to claim any waiver by the CITY of such notice requirements based upon the CITY having actual knowledge, implied, verbal or constructive notice, lack of prejudice or any other grounds as a substitute for the failure of SMM to comply with the express written notice requirements herein. Computer notification (e mails and message boards) shall not constitute proper written notice under the terms of the Agreement. SECTION 12. TERMINATION OF AGREEMENT WITH CAUSE. (a). The CITY may terminate this Agreement for convenience at any time or for any one (1) or more of the reasons as follows: (1). If, in the CITY's reasonable opinion, adequate progress is not being made by SMM due to SMM 's failure to perform. (2). If, in the CITY's opinion, the quality of the goods and services provided by SMM is/are not in conformance with commonly accepted professional standards, and the requirements of Federal and State regulatory agencies, and SMM has not corrected such deficiencies in a timely manner as reasonably determined by the CITY. (3). SMM or any employee or agent of SMM is indicted or has a direct charge issued against him/her for any crime arising out of or in conjunction with any work that has been performed by SMM. (4). SMM becomes involved in either voluntary or involuntary bankruptcy proceedings or makes an assignment for the benefit of creditors. (5). SMM violates the Standards of Conduct provisions herein in a material manner or any material provision of Federal, State or local law or any material provision of the CITY's Code of Conduct. (b). In the event of any of the causes described in this Section, the CITY's designated representative may send a certified letter to SMM requesting that SMM show cause why the Agreement should not be terminated. If assurance satisfactory to the CITY of corrective measures to be made within a reasonable time is not given to the CITY within five (5) calendar days of the date of the letter, the CITY may consider SMM to be in default, and may then immediately terminate this Agreement, upon which the parties shall have no further obligations to each other except that SMM shall be entitled to any compensation due to it or otherwise accrued at the time of such termination. SECTION 13. TERMINATION BY SMM. 161 aLe (a). SMM may terminate this Agreement if the CITY fails to pay SMM in accordance with this Agreement. (b). In the event of the cause described in Subsection (a), SMM shall send a certified letter requesting that the CITY show cause why the Agreement should not be terminated. If adequate assurances are not given to SMM within fifteen (15) days of the receipt by the CITY of said show cause notice, then SMM may consider the CITY to be in default, and may immediately terminate this Agreement, upon which the parties shall have no further obligations to each other except that SMM shall be entitled to any compensation due to it or otherwise accrued at the time of such termination. (c). Notwithstanding anything herein to the contrary, SMM may terminate this Agreement at any time during the term of this Agreement with or without cause upon one hundred twenty (120) days prior written notice to CITY, upon which the parties shall have no further obligations to each other except that SMM shall be entitled to any compensation due to it or otherwise accrued at the time of such termination. SECTION 14. TERMINATION BY THE CITY WITHOUT CAUSE. (a). Notwithstanding any other provision of this Agreement, the CITY shall have the right at any time to terminate this Agreement in its entirely, if such termination is deemed by the CITY to be in the public interest. (b). The CITY shall have the right to terminate this Agreement without cause with a thirty (30) day written notice to SMM. The CITY reserves the right to terminate any Agreement for cause with a five (5) day written notice to SMM. Notice shall be served to the parties as specified in the Agreement. (c). In the event that this Agreement is terminated, this Agreement will remain in full force and effect as to all authorized services that is/are to be continued to completion. SECTION 15. PAYMENT IN THE EVENT OF TERMINATION. In the event this Agreement is terminated or canceled prior to final completion for any reason, CITY shall pay SMM for all services performed in accordance with the Annual Budget up to the date of termination and the cessation of services. SECTION 16. ACTION FOLLOWING TERMINATION. (a). Upon receipt of notice of termination given by either party, the terminated party shall promptly discontinue the provision of all goods and services on the date of termination, unless the notice provides otherwise. (b). The parties agree that, should this Agreement be terminated by either party, the CITY will assume the rights and obligations relating to any leases or purchase agreements entered into by SMM associated with SMM' operations of the Club at the 17 1 P a ge inception of this Agreement and any leases or purchase agreements entered into by SMM during the term of this Agreement as approved by the CITY in the course of the budgetary process and approval of the Annual Budget which is a part of the implementation of the Agreement. SECTION 17. EQUAL OPPORTUNITY EMPLOYMENTMON-DISCRIMINATION. All services, programs and activities of the CITY are offered and solicited without regard to race, color, national origin, age, sex, religion, disability or family status in accordance with the CITY's Title VI Nondiscrimination Policy, Plan and Procedures. SMM agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age, national origin, disability or other protected status or condition, and that SMM will take affirmative steps to ensure that applicants are employed, and employees are treated during employment without regard to race, color, religion, sex, age, national origin or disability. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment advertising; layoff or termination; rates of pay or their forms or compensation; and selection for training, including apprenticeship. M- M&11[eli!5&MIkil9I:4 JJhi111 '1 (a). SMM shall defend, indemnify and hold harmless the CITY and all of its officials, officers, agents and employees from and against all claims, liability, loss and expense, including reasonable costs, collection expenses, attorneys' fees, and court costs which may arise because of and only to the extent of the negligence or willful misconduct of SMM, its officers, agents or employees in performance or non-performance of its obligations under the Agreement. To the fullest extent permitted by law, SMM will further hold harmless, defend and indemnify the CITY and its officers, directors, agents, employees, subcontractors and customers from and against any claims in any way arising from or related to a failure of SMM to offer health coverage to personnel which results in the assessment of a penalty against the CITY. Notwithstanding anything herein to the contrary, in the event that SMM and its officers, agents or employees cause a loss hereunder jointly, concurrently or contributorily with one or more other parties, SMM shall only be responsible to indemnify the CITY for a loss hereunder based on the proportionate share of such loss that SMM and SMM' officers, agents or employees caused as compared to the share of such loss caused by any other parties. (b). The CITY shall defend, indemnify and hold harmless SMM and all of its members, officers, agents and employees from and against all claims, liability, loss and expense, including reasonable costs, collection expenses, attorneys' fees, and court costs which may arise because of and only to the extent of the negligence or willful misconduct of the CITY, its officials, officers, agents or employees in performance or nonperformance of its obligations under the Agreement. Notwithstanding anything herein to the contrary, in the event that the CITY and its officials, officers, agents or employees cause a loss hereunder jointly, concurrently or contributorily with one or more other parties, the CITY shall only be responsible to indemnify SMM for a loss hereunder based on the 181I'age . proportionate share of such loss that the CITY and the CITY's officials, officers, agents or employees caused as compared to the share of such loss caused by any other parties. (c). The parties hereto recognize the broad nature of this indemnification and hold harmless clause, as well as the provision of a legal defense to each party hereto when necessary, and voluntarily makes this covenant and expressly acknowledges the receipt of such good and valuable consideration provided by the other party hereto in support of these indemnification, legal defense and hold harmless contractual obligations in accordance with the laws of the State of Florida. This clause shall survive the termination of this Agreement. Compliance with any insurance requirements required elsewhere within this Agreement shall not relieve any party of its liability and obligation to defend, hold harmless and indemnify the other party as set forth herein. (d). Nothing herein shall be construed to extend the CITY's liability beyond that provided in Section 768.28, Florida Statutes. SECTION 19. INSURANCE. (a). SMM shall, at its sole cost and expense, procure and maintain throughout the term of this contract, comprehensive general liability, auto liability and worker's compensation insurance, including employer liability insurance, sexual abuse insurance and cyber security and liability insurance, with minimum policy limits and a waiver of subrogation as required by the CITY and shall consult with the CITY's risk management personnel on an ongoing basis as to safety practices and premises liability issues at the CITY -owned Club.. (b). Nothing herein shall be construed to extend the CITY's liability beyond that provided in Section 768.28, Florida Statutes. SECTION 20. STANDARDS OF CONDUCT. (a). SMM warrants that it has not employed or retained any company or person, and will not employ or retain, other than a bona fide employee working solely for SMM, to solicit or secure this Agreement and that SMM has not paid or agreed to pay any person, company, corporation, individual or firm other than a bona fide employee working solely for SMM, any fee, commission, percentage, gift, or any other consideration, contingent upon or resulting from the award of making this Agreement. (b). SMM shall not discriminate on the grounds of race, color, religion, sex, or national origin in the performance of work under this Agreement or violate any laws pertaining to civil rights, equal protection or discrimination. (c). SMM hereby certifies that no undisclosed (in writing) conflict of interest exists with respect to the Agreement including, but not limited to, any conflicts that may be due to representation of other clients, customers or vendors, other contractual relationships of SMM, or any interest in property that SMM may have. SMM further certifies that any _ 19I_pa`�e conflict of interest that arises during the term of this Agreement shall be immediately disclosed in writing to the CITY. Violation of this Section shall be considered as justification for immediate termination of this Agreement. (d). SMM shall ensure that all taxes due from SMM are paid in a timely and complete manner including, but not limited to, the local business tax, if any are due. (e). If the CITY determines that any employee or representative of SMM is not satisfactorily performing his/her assigned duties or is demonstrating improper conduct pursuant to any assignment or work performed under this Agreement, the CITY shall so notify SMM, in writing. (f). SMM shall not publish any documents or release information regarding this Agreement to the media without prior approval of the CITY. (g). SMM shall certify, upon request by the CITY, that SMM maintains a drug free workplace policy in accordance with Section 287.0878, Florida Statutes. Failure to submit this certification may result in termination of this Agreement. (h). If SMM is placed on the convicted vendor list following a conviction for a public entity crime, such action may result in termination of this Agreement by the CITY. SMM shall provide a certification of compliance regarding the public crime requirements set forth in State law upon request by the CITY. (i). The CITY reserves the right to unilaterally terminate this Agreement if SMM refuses to allow public access to all documents, papers, letters, or other materials subject to provisions of Chapter 119, Florida Statutes, and other applicable law, and made or received by SMM in conjunction, in any way, with this Agreement. 0). SMM shall comply with the requirements of the Americans with Disabilities Act (ADA), and any and all related Federal or State laws which prohibits discrimination by public and private entities on the basis of disability. (k). The CITY will not intentionally award publicly funded contracts to any SMM who knowingly employs unauthorized alien workers, constituting a violation of the employment provisions contained in 8 U.S.C. Section 1324a(e) Section 274A(e) of the Immigration and Nationally Act (INA). The CITY shall consider the employment by SMM of unauthorized aliens, a violation of Section 274A(e) of the INA. Such violation by SMM of the employment provisions contained in Section 274A(e) of the INA shall be grounds for immediate termination of this Agreement by the CITY. (1). SMM agrees to comply with Federal, State, and local environmental, health, and safety laws and regulations applicable to the goods and services provided to the CITY. (m). SMM shall ensure that all goods and services are provided to the CITY after 20 1 P a ge SMM has obtained, at its sole and exclusive expense, any and all permits, licenses, permissions, approvals or similar consents all in accordance with the Annual Budget approved by the CITY. (n). If applicable, in accordance with Section 216.347, Florida Statutes, SMM shall not use funds provided by this Agreement for the purpose of lobbying the Legislature, the judicial branch or State agency. (o). SMM shall advise the CITY in writing if it has been placed on a discriminatory vendor list, may not submit a bid on a contract to provide goods or services to a public entity, or may not transact business with any public entity. (p). SMM shall not engage in any action that would create a conflict of interest in the performance of that action of any CITY employee or other person during the course of performance of, or otherwise related to, this Agreement or which would violate or cause others to violate the provisions of Part 111, Chapter 112, Florida Statutes, relating to ethics in government. (q). SMM recognizes and agrees to comply with the CITY's rules regarding the use of tobacco products in the workplace and the "Florida Clean Indoor Air Act." (Chapter 386, Florida Statutes). SECTION 21. SMM' MANDATORY COMPLIANCE WITH CHAPTER 119, FLORIDA S TA TU TES, AND PUBLIC RECORDS REQUESTS/ACCESS TO RECORDS/AUDIT/PUBLIC RECORDS. (a). In order to comply with Section 119.0701, Florida Statutes, public records laws, SMM must: (1) Keep and maintain public records that ordinarily and necessarily would be required by the CITY in order to provide goods or perform services. (2) 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 Chapter 119, Florida Statutes, or as otherwise provided by 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. (4) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all public records in possession of SMM upon termination of the contract 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 211 P ag e CITY in a format that is compatible with the information technology systems of the CITY. (b). If SMM does not comply with a public records request, the CITY shall enforce the contract provisions in accordance with this Agreement. (c). Failure by SMM to grant such public access and comply with public records requests shall be grounds for immediate unilateral cancellation of this Agreement by the City. SMM shall promptly provide the City with a copy of any request to inspect or copy public records in possession of SMM and shall promptly provide the City with a copy of SMM' response to each such request. (d). IF SMMNENDOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO SMM'S (VENDOR'S) DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (407) 688-5012, TRACI HOUCHIN, CMC, FCRM, CITY CLERK, CITY OF SANFORD, CITY HALL, 300 NORTH PARK AVENUE, SANFORD, FLORIDA 32771, TRACI.HOUCHIN b@SANFORDFL.GOV. SECTION 22. CODES AND DESIGN STANDARDS. (a). All goods and services to be provided for performed by SMM shall, at a minimum, be in conformance with commonly accepted industry and professional codes and standards, and the laws of any and all Federal, State and local regulatory agencies. (b). SMM shall be responsible for keeping apprised of any changing laws, applicable to the goods and services to be performed under this Agreement. SECTION 23. ASSIGNABILITY. SMM shall not sublet, assign or transfer any interest in this Agreement, or claims for the money due or to become due out of this Agreement to a bank, trust company, or other financial institution without written CITY approval. When approved by the CITY, written notice of such assignment or transfer shall be furnished promptly to the CITY. SECTION 24. SUBCONTRACTORS. (a). Any SMM proposed subcontractor shall be submitted to the CITY for written approval prior to SMM entering into a subcontract. Subcontractor information shall include, but not be limited to, State registrations, business address, occupational license tax proof of payment, and insurance certifications. __ 221I'a ge (b). SMM shall coordinate the provision of goods and services and work product of any CITY approved subcontractors and remain fully responsible for such goods and services and work under the terms of this Agreement. (c). Any subcontract shall be in writing and shall incorporate this Agreement and require the subcontractor to assume performance of SMM' duties commensurate with SMM' duties to the CITY under this Agreement, it being understood that nothing herein shall in any way relieve SMM from any of its duties under this Agreement. SMM shall provide the CITY with executed copies of all subcontracts. (d). SMM shall reasonably cooperate at all times with the CITY and other CITY contractors, vendors, consultants and professionals. SECTION 25. CONTROLLING LAWSNENUE/INTERPRETATION. (a). This Agreement is to be governed by the laws of the State of Florida. (b). Venue for any legal proceeding related to this Agreement shall be in the Eighteenth Judicial Circuit Court in and for Seminole County, Florida. (c). This Agreement is the result of bona fide arm's length negotiations between the CITY and SMM and all parties have contributed substantially and materially to the preparation of the Agreement. Accordingly, this Agreement shall not be construed or interpreted more strictly against any one party than against any other party. SECTION 26. FORCE MAJEURE. Neither party shall be considered in default in performance of its obligations hereunder to the extent that performance of such obligations, or any of them, is delayed or prevented by Force Majeure. Force Majeure shall include, but not be limited to, hostility, terrorism, revolution, civil commotion, strike, epidemic, fire, flood, wind, earthquake, explosion, any law, proclamation, regulation, or ordinance or other act of government, or any act of God or any cause whether of the same or different nature, existing or future; provided that the cause whether or not enumerated in this Section is beyond the control and without the fault or negligence of the party seeking relief under this Section. SECTION 27. EXTENT OF AGREEMENT/INTEGRATION/AMENDMENT. (a). This Agreement, together with the exhibit(s), if any, constitutes the entire integrated Agreement between the CITY and SMM and supersedes all prior written or oral understandings in connection therewith. This Agreement, and all the terms and provisions contained herein, including without limitation the exhibits hereto, constitute the full and complete agreement between the parties hereto to the date hereof, and supersedes and controls over any and all prior agreements, understandings, representations, correspondence and statements whether written or oral. 231Pas`e_ (b). This Agreement may only be amended, supplemented or modified by a formal written amendment specifically referencing this Agreement. (c). Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties. SECTION 28. WAIVER. The failure of the CITY to insist in any instance upon the strict performance of any provision of this Agreement, or to exercise any right or privilege granted to the CITY hereunder, shall not constitute or be construed as a waiver of any such provision or right and the same shall continue in force. SECTION 29. NO GENERAL CITY OBLIGATION. (a). In no event shall any obligation of the CITY under this Agreement be or constitute a general obligation or indebtedness of the CITY, a pledge of the ad valorem taxing power of the CITY or a general obligation or indebtedness of the CITY within the meaning of the Constitution of the State of Florida or any other applicable laws, but shall be payable solely from legally available revenues and funds appropriated for the purpose of funding this Agreement. (b). SMM shall not have the right to compel the exercise of the ad valorem taxing power of the CITY or any power of appropriation of the CITY. SECTION 30. EXHIBITS. Each exhibit referred to and attached to this Agreement, if any there be, is an essential part of this Agreement. The exhibits and any amendments or revisions thereto, even if not physically attached hereto, shall be treated as if they are part of this Agreement. SECTION 31. CAPTIONS. The Section headings and captions of this Agreement are for convenience and reference only and in no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any way affect this Agreement or construe any provision of this Agreement. SECTION 32. SEVERABILITY/CONSTRUCTION. (a). If any term, provision or condition contained in this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such term, provision or condition to persons or circumstances other than those in respect of which it is invalid or unenforceable, shall not be affected thereby, and each term, provision and condition of this Agreement shall be valid and enforceable to the 241 P a- e t-1 fullest extent permitted by law when consistent with equity and the public interest. (b). All provisions of this Agreement shall be read and applied in para material with all other provisions hereof. SECTION 33. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same document. Signatures delivered by facsimile or PDF shall have the same force and effect as manual signatures delivered in person. SECTION 34. EFFECTIVE DATE/RENEWAL. (a). The effective date of this Agreement shall be the date of full execution of this Agreement by the latter of SMM and the CITY, and this Agreement shall not become effective and binding until executed by the parties hereto and shall be dated for purposes hereof as the date of execution by the last party. (b). This Agreement shall be automatically renewed on an annual basis, unless either party hereto provides written notice to the other party of its intention not to renew this Agreement within thirty (30) days prior to the expiration of the then -applicable term. SIGNATURE PAGE FOLLOWS: 2511) a - e �n IN WITNESS WHEREOF, the CITY and SMM have executed this instrument for the purpose herein expressed and SMM represents and affirms that the signatories below have full and lawful authority to bind SMM in every respect. ATTEST. Traci Houchin, CIVIC, FCRM 5 City Clerk 0 'All, Approved as to form and legal sufficiency. 0 Dated: bert, City A orpt OI�j FMI in CITY OF SANFO Qkb By: Jeff Triplett Mayor N.-- Date: A ail Ttv_;Mx_� SANFORD MAYFAIR MANAG INC... a Florida non-profit gorpo By: XXXXX President NT 26 1 P age