2419 RFP 21/22-17 Sanford Marina - Mgmt & Operation Svcs AgreementSANFORD MARINA (RFP 21122-17)
MANAGEMENT AND OPERATION SERVICES AGREEMENT
THIS AGREEMENT, made and entered into this .57_ day of between the City
of Sanford, Florida, a municipal corporation of the State of Florida, whose address is 300 North
Paris Avenue, Sanford, Florida 32771, hereinafter referred to as the "City" or "Owner", and
Founders 3 Management Company, a foreign corporation established in the State of Wisconsin,
but authorized to do business in the State of Florida, whose address is 252 East Highland
Avenue, Milwaukee, Wisconsin 53202, hereinafter referred to as the "Operator".
Whereas, the City is the owner of'a marina identified as the "Sanford Marina" which
is located on the Sanford waterfront of Lake Monroe and is further described in Section 2 of this
Agreement; and
WHEREAS, the City desires to engage an operator who has special and unique
competence and experience providing marina management and operation services to manage
and operate the CITY's Sanford Marina; and
WHEREAS, the City desires to engage an operator on or before May _, 2022, to begin
an expedited transition and stabilization plan to transfer current operations of the Sanford Marina
to the Operator by May 31, 2022; and
WHEREAS, the Operator represents that it is duly licensed, authorized to do business in
the State of Florida, and that it has such competence and experience in providing marina
management and operation services to manage and operate the Sanford Marina; and
WHEREAS, the City in reliance on such representation has selected the Operator in
accordance with the requirements of law; and
WHEREAS, at the Sanford City Commission Meeting of March 28, 2022, the award of
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the marina management and operation services for the Sanford Marina was duly considered
and awarded to the Operator; and
WHEREAS, the Operator has fully agreed to abide by all stipulations set forth in this
Agreement and pertinent requirements thereto.
NOW, THEREFORE, in consideration of the mutual covenants set forth below and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Operator and the City agree as follows:
SECTION 1. TERM OF AGREEMENT.
(a). The initial term of this Agreement shall commence on , 2022, or
whatever earlier date that the City designates for the Operator to commence the expedited
transition and stabilization plan to transfer current operations to the Operator (the "Effective
Date') and shall end on September 30, 2027.
(b). This Agreement may be administratively renewed and amended, in writing, by the
mutual consent of the Sanford City Manager and the Operator on a yearly basis for up to a total
of 5 additional years.
(c). Both the initial term and any subsequent renewal terms are subject to the annual
appropriation of funds by City Commission of the City of Sanford. In the event sufficient budgeted
funds are not appropriated for any fiscal year, this Agreement shall terminate on the last day of
the then current fiscal year without expense or penalty to the City and no further obligations for
payments of fees contained herein.
SECTION 2. DESCRIPTION OF SANFORD MARINA TO BE MANAGED AND
OPERATED (THE PROPERTY).
(a). The Sanford Marina is located on Lots 4, 5, 6 and 8 and includes the east 75' of
Lot 7 and which includes the Harbormaster/Store Dry Storage Building, the existing East and
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West Basins areas and the Sanford Marina accessory boat facility, the Public "free" slips, the
entire southern parking lot to the lease line of the "pizzeria" building and all other ancillary
facilities thereof (hereinafter referred to collectively as the "Sanford Marina"). The Sanford
Marina is depicted in Exhibit "A" which is attached hereto and incorporated herein by reference.
(b). Pursuant to this Agreement, the Operator shall have a license to occupy a portion
of the Harbormaster/Store Dry Storage building identified on Exhibit "A" for use as office space
by Operator's employees in relation to the services to be provided in this Agreement and for
customer service for Sanford Marina customers. This license conveys no property vested
interest in the Sanford Marina to the Operator and shall automatically end when this Agreement
terminates. Operator acknowledges that it is familiar with overall operations and management
of Marina in general and with the Sanford Marina in particular. Operator further acknowledges
that it has read and is familiar with the current Sovereignty Submerged Land Leases, governing
the operation of the Sanford Marina and Mooring Field, which are subject to this agreement, and
further agrees to comply with any future FDEP Environmental Resource Permits and Army
Corps of Engineer Permits that may be issued to the Sanford Marina.
SECTION 3. OPERATOR'S GENERAL DUTIES, RESPONSIBIILITES AND
AUTHORITY.
(a). The Operator shall manage and operate the Sanford Marina as a public marina
and recreation facility offering dockage and other Sanford Marina related services for the use of
vessel owners and the general public which operations shall ensure that the Sanford Marina is
staffed and operated, at a minimum, from 8:00 a.m. through 6:00 p.m., 365 days per year and
after hours as may be agreed to by the City or as may be established in fees, charges and rates
for after-hours services.
(b). The Operator shall perform all duties assigned in a careful, diligent, efficient,
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prudent and vigilant manner. Except where specifically provided, and subject to the funding
limitations in the City's annual operating budget, the Operator shall perform the services
described herein at the City's expense.
(c). The Operator shall operate the Sanford Marina and Mooring Field in compliance
with all terms and conditions of the State and Federal leases and permits.
(d). Without limiting the specificity of other provisions of this Agreement, required
services shall, at a minimum, include the following the costs of which shall be included in the
base management fee (as described in Section 13 below) :
(1). Executing and managing slip space and buoy leases on behalf of
the City for docking and mooring of boats. Management responsibilities
include receipt of rental and other payments due, responding to tenant
concerns, enforcing and monitoring tenant compliance with lease provisions
and applicable City ordinances, rules and regulations. The Operator shall use
its best efforts to enforce and perform all City's obligations under all
government authorizations, contracts, service agreements and other
documents in effect with respect to the Sanford Marina, shall enforce
compliance with tenants, guests or invitees with all obligations under such
documents, slip rental or mooring agreements (including the service of any
and all notices necessary and appropriate for the eviction of any tenant), and
otherwise shall enforce or cause the enforcement, in a manner approved by
the City, of contractual agreements in effect with respect to the Sanford
Marina, to the end that City's interest in the Sanford Marina shall be
preserved and no default chargeable to the City shall exist thereunder. In no
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event shall legal counsel be retained for any such purposes, nor shall any
such legal proceedings be commenced without prior consent of the City. The
City has the right to insist that Operator rely upon the City Attorney or other
legal counsel employed by the City in the prosecution or defense of any legal
matter concerning the Sanford Marina. Also, and with the City's prior written
approval, arranging for non judicial sale of vessels moored in the Sanford
Marina in accordance with Federal maritime law as supplemented by the laws
of the State of Florida. The Operator shall use only those dock slip spaces or
mooring leases that are provided or approved by the City.
(2). Management and maintenance of docks and moorings to provide
safe mooring facilities for vessels and hazard free access for vessel owners.
Creation of maintenance schedules for preventative maintenance and
inspections.
(3). Collaborate and cooperate with the City to develop strategic short -
and long-term plans for capital projects and the reconstruction of the physical
and operational condition of the Sanford Marina.
(4). Maintenance of all the recreational walkways in a manner that
ensures the public full and free access, except those walkways where boats
are docked; and operation of designated marine exhibits, and marine -
oriented attractions.
(5). Enhancement of the appearance and function of the ships store
to provide easy access to supplies and convenience items for boaters. Sale
of bait, tackle, ice, and other sundries incidental to the boating public's needs
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or executing leases of equipment or other products on behalf of the City for
the ships store.
(6). Maintaining a list of appropriately insured boat and marine
equipment maintenance and repair technicians for referral on a non-
exclusive basis, for general minor repairs and servicing of boats while docked
or moored in the water only.
(7). Conducting a detailed Sanford Marina physical audit to fully
document and understand physical assets. Noting electrical and water shut
offs, panels, switches, etc. on -site plan in the event of an emergency.
(8). Providing a safe and secure environment for the boaters and the
public 365 days a year by providing an emergency call number and contact
24 hours a day, 7 days a week. Provide, manage, invoice, and collect
paymentsldues for, cable, Wi-Fi, telephone, electrical, and other utility
services provided through the City. Responsibilities include monitoring tenant
usage and responding to service complaints, including by contacting the
utility provider. The cost of obtaining these utility services shall be
incorporated into the Sanford Marina's annual operating budget.
(9). Operation of an Information Center and telephone, mail, and
messages services.
(10). Sale of fuel.
(11). Management and maintenance of shower, restroom, and laundry
facilities for the use of persons docking at the Sanford Marina.
(12). Operation of other profit centers to be approved by the City.
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(13). Attending all meetings related to the Sanford Marina functions
sponsored by local boating and/or recreational groups or businesses, and
any similar groups upon the City's request.
(14). Publishing a monthly electronic newsletter. Provide weekly
executive summaries and monthly financial reports to the City.
(15). Maintaining the Sanford Marina's compliance with the State of
Florida's Clean Vessels/Clean Sanford Marina Program. Ensure compliance
with any grants.
(16). Provide, manage, invoice, and collect payments for vessel pump
out services.
(17). Providing the City reasonable assistance in obtaining and
maintaining all required Federal and State permits including, but not limited
to, the calendar of deadlines for permit applications and renewal, and in
complying with the conditions of such permits when issued.
(18). Provision of any other management/operator services approved
by the City during annual operating budget approval process.
(19). Support the City's Fourth of July celebration as determined by the
City to ensure that the use of the Sanford Marina and Northshore area for the
City's set up and event is critical for the City's tourism and economic
development goals and programs. For example, the dates for 2022 will be
July 1 through Tuesday July 5 with the City. However, when July 4 falls on or
near a weekend, it is critical for the Operator to have the ability to barricade
the Northshore earlier in the set-up process in order to keep vehicles and
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trailers out of the area, as they will remain on the water for extended periods
of time and tend to interfere with the actions and activities
(20). Provide boat slip(s) for the City's FirelRescue and other public
safety vessels.
(e). The Operator shall promptly forward to the City any and all notices with respect to
the Sanford Marina received from any governmental or quasi -governmental agency or authority
and notices received from any person, party or entity, which notices in Operator's reasonable
judgment, may have a material and adverse impact on the value, operations, financial liabilities
or use of the Sanford Marina which notices shall be sent to:
Norton N. Bonaparte, Jr., ICMA-CM
City Manager
City Hall
300 North Park Avenue
Sanford, Florida 32771-1788
(f). The Operator shall not knowingly use or suffer the use of the Sanford Marina for
any illegal or otherwise prohibited purpose or for any purpose that:
(1). Could void or render voidable any policy of insurance held by the
City or the Operator.
(2). Could prohibit the procurement of required insurance from
companies acceptable to the City.
(3). Could render uncollectibie any loss insured under any insurance
policy held by City or Operator.
(4). Would materially reduce the value of the Sanford Marina.
(5). Would otherwise be in violation of any Legal Requirements as
defined herein and the Operator shall not commit or allow to be committed,
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any action under its control which will cause a violation of the terms or
conditions thereof.
(g). The Operator shall use all reasonable efforts to secure full compliance by all
tenants, guests, and invitees of the Sanford Marina with all herein requirements in the contract
documents and the and the City's policies, codes, ordinances, rules and regulations.
(h). Except where specifically authorized under or pursuant to this Agreement, the
Operator shall not hold itself out as having any authority whatsoever to approve any contract or
expenditure for or on behalf of City with respect to the Sanford Marina or any portion thereof,
whether for maintenance, repair, restoration or otherwise.
(i). The City reserves the right to access and inspect the Sanford Marina at all times,
including for the purpose of performing unannounced cash audits and inventory reviews. The
Operator shall make all areas of the Sanford Marina available for such inspections at any time.
If requested by the City, an employee of the Operator shall accompany on such inspections
0). All improvements and fixtures located at the Sanford Marina, and all equipment,
supplies, and other items of personal property included in the inventory referenced below or
constructed, installed or located at the Sanford Marina or purchased with City funds, shall be the
property of the City. Upon expiration or termination of this Agreement, possession and title to all
such property shall be peacefully surrendered and delivered to the City.
(k). All the services to be provided or performed by the Operator shall be performed in
conformance with commonly accepted industry and professional codes and standards,
standards of the City, and the laws of any Federal, State or local regulatory agency constituting
a legal requirement.
(1). Time is of the essence with respect to this Agreement and each of its provisions.
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SECTION 4. RATES AND FEES.
(a). Except for vessel fuel prices, which fluctuate with the market rate, all vessel
mooring rates and fees for operating revenues shall be set by the City. However, consideration
shall be provided to recommendations from the Operator.
(b). The Operator shall annually, or as otherwise agree to by the City, perform a survey
and analysis of comparable marina rates and fees for reference when developing the annual
operating budget for the Sanford Marina.
(c). The Operator's proposed fee structure to the City shall be sufficient to fund the
Sanford Marina management and operations and maintenance costs including personnel costs,
operating expenditures and Operator's fees.
SECTION 5. SANFORD MARINA RULES AND REGULATIONS.
(a). The Operator shall assist the City in developing comprehensive policies and
procedures for operation and maintenance of the Sanford Marina as well as conduct of vessel
owners and the public and shall oversee compliance with the City's rules and regulations
regarding the conduct of vessel owners and others using the Sanford Marina.
b). The Operator shall ensure that current rules are and regulations are furnished to
each and every user, tenant and concessionaire and that the rules are prominently displayed in
the Sanford Marina office.
(c). The Operator may from time -to -time make recommendations to the City for
revising the rules and regulations. All changes to rules and regulations are subject to Sanford
City Manager's approval. Additionally, the Operator may develop for the City's consideration
additional policies and procedures with respect to the installation of new features and profit
centers for approval by the City.
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SECTION S. ADVERTISING AND MARKETING.
(a). The Operator, as part of the base management fee, shall provide an aggressive
and comprehensive marketing and advertising program in order to stimulate the general
business of the Sanford Marina.
(b). The Operator shall undertake an aggressive program to inform the public of the
availability of services at the Sanford Marina.
(c). The Operator shall develop policies and procedures with respect to advertising and
publicity of the Sanford Marina for the purpose of creating the greatest possible net income,
consistent with the operation of a public marina and recreational facility.
(d). The Operator shall work diligently with area merchants and businesses to develop
an integrated program of auxiliary services, such as hotel accommodations, car rentals and other
services for Sanford Marina users.
SECTION 7. CLEANING, MAINTENANCE AND REPAIR.
(a). The Operator shall maintain the Sanford Marina in a safe, attractive, neat, clean
and sanitary condition at all times and perform any necessary repairs to keep the Sanford Marina
free from hazardous conditions and/or deterioration to the satisfaction of the City.
(b). In and to the extent contemplated in the annual operating budget, and otherwise
subject to prior written approval from the City, which may be granted or withheld in its sole
discretion, the Operator may enter into an agreement in its own name with one or more
maintenance contractors for the maintenance of the Sanford Marina. Upon the execution of such
maintenance agreement, the Operator shall provide to the City a fully executed copy of the
agreement. In any event, such maintenance agreement shall provide that without the prior
written consent of the City, which may be reflected by the inclusion of an appropriate line item in
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the annual operating budget or otherwise may be granted or withheld in City's sole discretion,
no maintenance shall be performed on the Sanford Marina or any portion thereof that would
cause the total cost of all maintenance for the Sanford Marina during the fiscal year in which
such maintenance is performed to exceed the amount specified thereof in the annual operating
budget.
(c). Maintenance shall include, but not be limited to, all ordinary and extraordinary
repairs, cleaning, sweeping, painting, landscaping and seasonal decoration and alteration,
including, but not limited to, electrical, plumbing, carpentry, masonry, HVAC, roofing and such
other routine repairs as are necessary or reasonably appropriate in the course of the
maintenance of the Sanford Marina (subject to the limitations of this Agreement); provided,
however, that without the prior written approval of the City, which may be granted or withheld in
its sole discretion, no expenditures shall exceed in the aggregate in any calendar year the
amount specified therefore in the annual operating budget.
(d). With respect to any maintenance and repairs to be performed by anyone other
than an employee of the Operator, the Operator shall procure services in excess of $50,000 in
accordance with City policies, codes, ordinances, rules and regulations, to the extent reasonable
and practicable.
(e). The Operator shall include in the annual operating budget adequate funds
necessary for cleaning, maintenance and repairs of the Sanford Marina including, but not limited
to, the following:
(1). Repair and maintain docks and moorings as required to ensure
sound structural integrity and safe condition.
(2). Cleaning and maintenance including, at a minimum, but not
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limited to, janitorial services and regularly scheduled cleaning and
maintenance, shall be provided so as to maintain the Sanford Marina in good,
clean, and sanitary condition, free from hazardous conditions and
deterioration.
(3). Provide grounds maintenance such as mowing, trimming of
bushes and trees, edging, fertilizing and flower bed upkeep.
(4). Visual inspections in order to keep reasonably informed of the
potential need for repair or replacement of the Sanford Marina and related
City facilities and any potentially hazardous conditions on or at the Sanford
Marina.
(5). Processing repairs and minor replacements of Sanford Marina
facilities and to procure the needed services from contractors or the City.
Services may also be performed by Sanford Marina staff provided that those
performing the services have adequate experience, skills and knowledge to
perform the services.
(6). Capital Improvements and the replacement of Sanford Marina
facilities totaling $5,000.00 and above shall be managed by the City. The
Operator shall assist and support the City as needed including, but not limited
to, the development of the needs assessment, assistance during design and
construction as needed, etc. The City may delegate the management of
certain capital improvements to the Operator. The Operator must have the
opportunity to provide a quote for extraordinary oversight of significant capital
improvements if it will require oversight/time from the Operator.
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(f). The Operator shall immediately apprise the City if hazardous conditions exist on
or at the Sanford Marina, or if there is an imminent need for repairs or replacement needed not
covered in the annual operating budget.
(g). The Operator shall take reasonable steps necessary to protect the safety of the
Sanford Marina and its occupants and property in the event of an emergency without prior City
authorization but shall inform the City of such steps as soon as reasonably possible.
(h). In connection with any labor or materials provided in connection with any
maintenance, repairs or improvement work performed for the Sanford Marina, the Operator shall
take all the steps necessary or appropriate to maintain the Sanford Marina free and clear of all
liens, levies and attachments including, but not limited to, any construction, workers', mechanic's
or materialmen's lien or claims of lien. Such steps shall in any event include, at a minimum,
obtaining from all providers of labor and materials for which the cost thereof is $10,000.00 or
more, construction, workers', mechanic's and materialmen's lien releases.
SECTION 8. SECURITY SERVICES.
The Operator shall provide all reasonable measures necessary to maintain the Sanford
Marina secured at all times and provide an emergency call number year-round as part of the
base management fee.
SECTION 9. PERSONNEL AND STAFFING.
(a). The Operator shall be responsible to provide its own management, operations and
support staff in accordance with the needs of the Sanford Marina. Under no circumstances shall
the Operator's employees be deemed to be City employees.
(b). The Operator shall provide competent, skillful, personnel to fulfill the Operator's
obligations under this Agreement.
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(c). At all times while on the Sanford Marina or conducting the business of the Sanford
Marina in the name of the City, the Operator's personnel shall act courteously and in accordance
with the highest professional standards and shall be well groomed in appearance.
(d). The City shall have the right to require the Operator to remove from the Sanford
Marina any personnel who do not meet the requirements of this Agreement.
(e). The Operator shall ensure that all such personnel have and wear shirts or uniforms
with the logo and name of the Sanford Marina and badges identifying personnel as personnel of
the Operator. No product or service advertisements may be included on such materials, although
the Operator's name or logo may be included.
(f). The Operator shall have the responsibility of hiring, disciplining and discharging all
of its employees to fulfill the requirements of this Agreement. All employees so employed shall
be employees of the Operator and not the City.
(g). The Operator shall not use contract workers unless such workers are engaged
through an acceptable employment organization approved by the City.
(h). The Operator shall establish and implement an acceptable hiring plan that does
not discriminate based on race, creed, color, sex, age or national origin, or violate any Federal,
State or local discrimination statute, law, rule, regulation, code or ordinance. The Operator
further covenants and agrees that it shall not discriminate as to race, color, creed, sex, age or
national origin or engage in any type of discriminatory practice in the use of Sanford Marina or
in the employment of its personnel.
(i). All personnel assigned by the Operator to the Sanford Marina shall go through
shall be reviewed fit to perform the duties and pass background checks to the extent permissible
by law. As a government contractor, the Operator shall abide by the provisions of the Drug -Free
..............
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Workplace Act of 1988 and Section 287.087, Florida Statutes and shall make a good -faith effort
to maintain the standards required in those provisions of law.
0). The Operator shall establish the compensation rates and benefits of all its
employees in conjunction with the annual operating budget. The Operator is responsible for
directly paying its employees each established pay period and for withholding any appropriate
government prescribed deductions and directly remitting such deductions in a timely manner to
the appropriate government agency.
(k). The Operator's personnel shall have all the necessary training and be competent
in all the service and support functions necessary to manage and operate a marina. The
Operator shall ensure that its staff complies with the City's Information Technology Protocols
and Procedures whenever using a City computer or City computer network.
SECTION 10. LEGAL REQUIREMENTS.
(a). The Operator shall comply with all Federal, State and local statutes, laws, rules,
regulations, codes, ordinances and permits, and the terms and conditions of the City's
sovereignty submerged land leases with the State of Florida (hereinafter collectively "Legal
Requirements"). Without limiting the generality of the foregoing, the Operator shall:
(1). Comply with the provisions of the Federal Civil Rights Act of 1964.
(2). Comply with the Americans With Disabilities Act.
(3). Not employ undocumented immigrant workers or otherwise violate the
provisions of the Immigration Reform and Control Act of 1986 or any similar
law or law of similar effect. In accordance with Section 448.095, Florida
Statutes, the Operator shall register with and utilize the E-Verify System
operated by the United States Department of Homeland Security to verify the
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employment eligibility of all new employees hired during the term of this
Agreement and shall expressly require any subcontractors performing work
or providing services pursuant to this Agreement to likewise utilize the E-
Verify System to verify the employment eligibility of all new employees hired
by the subcontractor during the term of this Agreement. If the Operator enters
into a contract with a subcontractor performing work or providing services on
its behalf, the Operator shall also require the subcontractor to provide an
affidavit stating that the subcontractor does not employ, contract with, or
subcontract with an unauthorized alien. Information on registration for and
use of the E-Verify System can be obtained via the internet at the Department
of Homeland Security Web site: http://www.dhs.gov/E-Verify. The Operator
and any of its subcontractors shall, upon the City`s request, provide evidence
of compliance with this provision to the City. Failure to comply with this
provision is a material breach of this Agreement, and the City may choose to
terminate this Agreement at its sole discretion. If such termination occurs,
then pursuant to Section 448.095(2)(0, Florida Statutes, the Operator shall
be liable for any additional costs incurred by the City as a result of the
termination of this Agreement.
(4). Comply with the Contract Work Hours and Safety Standards Act.
(e). Comply with the Clean Air Act.
(f). Comply with the Water Pollution Control Act.
The Operator agrees to report each violation that becomes known to the Operator to the City
and understands and agrees that the City will, in turn, report each violation as required to the
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appropriate agency with jurisdiction over the matter.
(b). The Operator shall be bound by applicable law to the same extent that the City
would be as if such provisions were fully set forth in these terms and conditions
(c). The Operator shall also all use reasonable efforts to secure full compliance by all
tenants, guests, and invitees of the Sanford Marina with all Legal Requirements.
(d). The Operator shall ensure that all permits necessary to continue the operation of
the Sanford Marina are in place, valid and current in all respects and shall provide sufficient
notice to the City in order to obtain renewals or remedial actions and that any other permits
necessary for the development and continued operation of the Sanford Marina.
(e). The City will be responsible for renewing the above -referenced submerged land
leases.
(f). The Operator shall communicate and cooperate with the City to ensure that all
permits and licenses necessary for the operation of concessions are obtained.
(g). The Operator shall not engage in any business or transaction involving the Sanford
Marina with any vendor who is on a prohibited vendor list or is otherwise prohibited from doing
business with a governmental agency under controlling law.
SECTION 11. FISCAL PROCEDURES.
(a). The Operator acknowledges that the budget for the Sanford Marina for Fiscal Year
(FY) 2021-2022 is an interim budget during the transition period leading up to October 1, 2022.
During this time the Operator and the City shall work together to create the FY 2022/2023
Sanford Marina Budget.
(b). For the Fiscal Year beginning on October 1, 2022, and for every fiscal year
thereafter, the Operator shall submit to the City, at least 4 months prior to the beginning of such
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fiscal year, a proposed annual operating budget and a capital improvement budget for the
Sanford Marina in accordance with the procedures and schedule established by the City.
(c). The line -item revenue and expense operating budget shall include projections of
both revenues and expenses with a narrative regarding recommended rates for all fees and a
discussion of any new or expanded program initiative.
(d). The proposed budget shall include, at a minimum, projected costs of insurance,
labor and all other expenses that the Operator reasonably anticipates will incur in carrying out
its obligations of this Agreement.
(e). The proposed budget is subject to approval by the Sanford City Commission.
(f). The Assistant City Manager is authorized to transfer any unencumbered balance
of a line -item expense to another line item upon request of the Operator.
(g). The Operator may from time -to -time advise the City of supplemental budget
adjustments that may be needed which budget adjustments shall be subject to City approval in
accordance with City policies, codes, ordinances; rules and regulations.
(h). The Operator shall not take any action or expend any funds, or refrain from doing
the same, unless such action or expenditure (or the forbearance thereof) is contemplated in the
then current annual operating budget approved by the City, as the same may have been modified
at the City's request in accordance with this Agreement.
SECTION 12. REVENUES AND EXPENDITURES.
(a). The Operator shall manage all Sanford Marina operations in accordance with the
following terms and conditions:
(1). The Operator shall use its management and financial software
and any other devices necessary to manage, operate and run the Sanford
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Marina operations and finances.
(2). The Operator shall coordinate set up its management and
financial software with the City's established Chart of Accounts and upload
the Sanford Marina annual operating budget for the appropriate fiscal year(s).
(3). The Operator's management and financial software shall have the
capability to produce an audit tape of all transactions as needed.
(4). The City and the Operator shall establish a bank account
(hereinafter the "Sanford Marina Bank Account") through which the Operator
shall conduct all financial transactions for the Sanford Marina. All revenues
from the Sanford Marina shall be deposited in said account and all Sanford
Marina expenses for personnel, materials, goods, supplies or services shall
be debited to the same account. The Operator shall prepare and provide to
the City the monthly bank reconciliations of the Sanford Marina Bank
Account.
(5). The Operator shall document, record and monitor all personnel
and operating expenditures in accordance with the City established Chart of
Accounts.
(6). The Operator shall prepare and provide to the City monthly reports
detailing all purchases made by the Operator showing, at a minimum, the
City account that such purchases were charged to.
(7). Labor costs eligible for reimbursement are limited to the cost
(including salaries, wages and benefits) of the Operator's personnel actual
hours engaged in providing services at the Sanford Marina as required by
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this Agreement. Indirect costs, such as company overhead including, but not
limited to, workers' compensation insurance, taxes, etc. or labor expenses of
any officer or employee of the Operator above the on -site manager, shall not
be eligible for reimbursement. In addition, if any of Operator's on -site
personnel are engaged in services outside of this Agreement (such as for
another marina), those costs shall be prorated accordingly. tabor costs
debited to the Sanford Marina Bank Account shall be reconciled, by the City
and the Operator, to actual documented expenses (payroll records) monthly
or as otherwise agree to by the parties. Any necessary adjustments as a
result of any reconciliation shall be made during the current month.
(8). The Operator shall comply with all applicable City policies, codes,
ordinances, rules and regulations when procuring materials, goods, supplies,
fuel or services.
(9). Except for purchases with City established requisitions or
purchase orders, the Operator shall be required to obtain quotes for
purchases exceeding $4,999.99 unless the City has agreed otherwise.
(10). The Operator shall provide to the City the type and quantity of
materials, goods or supplies being procured accompanied by the necessary
quotes or bids for City approval prior to any purchase greater than
$50,000.00. No expenditures shall be debited to the Sanford Marina Bank
Account unless previously approved by the City and comply with the
following:
(A). Procurement expenditures made by the Operator shall
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not be debited to the Sanford Marina Bank Account that are not
consistent with the terms of this agreement.
(B). No expenditures will be debited to the Sanford Marina
Bank Account if exceeding the budgeted amount. The Operator shall
promptly advise the City in those circumstances. in which recurring
or other projected expenditures may exceed budgeted amounts.
(C). All purchased materials, goods, supplies and fuel
inclusive of inventory items, whether eligible for reimbursement or
not, shall be kept at the Sanford Marina until consumed, used, or sold
in the course of the services provided herein.
(11). Costs for the Operator's general liability, automobile liability
insurance coverage approved by the City are not eligible for reimbursement.
Sanford Marina Operators Legal Liability and Protection and Indemnity
Insurance; and Pollution Insurance coverage are eligible for reimbursement
and after City's approval can be debited to the Sanford Marina Bank Account.
(12). The Operator shall deposit all revenues from the Sanford Marina
into the Sanford Marina Bank Account.
(13). All revenues from rentals or sales received by the Operator by
virtue of this Agreement whether it be cash, checks, credit card, discounts,
promotional incentives, or any other type shall be immediately recorded on
the Operator's Sanford Marina management and financial software by date,
type of consideration (identifying the area rented and vessel owner) or
revenue category, and amount. All cash, checks, and credit card type
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transactions, for any given calendar day, shall be recorded on a daily cash
report and these items then deposited daily to the Sanford Marina Bank
Account no later than 12:00 Noon on the next banking business day. The
term "consideration" shall not be construed to include the consideration paid
the Operator by the City under this engagement or any gratuities paid by
Sanford Marina patrons to the employees of the Operator.
(14). The Operator shall pay the applicable State sales and use tax for
any amounts payable under this Agreement.
(15). The Operator shall prepare and file with the State (online) the
monthly Sales and Use Tax Return DR-15, or any successor documentation.
(16). The Operator shall prepare and provide to the City by the 15th day
of each month the following documents and information for the prior month:
(A). Copies of the monthly bank reconciliations, sales tax
returns and a detailed general ledger activity report.
(B). A detailed report listing all new customer deposits from
slip or mooring rentals, and all refunds of customer deposits.
(C). A reconciliation report of diesel and unleaded fuel
inventory showing fuel deliveries, sales and month end inventory;
and a reconciliation report of diesel and unleaded fuel transactions
showing fuel purchases, sales and net income.
(D). A list of revenues and expenses reflecting comparisons
between actual and budgeted amounts for the interval selected and
the fiscal year.
...... .
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(E). An aged accounts receivable report.
(F). Any and all other reports or information reasonably
requested by the City to be properly advised of the financial status
and operational results of the Sanford Marina for the interval
selected, such as appropriate invoices, payroll records, and other
documentation.
(17). The Operator shalt retain all cash and expense receipts for a
period of 10 years from origin for use and/or examination by the City.
SECTION 13. COMPENSATION TO THE OPERATOR.
(a). As consideration for managing and operating the Sanford Marina during the term
of the Agreement, the City will pay the Operator the following Fees and incentive, which shall
constitute the Operator's sole compensation for all services performed under this Agreement:
(1). The Operator's labor costs which shall be based on the actual staff
hours used at the Sanford Marina and associated benefits for years 1-5 and,
'if applicable, subsequent years 6-10; and shall be subject to any staffing
modifications thereto made by the Operator and approved by the City. Payroll
costs shall be debited to the Sanford Marina Bank Account based on the
actual staffing hours used. Eligible labor costs are limited to the cost
(including salaries, wages and benefits) of the Operator's personnel engaged
in providing services required by this Agreement at the Sanford Marina.
Indirect costs, such as Operator overhead or labor expenses of any officer or
employee of the Operator above the on -site Marina manager, shall not be
eligible for reimbursement. In addition, if any of the Operator's on -site Marina
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personnel are engaged in services outside of this Agreement (such as for
another marina), those costs shall be prorated accordingly.
(2). In addition, the Operator shall be paid a Base management fee for
Agreement years 1-5 and, if applicable, subsequent Agreement years 6-10
as detailed below. The base management fee shall be prorated the first
month of the agreement and debited monthly from the Sanford Marina Bank
Account with net operating income (NOI) being defined as total operating
income less total operating expenses:
(A). Fiscal Year 1 (partial and transitional) — June 1, 2022 -
September 30, 2022: $16,000.00 and 15% NOI.
(B). Fiscal Year 2 - October 1, 2022 - September 30, 2023:
$8,000.00 and 15% NOI.
(C). Fiscal Year 3 - October 1, 2023 - September 30, 2024:
$8,000.00 and 15% NOI.
(D). Fiscal Year 4 - October 1, 2024 - September 30, 2025;
$8,000.00 and 15% NOI.
(E). Fiscal Year 5 - October 1, 2025 - September 30, 2026:
$8,000.00 and 15% NOI.
(G). Fiscal Year 6 - October 1, 2026 - September 30, 2027:
$8,000.00 and 15% NOI.
(H). For any future optional fiscal years; to be determined through
negotiations.
SECTION 14. BOOKS AND RECORDS; AUDITS.
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(a). The Operator shall prepare and keep books and records regarding the
management of the Sanford Marina in sufficient detail to meet sound and generally acceptable
accounting practices. For purposes herein "books and records" shall include general ledgers,
income statements, tax returns (if required by the City), and any other relevant bookkeeping
documents the Operator uses in its business operations.
(b). The Operator shall continue to maintain such books and records for a period of 10
years after the termination of this Agreement
(c). At any time during the term of this Agreement and for a period of 3 years after
termination, the City shall have the right to audit the Operator's books and records, at the City's
expense except as provided below. The Operator shall make the books and records available
for the City's representative to perform the audit either electronically or at a location within the
City of Sanford City Limits, no more than 3 days after the City provides written demand.
(d). If the audit shows that the Operator has underpaid to the City any consideration
required to be provided to the City, the Operator shall either (i) pay to the City the amount owed
plus interest at the statutory rate, within 30 calendar days of the City's written demand, and in
addition if the audit discloses an underpayment by an amount in excess of 10% of the
consideration owed for the year audited, all actual and reasonable expenses incurred by the City
in connection with the audit; or (ii) give the City written notice within the same 30-day period
referred to above that the Operator disagrees with said findings. If the Operator fails to give
written notice of dispute within the 30-day period, the Operator shall be deemed to have
accepted the findings of the audit report. If the Operator gives written notice that the Operator
disputes any portion of the audit findings, the Operator shall promptly pay the City for that portion
of the findings that the Operator disputes, plus the cost of the original audit if the agreed -upon
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amount shows an underpayment of consideration in excess of 10% of the amount actually owed
for the year audited.
(e). Within 30 calendar days after the Operator's provision of timely written notice of its
dispute under the preceding paragraph, the Operator shall designate (subject to the City's
reasonable approval) an independent public accounting firm, other than a firm which performed
the City's audit, to audit the disputed records or calculation. If this audit shows that the Operator
underpaid the consideration due, within 30 days of receipt of the audit report the Operator shall
pay the City the amount owed plus interest as provided herein. The costs of this audit shall be
borne as follows:
(1). If the audit shows that the City's calculations under this Section
with respect to the disputed amounts were correct, then the Operator shall
bear the entire cost.
(2). If the audit shows that the Operator's calculations and payment of
the consideration were correct, the City shall bear the entire cost.
(3). If the audit shows that neither the City's nor the Operator's
calculations with respect to the disputed amounts were entirely correct, then
the Operator .shall pay the portion of the cost of the audit determined by
multiplying said cost by a fraction, the numerator of which is the total amount
not paid to the City when due and the denominator of which is the disputed
amount, and City will pay any remaining portion of such cost.
SECTION 16. DAMAGE OR LOSS TO THE OPERATOR'S PROPERTY.
(a). The Operator assumes all risk of damage or loss to its own property for any cause
whatsoever, which shall include any damage or loss that may occur to its merchandise, goods,
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or equipment, covered under this Agreement, if lost, damaged or destroyed by fire, theft, rain,
water or leaking of any pipes or wastewater in or about the Sanford Marina, or from hurricane or
any act of God, or any act of negligence of any user of the facilities, or occupants of the Sanford
Marina, or any person whomsoever.
(b). The Operator indemnifies and holds harmless the City with regard to any and all
damage or loss to its own property for any cause whatsoever, which shall include any damage
or loss that may occur to its merchandise, goods, or equipment, covered under this Agreement,
if lost, damaged or destroyed by fire, theft, rain, water or leaking of any pipes or wastewater in
or about the Sanford Marina, or from hurricane or any act of God, or any act of negligence of
any user of the facilities, or occupants of the Sanford Marina, or any person whomsoever.
SECTION 16. DAMAGE TO AND DESTRUCTION OF SANFORD MARINA
PROPERTY.
(a). Except as provided below, if fire, hurricane, decay, or any other casualty event
renders the Sanford Marina inoperable in whole or in part, the City will make all repairs
reasonably necessary within 90 days of the conclusion of such event, or if repairs cannot
reasonably be made within this period, within such period as the City may determine reasonable
and appropriate. During any period of reconstruction, the Sanford Marina shall be operated
under an interim budget, proposed by the Operator and adopted by the City, that reflects the
most probable forecast of income and expenses; and, if the nature of the damage is such that it
renders a portion of the Sanford Marina reasonably unavailable for leasing to boaters.
(b). If a casualty event substantially destroys or causes substantial damage to the
Sanford Marina, the City may thereafter terminate this Agreement if the City determines that it
would not be feasible or prudent to restore the Sanford Marina to the condition it was in prior to
the casualty event, provided that the City gives the Operator timely notice of termination. Such
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notice shall be timely if provided by the City no more than 90 days after the Event, or within such
other period of time that the City and Operator may mutually agree to in writing. If the City elects
to terminate this Agreement as provided herein, the consideration paid to Operator shall be
prorated through the date that the Sanford Marina were rendered inoperable.
(c). The Operator shall not be entitled to any portion of the proceeds received by the
City on insurance policies covering damage to the Sanford Marina.
SECTION 18. INDEMNIFICATION OF THE CITY BY THE OPERATOR.
(a). The Operator shall indemnify and hold harmless the City and the City's officers,
officials, employees and agents, from and against all claims, damages, losses, and expenses,
including but not limited to attorneys' fees, arising out of or resulting from the services provided
that the claim, damage, loss, or expense is caused in whole or in part by any negligent act or
omission on of the Operator, any subcontractor, anyone directly or indirectly employed by any
one of them or anyone for whose acts any of them may be liable, regardless of whether or not it
is caused in part by a party indemnified hereunder except the Operator shall not have to
indemnify and hold harmless the City if such claim, damage, loss and expense is the result of
the sole negligence of the City or of anyone directly or indirectly employed by the City or anyone
for whose acts the City may be liable.
(b). In addition, Operator shall indemnify City for any damages suffered by the City as
a result of any actions or omissions by the Operator that cause the City not to fulfill its obligations
in the Sanford Marina's submerged land leases with the State of Florida.
(c). The Operator's obligation to indemnify and hold the City harmless herein is
independent and not limited by the Operator's obligation to obtain insurance required herein.
SECTION 19. DEFAULT BY OPERATOR, TERMINATION.
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(a). The following each constitute an immediate default by the Operator:
(1). The Operator's failure to comply with any provision of this Agreement,
where such failure creates an imminent threat to public health or safety or an
imminent risk of injury to persons or loss of property or is irreparable.
(2). The Operator submits falsified documents or fraudulent billings,
intentionally withholds payments due to the City, or diverts funds provided by
the City to a use not approved under this Agreement.
(3). The Operator's failure to account for funds belonging to the City or the
Operator's refusal or failure to deposit consideration from the operation of the
Sanford Marina to the credit of the City, all as provided in this Agreement.
(b). Except as provided in this Agreement, a party shall be in default if the party fails to
meet any material obligation under this Agreement, and such failure continues beyond a cure
period of 30 days from the date that the non -breaching party provides notice of breach and a
demand for cure to the breaching party; provided, however, that where the nature of the breach
is such that it cannot be reasonably cured within this period, the cure period shall be extended
by one day for each day that the breaching party is diligently working toward effecting a cure, up
to a maximum of 60 days.
SECTION 20. TERMINATION.
(a). Upon the Operator's default, the City may immediately terminate this Agreement
and, additionally or alternatively, may pursue all other remedies that the City may have under
Florida law.
(b). Upon the City's default, the Operator may terminate this Agreement, and in such
instance, the Operator's sole remedy shall be payment of any fees owed through the date of
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termination, including all reimbursable expenses and the prorated base management fee.
(c). Upon termination by either party, or expiration of this Agreement, the Operator
shall:
(1). Discontinue services on the date and to the extent stipulated in the City
notice.
(2). Place no further orders for goods, materials, supplies, fuel or services,
except as directed by the City if needed to continue operations.
(3). Cancel any orders or contracts for services, unless directed otherwise by
the City.
(4). Return all of the City's property including, but not limited to, funds,
equipment and inventory, to the City; and execute all documents necessary
and as required by the City to release or transfer any and all interest,
management and control that Operator has acquired in the Sanford Marina
operation as a result of this Agreement.
(5). Remove all signs that the Operator placed on the Sanford Marina
indicating its management of the Sanford Marina, and fully restore any
damage resulting from such removal; and
(6). Promptly deliver notice of such termination to all tenants, guests and
invitees of the Sanford Marina and, thereafter, use its best efforts to
cooperate with the City to accomplish an orderly transfer of management of
the Sanford Marina to the City or to a new manager selected by the City.
(7). The Operator shall, after termination, make itself available to the City for
a period of 30 days after such termination or expiration to consult with or
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advise the City (or the operator selected by the City) regarding operation and
maintenance of the Sanford Marina.
(d). Notwithstanding any other provision of this Agreement, the City may terminate this
Agreement or any services hereunder, in whole or in part, at any time, with or without cause, by
giving 7 days written notice to the Operator. Upon receiving notice of termination, the Operator
shall discontinue the services as set forth above in this Section. In the event of such termination,
the Operator's sole remedy shall be payment of any fees owed through the date of termination
including all reimbursable expenses and the prorated base management fee if such termination
occurs after the first partial year. If the termination occurs during or at the end of the first partial
year, the Operator agrees to be compensated one half (1/2) of the Base Management Fee due
to Operator for services performed up to the date of termination. The Operator waives all claims
for compensation in excess of that which is specifically provided for herein including, but not
limited to, loss of anticipated profits and claims of contractors and vendors.
SECTION 21. CONSTRUCTION ACTIVITIES.
(a). The Operator shall abide and conform to the provisions of the City's purchasing
system and procedures for all procurements in excess of $50,000.00 with respect to submission
of requisitions and requests for payments incidental to its responsibilities for managing the
Sanford Marina.
(b). Subject to the limitations and authority imposed by the purchasing system, the
Operator shall make no addition, alteration or adjustment to the Sanford Marina and shall not
apply for construction permits of any kind without first having obtained the written consent of the
City, which shall not be unreasonably withheld.
(c). All requests shall be in writing and shall include plans and specifications pertaining
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thereto.
(d). All permits must be received from the appropriate governmental agencies prior to
undertaking any repairs, alterations, additions or improvements.
(e). All permanent alterations, improvements or repairs made or installed by the
Operator shall be the property of the City.
(f). The Operator shall observe and report to the City on the progress of any work
being performed by third parties.
(g). The Operator shall not provide other capital projects or construction services
unless the parties agreed to such services in writing.
(h). The Operator shall not engage in any business or transaction involving the Sanford
Marina with any vendor who is on a prohibited vendor list or is otherwise prohibited from doing
business with a governmental agency under controlling law.
SECTION 22. CONTRACT DOCUMENTS.
(a). The contract documents pertaining to this Agreement shall consist of this
Agreement, the City's solicitation documents (including all issued addenda, if any), the
Operator's response to the City's solicitation documents together with all related documents in
the files of the City.
(b). In the event of any conflict or inconsistency between the contract documents, this
Agreement prevails.
SECTION 23. NOTICES.
(a). Notices to the Operator shall be sent to the following address: 252 East Highland
Avenue, Milwaukee, Wisconsin 53202 to the attention of the Chief Operating Officer.
(b). Notices to the City shall be sent to the following address: Norton N. Bonaparte, Jr.,
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ICMA-CM, City Manager, City Hall, 300 North Park Avenue, Sanford, Florida 32771-1788.
(c). The City may change such mailing address at any time upon giving the Operator
written notice.
(d). All notices under this Agreement shall be in writing addressed to the appropriate
addressee and shall be deemed to be served in any of the following events:
(1). When hand delivered to the address of the addresses and a receipt
thereof is obtained or the addressee refuses to provide such receipt.
(2). Upon 3 days following the day on which such notice is mailed by certified
or registered mail, postage prepaid, return receipt requested.
(3) One day following the day on which notice is delivered by Federal
Express or such -other overnight courier service with all delivery charges
paid.
SECTION 24. CONFLICTS OF INTEREST.
No stockholders, directors, partner, employees of the Operator, or members of their
families, shall have any interest in any business which supplies goods or services for the benefit
of the Sanford Marina without advice to and consent of the City Manager, but said individuals
may have an interest in marine exhibits located at the Sanford Marina.
SECTION 26. INSURANCE; INDEMNIFICATION.
(a). The provisions of this Section on Insurance shall be administered by the Risk
Manager for the City.
(b). Unless otherwise provided for herein, the Operator shall purchase and maintain,
at its own expense, the following types and amounts of insurance, in form and companies
satisfactory to the City:
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(1). As required by Chapter 440, Florida Statutes, Workers'
Compensation Insurance for all employees of the Operator employed at the
Sanford Marina or in any way required to fulfill or connected to the fulfillment
of the terms of this Agreement. The insurance required by this provision shall
comply fully with the Florida Workers' Compensation Law and include
Employers' Liability Insurance with limits of not less than $500,000 per
occurrence. Any associated or subsidiary company involved in the service
must be named in the Workers' Compensation coverage. No class of
employee, including The Operator himself, if an individual, shall be excluded
from the Workers' Compensation coverage.
(2). Commercial General Liability Insurance, including coverage for
operations, independent contractors, products -completed operations, broad
form property damage, and personal injury on an "occurrence" basis insuring
the Operator and any other interests including, but not limited to, any
associated or subsidiary companies involved in the performance of this
Agreement. The limit of liability shall be a combined single limit for bodily
injury and property damage of no less than $1,000,000 per occurrence. If
insurance is provided with a general aggregate, then the aggregate shall be
in an amount of no less than $2,000,000.
(3). Automobile Liability Insurance which shall insure claims for
damages because of bodily injury or death of any person or property damage
arising out of the ownership, maintenance or use of any motor vehicle used
by the Operator at the Sanford Marina or in any way connected with the work
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which is the subject of this Agreement.
(4). Employee Dishonesty Insurance in the principal amount of not less than
$200,000, with third party coverage.
(5). Employment Practices Liability Insurance, including sexual abuse and/or
misconduct coverage and Vicarious Liability Endorsement naming the City of
Sanford, in the principal amount of not less than $1,000,000, with third party
coverage.
(6). Cyber Liability Insurance in the principal amount of not less than
$1,000,000, with third party coverage.
(c). Founders 3, as operator of the Sanford Marina, shall obtain and carry Marina
Operators Legal Liability and Protection and Indemnity Insurance coverage in the principal
amount of not less than $1,000,000.00.
(d). Founders 3 Management Company shall obtain and maintain Pollution coverage
for accidental and sudden discharge of fuel which shall be treated as an Operator expense.
(e). Unless specifically waived hereafter in writing by the Risk Manager, the Operator
agrees that the insurer shall waive its rights of subrogation, if any, against the City on each of
the foregoing types of required insurance coverage.
(f). The City shall be exempt from, and in no way liable for, any sums of money that
may represent a deductible in the General Liability, and Automobile Liability insurance policies.
The payment of such deductible shall be the sole responsibility of the Operator or subcontractor
providing such insurance.
(g). The City's Risk Manager may at any time require the Operator to increase the
amount of coverage, change the terms of coverage, and provide additional or different types of
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coverage, as the Risk Manager may deem necessary; provided that the changes or increase in
coverage are consistent with such requirements for similar operations and businesses then
operating within the Central Florida area or are reasonable in light of prior claims made against
Operator's policies. The Operator must comply with such requirements within 30 days after the
City's demand. Any increase in costs associated with such changes shall be the responsibility
of the City.
(h). Any insurance policy required by or pursuant to this Section may contain a
reasonable deductible provision, provided advance notice of said deductible provision is given
by the Operator to the City and approval from the City's Risk Manager is given, which approval
shall not be unreasonably withheld or delayed.
(i). The Operator shall furnish proof of the required forms and coverages referenced
above to the Risk Manager prior to or at the time of execution of this Agreement. The Operator
shall not commence work under this Agreement until all proof of such insurance has been filed
with and approved by the Risk Manager. The Operator shall furnish proof of any new or amended
coverages to the Risk Manager promptly upon being directed to do so. The City may require the
Operator to halt operations until the Operator has provided such insurance.
0). The Operator shall furnish evidence of all required insurance in the form of
certificates of insurance which shall clearly outline all hazards covered as itemized above, the
amounts of insurance applicable to each hazard, the expiration dates and shall contain the
following language as to cancellation,
"in the event of cancellation of this policy by the insurer or any insured, this
Company shall give not less than 30 days advance written notice to. -
Risk Manager
City of Sanford
.. ............ ...
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300 North Park Avenue
Sanford Florida 32771-1788"
The certificate of insurance shall name the City as an additional insured on the General Liability,
Auto Liability, and Marina's Operator Legal Liability; the City recognizes that Operator is not able
to name the City as an additional insured on the Employment Practices Liability Insurance
coverage required to be maintained by the Operator.
(k). If requested by the City's Risk Manager, the Operator shall furnish copies of the
insurance contracts to support the certificates of insurance and the copies of said insurance
must be acceptable to the City's Risk Manager.
(1). The liabilities of the Operator under this Agreement shall survive and not be
terminated, reduced, or otherwise limited by any expiration or termination of insurance coverage.
Neither approval nor failure to disapprove insurance furnished by the Operator shall relieve the
Operator or its subcontractors from responsibility to provide insurance as required by this
Agreement.
(m). The Operator shall file replacement certificates of insurance 30 days prior to
expiration or termination of the required insurance occurring prior to the acceptance of the work
by the City.
(n). If such insurance lapses, the City expressly reserves the right to renew the
insurance at Operator's expense.
(o). The Operator may not cancel the insurance required by this Agreement until all
services are completed, accepted by the City, and the Operator has received written notification
from the Risk Manager that the Operator may cancel the insurance required by this Agreement
and the date upon which the insurance may be cancelled.
(p). To the fullest extent permitted by law, the Operator shall indemnify, hold harmless
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and defend the City, its agents, servants, officers, officials and employees, or any of them, from
and against any and all claims, damages, losses, and expenses including, but not limited to,
attorney's fees and other legal costs such as those for paralegal, investigative, and legal support
services, and the actual costs incurred for expert witness testimony, arising out of or resulting
from the performance or provision of good or provided to the City if caused in whole or part by
the error, omission, negligent act, failure to act, malfeasance, misfeasance, conduct, or
misconduct of the Operator related in any way to the performance of services or the provision of
goods to the City.
(q). To the extent applicable, in accordance with Section 725.06, Florida Statutes,
adequate consideration has been provided to the Operator for its obligations, the receipt and
sufficiency of which is hereby specifically acknowledged.
(r). Nothing herein shall be deemed to affect the rights, privileges, and immunities of
the City as set forth in Section 768.28, Florida Statutes.
(s). In claims against any person or entity indemnified by an employee of the vendor
anyone directly or indirectly employed by the Operator or anyone for whose acts the Operator
may be liable, this indemnification obligation shall not be limited by a limitation on amount or
type of damages, compensation or benefits payable by or for the Operator under Workers
Compensation acts, disability benefit acts, or other employee benefit acts.
(t). The execution of the contract documents by the Operator shall obligate the
Operator to comply with the indemnification provisions; provided, however, that the Operator
must also comply with insurance coverage requirements.
(u). The Operator shall submit a report to the City within 24 hours of the date of any
incident resulting in damage or which is reasonably likely to result in a claim of damage.
391Pagc
(v). In the event that the Operator is providing services as a "design professional', the
indemnification by the Operator running in favor of the City shall be to the maximum extent
permissible under the provisions of Section 725.08, Florida Statutes.
(w). The Operator shall be held responsible for all accidents and shall indemnify, hold
harmless, and protect the City from all suits, claims and actions brought against the City or its
officials, representatives, agents, officers, and employees, and all costs, damages, or liabilities
to which the City or its officials, representatives, agents, officers, and employees may be
exposed, for any injury or alleged injury to the person(s) or property(ies) of another resulting
from negligence or carelessness in the performance of the work, or in protection of the Sanford
Marina, or from any improper or inferior workmanship, or from inferior materials used in the work,
or otherwise related to the project
SECTION 26. HURRICANE AND EMERGENCY.
The City shall, during any emergency such as hurricane, flood, fire or any type of disaster,
cooperate with the Operator for the security of the Sanford Marina. The City shall use its best
efforts during an emergency to safeguard the Sanford Marina.
SECTION 27. INVENTORY.
(a). Prior to the Effective Date or within 14 days thereafter, a representative of both the
City and the Operator shall jointly perform a physical inventory count and observation of all
fixtures, furnishings, furniture and equipment, -in or upon the Sanford Marina and the inventory
shall immediately become attached hereto and made a part hereof.
(b). The Operator agrees that the fixtures, furnishings and equipment are in the
condition as stated in the inventory; that the Operator personally inspected and assisted in the
taking of said inventory; that the Operator shall maintain the fixtures, furnishings, furniture and
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equipment during the term of this Agreement; and that all of the property shall be deemed in its
sole custody and care.
(c). At least once annually during the term of this Agreement the City shall provide the
Operator with an amended listing of fixed assets to verify those assets currently in place taking
into account deletions and additions. The City shall provide the Operator with fixed asset
identification tags to be affixed to such assets.
(d). Upon the termination of this Agreement, the City and the Operator shall jointly
perform a physical inventory count and observation of all fixtures, furnishings, furniture and
equipment. If any of the aforementioned items are lost, stolen or damaged, through the
negligence of the Operator, they shall be replaced or repaired at the cost and expense of the
Operator.
SECTION 28. NON -ASSIGNABILITY.
(a). This Agreement may not be assigned by the Operator without prior approval of the
City Commission.
(b). Any assignment, transfer, or conveyance of a controlling interest in stock to parties
who are not stockholders or partners as of the Effective Date shall be deemed an assignment
requiring the City Commission's approval.
(c). An assignment subject to the restriction contained herein shall not include an
assignment to the personal representative of a deceased stockholder or to said stockholder's
estate or heir, provided, however, that a subsequent transfer, assignment, or conveyance from
the stockholder's estate or heir to a third party who is not a stockholder as of the date the
Agreement shall require such approval. Also excluded from the operations of the restrictions of
this clause shall be assignments, transfers, or conveyance between and amongst persons who
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are stockholders as of the Effective Date or members of their immediate family.
SECTION 29. REPRESENTATION BY THE CITY.
(a). The City warrants and represents that it has full power and authority to enter into
this Agreement under the Constitution and Laws of the State of Florida and codes, ordinances
and resolutions of the City, and that all conditions and things required by the Constitution and
Laws of the State of Florida, Seminole County and the City to happen, exist and be performed
precedent to the signing of this Agreement have happened, exist, and have been performed as
so required.
SECTION 30. PUBLIC RECORDS.
(a). IF THE OPERATOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, TO THE OPERATOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS AT (407) 688-5012, TRACI HOUCHIN,
MMC, FCRM, CITY CLERK, CITY OF SANFORD, CITY HALL, 300 NORTH
PARK AVENUE, SANFORD, FLORIDA 327719
TRACI.HOUCHIN@SANFORDFL.GOV.
(b). In order to comply with Section 119.0701, Florida Statutes, public records laws,
the Operator must:
0). Keep and maintain public records that ordinarily and necessarily
would be required by the City in order to perform the service.
(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
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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 the Operator upon
termination of this Agreement and destroy any duplicate public records that
are exempt or confidential and exempt from public records disclosure
requirements. All records stored electronically must be provided to the City
in a format that is compatible with the information technology systems of the
City.
(c). If the Operator does not comply with a public records request, the City shall enforce
the provisions of this Agreement.
(d). Failure by the Operator to grant such public access and comply with public records
requests shall be grounds for immediate unilateral cancellation of this Agreement by the City.
The Operator shall promptly provide the City with a copy of any request to inspect or copy public
records in possession of the Operator and shall promptly provide the City with a copy of the
Operator's response to each such request.
SECTION 31. SAFE HARBOR.
In the event of an act of bankruptcy, the Operator must immediately affirm the Agreement,
cure all defaults, and thereafter remain in full compliance with this Agreement, or reject the
Agreement pursuant to applicable bankruptcy laws. In case of conflicts between this Section
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and any other provision of this Agreement, this provision shall govern.
SECTION 32. ENFORCEMENT.
The City's rights and remedies under this Agreement shall be cumulative and not
exclusive.
SECTION 33. WAIVER OF JURY TRIAL; CONTROLLING LAWNENUE.
(a). The City and the Operator waive all right to trial by jury in any claim, action, and
proceeding or counterclaim by either Party against the other of any matters arising out of or in
any way connected with this Agreement.
(b). The City's contractual relationship with the Operator shall be governed by the laws
of the State of Florida regardless of any other consideration or doctrine of the choice of law.
(c). Venue for any legal proceeding shall be in the State Courts of Seminole County,
Florida; the State and County in which the City is located.
SECTION 34. SURVIVAL.
(a). The Operator's obligations hereunder shall not be limited to any extent by the term
of this Agreement and, as to any act or occurrence prior to the expiration or termination of this
Agreement which gives rise to liability hereunder.
(b). The Operator's obligations shall continue, survive, and remain in full force and
effect notwithstanding the expiration or termination of this Agreement.
SECTION 35. CITY MANAGER/DESIGNEE.
All references herein to the City Manager shall be construed to include the City Manager's
designee which, until further notice by the City is the Assistant City Manager.
SECTION 35. EXTENT OF AGREEMENTIINTEGRATIONIAMENDM ENT.
(a). The City's contract documents constitute the entire integrated agreement between
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the City and the Operator and supersede all prior written or oral understandings in connection
therewith.
(b). The terms and conditions contained herein, including the exhibits, constitute the
full and complete agreement between the City and the Operator to the date hereof, and
supersede and control over any and all prior agreements, understandings, representations,
correspondence and statements whether written or oral.
(c). The terms and conditions contained herein may only be amended, supplemented
or modified by a formal written amendment.
(d). Any alterations, amendments, deletions, or waivers of the terms and conditions
shall be valid only when expressed in writing and duly signed by the City and the Operator.
SECTION 36. WAIVER.
(a). The failure of the City to insist in any instance upon the strict performance of any
provision of the terms and conditions, or to exercise any right or privilege granted to the City
shall not constitute or be construed as a waiver of any such provision or right and the same shall
continue in force.
(b). Payment for goods or services by the City shall not constitute waiver of any type
of nature by the City.
SECTION 37. SEVERABILITYMONSTRUCTION.
(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 fullest extent permitted by law when
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consistent with equity and the public interest.
(b). All terms and conditions shall be read and applied in pars materia with all other
provisions.
SECTION 38. ALTERNATIVE DISPUTE RESOLUTION (ADR).
(a). In the event of a dispute related to any performance or payment obligation arising,
the parties agree to exhaust any alternative dispute resolution procedures reasonably imposed
by the City prior to filing suit or otherwise pursuing legal remedies.
(b). The Operator agrees that it will file no suit or otherwise pursue legal remedies
based on facts or evidentiary materials that were not presented for consideration to the City in
alternative dispute resolution procedures or which the Operator had knowledge and failed to
present during the City's procedures.
(c). In the event that the City's procedures are exhausted, and a suit is filed or lega
remedies are otherwise pursued, the parties shall exercise best efforts to resolve disputes
through mediation. Mediator selection and the procedures to be employed in mediation shall be
mutually acceptable to the parties. Costs of mediation shall be shared equally among the parties
participating in the mediation.
SECTION 39. NO GENERAL CITY OBLIGATION.
(a). In no event shall any obligation of the City be or constitute a general obligation or
indebtedness of the City, but shall be payable solely from legally available revenues and funds
and the Operator shall have no right to impose the levy of ad valorem taxation by the City.
(b). In no event shall the Operator have any right to cause the City to appropriate or
budget funds for any purpose or reason.
(c). Unless otherwise provided by law, a procurement for goods or services may be
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entered into for any period of time deemed to be in the best interests of the City, provide the time
of the procurement and the conditions of renewal or extension, if any, are included in the
solicitation and funds are available for the period at the time of procurement. Payment and
performance obligations for succeeding fiscal periods shall be subject to appropriate by the City
of funds therefor.
(d). When funds are not appropriated or otherwise made available to support
continuation of the performance of services or the provision of goods in a subsequent fiscal
period, the agreement with the City shall be canceled and the Operator shall be entitled for the
reasonable value of any nonrecurring cost incurred, but not advertised in the prices of the goods
supplied or services provided under the City contract documents.
SECTION 40. FORCE MAJEURE.
(a). 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.
(b). Force Majeure shall include, but not be limited to, hostility, terrorism, revolution,
civil commotion, strike, epidemic, fire, flood, wind, earthquake, explosion, cyber-attack, 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 is beyond the control and without the fault or negligence of the party seeking
relief.
SECTION 41. EXHIBITS.
Each exhibit referred to and attached to this Agreement is an essential part of this
Agreement. The exhibits and any amendments or revisions thereto agreed upon by the parties,
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even if not physically attached hereto, shall be treated as if a part of this Agreement.
SECTION 42. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original instrument as to those who have executed the document, but all of which,
taken together, shall constitute one and the same document; provided, however, that, in the
event of a disparity between the counterparts, the counterpart recorded in the City's official
records shall be controlling.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this instrument
on the days and year indicated below and the signatories below hereby represent that they have
full authority to execute this instrument and to bind the parties set forth herein.
ATTEST. -
Jo Ile W If, Secrets
e
ATTEST.'
Traci Houchin, MMC, FCRM
City Clerk
Approved as to form and legal sufficiency.
William L. Colbert City Attorney
(City of Sanford/Sanford Harbor Marina MOA/Final/4-28-22-dwh)
FOUNDERS 3 MANAGEMENT
COMPANY, a foreign corporation
established in the State of Wisconsin.
By:
44� - a arw/�—
John Matheson, President
CITY OF SANFORD
By:
Art Woodruff
Mayor
Date:
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