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HomeMy WebLinkAbout2004-066 Indian River County ® Z ` 06 0 Recreation Department Competitive Dive Program at the North County Aquatic Center 945095 th Street, Sebastian , FL NORTH COUNTY AQUATIC CENTER USE AGREEMENT This North County Aquatic Center Use Agreement ( "Agreement" ) is made this 23rd day of March , 2004 , by and between Indian River County ( "County" ) and Gregg Servaites d/b/a Treasure Coast Dive Team , whose address is 561 Drawdy Way, Sebastian , Florida 32958 ("Contractor" ) , BACKGROUND RECITALS 1 . Indian River County issued a Request for Quotation , Recr-2003-01 for Competitive Dive Program for the North County Aquatic Center located at the North County Regional Park , 9450 95th Street , Sebastian , Florida ( " Facility' ) . 2 . Contractor has submitted a responsive quote to Recr-2003 -01 and the County has selected Contractor to provide the services as set forth herein . NOW, THEREFORE , for good and valuable consideration , the receipt and sufficiency of which is hereby acknowledged , and intending to be legally bound hereby, the County allows the Contractor to use the Facility, and the Contractor agrees to use the Facility , all under the following terms and conditions : 1 . PERIOD OF USE , This Agreement shall be in force from the date first set forth above and end on February 28 , 2007 , subject to earlier termination as set forth herein 2 . SCOPE OF SERVICES . Contractor will provide the services (" Services " ) set forth on Exhibit 1 attached hereto and incorporated herein by this reference throughout the term of this Agreement. Contractor acknowledges and agrees that the services on Exhibit 1 will be performed in accordance with the guidelines set forth on Exhibit 2 attached hereto and incorporated herein by this reference . 3 . NUMBER OF PARTICIPANTS EXPECTED ; SUPERVISION . The Contractor acknowledges and agrees , in connection with the Services : ( a ) if any participants are children that are under 4 ' 6 " in height , there must be one adult in the water for every 10 children ; and ( b ) if any participants are children over 4 ' 6 " in height , there must be one adult ___ ..�Abe.water_ nr evexy 25-zhil&--era ,- !#as #haiContraotr r& responsibility to supervise =any. and children using the Facility under this Agreement , 4 . INSURANCE . The Contractor shall not commence to perform the Services under this Agreement until it has obtained all the insurance required under this Agreement , and such certificates of insurance have been approved by the County' s Risk Manager. A certificate of insurance shall be provided to the County' s Risk Manager for review and approval ten ( 10 ) days prior to commencement of any work under this Agreement . The insurance company must have a rating by A . M . Best Company of at least A : V . Such certificates of insurance or 1 an endorsement provided by the Contractor must state that the County will be given thirty (30 ) days prior written notice prior to cancellation or material change in coverage . The County shall be named as an additional insured on all policies except workers ' compensation . 4 . 1 . Workers ' Compensation Insurance : Contractor shall procure and maintain workers ' compensation insurance to the extent required by law for all employees to be engaged in the Services work under this Agreement ; and in the alternative , to comply with the notice provision of Florida Statutes section 440 . 055 : "An employer who employs fewer than four employees , who is permitted by law to elect not to secure payment of compensation under this chapter, and who elects not to do so shall post clear written notice in a conspicuous location at each worksite directed to all employees and other persons performing services at the worksite of their lack of entitlement to benefits under this chapter. Is 4 . 2 . Public Liability Insurance : The Contractor shall procure and maintain commercial general ( public) liability insurance , including premises/operations ; independent contractors ; products/completed operations ; personal injury ; contractual liability; explosion , collapse and underground property damage in the amount of $ 1 , 000 , 000 combined single limit for bodily injury and property damage . 4 . 3 . Automobile , Bodily Injury And Damage Liability : Contractor shall procure and maintain business automobile liability for owned , hired , and non -owned vehicles at a minimum combined single limit of $ 1 , 000 , 000 for bodily injury and property damage for owned and non - owned vehicles . 4 . 4 . The County , by and through its Risk Manager, reserves the right periodically to review any and all policies of insurance and reasonably to adjust the limits of coverage required hereunder, from time to time throughout the term of this Agreement . In such event , the County shall provide the Consultant with separate written notice of such adjusted limits and Consultant shall comply within thirty (30 ) days of receipt thereof. The failure by Consultant to provide such additional coverage shall constitute a default by Consultant and shall be grounds for termination of this Agreement by the County. 5 . FEES , The County and Contractor agree to the following fees for the use of the Facility : 5 . 1 Dive Team . A . Eighty percent ( 80 % ) of the monthly revenue generated by Contractor under this Agreement shall be retained by Contractor and twenty percent (20 % ) of the monthly revenue generated by Contractor under this Agreement shall be remitted to the County based on participation/attendance of 0 to 20 divers per each dive team per month ; - B __ Seventy percent ( 70% ) of the. monthly revenue_ generated by Contractor under _ thjs_ __ -- - � �� reement�slialTtie ruined- b� Cont-ractor a�Jfiirf � ercen O7alo ofi the�monthI reveriue - -- Y Y p �� � __ Y generated by Contractor under this Agreement shall be remitted to the County per each dive team , based on monthly participation /attendance exceeding 20 divers per dive team . C . The Contractor acknowledges and agrees that it shall not artificially divide the participants into teams that are fewer in number than 20 members . 5 . 2 . Swim - n - Dive . Seventy-five percent ( 75 % ) of the monthly revenue generated by Contractor under this Agreement shall be retained by Contractor and twent-five percent ( 25 % ) of the monthly revenue generated by Contractor under this Agreement shall be 2 A . Eighty percent (80 % ) of the monthly revenue generated by Contractor under this Agreement shall be retained by Contractor and twenty percent (20 % ) of the monthly revenue generated by Contractor under this Agreement shall be remitted to the County based on participation/attendance of 0 to 20 divers per each dive group per month . B . Seventy percent ( 70 % ) of the monthly revenue generated by Contractor under this Agreement shall be retained by Contractor and thirty percent ( 30 % ) of the monthly revenue generated by Contractor under this Agreement shall be remitted to the County per each dive group , based on monthly participation/attendance exceeding 20 divers per each dive group . C . The Contractor acknowledges and agrees that it shall not artificially divide the participants into dive groups that are fewer in number than 20 members . 5 . 3 . Swim- n- Dive Lessons . Seventy percent ( 70 % ) of the monthly revenue generated by Contractor under this Agreement shall be retained by Contractor and thirty percent (30 % ) of the monthly revenue generated by Contractor under this Agreement shall be remitted to the County, based on participation/attendance of each individual participant in the swim- n-dive lessons per month . 5 . 4 . Payment , The Contractor acknowledges and agrees that : ( a ) all of the fees due under this Agreement are based on the number of participants per month during the term of this Agreement ; ( b ) all fees are due and payable not later than five ( 5 ) business days after the last day of the immediately preceding month for each month during the term of this Agreement ; and (c) all remittances to the County shall be accompanied by a written report that contains sufficient detail to allow the County to reconcile or audit such reports . The County reserves the right to audit the books and records of Contractor in connection with the Services provided by Contractor under this Agreement . 6 . INDEMNIFICATION and WAIVER OF CLAIMS , The Contractor assumes all risks and agrees to indemnify fully and save and hold harmless the County, its officers , employees , and agents , against all claims , damages , losses , judgments , liabilities , accidents or injuries to person (s ) or property, and causes of action , including reasonable attorney' s fees and court costs , arising out of, or caused directly or indirectly, by the conduct, acts , omission , or negligence of any participants in the event, the Contractor, its visitors , agents , and employees . The County, its officers , employees , and agents , shall not be liable for, and Contractor hereby releases all claims for, damages to , or loss of, personal property sustained by the Contractor, its visitors , agents , and employees , or any person claiming by or through the Contractor, resulting from any fire , accident , occurrence , theft , or condition in or upon the Facility or the North County Regional Park facilities of which it is a part , or of adjoining or contiguous property , facilities , or buildings , provided such are not due to the sole negligence of County, its officers , agents or employees . 7. CANCELLA_TION_._The iCountYrgserves the-fight t©-Aernijfiate lbis__Agreement�by. giving=- ��� thirty (30 ) days notice , in writing , of the intention to terminate , if at any time the Contractor fails to abide by or fulfill any of the terms and conditions of this Agreement. The County also reserves the right to terminate this Agreement for the convenience of the County , with or without cause . The County may terminate this Agreement in whole or in part if the Contractor submits a false invoice to the County. 8 , COMPLIANCE WITH LAWS . Contractor agrees to comply with all Federal , State , and local laws and regulations applicable to the furnishing of any labor or and Services set forth 3 in this Agreement, and any provisions required thereby to be included herein shall be deemed to be incorporated herein by reference . Noncompliance may be considered grounds for termination of this Agreement . - 9 . FACILITY UNAVAILABILITY DISCLAIMER . The County assumes no responsibility for circumstances that may require the closing of the Facility due to conditions that would render it unfit for public usage due to inclement weather, state health department or other regulatory agencies ' requirements . In the event of such occurrence , it is the responsibility of the Contractor to obtain alternative facilities 10 . APPROVAL . The County Administrator shall have the final recommending authority on this Agreement . 11 . GOVERNING LAW , This Agreement shall be governed by the laws of the State of Florida and any and all legal action instituted because of this Agreement shall be instituted in Indian River County for all state court matters , and in the Southern District of Florida for all federal court matters . 12 . ENTIRETY OF AGREEMENT . This Agreement incorporates and includes all prior and contemporaneous negotiations , correspondence , conversations , agreements , or understandings applicable to the matters contained herein and the parties agree that there are no commitments , agreements , or understandings of any nature whatsoever concerning the subject matter of this Agreement that are not contained in this Agreement. No supplement , modification , or amendment to this Agreement shall be binding unless signed in writing by the County and the Contractor. 13 . SEVERABILITY . In the event any of the provisions of this Agreement are deemed to be unenforceable , the enforceability of the remaining provisions of this Agreement shall not be affected . 14 . GENERAL . The Background Recitals are true and correct and form a material part of this Agreement . 15 . INDEPENDENT CONTRACTOR RELATIONSHIP , The Contractor is , and shall be , in the performance of all Services and activities under this Agreement, an independent contractor, and not an employee , agent , or servant of the County. All persons engaged in any of the Services performed pursuant to this Agreement shall at all times , and in all places , be subject to the Contractor's sole direction , supervision , and control . The Contractor shall exercise control over the means and manner in which it and its employees , if any , perform the Services , and in all respects the Contractor' s relationship and the relationship of its employees , if any, to the County shall be -that of an fra iepender►t_=ntractor-_-_and_ not_-as - -> e. p -of- the County. -The Contractor does not have the power or authority to bind the County in any promise , agreement, or representation . 16 . NOTICE . Any notice , request , demand , consent, approval , or other communication required or permitted by this Agreement shall be given or made in writing and shall be served , as elected by the party giving such notice , by any of the following methods : (a ) Hand delivery to the other party; ( b ) Delivery by commercial overnight courier service ; or (c ) Mailed 4 by registered or certified mail (postage prepaid ) , return receipt requested at the addresses of the parties shown below: Count Contractor: Indian River County Board of County Commissioners Gregg Servaites Treasure Coast Dive Team Attn , Assistant Director, 561 Drawdy Way Recreation Department Sebastian , FL 32958 1840 25th Street Phone : (772 ) 388-0038 Vero Beach , FL 32960 Phone : ( 772 ) 567-8000 , Ext, 1732 IN WITNESS WHEREOF , the County and the Contractor have caused this Agreement to executed in their respective names as of the date first set forth above . g be Contractor: INDIAN RIVER COUNTY, Florida Gregg Servaites Board of County Commissi d/b/a Treasure Coast Dive Team oners (sign ) E Witness : By Ja es E . Chandler, A mini t ator (sign )_ BC Approved : March 23 , 2004 Printed ame : " qT-__e S A } r e as to form and le I sufficiency: B Marian E . ell , Assis nt County Attorney 5