AQUATIC POOL USE AGREEMENTAQUATIC POOL USE AGREEMENT
This Aquatic Pool Use Agreement (the "Agreement") is made as of the 6 day of
2010, by and between All Children's Hospital, Inc., a Florida not for profit Corpor tion, with
its principal offices located at 801 Sixth Street South St. Petersburg. Florida 33701 ("ACH") and
City of Clearwater, a municipal corporation of the State of Florida, with principal offices at
1501 North Belcher Road, Suite 225, Clearwater, Florida 33765 (the "Long Center").
WHEREAS, ACH desires to use the Long Center's pool facility, including the therapeutic pool
and Men and Women locker room, (collectively, the "Pool") for the purpose of conducting a
pediatric (ages 0-21) aquatic therapy program ("Program") on the terms and conditions set forth
in this Agreement, and
WHEREAS, the Long Center desires to make the Pool available on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration the Long Center and ACH agree as
follows:
Grant of License. The Long Center grants to ACH a revocable license ("License")
to use the Pool solely for the purpose of the Program. ACH understands that the pool
may be shared with other members of the Long Center. ACH shall pay a License fee
of $660.00 per month payable on the first day of each month. ACH shall use the pool
during the times and on the conditions set forth in this Agreement and on the attached
Pool Facility Schedule (the "Schedule"), attached hereto as Exhibit A. The Long
Center or ACH may modify the times and conditions set forth in this Agreement and
on the Schedule upon mutual written agreement.
II. Compliance with all Rules and Regulations. ACH shall use the Pool in
accordance with the terms and conditions of this Agreement, the rules and regulations
as set forth on Exhibit B, and all applicable federal, state and local laws.
III. Term. The term of this Agreement shall commence on Fcbruary 9, 2010 (the
"Commencement Date") and end February 8, 2011 (the Expiration Date"), unless
terminated sooner pursuant to any of the provisions hereof. This Agreement shall
automatically renew for successive one (1) year terms until terminated by either
party. The Long Center shall have the right to suspend ACH's use of the Pool in the
event ACH fails to comply with the conditions or rules contained on Exhibit B.
Additionally, either party may terminate this Agreement at any time and for any
reason upon thirty (30) days prior written notice to the other party.
IV. Utilities and Services. The Long Center shall provide maintenance and services to
the Pool in accordance with its routine schedule and- standards for the building of
which the Pool is a part (the `Building').
V. Alterations. ACH shall not redecorate, change or alter the Pool, nor shall ACH
display any signs or advertising on or within the Pool or Building, without the prior
written consent of the Long Center, which consent the Long Center may grant or
withhold in its sole discretion.
VI. Personal Property. The Long Center is not responsible for loss of or damage to any
personal property of ACH, its guests, agents, employees or invitees, located within
the Pool or Building.
VII. Indemnification/Limitation on Special Damages. Except to the extent attributable
to the negligence or intentional acts of the Long Center and its officers, partners,
employees and agents, ACH agrees to release, indemnify, hold harmless and defend
the Long Center, its officers, partners, and employees from and against any and all
claims, demands, damages, costs, causes of action, expenses and liabilities, including,
but not limited to, reasonable attorneys' fees, caused by (a) ACH's violation of any
of the terms of this Agreement or (b) ACH's use of the Pool. In no event shall either
party be liable for any indirect, consequential, incidental, lost profits or like
expectancy damages arising out of the Agreement. Notwithstanding anything
contained herein to the contrary, this provision shall not be construed as a waiver of
any immunity to which the Long Center is entitled or the extent of any limitation of
liability to pursuant to § 768.28, Florida Statutes. Furthermore, this provision is not
intended to nor shall be interpreted as limiting or in any way affecting any defense
the City of Clearwater may have under § 768.28, Florida Statutes or as having
created any third party beneficiary.
VIII. Insurance. ACH shall maintain the following types of insurance: (i) commercial
general liability insurance with a limit of not less than $1,000,000 per
occurrence/$3,000,000 in the aggregate for each policy year, which limits may be
satisfied by any combination of primary and excess or umbrella policies, and (ii)
workers compensation insurance in amounts required by applicable law.
Upon reasonable request, ACH shall endeavor to furnish the Long Center with
certificates of insurance evidencing all required coverages. Notwithstanding the
foregoing ACH may meet its obligation to provide liability insurance set forth above
through a program of self-insurance.
IX. Surrender. ACH shall surrender possession of the Pool to the Long Center at the
conclusion of each use in good condition and repair. ACH shall reimburse the Long
Center for any and all costs the Long Center incurs to repair any damage to the Pool
or other Long Center property or equipment to the extent caused by ACH.
X. Assignment. ACH shall not assign its rights under this Agreement without the Long
Center's prior written consent, which consent the Long Center may grant or withhold
in its sole discretion.
XI. Notices. All notices in connection with this Agreement shall be in writing, and shall
be considered delivered when delivered if by hand or when mailed if mailed by
United States registered or certified mail, return receipt request, postage prepaid, to
the parties at the addresses below:
Long Center: Mark Roberson, Recreation Supervisor 1
City of Clearwater, Parks & Recreation Department
1501 N. Belcher Road
Clearwater, FL 33765
With copy: Kevin Dunbar, Director
City of Clearwater, Parks & Recreation Department
100 S. Myrtle Ave.
Clearwater, FL 33756
ACH: Gary A. Carnes, President and Chief Executive Officer
All Children's Hospital, Inc.
801 6'" Street South
St. Petersburg, FL 33701
With copy: Barry Pendry Ph.D.
Administrative Director, Rehabilitation Services
All Children's Hospital, Inc.
801 Sixth Street South, Box 7700
St. Petersburg, FL 33701
X. Force Maieure. No party to this Agreement shall be responsible for any delays or
failure to perform any obligation under this Agreement due to acts of God, strikes or other
disturbances, including, without limitation, terrorist acts, war, insurrection, embargoes,
governmental restrictions, acts of governments or governmental authorities, and any other
cause beyond the control of such party.
XI. Non-waiver. No waiver by any party of a default or non-performance by the
other party shall be deemed a waiver of any subsequent default or non-performance.
XII. Governing Law. This Agreement shall be construed and enforced in accordance with
Florida law.
X111. Entire Agreement. This Agreement (including all exhibits) is intended by the parties
as the final and binding expression of their agreement and as the complete and exclusive
statement of its terms. This Agreement supersedes all prior negotiations, representations and
agreements between the parties, whether oral or written, relating to the subject matter of this
Agreement.
SIGNATURES TO FOLLOW ON NEXT PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
ACH /
All Children's H to Inc j?
By:
Gary President and Chief Executive Officer
/9 V? pproved Legal - ACH
Date:
LONG CENTER
City of Clearwater
By:
Print Name:
Title:
Date:
Countersigned:
Z- /t'z6e-?
Frank V. Hibbard
Mayor
Approved as to form:
Laura Lipowski Mahony
Assistant City Attorney
CITY OF CLEARWATER, FLORIDA
By:[.?+-.w??. ?Q-? ti t4?
William B. Horne, II
City Manager
Attest:
Cy hia E. Goudeau.-
Citlerk ?FLI
EXHIBIT A
POOL FACILITY SCHEDULE
TIME DAY OF THE WEEK
1:00 PM TO 6:00 PM M T
X W
X T
X F
EXHIBIT B
RULES AND REGULATIONS
1. ACH shall hire and provide a Certified Water Safety Instructor ("Instructor") at all times to
conduct its aquatics program held at the Pool.
2. If the Instructor does not follow the Pool rules established by the Long Center, the Long
Center will close the Pool.
3. If applicable, Instructor shall give swimmers a short swim test to determine if they can go
into deep water.
4. ACH shall require that the number of swimmers does not exceed Pool capacity.
5. ACH shall require that all persons authorized to use the Pool on behalf of ACH shall follow
all rules and directions from Long Center personnel regarding use of the Pool.
b. The Long Center reserves the right to eject any person from the Pool for any reasonable
(objective and nondiscriminatory) reason.
7. ACH has the responsibility to inspect the Pool before each activity, or other use of the Pool.
Any material defects should be immediately brought to the attention of appropriate Long
Center Pool personnel.
8. ACH is responsible for maintaining the general cleanliness of the pool area and locker rooms
with respect to equipment/linens used during the time of use, and will return said equipment
to its original storage areas. If applicable, used linens will be placed in to the appropriate
used linen bags.
9. ACH is responsible for compliance with American with Disabilities Act, as it relates to the
event, performance, and services to be provided in relation to its use of the Pool for
individuals with disabilities.
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