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2015-41 License Agreement to Utilize the Country Club PoolRESOLUTION 2015 -41 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, APPROVING A LICENSE AGREEMENT WITH RICHARD E. CAVANAH, INC. TO UTILIZE THE COUNTRY CLUB POOL FOR ORGANIZED SWIM TRAINING ACTIVITIES AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE THE AGREEMENT ON BEHALF OF THE VILLAGE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Village Administration is recommending the execution of a License Agreement with Richard E. Cavanah, Inc. to utilize the Country Club pool for organized swim training activities; and WHEREAS, the License Agreement sets forth the conditions under which Cavanah may use the pool and provides for a payment of $2,000 per month to the Village; and WHEREAS, the Village Council determines that the approval and execution of the License Agreement is in the best interests of the residents and citizens of the Village of North Palm Beach. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA as follows: Section 1. The foregoing recitals are ratified as true and incorporated herein. Section 2. The Village Council of the Village of North Palm Beach, Florida, hereby approves the License Agreement with Richard E. Cavanah, Inc. for use of the Country Club pool, a copy of which is attached hereto and incorporated herein, and authorizes the Mayor and Village Clerk to execute the Agreement on behalf of the Village. Section 3. This Resolution shall take effect immediately upon adoption. PASSED AND ADOPTED THIS 28TH DAY OF MAY, 2015. (Village Seal.) ATTEST: VILLAGE ftERK LICENSE AGREEMENT THIS LICENSE AGREEMENT is made and entered into this day of May, 2015 by and between the VILLAGE OF NORTH PALM BEACH, a Florida municipal corporation, 501 U.S. Highway One, North Palm Beach, FL 33408, hereinafter referred to as "VILLAGE ", and RICHARD E. CAVANAH, INC., a Florida corporation, 100 Fathom Road, North Palm Beach, FL 33408, hereinafter referred to as "CAVANAH." WITNESSETH: WHEREAS, the VILLAGE is the owner of the North Palm Country Club ( "Country Club "), located at 951 U.S. Highway One, North Palm Beach, Florida; and WHEREAS, CAVANAH wishes to utilize the pool located at the Country Club for the purpose of providing organized swim training activities, specifically, NPB Swim Team, NPB Masters Swim Team and NPB Water Polo (hereinafter "Swim Training Activities "); and WHEREAS, the VILLAGE wishes to grant CAVANAH a non - exclusive license to perform such activities at the Country Club pool in accordance with the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual benefits and promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by both parties, the VILLAGE and CAVANAH agree as follows: 1. GRANT OF LICENSE. A. The VILLAGE hereby grants to CAVANAH a nonexclusive license to utilize portions of the Country Club pool for the purpose of providing Swim Training Activities, as more particularly described in Section 2 below ( "Licensed Activities "). B. During the term of this License Agreement, the VILLAGE shall not grant a similar License to any other independent provider of such activities, provided, however, that nothing contained herein shall prevent the Village, through its employees and /or contractors, from providing such activities directly. 2. SCOPE OF LICENSE. A. The VILLAGE shall allow CAVANAH to occupy portions of the Country Club pool ( "Licensed Area ") to conduct the following Swim Training Activities during the following hours: NPB Masters (Year Round): Monday through Friday, 6:00 a.m. to 7:00 a.m. Monday, Tuesday and Thursday, 6:30 p.m. to 8:00 p.m. Page 1 of 8 Youth Swim Team (Summer): Monday through Friday, 7:00 a.m. to 10:00 a.m. Saturday 6:30 a.m. —10:00 a.m. Monday through Thursday, 4:30 p.m. to 6:00 p.m. Youth Swim Team (Winter Monday through Thursday, 4:00 p.m. to 7:30 p.m. Friday, 4:00 p.m. to 6:30 p.m. Saturday, 6:30 a.m. to 10:00 a.m. Water Polo (Summer Wednesday, 6:30 p.m. to 8:00 p.m. Friday, 5:00 p.m. to 6:30 p.m. Water Polo (Winterk Wednesday, 6:30 p.m. to 8:00 p.m. Friday, 6:30 p.m. to 8:30 p.m. For the purposes of this section, Winter hours shall be in effect from the day after Labor Day through Memorial Day, and Summer hours shall be in effect from the day after Memorial Day through Labor Day. B. When not in use, CAVANAH shall store all of its equipment either in the storage bin on the pool dock or in the pump room. C. When the pool is closed to the general public, CAVANAH shall have the right to use the entire Country Club pool, provided, however, that during normal operating hours, the VILLAGE shall retain a portion of the pool for use by the general public, as specified by the Parks and Recreation Director. 3. TERM OF THE LICENSE. The term of the License granted herein shall be from June 1, 2015 through May 31, 2016 ( "License Term "). Payments shall be due on the first (1S) day of each month, commencing June 1, 2015. This Agreement may be renewed for successive one -year terms by mutual written agreement of the parties. 4. PAYMENT. As consideration for the grant of the License by the VILLAGE, CAVANAH shall pay to the VILLAGE the sum of Two Thousand Dollars ($2,000) per month, plus all applicable taxes, payable in advance of each month during the License Term ( "License Payment "). Page 2 of 8 5. OBLIGATIONS OF VILLAGE. A. The VILLAGE shall pay all costs of operating and maintaining the Licensed Area and real property taxes unrelated to the Licensed Activities performed in accordance with this Agreement. B. The VILLAGE shall provide parking for CAVANAH's employees, agents and representatives, in addition to its customers and guests, within designated parking areas at the Country Club. C. The VILLAGE shall allow CAVANAH to utilize Village owned lap lanes and kick boards and shall supply electricity to operate the scoreboard during swim meets. 6. OBLIGATIONS OF CAVANAH. A. CAVANAH is solely responsible for all activities performed within the Licensed Area, including, but not limited to, staffing and payment to its employees, agents and representatives. CAVANAH shall further be solely responsible for all taxes incurred by virtue of its performance of the Licensed Activities. B. CAVANAH shall secure all permits, licenses and approvals required by federal, state and local laws applicable to the performance of the Licensed Services, including, but not limited to, a VILLAGE Business Tax Receipt. C. CAVANAH shall use standard and reasonably prudent practices in performing the Licensed Activities pursuant to this Agreement. D. CAVANAH's employees, agents and representatives shall comply with all VILLAGE requirements governing conduct, safety and security while on VILLAGE -owned property. E. CAVANAH shall provide lifeguards during all Swim Training Activities. Additionally, CAVANAH shall provide the VILLAGE will all current lifeguard certifications on the effective date of the Agreement and provide certifications for any additional lifeguards retained by CAVANAH during the License Term. F. CAVANAH may conduct no more than three (3) swim meets per year, and the VILLAGE shall retain the facility entry fee paid by the spectators. 7. ADMINISTRATION. CAVANAH shall occupy the Licensed Premises and perform the Licensed Activities under the general direction of the Village Manager and the Parks and Recreation Director. The Parks and Recreation Director shall act as the VILLAGE's representative during the term of this Agreement, and CAVANAH shall abide by all directives given by the Parks and Recreation Director. Page 3 of 8 8. INDEPENDENT CONTRACTOR. The VILLAGE and CAVANAH agree and acknowledge that CAVANAH is and shall be during the performance of the Licensed Activities pursuant to this Agreement, an independent contractor and shall not, under any circumstances, be considered an employee, agent or servant of the VILLAGE. No employment relationship is created by virtue of this Agreement. 9. INSURANCE A. During the term of this Agreement, CAVANAH shall maintain the following insurance policies written by an insurance company authorized to do business in Florida: I. General Liability. General Liability Insurance with each occurrence limits of not less than Five Hundred Thousand Dollars ($500,000) and not less than One Million Dollars ($1,000,000) in the aggregate. All policies must include sexual and physical abuse liability coverage. 2. Worker's Compensation. Worker's Compensation Insurance in accordance with statutory requirements and Employer's Liability Insurance with limits of not less than One Hundred Thousand Dollars ($100,000) for each accident and not less than Five Hundred Thousand Dollars ($500,000) in the aggregate. 3. Hired and Non -Hired Vehicles. Hired and Non -Hired Vehicle Insurance with limits of not less than Five Hundred Thousand Dollars ($500,000) per incident. B. Deductible amounts shall not exceed five percent (5 %) of the total amount of required insurance in each category. C. CAVANAH shall furnish the VILLAGE certificates of insurance which shall include a provision that policy cancellation, non - renewal, or reduction of coverage shall not be effective until at least thirty (30) days' written notice has been made to the VILLAGE. CAVANAH shall include the VILLAGE as an additional insured on the General Liability and the Automobile Insurance Policies required by this Agreement. The above insurance requirements may be waived by the Village Manager, in the Manager's sole discretion. D. CAVANAH shall not occupy the Licenses Premises pursuant to the terms of this Agreement until all insurance required as stated herein has been obtained, and such insurance has been approved (or waived) by the Village Manager. 10. INDEMNITY AND HOLD HARMLESS. A. To the fullest extent permitted by applicable laws and regulations, CAVANAH shall indemnify and save harmless and defend the VILLAGE, its officials, agents, servants, and employees from and against any and all claims, liabilities, losses, and /or causes of action arising out of or in any way related to the Licensed Services performed by CAVANAH pursuant to this Page 4 of 8 Agreement, including, but not limited to, those caused by or arising out of any act, omission, negligence or default of CAVANAH and /or its employees, agents or representatives. B. CAVANAH shall not be required to indemnify the VILLAGE, its officials, agents, servants and employees when the occurrence results solely from the wrongful acts or omissions of the VILLAGE, its officials, agents, servants or employees. C. Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the VILLAGE or CAVANAH, nor shall this Agreement be construed a waiver of sovereign immunity beyond the waiver provided in Section 768.28, Florida Statutes. 11. TERMINATION OF AGREEMENT. A. This Agreement may be terminated by the VILLAGE or CAVANAH with or without cause upon thirty (30) days' written notice to the other party. B. The VILLAGE may terminate this Agreement with cause immediately. For the purpose of this section, "with cause" shall include: (1) any material breach of this Agreement by CAVANAH; and (2) any inappropriate behavior by CAVANAH's employees, agents or representatives, while on VILLAGE property, including, but not limited to, harassment or violent or threatening behavior. 12. ANTI - DISCRIMINATION. CAVANAH warrants and represents that all of its employees, agents and representatives are treated equally during employment without regard to race, color, religion, gender, age, national origin, disability, or any other category protected by law. 13. NOTICES. Any notice, request, demand, approval, consent or other communication which the VILLAGE or CAVANAH may be required or permitted to give to the other party shall be in writing and shall be mailed by certified mail, return receipt requested, at the addresses specified above. Notwithstanding the foregoing, the VILLAGE may provide notice to CAVANAH by personal delivery to CAVANAH's employees, agents or representatives at the Licensed Area. Notice shall be deemed given when hand delivered or not later than three (3) days after same shall have been deposited in an official United States Post Office, postage prepaid. 14. ENFORCEMENT COSTS. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney's fees, court costs and all expenses (including taxes) even if not taxable as court awarded costs (including, without limitation, all such fees, costs and expenses incident to Page 5 of 8 appeals), incurred in that action or proceeding, in addition to any other relief to which such party may be entitled. 15. SURRENDER OF LICENSED AREA. Upon the expiration or termination of this Agreement, CAVANAH shall deliver and surrender the Licensed Area to the VILLAGE in good repair and condition, ordinary wear and tear excepted, and shall remove all of its personal property. Should CAVANAH fail to remove its personal property upon termination or expiration of this Agreement, said property shall become the property of the VILLAGE. 16. GOVERNING LAW AND VENUE. The laws of the State of Florida shall govern this Agreement. Any and all legal action necessary to enforce this Agreement will be held in Palm Beach County, Florida. 17. WAVER. A waiver by either the VILLAGE or CAVANAH of any breach of this Agreement shall not be binding upon the waiving party unless such waiver is in writing. In the event of a written waiver, such a waiver shall not affect the waiving party's rights with respect to any other or further breach. 18. SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement, or the occurrence of any event rendering any portion or provision of this Agreement void, shall in no way affect the validity or enforceability of any other portion or provision of the Agreement. 19. ENTIRETY OF AGREEMENT. The VILLAGE and CAVANAH agree that this Agreement sets forth the entire agreement between the parties, and that there are no promises or understandings other than those stated herein. This Agreement supersedes all prior agreements, contracts, proposals, representations, negotiations, letters, or other communications between VILLAGE and CAVANAH, whether written or oral. 20. MODIFICATION None of the provisions, terms, or conditions contained in this Agreement may be added to, modified, superseded, or otherwise altered, except by written instrument executed by the parties hereto. Page 6 of 8 21. SUCCESSORS AND ASSIGNS. The VILLAGE and CAVANAH each binds itself and its partners, successors, assigns, and legal representatives to the other party to this Agreement and to its partners, successors, executors, administrators, assigns, and legal representatives. CAVANAH shall not assign this Agreement without the express written approval of VILLAGE via executed amendment. 22. PREPARATION. This Agreement shall not be construed more strongly against either party regardless of who was more responsible for its preparation. 23. SURVIVABILITY. Any provision of this Agreement which is of a continuing nature or imposes an obligation which extends beyond the term of this Agreement shall survive its expiration or earlier termination. 24. INSPECTOR GENERAL. CAVANAH is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Agreement, and in furtherance thereof, may demand and obtain records and testimony from CAVANAH and its subcontractors. CAVANAH understands and agrees that in addition to all other remedies and consequences provided by law, the failure of CAVANAH or its subcontractors to fully cooperate with the Inspector General when requested may be deemed by the VILLAGE to be a material breach of the Agreement justifying termination. 25. PUBLIC RECORDS. To the extent applicable, CAVANAH shall comply with Chapter 119, Florida Statutes, regarding access to public records. Failure of compliance may be grounds for termination by the VILLAGE. Pursuant to Section 119.070 1, Florida Statutes, Contractor shall: A. Keep and maintain public records that ordinarily and necessarily would be required by the VILLAGE in order to perform the services. B. Provide the public with access to public records on the same terms and conditions that the VILLAGE would provide the records and at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law. C. Ensure that public records that are exempt or confidential from public records disclosure requirements are not disclosed except as authorized by law. D. Meet all requirements for retaining public records and transfer, at no cost to the VILLAGE all public records in possession of the CAVANAH upon termination of this Page 7 of 8 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 VILLAGE in a format that is compatible with the information technology system of the VILLAGE. IN WITNESS WHEREOF, the parties have executed this License Agreement as of the date first above written. (VILLAGE SEAL) ATTEST: By: VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: VILLAGE ATTORNEY VILLAGE: i OF NORTH PALM BEACH, a nicipal gorpor tion , ROBERT A. CAVANAH: Mayor RICHARD E. CAVANAH, INC., a Florida corporation Witnesses: By: P nt ,e• m �h � Pri t Name: � Title: ��`�� a ✓�� �OR Print Nam / /�� 1 Page 8 of 8