agendapackage(POOL)
Special Meeting Date: March 7, 2011 Time: 7:30 PM
Next Regular Meeting date: March 15, 2011 Time: 7:30 PM
6130 Sunset Drive, South Miami, FL; Phone: (305) 663 -6340
RESOLUTION (S)
A. Please silence or turn off all cell phones. If you must speak
please leave the room:
B. Roll Call:
SUBJECT:
1. Murray Park Pool Project
Operator Contract: Questions & Answers
2. Adjournment
PURSUANT TO RESOLUTION No, 246 -10- 13280, "AN7 INVOCATION THAT MAY BE OFFERED BEFORE THE START OF
REGULAR COMMISSION BUSINESS SHALL BE THE VOLUNTARY OFFERING OF A PRIVATE CITIZEN, FOR THE BENEFIT
OF THE COMMISSION AND THE CITIZENS PRESENT. THE VIEWS OR BELIEFS EXPRESSED BY THE INVOCATION
SPEAKER HAVE NOT BEEN PREVIOUSLY REVIEWED OR APPROVED BY THE COMMISSION, AND THE COMMISSION DOES
NOT ENDORSE THE RELIGIOUS BELIEFS OR VIEWS OF THIS, OR ANY OTHER SPEAKER."
PURSUANT TO FLA STATUTES 286.0105, -THE CITY HEREBY ADVISES THE PUBLIC THAT IF A PERSON DECIDES
TO APPEAL ANY DECISION MADE BY THIS BOARD, AGENCY OR COMMISSION WITH RESPECT TO ANY MATTER
CONSIDERED AT ITS MEETING OR HEARING, HE OR SHE WILL NEED A RECORD OF THE PROCEEDINGS, AND THAT
FOR SUCH PURPOSE, AFFECTED PERSON MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS
MADE WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. THIS
NOTICE DOES NOT CONSTITUTE CONSENT BY THE CITY FOR THE INTRODUCTION OR ADMISSION OR OTHERWISE
INADMISSIBLE OR IRRELEVANT EVIDENCE, NOR DOES IT AUTHORIZE CHALLENGES OR APPEALS NOT OTHERWISE
ALLOWED BY LAW.
CITY COMMISSION ].
PUBLIC WORKSHOP - March 7, 2011
H
0.
W�/
a
w
J
M
Y W > O V
O.� iv6ol z
'ti °p ' a yyO a z p Cv,0 r 'E«�v dwa°N w ' %utlo� °•:C0
a}Q 9ouK
t9 �on a odro �d
C a v'o
N m N N Y G1 N 5 O N°M. i'. O d'C ° Ci K C j
Nop y w N`apMp��d :Vda"o�e
qv vv'J vRo ay °ovo
tt0z,,cc O a, Yv °O mEoco o
p
B o 0> m w 3 v ro o w 0, v 9 0 9p L w o a
�9roEv °O�� Rvo�v_c °v o.� �o °`r�uro Eb��3dgZ o
O
'�p�pae o.ro rnc°A.,°y iv m� °qro Z X0.5 �5 «� mb�gro:c m
030aro+�.A a �OON�gvi2° Y y�v..aw�y .nq
.5P ACV OS roG» Q'-i.waG -l�W4i • WONW Q%nAOa.AI" h
b ro
y �oE3d�a �
�
gvA° 4
v.°.? v wo 3v a °o d
'�OOa
am °moo
V a
o �vapinm
7.0 � d
N
n
H O R U C A
.9 0$ dw m �o
.�ooA��oo� ro
v¢d v 0'°
v wv aw m
rva`y°yaiy
rti- H R V 'roH' y N
aria.
o a
Yl d N Y b F
J ..O. od2dA
Q NW p2AA
d �U
5�Oi mo
tt iE -E m
u
V pb qL �O
x
G
d
DD
;n
R
0
N
J
R
U
C
O
O1
p
w
E
rr
E�Ema
v °O�CN
a °ma=
Z Nd dUy d
O E v m O d N
o _ C � C
= 3 na o
N a` E o v`
= OY o 'So > �d
S VO ~YOCUh m AU
Z
3 3L.. '°'.Uy w c� �U
•^ � p R d m d R
VI VV ftlac vwG m
U. n en
y= 1O
Om wmrnO Ea d eN
CL we
V F- -
fa L
o was
W O
O
F
w
r a
an
3LL
E N
ii33 R
N U
o Y o v
R
0
0 t
W D
m O y O
� U ^
T3 G v
R
y R
eCJ O ti .'L.
m
r �
N
u7
4 �
Wb�
C �gg
C pb
Ora
Sfi
Olt
Ell,w
South Miami
All- AmeHCaCRY
CITY OF SOUTH MIAMI 11111.1
OFFICE OF THE CITY MANAGER
INTER - OFFICE MEMORANDUM 2001
To: The Honorable Mayor & Members of the City Commission
From: Hector Mirabile, PhD, City Manager ,, y,
Date: February 28`h, 2011 Agenda Item No.: I—J -V is PZ
PROVISION OF A REVISED MURRAY PARK POOL OPERATING
AGREEMENT AS SUPPORTING DOCUMENTATION FOR AGENDA
ITEM No. 15 WHICH IS TITLED AS FOLLOWS:
A Resolution of the Mayor and City Commission of the City of South
Miami, Florida, authorizing the City Manager to execute an agreement
with the company Ocaquatics 2, Inc., a company wholly owned and
Subject: managed by Ocaquaties, Inc. the top ranked respondent for the Murray
Park Community Pool Operator Request for Proposals (RFP) No. SM -FN
2010 -15, for advising and consulting services concerning the design(build
of the Murray Park Community Pool and for its operation and
management thereafter completion of all construction, inclusive of all
costs, and requiring no annual fee from the City for the duration of the
agreement's initial three (3) year term and its two (2) one (1) year options
to renew for a total term of five (5) years, and providing for an effective
date.
Inadvertently, the most recent draft of the operating agreement was not
attached as part of the supporting documentation for the above referenced
item. The most recent draft has two (2) revisions.
The first revision concerns Section 16 of the Agreement titled
"OPERATIONS OF THE FACILITY ". In the previous earlier draft, Section
Background: E under 16 on Page 6 was titled "OWNERSHIP OF THE CURRICULUM ".
Per the revised most recent draft, this same Section E is now titled
"PROPRIETARY TEACHING METHODS ".
The second revision concerns the second exhibit to the agreement. Said
exhibit is titled "Designated Pool Design Area at Murray Park" and is now
properly labeled EXHIBIT `B ".
Supporting REVISED Murray Park Community Pool Operating Agreement
Documentation
MURRAY PARK POOL OPERATING AGREEMENT
THIS AGREEMENT is made between Ocaquatics 2, Inc., a Florida corporation,
( "Operator ") and the City of South Miami, a Florida municipal corporation, ( "City "), on this day
of of , 2011.
WHEREAS, City desires to design and build a community swimming pool facility
(`Facility") at Murray Park located at 5800 SW 66`h Street, South Miami, Florida;
WHEREAS, City requires Operator to participate in the design of the Facility to include
one outdoor pool, one indoor pool, and supporting amenities, such as a reception area, office,
staff area, changing area, bathrooms, viewing area, pump room, chemical room, pool room and
outdoor area for the outdoor pool, all necessary to conduct swimming programs and teaching at
the Facility;
WHEREAS, Operator possesses the requisite skills, training, experience, knowledge and
ability to operate and conduct swimming programs and teaching at the Facility and City does not
possess such skills;
WHEREAS, the above services shall be at no charge to the City in consideration for
allowing the Operator to have a five year operating agreement with the City to operate and
maintain the Facility with receipt of all revenue from the operation of the Facility; and
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, and the
parties agree as follows:
1. WHEREAS CLAUSES: The above whereas clauses are incorporated into this
Agreement as fully set forth above and are made an enforceable part of this Agreement.
2. CONTRUCTION OF THE FACILITY: The Operator understands that the
construction of the Facility is subject to the unfettered discretion of the City, as opposed
to the Operator, and if it is not built and approved for occupancy and use by all applicable
government authorities within three years of the effective date of this Agreement as
defined herein then this Agreement will not go into effect. If this Agreement does not go
into effect then neither party will have any further obligations to the other party.
Furthermore, if this agreement does not go into effect because the Facility is not built and
approved for occupancy and use by all applicable government authorities within three
years of the date of the Effective Date of this Agreement, then the City will not owe
Operator any money for any efforts Operator has undertaken in connection with this
1
Agreement, and Operator waives any claims for damages, lost profits, anticipated future
profits, bid preparation, expenses, and any other claims it has or may have against this
City.
3. CONDITIONS PRECEDENT: This Operating Agreement ( "Agreement ") shall only
take effect upon the occurrence of all of the following events:
A. Operator participates in the design process of the Facility;
B. The design of the Facility substantially complies with the design parameters set
forth in Exhibit "A" of this Agreement on the sketch of the land as set forth in
Exhibit "B";
C. The Facility as described in this Agreement is enclosed by a screened fence and
excludes the parking area for the Facility and remainder of Murray Park which
shall not be considered part of the Facility for purposes of this Agreement, and
D. The Facility is constructed and approved for occupancy and use by all applicable
government authorities, evidenced by the issuance of a certificate of occupancy
by the City.
In the event that these conditions precedent are not met within three (3) years of the
effective date of this Agreement as defined herein, this Agreement shall become null and
void; and thereupon all parties shall be released of any and all obligations under this
Agreement and this Agreement shall terminate. Upon termination, the City shall not owe
the Operator any money for any efforts undertaken by the Operator in connection with
this agreement, and the Operator shall waive any and all claims for damages, lost profits,
anticipated future profits, bid preparation, expenses, and any and all other claims it has or
may have against the City.
4. TERM: The term of this Agreement shall be for a period of five years commencing on
the date that the Facility receives its certificate of occupancy by all applicable
government authorities. City shall deliver notice of the issuance of the certificate of
occupancy within five business days of its issuance.
5. DESIGN, CONSTRUCTION, AND EQUIPAGE: City shall bear all costs and be
solely responsible for the design, construction and equipage of the Facility required to
issue the certificate of occupancy from the City.
6. VANDALISM: For any and all cleanup required as the result of vandalism that may
occur inside the fence of the Facility, the Operator shall be responsible for cleanup up to
$1,000 and the City's insurance shall pay for cleanup in excess of $1,000 provided the
vandalism is not caused by the Operator, its agents, servants or employees. For any and
all cleanup required as the result of vandalism that may occur outside the fence of the
2
Facility in the remainder of Murray Park, the City shall be responsible provided the
vandalism is not caused by the Operator, its agents, servants or employees.
7. PERMITS: Following the issuance of the certificate of occupancy by the City, the
Operator shall be completely responsible and pay for applying, obtaining, and
maintaining all applicable permits required to open and operate the Facility. In addition,
should the Operator make any improvements to the Facility beyond the original design of
the Facility evidenced by the plans approved required to issue the certificate of
occupancy, the Operator shall be responsible for and pay for applying and obtaining such
permits as may be necessary to accommodate such improvements.
8. MINIMUM SAFETY STANDARDS: The Operator shall maintain the Facility in
compliance with all applicable required and minimum safety standards.
9. MANAGEMENT AND STAFFING OF THE FACILITY: Operator shall have one
Aquatics Manager (certified in Aquatics Facility Operation, International Swimming
Instructor Association Adaptive Aquatics Certification, American Red Cross Water
Safety Instructor, Lifeguarding, CPR and First Aid) and one Office Supervisor on site.
Staffing requirements will vary as necessary including but not limited to supervisors,
swimming teachers, lifeguards and office personal. All swimming instructors will be
certified in American Red Cross Lifeguarding, CPR, First Aid and Water Safety
Instructor. If at any time a lifeguard is not on duty, the Operator will ensure the pool is
not open to the public.
10. DUTIES AND RESPONSIBILITIES OF THE OPERATOR: Operator agrees to
provide its services during the term of this Agreement in accordance with all applicable
laws, regulations, and health and safety standards and will ensure that its employees,
agents and other parties follow all applicable laws, codes and regulations.
11. PERSONNEL: All Operator personnel who will work at the City's pool in fulfilling the
terms of this Agreement, including all lifeguards, shall be employed solely by the
Operator and be employees of the Operator. No lifeguards shall be engaged by the
operator as an independent contractor but must be employees of the Operator.
A. Operator agrees to pay the following to its employees: 1) wages, 2) income tax
withholdings, 3) social security withholdings, 4) state unemployment insurance, 5)
federal unemployment insurance, and 6) workmen's compensation insurance.
B. The Operator shall include City of South Miami residents in its hiring process to train
and prepare for the lifeguard and other personnel positions the Operator will require.
t;
C. All of the Operator's personnel, without exception, shall submit to and pass a Level 1I
Background Check and Drug Test in order to work at the Facility and proof of the
same shall be provided to the City upon request.
D. City agrees to communicate any comments, suggestions, or complaints concerning the
pool, pool staff, or management service directly to the Operator management as well
as the pool manager.
12. PERSONNEL RESPONSIBILITIES: Operator personnel responsibilities shall include,
but not be limited to, the following duties:
A. Life guarding all pools;
B. Checking water chemistry and record readings a minimum of once a day or as per
State and County requirements;
C. Maintaining chemical balance of pool water;
D. Cleaning tiles around pool edge;
E. Back washing filtration system as needed;
F. Cleaning pump system strainer basket;
G. Cleaning changing areas and bathrooms daily, and inspect same each hour;
H. Cleaning swimming pool area daily;
I. Vacuuming pool a minimum of two (2) times per week or as needed;
J. Emptying trash receptacles and placing receptacles within the fenced area at the
curb on trash days;
K. Straightening deck furniture;
L. Replenishing janitorial supplies in changing rooms and bathrooms;
M. Enforcing the Operator's rules for the safety and convenience of all patrons;
N. Maintain mechanical equipment;
O. Report all incidents of accidents that occur at the Facility and make such reports
available upon request to the City's risk management officer (human resources)
within three business days of the occurrence. Make verbal reports of such
accidents to the City's risk management officer (human resources) within three
hours of each occurrence; and
P. Lock and secure facility upon closing.
13. CHEMICALS AND SUPPLIES: Operator agrees to supply and maintain at its expense:
(a) all chemicals and supplies required for safe and clean pool water, (b) changing area
and bathroom supplies, (c) cleaning supplies, (d) normal incandescent light bulbs for the
bathrooms, pump room, and lifeguard room, (e) all equipment necessary to efficiently
clean the pools, and (f) all first aid supplies and equipment. Said chemicals and supplies
shall be of good quality.
14. INSURANCE: Required insurance for the Facility shall include the following:
A. Operator will provide liability insurance reasonably satisfactory to City to insure
against any claims for negligence arising out of or related to the Operations and
will provide City with evidence of such insurance at the time this Agreement is
executed. Operator will provide the City with a Certificate of Insurance listing the
City of South Miami as an additional insured. Failure to comply is a material
breach of this Agreement.
B. City will supply the Operator with a Certificate of Property and Casually
Insurance. In no event will the City be required to carry liability insurance as that
is solely the responsibility of the Operator.
C. Operator shall maintain and keep in full force the following coverage:
1) Worker's Compensation insurance covering all persons engaged on behalf of
the Operator in the performance of the terms of this agreement and
2) General commercial liability insurance in the amount of $1,000,000 per injury
and $3,000,000 aggregate.
Operator agrees to supply copies of certificates of insurance to the City verifying the
above - mentioned insurance coverage. Operator agrees to list City as an Additional
Insured of the Operator's General and Professional liability insurance and shall provide
the City quarterly reports concerning any and all claims. City has the right to request
periodic certificates of insurance.
15. WALK THROUGH: The Operator and the City may complete a quarterly inspection
walk through of the City's facility at the City's sole discretion. At the City's request,
Operator will perform any repairs listed in the report, in accordance with this Agreement.
16. OPERATIONS OF THE FACILITY: Operator shall bear all costs and be solely
responsible for the operations of the Facility ( "Operations "). Operations shall include the
following:
A. FACILITY: Operator shall operate and be responsible for the Facility which
shall include only the area enclosed by a fence consisting of one outdoor pool,
one indoor pool, a reception area, office, staff area, changing areas, bathrooms,
viewing area, pump room, chemical room, pool room and outdoor area for the
outdoor pool. Operator shall not operate nor be responsible for the area not
enclosed by the fence including of the parking area for the Facility and the
remainder of Murray Park.
B. SCHEDULING OF THE PROGRAMS OF THE FACILITY: Operator shall
have control over and be responsible for the scheduling of the programming
including days and hours of operation of the Facility subject to the city manager's
approval. No change in dates of operation or hours of operation can be accepted
unless written authorization from the city manager is received within five
business days prior to the change request with the exception of schedule changes
due to weather and other such unforeseen circumstances. City manager approval
shall not be unreasonably withheld.
9
C. PROGRAMMING OF THE FACILITY: Operator shall have control over and
be responsible for the programming of the Facility subject to the following:
i. Swimming programs shall include, at a minimum, recreational/open swim,
swimming lessons by the Operator, lap swimming, and community rentals.
ii. No less than 25% of weekday operating hours and 50% of weekend
operating hours will be provided as open swim or lap swim sessions.
iii. The City shall not limit the ages of the children who use the facility.
iv. The Operator shall charge $4 for open swim or lap swim for all residents
and non - residents of the City subject to a 5% increase per year.
v. Children on free or reduced lunch program can participate in open
swim/lap swim or swimming instruction for 75% discount from regular
prices.
vi. Children participating in the City of South Miami summer camp will have
the opportunity to swim in the facility for free during camp. The schedule
to be worked out with the camp director and Operator.
vii. Operator shall have the right, with mutual agreement with the City, to
allow other operators the ability to run programs at the Facility under the
Operator's supervision.
B. SIGNS: The Operator shall maintain and provide all necessary and required signage
for the Facility including a notice on each admission ticket into the Facility that states
the Operator operates the Facility and is an independent contractor of the City.
C. OPERATING COSTS AND EXPENSES: Operator shall bear any and all costs
required to carry out the Operations of the Facility. Operator shall pay for any and all
metered utilities required to operate the Facility such electricity, gas, and water.
D. MAINTENANCE OF THE FACILITY: Responsibility for the maintenance of the
Facility shall be as follows:
1. Operator shall be responsible for and pay for all costs to maintain the Facility and
shall not be responsible for the area outside of the fence of the Facility or the
remainder of Murray Park.
2. The Operator shall keep records related to the maintenance.
E. PROPRIETARY TEACHING METHODS. Operator shall have complete
ownership of the Operator's proprietary teaching methods including the swimming
programs and teaching of the Facility. The Operator's proprietary teaching methods,
management and operating procedures will be used only when Operator is the
operator of the facility.
17. REVENUE: Operator shall charge reasonable rates and fees for use of the Facility by
patrons and is entitled to all revenue generated by such rates and fees. The standard of
reasonable rates and fees shall be what other similar facilities charge in South Florida.
18. TAXES: Operator shall be responsible for all payments of federal, state, and/or local
taxes related to the Operations, inclusive of sales tax if applicable.
19. SECURITY: Operator shall maintain any and all installed security and alarm systems
that may be necessary for the proper safeguarding of the Facility and City's residents
including, but not limited to, contracting with a monitoring company and assuring said
applicable systems are directly connected with the City's Police Department.
20. IMPROVEMENTS: Should Operator install or improve the Facility beyond the original
design of the Facility as evidenced by the approved plans required to issue the certificate
of occupancy, Operator shall have the right to remove and retain those improvements
after termination of this Agreement provided that such removal does not cause structural
damage to the Facility or any other damage that is visible or otherwise ascertainable by
inspection. Any and all improvements shall first require City Manager approval.
21. INDEPENDENT CONTRACTOR: Operator is an independent contractor under this
Agreement and nothing herein shall be construed to create a partnership, joint venture, or
agency relationship between the parties.
The City shall have the right at no charge by the Operator to place reasonable signage on
the subject premises and outside the subject premises, which signs shall inform the public
that the premises are operated by the Operator and not by the City and that any claims,
grievances, or Complaints of any nature concerning the operation or failure of operation
of the Facility or any other matter concerning the operation by Operator are solely and
entirely the responsibility of the Operator and not the City of South Miami.
22. SEVERABILITY: If any term or provision of this Agreement or the application thereof
to any person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement, or the application of such term or provision to persons of
circumstances other than those to which it is held invalid or unenforceable, shall not be
affected thereby and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
23. NO DISCRIMINATION: No action shall be taken by the Operator or City which would
discriminate against any person on the basis of race, creed, color, national origin,
religion, sex, familial status or disability.
24. INDEMNIFICATION: Operator hereby covenants and agrees to indemnify and hold
harmless the City from and against any and all losses, damages, costs and expenses,
including, without limitation, attorneys' fees and court costs, that may be incurred or
7
suffered by City as a result of any claim, including, without limitation, a claim for
negligence, being asserted against City by any party which arises from, results from,
relates directly or indirectly to, or is in any way whatsoever connected with Operator's
obligation and duties under this Agreement.
25. TERMINATION: Either parry has the right to terminate the Agreement with or without
cause and provide notice of such termination within 90 days.
26. MODIFICATION OF THIS AGREEMENT: No waiver or modification of this
Agreement, in whole or part, will be valid unless in writing and duly executed by each of
the parties. Any waiver of any term, condition or provision of this Agreement will not
constitute a waiver of any other term, condition or provision hereof, nor will a waiver of
any breach of any term, condition or provision constitute a waiver of any subsequent or
succeeding breach.
27. GOVERNING LAWS: This Agreement and the performance of services hereunder will
be governed by the laws of the State of Florida, with exclusive venue for the resolution of
any dispute being a court of competent jurisdiction in Miami -Dade County, Florida.
28. ATTORNEYS' FEES: In the event of any litigation between the parties arising out of or
relating in any way to this Agreement or a breach thereof, each party shall bear its own
costs and legal fees.
29. ENTIRE AGREEMENT: This Agreement contains that complete agreement of the
parties and will supersede any and all other agreements, understandings and
representation by and between the parties hereto pertaining to the subject matter hereof.
30. AUDIT: Upon request and during regular business hours, the Operator shall allow the
City or its consultant to audit, inspect, and examine the facility for safety and contractual
compliance. In an effort to confirm such information, the City may communicate directly
with service providers and providers of pool maintenance goods. Additionally, the
Operator shall keep complete and accurate books and records of accounts and business
operations in accordance with generally accepted accounting principles for a period of
three (3) years.
31. DEPOSIT: The Operator shall provide the City a deposit equal to the cost of six (6)
months of maintenance of the Facility in the amount of $25,000. The City shall hold the
deposit in an interest bearing account. In the event that the City terminates the
Agreement, the deposit shall be returned to the Operator with interest. In the event that
the Operator terminates the agreement, the deposit shall be retained as agreed and as
liquidated damages in that ascertaining the actual damages is difficult to determine. At
0
the end of the five year term and if the Agreement has not been terminated, the deposit
shall be returned to the Operator with interest. It is intention that the parties in addition to
the matters set forth above, the above $25,000 shall serve as a security deposit which
funds can also be used to enforce any of the terms and conditions of this Agreement,
which the Operator fails to comply with.
32. ASSIGNMENT: Operator shall not assign or transfer its rights under this Agreement
without the express written consent of the City. In turn and upon its approval, the City
will not unreasonably withhold and/or delay said consent.
33. EFFECTIVE DATE: This Agreement shall not become effective and binding until it has
been executed by both parties hereto and shall be dated for purposes as of the date of its
execution by the last party so executing it.
34. THIRD PARTY BENEFICIARY: It is specifically understood and agreed that no other
entity shall be a third party beneficiary hereunder, and that none of provisions of this
Agreement shall be for the benefit of or be enforceable by any other than the parties
hereto, and that only the parties hereto shall have any rights hereunder.
33. FURTHER ASSURANCES: The parties hereto agree to execute any and all other and
further documents as might be reasonably necessary in order to ratify, confirm, and
effectuate the intent and purposes of the Agreement.
34. TIME OF ESSENCE: Time is of the essence of this Agreement.
35. CONSTRUCTION: This Agreement shall not be construed more strongly against either
party hereto, regardless of who was more responsible for its preparation.
36. FORCE MAJEURE: Neither party hereto shall be in default of its failure to perform its
obligations under this Agreement if caused by acts of God, civil commotion, strikes,
labor disputes, or governmental demands or requirements. However, each party shall
notify the other of any such occurrence.
37. NOTICES: Whenever notice shall be required or permitted herein, it shall be delivered
by hand delivery or certified mail, with return receipt requested and shall be deemed
delivered on the date shown on the delivery date on the return receipt or the date shown
as the date same was refused, as follows:
If to the City of South Miami: City Manager, Hector Mirabile, Ph.D .
6130 Sunset Dr.
J
If to Ocaquatics 2, Inc.:
South Miami, FL 33143
With copies to:
City Attorney, Laurence Feingold, Esquire
6130 Sunset Dr.
South Miami, FL 33143
Ocaquatics 2, Inc.
c/o Miren Oca, President
13408 SW 131 Street
Miami, FL 33186
With copies to:
Alexandra L. Deas, Esquire
P.O. Box 398794
Miami Beach, Florida 33239
38. ACCEPTANCE: Acceptance of this Agreement by City through signatures below, and
return of this Agreement along with any payments due hereunder will constitute a
contract entered into in accordance with the specifications, terms and conditions and
addenda attached hereto.
39. NON - RECORDATION. This Agreement, which is intentionally prepared in a non-
recordable form, shall not be recorded, and any attempt to do so shall be deemed a
nullity.
10
IN WITNESS WHEREOF, the parties have signed this Agreement this _ day of
of 2011.
Ocaquatics 2, Inc.,
a Florida corporation
11
By:
Signature
of Witness
Miren Oca, as its President
Name
Signature
of Witness
Name
City of South Miami, a Florida
municipal corporation
By:
Signature
of Witness
Hector Mirabile, Ph.D
City Manager
Name
Signature
of Witness
Name
11
BXHffiIT "A"
Design Description: Total Feet: approximately 8000 sq ft
One front desk/reception area
One individual office
One staff area
Six public individual changing areas
Four family style, unisex, ADA bathrooms
One viewing area
One pump room, 2 separate pump systems for each pool
One chemical room
One pool room with indoor pool (pool specs below)
One area for outdoor pool (pool specs below)
One lightning early warning system
Screened in fence to enclose pool facility
Security system
Pool Specs: Pool #1
50' x 25' indoor pool
Depth: 3'6" to 4'3"
Approximately 35,000 gallons
Turnover Rate: 90 minutes
Pool #2
21' X 75' outdoor pool
Depth: 3'6" to 5'
Approximately 70,000 gallons
Additional specs for each pools
Diamond Brite Interior
Recessed Gutter system (not skimmer)
Bull nose coping, 6" waterline tile
Underwater lighting
3 ladders with recessed steps
Lane Rope Grommets every 7 to 10 feet
Brushed concrete or exposed aggregate decking
Commercial deck drain system 100% around the pool
Dehumidification System with heat exchange system to heat the indoor pool
Semi Automatic High Rate Sand Filters
Remote access controllers
UV system for each pool
Heaters: Indoor Pool temp 90 degrees year round
Pool cover for each pool
South Miami
To: The Honorable Mayor & Members of the City Commission
From: Hector Mirabile, PhD, City Manager
a AM
Date: February 23 d, 201 1 Agenda Item No.:
A Resolution of the Mayor and City Commission of the City of South Miami,
Florida, authorizing the City Manager to execute an agreement with the company
Ocaquatics 2, Inc., a company wholly owned and managed by Ocaquaties, Inc. the
top ranked respondent for the Murray Park Community Pool Operator Request for
Subject: Proposals (RFP) No. SM -FN 2010 -15, for advising and consulting services
concerning the design/build of the Murray Park Community Pool and for its
operation and management thereafter completion of all construction, inclusive of all
costs, and requiring no annual fee from the City for the duration of the agreement's
initial three (3) year term and its two (2) one (1) year options to renew for a total
term of five (5) years, and providing for an effective date.
The City withheld selection of a design/build proposal for the Murray Park Community
Pool until an operator was approved and available to provide the City the insight
necessary to proceed with that aspect of the overall project. It was Ocaquatics 2, Inc., a
company wholly owned and managed by Ocaquatics, Inc., hereinafter referred to as
"Ocaquatics ", which provided the top ranked of the four (4) proposal submittals received
for the Murray Park Pool Operator RFP No. SM -FN 2010 -15.
The City Commission, through Resolution No. 31 -11- 13345, then authorized the City
Manager to negotiate an agreement with Ocaquatics for advising and consulting services
Background: concerning the design/build of the Murray Park Community Pool and for its operation and
management thereafter completion of all construction, inclusive of all costs, and requiring
no annual fee from the City for the duration of the agreement. Should the pool not be
built, the operating agreement referenced herein shall be rendered null and void with no
cost or obligation owed or due to either Ocaquatics or the City.
The City Manager now seeks the City Commission's authority to execute the negotiated
agreement with Ocaquatics 2, Inc., in the substantially attached form, for the duration of
the agreement's initial three (3) year term and its two (2) one (1) year options to renew for
a total term of five (5) years.
Account Number
Expenditure $0.00.
Supporting • Murray Park Community Pool Operating Agreement
Documentation • Resolution No. 31 -11 -13345
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
RESOLUTION NO.
A Resolution of the Mayor and City Commission of the City of South Miami,
Florida, authorizing the City Manager to execute an agreement with the
company Ocaquatics 2, Inc., a company wholly owned and managed by
Ocaquatics, Inc, the top ranked respondent for the Murray Park Community
Pool Operator Request for Proposals (RFP) No. SM -FN 2010 -15, for advising
and consulting services concerning the design/build of the Murray Park
Community Pool and for its operation and management thereafter completion
of all construction, inclusive of all costs, and requiring no annual fee From the
City for the duration of the agreement's initial three (3) year term and its two
(2) one (1) year options to renew for a total term of five (5) years, and providing
for an effective date.
WHEREAS, the City withheld selection of a design/build proposal for the Murray Park
Community Pool until an operator was approved and available to provide the City the insight
necessary to proceed with that aspect of the overall project;
WHEREAS, Ocaquatics 2, Inc., a company wholly owned and managed by Ocaquatics, Inc.,
hereinafter referred to as "Ocaquatics ", provided the top ranked of the four (4) proposal submittals
received for the Murray Park Pool Operator RFP No. SM -FN 2010 -15; and,
WHEREAS, the City Commission, through Resolution No. 31 -11- 13345, authorized the City
Manager to negotiate an agreement with Ocaquatics for advising and consulting services concerning
the design/build of the Murray Park Community Pool and for its operation and management thereafter
completion of all construction, inclusive of all costs, and requiring no annual fee from the City for the
duration of the agreement.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF SOUTH MIAMI, FLORIDA;
Section 1 That the City Commission authorizes the City Manager to execute the negotiated
agreement with Ocaquatics 2, Inc., in the substantially attached form, for the duration of the
agreement's initial three (3) year term and its two (2) one (1) year options to renew for a total term of
five (5) years, and providing for an effective date.
Section 2 This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this day of
ATTEST:
City Clerk
Read and approved as to form
and sufficiency:
City Attorney
2011
APPROVED
Mayor
COMMISSION VOTE:
Mayor
Stoddard
Vice -Mayor
Newman
Commissioner
Palmer
Commissioner
Beasley
Commissioner
Harris
MURRAY PARK POOL OPERATING AGREEMENT
THIS AGREEMENT is made between Ocaquatics 2, Inc., a Florida corporation,
( "Operator ") and the City of South Miami, a Florida municipal corporation, ( "City "), on this day
of of 2011.
WHEREAS, City desires to design and build a community swimming pool facility
( "Facility ") at Murray Park located at 5800 SW 66"' Street, South Miami, Florida;
WHEREAS, City requires Operator to participate in the design of the Facility to include
one outdoor pool, one indoor pool, and supporting amenities, such as a reception area, office,
staff area, changing area, bathrooms, viewing area, pump room, chemical room, pool room and
outdoor area for the outdoor pool, all necessary to conduct swimming programs and teaching at
the Facility;
WHEREAS, Operator possesses the requisite skills, training, experience, knowledge and
ability to operate and conduct swimming programs and teaching at the Facility and City does not
possess such skills;
WHEREAS, the above services shall be at no charge to the City in consideration for
allowing the Operator to have a five year operating agreement with the City to operate and
maintain the Facility with receipt of all revenue from the operation of the Facility; and
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, and the
parties agree as follows:
1. WHEREAS CLAUSES: The above whereas clauses are incorporated into this
Agreement as fully set forth above and are made an enforceable part of this Agreement.
2. CONTRUCTION OF THE FACILITY: The Operator understands that the
construction of the Facility is subject to the unfettered discretion of the City, as opposed
to the Operator, and if it is not built and approved for occupancy and use by all applicable
government authorities within three years of the effective date of this Agreement as
defined herein then this Agreement will not go into effect. If this Agreement does not go
into effect then neither party will have any further obligations to the other party.
Furthermore, if this agreement does not go into effect because the Facility is not built and
approved for occupancy and use by all applicable government authorities within three
years of the date of the Effective Date of this Agreement, then the City will not owe
Operator any money for any efforts Operator has undertaken in connection with this
Agreement, and Operator waives any claims for damages, lost profits, anticipated future
profits, bid preparation, expenses, and any other claims it has or may have against this
City.
3. CONDITIONS PRECEDENT: This Operating Agreement ("Agreement") shall only
take effect upon the occurrence of all of the following events:
A. Operator participates in the design process of the Facility;
B. The design of the Facility substantially complies with the design parameters set
forth in Exhibit "A" of this Agreement on the sketch of the land as set forth in
Exhibit "B";
C. The Facility as described in this Agreement is enclosed by a screened fence and
excludes the parking area for the Facility and remainder of Murray Park which
shall not be considered part of the Facility for purposes of this Agreement, and
D. The Facility is constructed and approved for occupancy and use by all applicable
government authorities, evidenced by the issuance of a certificate of occupancy
by the City.
In the event that these conditions precedent are not met within three (3) years of the
effective date of this Agreement as defined herein, this Agreement shall become null and
void; and thereupon all parties shall be released of any and all obligations under this
Agreement and this Agreement shall terminate. Upon termination, the City shall not owe
the Operator any money for any efforts undertaken by the Operator in connection with
this agreement, and the Operator shall waive any and all claims for damages, lost profits,
anticipated future profits, bid preparation, expenses, and any and all other claims it has or
may have against the City.
4. TERM: The term of this Agreement shall be for a period of five years commencing on
the date that the Facility receives its certificate of occupancy by all applicable
government authorities. City shall deliver notice of the issuance of the certificate of
occupancy within five business days of its issuance.
5. DESIGN, CONSTRUCTION, AND EQUIPAGE: City shall bear all costs and be
solely responsible for the design, construction and equipage of the Facility required to
issue the certificate of occupancy from the City.
6. VANDALISM: For any and all cleanup required as the result of vandalism that may
occur inside the fence of the Facility, the Operator shall be responsible for cleanup up to
$1,000 and the City's insurance shall pay for cleanup in excess of $1,000 provided the
vandalism is not caused by the Operator, its agents, servants or employees. For any and
all cleanup required as the result of vandalism that may occur outside the fence of the
Pi
Facility in the remainder of Murray Park, the City shall be responsible provided the
vandalism is not caused by the Operator, its agents, servants or employees.
7. PERMITS: Following the issuance of the certificate of occupancy by the City, the
Operator shall be completely responsible and pay for applying, obtaining, and
maintaining all applicable permits required to open and operate the Facility. In addition,
should the Operator make any improvements to the Facility beyond the original design of
the Facility evidenced by the plans approved required to issue the certificate of
occupancy, the Operator shall be responsible for and pay for applying and obtaining such
permits as may be necessary to accommodate such improvements.
8. MINIMUM SAFETY STANDARDS: The Operator shall maintain the Facility in
compliance with all applicable required and minimum safety standards.
9. MANAGEMENT AND STAFFING OF THE FACILITY: Operator shall have one
Aquatics Manager (certified in Aquatics Facility Operation, International Swimming
Instructor Association Adaptive Aquatics Certification, American Red Cross Water
Safety Instructor, Lifeguarding, CPR and First Aid) and one Office Supervisor on site.
Staffing requirements will vary as necessary including but not limited to supervisors,
swimming teachers, lifeguards and office personal. All swimming instructors will be
certified in American Red Cross Lifeguarding, CPR, First Aid and Water Safety
Instructor. If at any time a lifeguard is not on duty, the Operator will ensure the pool is
not open to the public.
10. DUTIES AND RESPONSIBILITIES OF THE OPERATOR: Operator agrees to
provide its services during the term of this Agreement in accordance with all applicable
laws, regulations, and health and safety standards and will ensure that its employees,
agents and other parties follow all applicable laws, codes and regulations.
11. PERSONNEL: All Operator personnel who will work at the City's pool in fulfilling the
terms of this Agreement, including all lifeguards, shall be employed solely by the
Operator and be employees of the Operator. No lifeguards shall be engaged by the
operator as an independent contractor but must be employees of the Operator.
A. Operator agrees to pay the following to its employees: 1) wages, 2) income tax
withholdings, 3) social security withholdings, 4) state unemployment insurance, 5)
federal unemployment insurance, and 6) workmen's compensation insurance.
B. The Operator shall include City of South Miami residents in its hiring process to train
and prepare for the lifeguard and other personnel positions the Operator will require.
3
C. All of the Operator's personnel, without exception, shall submit to and pass a Level II
Background Check and Drug Test in order to work at the Facility and proof of the
same shall be provided to the City upon request.
D. City agrees to communicate any comments, suggestions, or complaints concerning the
pool, pool staff, or management service directly to the Operator management as well
as the pool manager.
12. PERSONNEL RESPONSIBILITIES: Operator personnel responsibilities shall include,
but not be limited to, the following duties:
A. Life guarding all pools;
B. Checking water chemistry and record readings a minimum of once a day or as per
State and County requirements;
C. Maintaining chemical balance of pool water;
D. Cleaning tiles around pool edge;
E. Back washing filtration system as needed;
F. Cleaning pump system strainer basket;
G. Cleaning changing areas and bathrooms daily, and inspect same each hour;
H. Cleaning swimming pool area daily;
I. Vacuuming pool a minimum of two (2) times per week or as needed;
J. Emptying trash receptacles and placing receptacles within the fenced area at the
curb on trash days;
K. Straightening deck furniture;
L. Replenishing janitorial supplies in changing rooms and bathrooms;
M. Enforcing the Operator's rules for the safety and convenience of all patrons;
N. Maintain mechanical equipment;
O. Report all incidents of accidents that occur at the Facility and make such reports
available upon request to the City's risk management officer (human resources)
within three business days of the occurrence. Make verbal reports of such
accidents to the City's risk management officer (human resources) within three
hours of each occurrence; and
P. Lock and secure facility upon closing.
13. CHEMICALS AND SUPPLIES: Operator agrees to supply and maintain at its expense:
(a) all chemicals and supplies required for safe and clean pool water, (b) changing area
and bathroom supplies, (c) cleaning supplies, (d) normal incandescent light bulbs for the
bathrooms, pump room, and lifeguard room, (e) all equipment necessary to efficiently
clean the pools, and (f) all first aid supplies and equipment. Said chemicals and supplies
shall be of good quality.
14. INSURANCE: Required insurance for the Facility shall include the following:
A. Operator will provide liability insurance reasonably satisfactory to City to insure
against any claims for negligence arising out of or related to the Operations and
will provide City with evidence of such insurance at the time this Agreement is
executed. Operator will provide the City with a Certificate of Insurance listing the
City of South Miami as an additional insured. Failure to comply is a material
breach of this Agreement.
B. City will supply the Operator with a Certificate of Property and Casualty
Insurance. In no event will the City be required to carry liability insurance as that
is solely the responsibility of the Operator.
C. Operator shall maintain and keep in full force the following coverage:
1) Worker's Compensation insurance covering all persons engaged on behalf of
the Operator in the performance of the terms of this agreement and
2) General commercial liability insurance in the amount of $1,000,000 per injury
and $3,000,000 aggregate.
Operator agrees to supply copies of certificates of insurance to the City .verifying the
above - mentioned insurance coverage. Operator agrees to list City as an Additional
Insured of the Operator's General and Professional liability insurance and shall provide
the City quarterly reports concerning any and all claims. City has the right to request
periodic certificates of insurance.
15. WALK THROUGH: The Operator and the City may complete a quarterly inspection
walk through of the City's facility at the City's sole discretion. At the City's request,
Operator will perform any repairs listed in the report, in accordance with this Agreement.
16. OPERATIONS OF THE FACILITY: Operator shall bear all costs and be solely
responsible for the operations of the Facility ( "Operations "). Operations shall include the
following:
A. FACILITY: Operator shall operate and be responsible for the Facility which
shall include only the area enclosed by a fence consisting of one outdoor pool,
one indoor pool, a reception area, office, staff area, changing areas, bathrooms,
viewing area, pump room, chemical room, pool room and outdoor area for the
outdoor pool. Operator shall not operate nor be responsible for the area not
enclosed by the fence including of the parking area for the Facility and the
remainder of Murray Park.
B. SCHEDULING OF THE PROGRAMS OF THE FACILITY: Operator shall
have control over and be responsible for the scheduling of the programming
including days and hours of operation of the Facility subject to the city manager's
approval. No change in dates of operation or hours of operation can be accepted
unless written authorization from the city manager is received within five
business days prior to the change request with the exception of schedule changes
due to weather and other such unforeseen circumstances. City manager approval
shall not be unreasonably withheld.
5
C. PROGRAMMING OF THE FACILITY: Operator shall have control over and
be responsible for the programming of the Facility subject to the following:
i. Swimming programs shall include, at a minimum, recreational/open swim,
swimming lessons by the Operator, lap swimming, and community rentals.
ii. No less than 25% of weekday operating hours and 50% of weekend
operating hours will be provided as open swim or lap swim sessions.
iii. The City shall not limit the ages of the children who use the facility.
iv. The Operator shall charge $4 for open swim or lap swim for all residents
and non - residents of the City subject to a 5% increase per year.
v. Children on free or reduced lunch program can participate in open
swim/lap swim or swimming instruction for 75% discount from regular
prices.
vi. Children participating in the City of South Miami summer camp will have
the opportunity to swim in the facility for free during camp. The schedule
to be worked out with the camp director and Operator.
vii. Operator shall have the right, with mutual agreement with the City, to
allow other operators the ability to run programs at the Facility under the
Operator's supervision.
B. SIGNS: The Operator shall maintain and provide all necessary and required signage
for the Facility including a notice on each admission ticket into the Facility that states
the Operator operates the Facility and is an independent contractor of the City.
C. OPERATING COSTS AND EXPENSES: Operator shall bear any and all costs
required to carry out the Operations of the Facility. Operator shall pay for any and all
metered utilities required to operate the Facility such electricity, gas, and water.
D. MAINTENANCE OF THE FACILITY: Responsibility for the maintenance of the
Facility shall be as follows:
1. Operator shall be responsible for and pay for all costs to maintain the Facility and
shall not be responsible for the area outside of the fence of the Facility or the
remainder of Murray Park.
2. The Operator shall keep records related to the maintenance.
E. OWNERSHIP OF THE CURRICULUM. Operator shall have complete ownership
of the Operator's proprietary curriculum including the swimming programs and
teaching of the Facility. The Operator curriculum, management and operating
procedures will be used only when Operator is the operator of the facility.
17. REVENUE: Operator shall charge reasonable rates and fees for use of the Facility by
patrons and is entitled to all revenue generated by such rates and fees. The standard of
reasonable rates and fees shall be what other similar facilities charge in South Florida.
18. TAXES: Operator shall be responsible for all payments of federal, state, and/or local
taxes related to the Operations, inclusive of sales tax if applicable.
19. SECURITY: Operator shall maintain any and all installed security and alarm systems
that may be necessary for the proper safeguarding of the Facility and City's residents
including, but not limited to, contracting with a monitoring company and assuring said
applicable systems are directly connected with the City's Police Department.
20. IMPROVEMENTS: Should Operator install or improve the Facility beyond the original
design of the Facility as evidenced by the approved plans required to issue the certificate
of occupancy, Operator shall have the right to remove and retain those improvements
after termination of this Agreement provided that such removal does not cause structural
damage to the Facility or any other damage that is visible or otherwise ascertainable by
inspection. Any and all improvements shall first require City Manager approval.
21. INDEPENDENT CONTRACTOR: Operator is an independent contractor under this
Agreement and nothing herein shall be construed to create a partnership, joint venture, or
agency relationship between the parties.
The City shall have the right at no charge by the Operator to place reasonable signage on
the subject premises and outside the subject premises, which signs shall inform the public
that the premises are operated by the Operator and not by the City and that any claims,
grievances, or Complaints of any nature concerning the operation or failure of operation
of the Facility or any other matter concerning the operation by Operator are solely and
entirely the responsibility of the Operator and not the City of South Miami.
22. SEVERABILITY: If any term or provision of this Agreement or the application thereof
to any person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement, or the application of such term or provision to persons of
circumstances other than those to which it is held invalid or unenforceable, shall not be
affected thereby and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
23. NO DISCRIMINATION: No action shall be taken by the Operator or City which would
discriminate against any person on the basis of race, creed, color, national origin,
religion, sex, familial status or disability.
24. INDEMNIFICATION: Operator hereby covenants and agrees to indemnify and hold
harmless the City from and against any and all losses, damages, costs and expenses,
including, without limitation, attorneys' fees and court costs, that may be incurred or
suffered by City as a result of any claim, including, without limitation, a claim for
7
negligence, being asserted against City by any party which arises from, results from,
relates directly or indirectly to, or is in any way whatsoever connected with Operator's
obligation and duties under this Agreement.
25. TERMINATION: Either party has the right to terminate the Agreement with or without
cause and provide notice of such termination within 90 days.
26. MODIFICATION OF THIS AGREEMENT: No waiver or modification of this
Agreement, in whole or part, will be valid unless in writing and duly executed by each of
the parties. Any waiver of any term, condition or provision of this Agreement will not
constitute a waiver of any other term, condition or provision hereof, nor will a waiver of
any breach of any term, condition or provision constitute a waiver of any subsequent or
succeeding breach.
27. GOVERNING LAWS: This Agreement and the performance of services hereunder will
be governed by the laws of the State of Florida, with exclusive venue for the resolution of
any dispute being a court of competent jurisdiction in Miami -Dade County, Florida.
28. ATTORNEYS' FEES: In the event of any litigation between the parties arising out of or
relating in any way to this Agreement or a breach thereof, each party shall bear its own
costs and legal fees.
29. ENTIRE AGREEMENT: This Agreement contains that complete agreement of the
parties and will supersede any and all other agreements, understandings and
representation by and between the parties hereto pertaining to the subject matter hereof.
30. AUDIT: Upon request and during regular business hours, the Operator shall allow the
City or its consultant to audit, inspect, and examine the facility for safety and contractual
compliance. In an effort to confirm such information, the City may communicate directly
with service providers and providers of pool maintenance goods. Additionally, the
Operator shall keep complete and accurate books and records of accounts and business
operations in accordance with generally accepted accounting principles for a period of
three (3) years.
31. DEPOSIT: The Operator shall provide the City a deposit equal to the cost of six (6)
months of maintenance of the Facility in the amount of $25,000. The City shall hold the
deposit in an interest bearing account. In the event that the City terminates the
Agreement, the deposit shall be returned to the Operator with interest. In the event that
the Operator terminates the agreement, the deposit shall be retained as agreed and as
liquidated damages in that ascertaining the actual damages is difficult to determine. At
the end of the five year term and if the Agreement has not been terminated, the deposit
9
shall be returned to the Operator with interest. It is intention that the parties in addition to
the matters set forth above, the above $25,000 shall serve as a security deposit which
funds can also be used to enforce any of the terms and conditions of this Agreement,
which the Operator fails to comply with.
32. ASSIGNMENT: Operator shall not assign or transfer its rights under this Agreement
without the express written consent of the City. In turn and upon its approval, the City
will not unreasonably withhold and/or delay said consent.
33. EFFECTIVE DATE: This Agreement shall not become effective and binding until it has
been executed by both parties hereto and shall be dated for purposes as of the date of its
execution by the last party so executing it.
34. THIRD PARTY BENEFICIARY: It is specifically understood and agreed that no other
entity shall be a third party beneficiary hereunder, and that none of provisions of this
Agreement shall be for the benefit of or be enforceable by any other than the parties
hereto, and that only the parties hereto shall have any rights hereunder.
33. FURTHER ASSURANCES: The parties hereto agree to execute any and all other and
further documents as might be reasonably necessary in order to ratify, confirm, and
effectuate the intent and purposes of the Agreement.
34. TIME OF ESSENCE: Time is of the essence of this Agreement.
35. CONSTRUCTION: This Agreement shall not be construed more strongly against either
party hereto, regardless of who was more responsible for its preparation.
36. FORCE MAJEURE: Neither party hereto shall be in default of its failure to perform its
obligations wider this Agreement if caused by acts of God, civil commotion, strikes,
labor disputes, or governmental demands or requirements. However, each party shall
notify the other of any such occurrence.
37. NOTICES: Whenever notice shall be required or permitted herein, it shall be delivered
by hand delivery or certified mail, with return receipt requested and shall be deemed
delivered on the date shown on the delivery date on the return receipt or the date shown
as the date same was refused, as follows:
If to the City of South Miami: City Manager, Hector Mirabile, Ph.D
6130 Sunset Dr.
South Miami, FL 33143
9
If to Ocaquatics 2, Inc.:
With copies to:
City Attorney, Laurence Feingold, Esquire
6130 Sunset Dr.
South Miami, FL 33143
Ocaquatics 2, Inc.
c/o Miren Oca, President
13408 SW 131 Street
Miami, FL 33186
With copies to:
Alexandra L. Deas, Esquire
P.O. Box 398794
Miami Beach, Florida 33239
38. ACCEPTANCE: Acceptance of this Agreement by City through signatures below, and
return of this Agreement along with any payments due hereunder will constitute a
contract entered into in accordance with the specifications, terms and conditions and
addenda attached hereto.
39. NON - RECORDATION. This Agreement, which is intentionally prepared in a non-
recordable form, shall not be recorded, and any attempt to do so shall be deemed a
nullity.
10
IN WITNESS WHEREOF, the parties have signed this Agreement this _ day of
of 2011.
Ocaquatics 2, Inc.,
a Florida corporation
By:
Signature of Witness
Miren Oca, as its President
Name
Signature of Witness
Name
City of South Miami, a Florida
municipal corporation
C
Signature of Witness
Hector Mirabile, Ph.D
City Manager
Name
Signature of Witness
Name
11
EXHIBIT "A"
Design Description: Total Feet: approximately 8000 sq It
One front desk/reception area
One individual office
One staff area
Six public individual changing areas
Four family style, unisex, ADA bathrooms
One viewing area
One pump room, 2 separate pump systems for each pool
One chemical room
One pool room with indoor pool (pool specs below)
One area for outdoor pool (pool specs below)
One lightning early warning system
Screened in fence to enclose pool facility
Security system
Pool Specs: Pool # 1
50' x 25' indoor pool
Depth: 3'6" to 4'3"
Approximately 35,000 gallons
Turnover Rate: 90 minutes
Pool #2
21' X 75' outdoor pool
Depth: 3'6" to 5'
Approximately 70,000 gallons
Additional specs for each pools
Diamond Brite Interior
Recessed Gutter system (not skimmer)
Bull nose coping, 6" waterline the
Underwater lighting
3 ladders with recessed steps
Lane Rope Grommets every 7 to 10 feet
Brushed concrete or exposed aggregate decking
Commercial deck drain system 100% around the pool
Dehumidification System with heat exchange system to heat the indoor pool
Semi Automatic High Rate Sand Filters
Remote access controllers
UV system for each pool
Heaters: Indoor Pool temp 90 degrees year round
Pool cover for each pool