PARTNERSHIP AND OPERATIONAL SUPPORT AGREEMENT RE USE OF EDDIE C. MOORE 8 & 9 COMPLEX FOR SOFTBALL TRAINING
AGREEMENT
This Partnership and Operational Support Agreement is made and entered into between the City of
Clearwater, whose address is: Attn: Parks and Recreation Director, Post Office Box 4748,
Clearwater, FL 33758-4748, hereinafter referred to as the "City", and Fastpitch Learning Academy,
Inc., a Florida Corporation, whose address is: P.O. Box 6107, Palm Harbor, FL 34684, hereinafter
referred to as the "Agency".
WHEREAS, it has been determined to be highly desirable to provide softball training activities to
participants in the greater Clearwater area; and
WHEREAS, the City desires to provide recreation programs and athletic activities as a means to
help young people, adults and families; and
WHEREAS, the City has recently constructed a softball playing and training facility at Eddie C.
Moore 8 & 9 Complex and desires to offer training programs at the Complex; and
WHEREAS, the Agency desires to partner with the City in providing training programs; and
WHEREAS, the City owns Eddie C. Moore 8 & 9 Complex, hereinafter referred to as the
Complex, located at 2780 Drew Street, Clearwater, FL 33759; and
NOW, THERFORE, the parties agree as follows:
ARTICLE I. TERM
The term of this agreement shall be for a period of 10 years commencing on the 1st day of February
2004 ("Commencement Date") and continuing through the 31st day of January 2014 ("Termination
Date") unless earlier terminated under the terms of this agreement.
ARTICLE II. RESPONSIBILITIES OF THE AGENCY
1) Services to be Provided: One ofthe Agency's goals shall be to provide quality training
programs and to increase the number of programs and services provided at the Complex.
a) Programs: Exclusive operator to conduct camps, lessons, training, recreational and
motivational programs at the Complex for the benefit of Clearwater area participants.
Some of the core programs to be provided are as follows:
i) Summer softball camps
ii) Holiday softball camps
iii) Softball clinics
iv) Private softball lessons
v) Semi-private softball lessons
vi) Group softball lessons
vii) Rehabilitation training
b) Assistance to the City: Provide Agency personnel and volunteers to assist the City in
maintaining and monitoring the grounds and facilities used by the Agency as to maintain
the grounds to the standard existing at the inception of this Agreement and avoid waste
therein.
c) Supervision of Recreation Grounds: Provide Agency personnel and volunteers to
operate and supervise all Agency activities, programs and camps at the Complex.
d) Modifications: Any modifications or improvements to the facility must be approved in
advance by the Parks and Recreation Director and shall become the property of the City
in their entirety.
e) Background Checks: All Agency employees must have background checks and those
records maintained by the Agency.
f) Youth Sports Standards: The Agency agrees to promote the National Alliance of
Youth Sports Standards.
2) Use of Eddie C. Moore 8 & 9 Complex:
a) Use of Batting Tunnel, Fields and Office Space. The agency will have exclusive use of
the east batting tunnel and the office at all times. The use of the west batting tunnel as well
as bullpens and fields 8 & 9 are to be coordinated with, and approved by the City, in its sole
discretion, in order to facilitate co-sponsored and City related use of the facility. Such
approval shall not be unreasonably withheld by the City. Core co-sponsored groups will
have priority for field use. The Agency understands that the batting tunnels will not be
completed at the inception of this Agreement, the tentative date for completion being April
2004.
b) No Illegal Use. The Agency promises and agrees that they will make or allow no unlawful,
improper or offensive use of the premises. Further, the Agency understands and agrees that
this provision specifically prohibits, among other acts, the sale, consumption or use of
alcoholic beverages or controlled substances anywhere in, on or around the Complex and
those adjacent areas used by the Agency.
c) Rules for Use. Rules and regulations governing the use of the Complex for the programs as
outlined in Section 1 a of Article II may be established by the Agency, providing they are not
in conflict or inconsistent with the ordinances, policies or operating rules of the City or of
this Agreement. Such rules and regulations developed by this Agency may provide for and
allow reasonable user fees.
d) Inspection by City. The Agency understands and agrees that the Complex premises may be
entered and inspected at any time by the City's officers, agents and employees.
e) General Adherence to City Ordinances. Notwithstanding any limitations implied by the
provisions above, the Agency promises to observe all City ordinances.
f) Sign age. The Agency may place an identification sign in the Complex, at the Agency's
expense, according to City codes with approval from the City.
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g) Co-Sponsored Groups. Use by Co-sponsored groups shall be scheduled by the City in
consultation with the Agency. Final schedule will be at the sole discretion of the City. A
co-sponsored group is defined as a fast pitch softball program with a current approved Co-
sponsored Agreement with the City.
h) City Related Use. The City reserves the right to utilize the facility for City use and
tournaments.
i) Equipment. Training equipment (i.e. pitching machines, batting tees, etc.) provided by the
Agency may be made available to the co-sponsored groups with prior approval of the
Agency and City. Co-sponsored groups will be responsible for any damage and
repair/replacement of equipment. In no case will they be permitted to use any unauthorized
equipment.
3) Maintenance of the Premises by the Agency:
a) Custodial Maintenance. The Agency shall assist the City in maintaining the areas used by
the Agency in a clean and orderly condition up to the standards of other City athletic
facilities.
b) Repair of Damage. The Agency understands and agrees that it is responsible for and will
cause to be repaired, at the Agency's expense, damage to the premises other than normal
wear and tear or vandalism.
4) Payment of Fees and Taxes: The Agency shall obtain all required licenses at its own expense
and shall pay all required taxes necessary to the Agency's operation at the Complex. The
Agency will pay the City 10% of all gross revenues generated at the Complex and provide a one-
time capital contribution of $100,000 at the inception of this Agreement.
5) Scheduled Reports of Agency Activities:
a) The Agency shall furnish the City Parks and Recreation Department with an annual report of
activities conducted under the provisions of this agreement within 60 days of the end of the
Agency's fiscal year. Each report is to identify the number of clients served, the type of
activities, programs offered and costs of such services.
b) The Agency agrees to submit progress reports and other information in such format and at
such times as may be prescribed by the City, and to cooperate in site visits and other on-site
monitoring (including, but not limited to, access to sites, staff, fiscal and client records, and
logs and the provision of related information).
6) Creation, Use, and Maintenance of Financial Records:
a) Creation of Records: Agency shall create and maintain financial and accounting records,
books, documents, policies, practices, procedures and any information necessary to reflect
fully the financial activities of the Agency. Such records shall be available and accessible at
all times for inspection, review, or audit by authorized City representatives.
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b) Use of Records: Agency shall produce such reports and analyses that may be required by
the City to document the proper and prudent stewardship and use of the facilities.
c) Maintenance of Records: All records created hereby are to be retained and maintained for
a period not less than five (5) years.
7) Non-discrimination: Notwithstanding any other provisions ofthis agreement during the term
of this agreement, the Agency for itself, agents and representatives, as part of the consideration
for this agreement, does covenant and agree that:
a) Nondiscrimination: Agency agrees that no person shall, on the grounds ofrace, sex,
handicap, national origin, religion, marital status or political belief, be excluded from
participation in, denied the benefit(s) of, or be otherwise discriminated against as an
employee, volunteer, or client of the provider, except that programs may designate services
for specific client groups as defined in the application. Agency agrees to maintain reasonable
access to handicapped persons.
b) Inclusion in Subcontracts: The Agency agrees to include the requirement to adhere to Title
VI and Title VII of the Civil Rights Act of 1964 in all approved sub-contracts.
c) Breach of Nondiscrimination Covenants: In the event of conclusive evidence ofa breach
of any of the above non-discrimination covenants, the City shall have the right to terminate
this agreement.
8) Publicizing of City Support: Agency agrees to utilize every reasonable opportunity to
publicize the support received from City. Agency further agrees to supply City, up to three
copies of any publication developed in connection with implementation of programs addressed
by this Agreement. Such publications will state that the program is supported by City.
9) Liability and Indemnification: The Agency shall act as an independent contractor and agrees
to assume all risks of providing the program activities and services herein agreed and all liability
therefore, and shall defend, indemnify, and hold harmless the City, its officers, agents, and
employees from and against any and all claims of loss, liability, and damages of whatever
nature, to persons and property, including, without limiting the generality of the foregoing, death
of any person and loss of the use of any property, except claims arising from the negligence or
willful misconduct of the City or City's agents or employees. This includes, but is not limited to
matters arising out of or claimed to have been caused by or in any manner related to the
Agency's activities or those of any approved or unapproved invitee, contractor, subcontractor, or
other person approved, authorized, or permitted by the Agency in or about its premises whether
or not based on negligence.
10) Insurance. The Agency shall procure at its expense and maintain during the term of this
Agreement insurance as shown below:
a) A Comprehensive General Liability policy covering claims for injuries to persons or
damage to property, which may arise from or in connection with use of the facility
premises by the Agency including all activities occurring thereon.
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b) A Business Automobile Liability Policy covering claims for injuries to persons or damage to
property that arises from or in connection with use of a motor vehicle owned by the Agency.
c) Insurance procured in accordance with sections 10 (a) and (b) shall have minimum coverage
limits of $1 ,000,000.
d) The Agency shall carry sufficient property insurance to cover all of its personal property. In
no case shall the City be responsible for any loss of property of the Agency or occupants of
the facility as a result of the Agency's use hereunder.
e) Worker's Compensation coverage shall apply for all employees in an amount at least equal
to the statutory limits of coverage according to applicable State and Federal laws. In
addition, the policy shall include employer's liability coverage with a limit of $500,000 per
occurrence.
f) Except for Worker's Compensation coverage, each insurance policy issued as a requirement
of this Agreement shall name the City of Clearwater as an additional named insured. The
coverage shall contain no special limitations on the scope of protection afforded to the City,
its officials, employees, agents or volunteers.
g) The Agency shall furnish the City with Certificate(s) of Insurance with all endorsements
affecting coverage required by this section. These forms shall be received and approved by
the City's Risk Manager before execution of this Agreement by authorized City officials.
11) Assignability. This Agreement, any part thereof or any interest therein, shall not be assigned,
transferred or subleased by Agency without the express written consent of the City which shall
not be unreasonably withheld. Any assignee, as provided for herein, shall be subject to all terms
and conditions of the agreement as originally executed unless otherwise modified by the City, in
its sole discretion, at the time of assignment. Agency's failure to obtain City's written consent to
any assignment, transfer or sublease shall render such agreement null and void.
All principals of the Agency and their respective percentages of ownership shall be disclosed to
the City in writing and it is expressly agreed that if the Agency is a corporation, any change in the
ownership of corporate stock; or if a partnership, the addition to or withdrawal of any partner
from the partnership firm; or the addition to or withdrawal of a principal Agency in whatever
capacity; by purchase or sale, or operation of law or in any other manner whatsoever, without the
consent ofthe City shall be deemed an assignment.
Notwithstanding any attempt by Agency to assign, transfer or sublease this Agreement, or any part
thereof or interest therein, Agency shall remain obligated and liable to City for the performance of
all covenants, terms, and conditions, warranties and other provisions of this Agreement to the
same extent that Agency would have been obligated and liable if such assignment, delegation, or
sublease had not been attempted, but such attempt shall be deemed an act of material default by
Agency.
It is understood and agreed that City may, at any time, with notice, assign or delegate any or all of
its rights hereunder.
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ARTICLE III. RESPONSIBILITIES OF THE CITY
1. Grant of Funds. Other than as provided for herein, it is not intended that the City make any
monetary contribution or other contribution to the Agency or the operations of the programs.
2. Grant of In-Kind Services:
a) The City agrees to provide lawn, landscape, custodial and ballfield maintenance for
all areas in the park and around the building. Additional ballfield maintenance above
the normal level typically provided by the City must be requested in advance and
approved by the City.
b) The City will provide maintenance for all major capital components of the building
including air conditioners, roof, painting, plumbing, electrical, etc.
c) The City will not provide any other additional in kind services, supplies, labor or
equipment whether on loan or for consumption to the Agency.
ARTICLE IV. DISCLAIMER OF WARRANTIES
This Agreement constitutes the entire Agreement of the parties on the subject hereof and may not be
changed, modified, or discharged except by written Amendment duly executed by both parties. No
representations or warranties by either party shall be binding unless expressed herein or in a duly
executed Amendment hereof.
ARTICLE V. TERMINATION
1. For Cause: Failure to adhere to any of the provisions of this agreement as determined by
the City shall constitute a breach hereunder and constitute cause for termination. Upon such
breach, the agreement may by terminated with 30 days written notice without any further
obligation by City.
2. For Municipal Purpose: This agreement shall be subject to termination by City in the
event the City determines that the premises are required for other municipal purposes. In
such event, City shall provide Agency with 90 days written notice of such intended use,
following which this Agreement shall terminate in every respect, and both parties shall be
relived of any further obligations hereunder.
ARTICLE VI. NOTICE
Any notice required or permitted to be given by the provisions of this agreement shall be
conclusively deemed to have been received by a party hereto on the date it is hand-delivered to such
party at the address indicated below (or at such other address as such party shall specify to the other
party in writing), or if sent by registered or certified mail (postage prepaid), on the fifth (5th)
business day after the day on which such notice is mailed and properly addressed.
1. If to City, addressed to Parks and Recreation Director, P.O Box 4748, Clearwater, FL 33758
2. If to Agency, addressed to P.O. Box 6107, Palm Harbor, FL 34684
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ARTICLE VII. EFFECTIVE DATE
The effective date of this agreement shall be as of the first day of January 2004.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals this )/D~ day of
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B . . Aungst
Mayor-Commissioner
By:
~Wi', . Home,n
l City Manager
Approved as to form:
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Laura tipowski
Assistant City Attorney
Attest:
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hia E. GOudeau'
C Clerk <.'-
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Fastpitch Learning Academy, Inc.
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Printed Name: \)~~,~ \\A.1..~~itD
President
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