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MARYMONT FIELD USE AGREEMENTMARYMONT FIELD USE 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, ("City"), and Clearwater Lady Bombers, Inc., a non-profit corporation of the State of Florida, whose mailing address is: 11151 66th St. N., #401, Largo, Florida 34643 ("Club"). WHEREAS, it has been determined to be highly desirable and socially responsible to provide activities and facilities to meet the needs of youths; and WHEREAS, the City desires to provide programs and activities as a means to help youths; and WHEREAS, the City has recognized the need for youth programs as supported by the Parks and Recreation Master Plan; and WHEREAS, the Club has proposed to provide youth recreational experiences for local residents as described herein; and WHEREAS, the City owns Marymont Field ("Field"), located at 1900 Gilbert Street, Clearwater, FL 33765. WHEREAS, the Club desires to continue its partnership with the City in providing youth programs by running the day to day operations and offering programs at the Field; and NOW, THEREFORE, the parties agree as follows: ARTICLE I. TERM 1. Term: The term of this agreement shall be for a period of one (1) year commencing on March 4, 2011 and continuing through March 3, 2012 ("Termination Date") unless earlier terminated under the terms of this agreement. 2. Options to Renew: This agreement may be extended by mutual written agreement of the parties for five (5) additional periods of one (1) year, on the same terms and conditions as are set forth herein. ARTICLE II. RESPONSIBLITIES OF THE CLUB 1. Services to be Provided: One of the Club's goals shall be to provide safe opportunities for softball players to learn, practice and play their sport. a) Programs: The Club will provide the supervision, maintenance and programming of the facility described in this agreement. Some of the programs to be provided may include, but are not necessarily limited to: i) Club softball for youth. ii) Training camps for softball. iii) Little league programs. iv) City sponsored and co-sponsored games and practices. v) The City shall have right of first refusal to use the field for eight events per contract year, if necessary, by providing the Club with thirty (30) days advance notice. b) Assistance to the Community: The Club will maintain communication and interaction with the surrounding community and the City. c) Hours of Operation: The Club will provide programs and activities at the field, but will follow ordinance all applicable law, including the City of Clearwater Code of Ordinances, regarding park/facility hours. 2. Area to be Served: Services rendered through this agreement shall be related to softball activities and provided primarily for the enjoyment of residents of Clearwater, but will include residents of other areas in order to make the offerings of said program viable and successful. 3. Use of Softball Facility. a) No Illegal Use: The Club promises and agrees that they will make or allow no unlawful, improper or offensive use of the premises. Further, the Club 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 Field and those adjacent areas used by the Club. b) Rules for Use: Rules and regulations governing the use of the Field may be established by the Club, 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 Club may provide for and allow reasonable user fees to be retained by the Club. C) Inspection by City: The Club understands and agrees that the Field premises may be inspected at any time by the City's officers, agents and employees. The City shall make its best effort to notify the Club at least 24 hours prior to any inspections. d) General Adherence to City Ordinances: Notwithstanding any limitations implied by the provisions above, the Club promises to observe all City ordinances and other applicable law. 2 e) Signage: The Club may place an identification sign at the Field or in the park according to City codes with approval from the City at the Club's expense. f) Structure: No permanent alterations or improvements to the interior or exterior of the building may be made without the written consent of the City. Any permanent structural additions approved by the City will become City property. g) Assignment: This Agreement is not assignable. Any attempt to assign the rights under this Agreement, or any portion thereof shall result in automatic termination and render this Agreement null and void in all respects. 4. Maintenance of the Premises by the Club. a) Custodial Maintenance: The Club shall maintain the Field, Rest Room facilities and adjacent areas used by the Club in a clean and orderly condition. The City reserves the right to terminate this agreement immediately should the Club fail to maintain the facilities. b) Pesticides: The Club is responsible to have pesticides put down by someone who holds a Turf and Ornamental License. Pesticides will need to be applied when needed and have a mole cricket control plan in place. The Club also needs to have a weed control plan that will obtain 95% year-round control. All applications will need to be documented by the Club and must be applied in accordance with applicable law. The Club shall bear the burden of proper interpretation of, and compliance with applicable law, including but not limited to environmental law, and hereby fully indemnifies the City for failure to do so. c) Fertilizers: The Club is responsible to apply 4-6 lbs. of N per 1000 ft, whereby product applications contain a 1:2 --N:K ratio and that all Nitrogen shall be no less than a 50% slow release source. All applications will need to be documented by the Club. d) Irrigation: The Club is responsible to have monthly inspections of the irrigation system and to make any necessary repairs in the system. All inspections and repairs will need to be documented. e) Field Maintenance: The Club is responsible to properly maintain the grass to a length between 3/4 to 1 inch and that clay to a safe playing condition. This may require a heavily nail drag twice a year. The Club is also responsible for properly maintaining the lip of the grass and dirt and may require washing the lips with a hose throughout the year. 3 f) Repair of Damage: The Club understands and agrees that it is responsible for and will cause to be repaired at the Club's expense damage to the premises as a result of their occupancy other than normal wear and tear or vandalism. g) Amenities: The Club is responsible to make sure that all amenities that are used by players, spectators and coaches are safe at all times. Documentations of all weekly inspections are required under this agreement. 5. Payment for all operating expenses: a) The Club is responsible to pay all operating expenses associated with the Field and its programs, except those specifically identified under Article III, Section 2. b) The City will provide maintenance through its Building and Maintenance Department for all major capital components of the park including, but not limited to, painting, plumbing, electrical, etc.. The City shall have sole discretion in determining the scheduling and extent of capital maintenance projects. 6. Scheduled Reports of Club Activities: a) The Club shall furnish the City Parks and Recreation Department with an annual report of activities conducted under the provisions of this agreement within sixty (60) days of the end of the Club'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 Club 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). 7. Creation, Use, and Maintenance of Financial Records: a) Creation of Records: The Club 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 Club. Such records shall be available and accessible at all times for inspection, review, or audit by authorized City representatives and shall produce such records as required by law. 4 b) Use of Records: The Club 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 of not less than five (5) years and shall be disclosed in accordance withthe law, including Chapter 119, Florida Statutes. 8. Management Letter: Within ninety (90) days of the close if its fiscal year, the Club agrees to submit to the City a management letter detailing the officers of the Club, by- laws and/or rules of the Club and identify fees and donations, and expenditures by the Club. 9. Non-discrimination: Notwithstanding any other provisions of this agreement during the term of this agreement, the Club for itself, agents and representatives, as part of the consideration for this agreement, does covenant and agree that: a) Non-discrimination: The Club agrees that no person shall, on the grounds of race, 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. The Club agrees to maintain reasonable accommodation and access for handicapped persons as required by law. b) Inclusion in Sub-Contracts: The Club agrees to include the requirements to adhere to Title VI and Title VII of the Civil Rights Act of 1964 in all approved sub-contracts. c) Breach of Non-discrimination Covenants: In the event of conclusive evidence of a breach of any of the above non-discrimination covenants, the City shall have the right to terminate this agreement immediately. 10. Publicizing of City Support: The Club agrees to utilize every reasonable opportunity to publicize the support received from the City. The Club further agrees to supply the City up to three (3) copies of any publication developed in connection with implementation of programs by this agreement. Such publications will state that the program is supported by the City. 11. Liability and Indemnification: The Club 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 of the City or City's agents or 5 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 Club's activities or those of any approved or unapproved invitee, contractor, subcontractor, or other person approved, authorized, or permitted by the Club in or about the premises whether or not based on negligence. Nothing herein shall be construed as a consent by the City to be sued by third parties, or as a waiver or modification of the provisions of Section 768.28, Florida Statutes or the Doctrine of Sovereign Immunity. This provision shall survive termination of this Agreement. 12. Insurance: The Club agrees that it will indemnify and save the City harmless on account of the negligent acts of Club staff, volunteers or agents or on account of any unsafe condition that may exist as a result of the negligent operation by Club staff, volunteers or agents of the facilities. The Club further agrees to carry liability insurance where appropriate and as requested by the City and as shown below; and add the City of Clearwater to its insurance policy as an additional insured. a) Comprehensive General Liability insurance on an "occurrence" basis in an amount not less than $1,000,000 combined single limits Bodily Injury Liability and Property Damage Liability. b) If a motor vehicle is owned by, hired by, used by, or used on behalf of the Club then Business Automobile Liability insurance in the amount of at least $1,000,000, providing Bodily Injury Liability and Property Damage Liability is required. c) Worker's Compensation Insurance applicable to its employees, if any, for statutory coverage limits in compliance with Florida laws. d) Personal Property - The City shall not insure or self-insure loss to personal property of Club. Club understands that it is solely responsible for such losses regardless of cause. e) Certificates of insurance showing coverage as provided above will be provided to the City at the inception of this Agreement and by October 1 st for each year agreement is in force. The address where such certificate(s) of insurance shall be sent or delivered is as follows: City of Clearwater Attention: Parks and Recreation Director P.O. Box 4748 Clearwater, FL 33758-4748 Also, copy to be sent to Risk Manager at same address. 6 ARTICLE III. RESPONSIBILITIES OF THE CITY 1. Grant of Funds: a) The City will not be providing any monetary funding as part of this Agreement. 2. Grant of In-Kind Services: a) The City will provide Capital Improvement maintenance through its Building and Maintenance Department for all major capital components of the building, playground, basketball court and picnic shelters including, but not limited to, painting, plumbing, electrical, etc. The City shall have sole discretion in determining the scheduling and extent of capital maintenance projects. b) The City shall provide grounds maintenance for all areas outside of the ballfield and batting tunnel areas. 3. City Liaison: The Recreation Programming Division of the City of Clearwater will serve as the City Liaison for the Club. ARTICLE IV. DISCLAIMER OF WARRANTIES This agreement constitutes the entire agreement between 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. With or Without Cause: Either Party may terminate this Agreement with thirty (30) days written notice without any further obligation. The City may terminate this Agreement immediately for failure to adhere to any of the provisions of this Agreement as determined by the City in its sole discretion. Under such termination, the Club shall remit to the City all monies due hereunder within fifteen (15) days. 2. For Municipal Purpose: The City may terminate this agreement in the event it determines that the premises are required for any other municipal purposes by giving ninety (90) days written notice of such intended use, following which this agreement shall terminate in every respect, and both parties shall be relieved of any further obligations hereunder, except resulting from the operation hereof, together with any other monies due in accordance with this agreement. 7 ARTICLE VI. NOTICE Any notice required or permitted to be given by the provision 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. With copy to: City Attorney, P.O. Box 4748, Clearwater, FL 33758. 2. If to Club, addressed to: 4996 Felecity Way, Palm Harbor, A 34695 . ARTICLE VII. EFFECTIVE DATE The effective date of this agreement shall be as of the 9 day ofAaj c' k 20-L1-- IN WITN SS WHEREOF, the parties hereto have set their hands and seals this q day of, 20 / 1 Countersigned: CITY OF CLEARWATER, FLORIDA Frank V Hibbard Mayor By: William B. Horne, II City Manager Approved as to form: Y.- Laura Lipowski Mahony Assistant City Attorney CLEARWATER LADY BOMBERS, INC. By: Anted Name: _ nthony J Grat Chief Executive Officer/President of Club Attest: Rosemarie Call City Clerk 8