FASTPITCH LEARNING ACADEMY INCORPORATED - AMENDED AND RESTATED AGREEMENT
AMENDED AND RESTATED 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, P. O. Box 4748, Clearwater, FL,
33758-4748, hereinafter referred to as the "City", and Fastpitch Learning Academy, Inc., a Florida
Corporation, whose address is: Attn: David Hazzard, P.O. Box 6107, Palm Harbor, FL, 34684,
hereinafter referred to as the "Agency" (individually referred to herein as "Party" or collectively as
the "Parties").
WHEREAS, the Parties hereto entered into that certain Partnership and Operational Support
Agreement dated February 1,2004, which is hereby amended and restated in total by the terms and
conditions provided for hereunder, and all obligations of the Parties thereunder shall be relieved;
and
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:
The foregoing recitals are true and correct and are incorporated in and form a part of this
Agreement.
ARTICLE I. TERM
The term of this agreement shall be for a period often (10) years commencing on the 13th day of
March, 2006 ("Commencement Date") and continuing through the 12th day of March, 2016
("Termination Date") unless earlier terminated under the terms of this agreement.
ARTICLE II. RESPONSIBILITIES OF THE AGENCY
1) Services to be Provided: One of the 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
viii) College and recreational softball tournaments
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. Until such time as the East Batting
Tunnel is completed and available for use, the agency will have exclusive use of the West
Batting Tunnel and the office at all times. The Agency may also request use of the bullpens
and fields 8 & 9 upon approval by the City. Upon completion of the East Batting Tunnel,
the Agency will no longer have exclusive use of the West Batting Tunnel, and shall request
and receive approval from the City before using the West Batting Tunnel. The Agency
understands that the East Batting Tunnel will not be completed at the inception of this
Agreement, the tentative date for completion being April 30, 2007 (the "Target Date"). If
the East Batting Tunnel is not completed by the Target Date, the parties agree that the
Capital Contribution and fees to be paid by the Agency hereunder shall be paid in
accordance with Section 4 of Article IT of this Agreement.
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, as long as the
City provides twenty-four (24) hour notice and such inspections do not unreasonably
interfere with the Agency's operation or events.
e) General Adherence to City Ordinances. Notwithstanding any limitations implied by the
provisions above, the Agency promises to observe all City ordinances.
f) Signage. The Agency may place an identification sign in the Complex, at the Agency's
expense, according to City codes with approval from the City.
g) Co-Sponsored Groups. Use by Co-sponsored groups shall be scheduled by the City, in its
sole discretion. 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 the 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 five percent (5%) of all gross revenues generated at the Complex and
provide a one-time capital contribution of One Hundred Thousand Dollars ($100,000.00) at the
inception of this Agreement (the "Capital Contribution"). Upon completion of the East Batting
Tunnel, the above referenced five percent (5%) gross revenue payment will increase to ten
percent (10%). If for some reason the City fails to have the east batting tunnel available to
Agency by April 30, 2007 ("Target Date"), Agency shall have the option of terminating the
agreement in its entirety with a full refund of the capital contribution, or continue to operate
under the terms of the agreement, with continued use of the west batting tunnel, at which time
the City shall reimburse Agency Fifty Thousand Dollars ($50,000), half of the initial capital
contribution.
5) Scheduled Reports of Agency Activities:
a) The Agency shall furnish the City Parks and Recreation Department with an audited annual
report of activities conducted under the provisions of this agreement within sixty (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.
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 of not less than five (5) years and shall be disclosed in accordance with Florida
Publics Record law, Chapter 119 of the Florida Statutes.
7) Non-discrimination: Notwithstanding any other provisions of this 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 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, 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 of a 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 the 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 the 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 perso]J.s 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.
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 is not assignable.
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. Such approval shall not be unreasonably withheld.
b) The City will provide maintenance for all major capital components of the building
including, but not limited to: air conditioners, roof, painting, plumbing and electrical.
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 Thirty (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 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. Upon said termination the pro-rata amount
of the capital contribution shall be paid by the City.
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 David Hazzard, P.O. Box 6107, Palm Harbor, FL, 34684.
ARTICLE VII. EFFECTIVE DATE
The effective date of this Agreement shall be as of the I ~ ~ day of ~ , 2006.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals this Way of
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Countersigned:
CITY OF CLEARWATER, FLORIDA
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Ffarfic V. Hibbard "
Mayor
By:
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llliam B. Home IT
City Manager
Attest:
Laur ipowski
Ass' tant City Attorney
FASTPITCH LEARNING ACADEMY, INe.
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By: -----.---.
David Hazzard
President