DUNEDIN BLUE JAYS LICENSE AGREEMENTDUNEDIN BLUE JAYS LICENSE AGREEMENT
THIS DUNEDIN BLUE JAYS LICENSE AGREEMENT (the "Agreement"), made
and entered into this 21' day of February, 2019 (the "Effective Date") by and between the CITY
OF CLEARWATER, FLORIDA, a municipal corporation of the State of Florida (hereinafter
referred to as the "City") and ROGERS BLUE JAYS BASEBALL PARTNERSHIP, an
Ontario, Canada general partnership (hereinafter referred to as the "Club").
WITNESSETH
WHEREAS, the City owns a baseball facility and other appurtenances and improvements
located at or near the municipal address of 800 Phillies Drive, Clearwater, FL 33755, which is
described and/or illustrated on Exhibit "A" attached hereto and commonly referred to as the Jack
Russell Memorial Stadium (collectively, the "Jack Russell Facilities");
AND WHEREAS, the Club owns and operates the "A" level Minor League Baseball
("MiLB") team known as the Dunedin Blue Jays® (which team is a member of the Florida State
League) (the "Minor League Team");
AND WHEREAS, the Club licenses from the City of Dunedin training and playing
facilities for the Minor League Team (collectively, the "Dunedin Facilities");
AND WHEREAS, the Dunedin Facilities are currently under construction;
AND WHEREAS, the Club desires to have the training and games for the Minor League
Team in the City for a temporary period of time until construction of the Dunedin Facilities is
complete;
AND WHEREAS, the Jack Russell Facilities are available for the Club's purposes;
AND WHEREAS, the City agrees to license the Jack Russell Facilities to the Club in
consideration of certain obligations set forth herein from the Club to the City;
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained and in consideration of the obligations of the parties to be performed, the City and the
Club hereby mutually covenant and agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following terms shall have the
following definitions:
(a) "Casualty Event" has the meaning set forth in Section 17 of this Agreement;
(b) "City" has the meaning set forth in the recitals to this Agreement;
(c) "Club" has the meaning set forth in the recitals to this Agreement;
(d) "Club Activities" means Home Minor League Team Games and those training and other
activities of the Club and Minor League Team reasonably associated with Home Minor League
Team Games;
(e) "Club Use Dates" means the dates specified in Exhibit "B" attached hereto and forming part
of this Agreement, as well as any additional dates as may be mutually agreed by the parties
from time to time;
(f) "Club Use Period" means, with respect to any Club Use Date, the period that commences five
(5) hours prior to the scheduled start time of the Home Minor League Team Game on such
Club Use Date and that ends two (2) hours following the completion of the Home Minor
League Team Game on such Club Use Date. By way of illustration, if a Home Minor League
Team Game is scheduled to commence at 6:07 p.m. on a particular Club Use Date and in fact
ends at 9:07 p.m., the Club Use Period will be from 1:07 p.m. until 11:07 p.m. For certainty,
in the event that the parties agree on any Club Use Dates that are for the purposes of Minor
League Practices (as opposed to Home Minor League Team Games), then the Club Use Period
will be as mutually agreed;
(g) "Dunedin Facilities" has the meaning set forth in the recitals to this Agreement;
(h) "Enumerated Event" has the meaning set out in subsection 23(a) of this Agreement;
(i) "Food and Beverage Concession Facilities" means all facilities and spaces existing within
the Jack Russell Facilities as are designed and/or suitable for the preparation, display and/or
sale of food and beverage products;
(j) "Home Minor League Team Games" means home games of the Minor League Team played
as part of the Florida State League regular season and post -season, if any;
(k) "Hourly License Fee" has the meaning set out in paragraph 4(a)(i) of this Agreement;
(1) "Hourly Lighting Fee" has the meaning set out in paragraph 4(a)(ii) of this Agreement;
(m)"Jack Russell Facilities" has the meaning set forth in the recitals to this Agreement;
(n) "License Fee" has the meaning set out in subsection 4(a) of this Agreement.
(o) "MiLB" has the meaning set forth in the recitals to this Agreement;
(p) "Minor League Team" has the meaning set forth in the recitals to this Agreement;
(q) "NorthWest Building" means the building located at the northwest corner of the Jack Russell
Facilities;
(r) "Restoration Standard" has the meaning set forth in Section 17 of this Agreement;
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(s) "Special Damages" has the meaning set forth in subsection 22(a) of this Agreement; and
(t) "Term" has the meaning set out in subsection 2(a) of this Agreement.
2. TERM.
(a) The term of this Agreement will commence on March 1, 2019 and will expire on September
30, 2019, unless sooner terminated as provided herein (the "Term").
(b) The Club shall have the right to terminate this Agreement for convenience at any time, upon
thirty (30) days advance written notice to the City.
3. GRANT OF LICENSE.
(a) Subject to the terms and conditions set forth herein, the City hereby grants to the Club (and its
invitees) on each of the Club Use Dates the right license to occupy and use the Jack Russell
Facilities for the purposes of hosting Club Activities.
(b) The City represents and warrants that the Jack Russell Facilities are, as of the date first written
above, and will continue to be throughout the Term, safe, compliant with all applicable legal
requirements and available and in appropriate condition for the Club Activities.
4. FEES.
(a) In return for the license granted to it hereunder and the City's commitments hereunder, the
Club shall pay to the City the following amounts:
(i) A license fee of forty dollars ($40) per hour, plus applicable taxes (the "Hourly License
Fee"); and
(ii) A lighting fee of twenty five dollars ($25 per hour), plus applicable taxes (the "Hourly
Lighting Fee").
For clarity, the Hourly License Fee is payable for the total number of hours included in each
Club Use Period and the Hourly Lighting Fee is payable only in connection with those hours
of each Club Use Period during which the main stadium lights (i.e. the field lights) are in fact
in use.
(b) Within fifteen (15) days following the completion of each calendar month during the Term,
the City shall deliver an invoice to the Club for the aggregate of the Hourly License Fees and
Hourly Lighting Fees for such completed calendar month. Each invoice will include a
breakdown of Hourly License Fees and Hourly License Fees by Club Use Date during the
applicable calendar month (based on the actual duration of the Club Use Period on each such
Club Use Date), thereby allowing the Club to confirm the City's calculations. The Club will
make payment of undisputed invoices within forty five (45) days of receipt.
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5. CLUB USE OF FACILITIES.
(a) Exclusivity During Club Use Periods. During the Club Use Period on each of the Club Use
Dates, the Club shall have the exclusive use of all of the Jack Russell Facilities, including,
without limitation, the following:
(i) the playing field,
(ii) the seating bowl and other seating spaces,
(iii) 1 st base and 3rd base clubhouses,
(iv) umpires room,
(v) batting cages,
(vi) pitching mounds,
(vii) stadium box office,
(viii) concession stands,
(ix) restrooms
(x) parking lots, and
(xi) other appurtenant facilities commonly utilized for the conduct of baseball training and
baseball games.
The City shall take all necessary steps to ensure the aforementioned exclusivity and shall
ensure that the Jack Russell Facilities are delivered to the Club in vacant, clean and safe
condition prior to each Club Use Period.
(b) NorthWest Building Exclusivity. Throughout the Term (including those periods that are not
within a Club Use Period), the Club shall have the exclusive use of the NorthWest Building,
which building is intended to house the umpires room and a training room (the "NorthWest
Building"), and, subject only to the City's right to enter the NorthWest Building on reasonable
advance notice to the Club, the City will not use or permit any other person or entity to enter
or use the NorthWest Building without the Club's prior written agreement.
(c) No Conflict with Other Use Rights. The City has advised the Club that, prior to the date of
this Agreement, it granted each of St. Petersburg College and Clearwater High School certain
rights to use the Jack Russell Facilities and the City hereby represents and warrants that the
Club Use Dates set out in Exhibit "B" attached hereto do not conflict with the rights granted
to either of the aforementioned entities or the rights of any other person or entity.
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(d) Access. The City shall provide the Club with all necessary keys, access cards and/or access
codes necessary for the Club to access the Jack Russell Facilities during the Term. The Club
shall have the sole right to control access to the Jack Russell Facilities during each Club Use
Period.
6. OPERATIONAL PERSONNEL.
(a) Club Responsibilities. The Club will provide all personnel it determines to be necessary for
the conduct of the Minor League Team's home baseball games at the Jack Russell Facilities
and, subject to subsection (b), otherwise for its use and occupancy of the Jack Russell Facilities.
Without limiting the foregoing, the Club will be responsible:
(i) to provide all necessary personnel for ticket -selling and ushering for all Minor League
Team Home Games, and
(ii) for hiring, at its sole cost and expense, those police and paramedics that it deems
appropriate to have on site at the Jack Russell Facilities during Club Activities. The Club
shall do such hiring through the appropriate City departments; however, the persons hired
shall at all times remain the employees and the responsibility of the City in all respects.
The City and the Club hereby agree to coordinate regarding the aforementioned services in
good faith.
(b) Public Events: The City acknowledges that it has granted other persons and entities rights to
use the Jack Russell Facilities during the Term and that it also has the right to use the Jack
Russell Facilities at certain times during the Term. The City further acknowledges and agrees
that, as between the parties, it will be solely responsible for all operational, maintenance,
security and other personnel and costs of any events scheduled by or through the City at the
Jack Russell Facilities, including those of the City itself and any third parties using any part of
the Jack Russell Facilities under the authority of the City.
7. CITY IMPROVEMENTS. As an inducement for and consideration of the Club entering into
this Agreement, the City shall be responsible to undertake and complete the following
improvements prior to March 1, 2019 (the "City Improvements"):
(a) Construction of an appropriately -located press box area at the Jack Russell Memorial Stadium,
capable of holding five (5) adult person, with electricity and functioning electrical outlets;
(b) Testing of Jack Russell Facilities lighting to ensure it conforms in accordance with its design
specifications (i.e. average of 70 Foot Candles in the infield and 50 Foot Candles in the
outfield) and, to the extent it does not so conform, purchasing and installing any necessary
upgrades and improvements;
(c) Creation of functional laundry room within the applicable portion of the 1' base clubhouse at
Jack Russell Memorial Stadium. For certainty, the City will ensure that the laundry room
contains functioning clothes washers and dryers and will improve any electrical, plumbing,
draining and other utilities to the extent necessary;
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(d) Purchase or rental and installation of additional portable toilets. For certainty, the purpose of
the additional portable toilets is primarily for the use of the Greenwood Panthers football team
(an organization that has historically used certain washrooms at the Jack Russell Facilities
under the authority of the City);
(e) Purchase and installation of new artificial turf on the practice field at the Jack Russell Facilities;
(f) Repairs and improvements to the washroom areas of the 1st base clubhouse at Jack Russell
Memorial Stadium including, at a minimum, the following:
(i) Replacement of all toilets,
(ii) New tankless water heater,
(iii)New flush valves, faucets, grid strainers, shut off, ADA covers, shower heads and
cartridges,
(iv)Maintenance / upgrades of lighting, and
(v) Paint, tiles and patching.
The City shall arrange and pay for all of the foregoing. With respect to the work described in
subsections 7(a) and 7(f) only, following completion of the work to the Club's satisfaction, acting
reasonably, the City will be entitled to be reimbursed by the Club for the City's its actual out of
pocket expenses incurred in connection with same to a maximum of (A) thirty one thousand dollars
(USD $31,000), inclusive of applicable taxes, in connection with subsection 7(a) and (B) twenty
six thousand dollars (USD $26,000), inclusive of applicable taxes, in connection with subsection
7(f). The City's reimbursement requests shall be in writing and supported by appropriate
documentation of its expenditures.
8. CLUB COMMITMENTS. As an inducement for and consideration of the City entering into
this Agreement, the Club shall be responsible to arrange and pay for the following improvements
and equipment prior to March 1, 2019, to the extent the Club determines such improvements are
needed to bring specific elements of the Jack Russell Stadium up to Club and/or MiLB standards,
as applicable or otherwise desired by the Club (the "Club Commitments"):
(a) Repairing and/or upgrading HVAC serving the NorthWest Building. The Club shall have the
sole right to determine whether to repair the existing HVAC system, to provide temporary
and/or portable HVAC equipment/systems, and/or to install new fixed equipment. During the
Term, the Club shall have the sole responsibility to maintain any temporary and/or portable
equipment provided by it. The Club shall have the right to remove any temporary and/or
portable equipment provided by it.
(b) Basic cleanup of rooms within the NorthWest Building (e.g. vacuuming, pressure cleaning,
painting and/or replacing old carpet and/or furniture) in order to make the rooms suitable for
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the Club's use of same as an umpires room and training room;
(c) Installing additional padding on the dugout fences and bullpen areas, with specifications as
determined by the Club;
(d) Installing non-skid surfaces in the dugouts, with specifications as determined by the Club;
(e) Upgrading internet connectivity (including hardware), if and as desired by the Club. The City
hereby represents and warrants that there is existing, functioning wi-fi internet connectivity at
the Jack Russell Facilities, including within the 3rd base and 1St base clubhouses;
(f) Supplying a tarp for the infield, with specifications as determined by the Club. For certainty,
the Club shall retain ownership of the tarp and shall be entitled to remove it if and when desired;
and
(g) Supplying and installing additional lockers for the 1St base clubhouse. For certainty, the Club
shall retain ownership of the lockers and shall be entitled to remove same if and when desired.
9. MAINTENANCE, REPAIRS AND CLEANING.
(a) City Maintenance, Repairs and Cleaning. In addition to the City Improvements described in
Section 7 of this Agreement, and subject only to Club Commitments and subsection 9(b),
below, the City shall be responsible for all maintenance, repairs and cleaning of the Jack
Russell Facilities ("Maintenance and Repairs") including, but not limited to maintenance,
repairs and cleaning of: (1) the Jack Russell Stadium playing field, pitching mounds,
clubhouses, umpires room, batting cages, concession spaces and equipment, box office and
other appurtenant facilities commonly utilized during baseball games; (2) Scoreboards; (3)
washrooms and showers; (4) elevators and ADA lifts; (5) parking lots (including resurfacing
and striping); (6) stadium seating (including seat backs, bottoms and framing); (7) fencing; (8)
protective netting; (9) ornamental landscaping; (10) painted surfaces; (11) irrigation systems;
(12) roofs; (13) plumbing, drainage and utility lines; (14) electrical, (15) HVAC systems, (16)
light standards; and (17) lighting facilities.
The Maintenance and Repairs shall be to a standard that they are in good operating condition
and shall be cared for in a manner reasonably calculated to preserve and extend their useful
life. For certainty, where MiLB has more stringent requirements or standards in connection
with any of the Maintenance and Repairs (e.g. specific, more stringent requirements for the
cutting of the playing field grass), the Club will be responsible to ensure such requirements or
standards are met and the City will allow the Club to do so.
(b) Club Maintenance and Repairs.
(i) The Club shall have the right, prior to the first Club Use Date, to remove the existing
bullpen mounds at the Jack Russell Facilities and to rebuild, replace, modify and/or
improve same. With the exception of any maintenance equipment already on-site at the
Jack Russell Facilities, the Club shall be responsible to secure, at its sole expense, all
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materials, labour and equipment it requires for the foregoing.
(ii) During each Club Use Period, the Club shall have the right, at its sole expense, to maintain
the bullpen mounds and the main stadium pitching mound. With the exception of any
maintenance equipment already on-site at the Jack Russell Facilities, the Club shall be
responsible to secure, at its sole expense, all materials, labour and equipment it requires for
the foregoing.
In addition to the foregoing maintenance and repair responsibilities, the Club shall be
responsible for the Club Commitments as specified in Section 8 of this Agreement, which
represent certain improvements needed to bring the Jack Russell Facilities up to Club and/or
MiLB standards, as applicable.
(c) Coordination. The City and the Club shall coordinate in good faith regarding Maintenance and
Repairs, City Improvements, Club maintenance, repair and cleaning obligations and Club
Commitments. At the commencement of each Club Use Period, the City shall deliver the Jack
Russell Facilities to the Club in a clean state and a condition suitable for the hosting of Minor
League Team Home Games. Upon the end of each Club Use Period, the Club shall return
those portions of the Jack Russell Facilities it had control of to substantially the same condition
as they were at the commencement of the Club's use, save and except any permitted
modifications or improvements to the Jack Russell Facilities and reasonable wear and tear.
(d) Maintenance Equipment; Storage. The City shall provide the Club with reasonable access to
its maintenance equipment utilized for Maintenance and Repairs as well as storage on the
premises for any maintenance equipment provided by the Club during the Term.
10. TICKET SALES AND REVENUE.
(a) Ticket Prices and Charges. The Club shall have the sole right and responsibility to set ticket
prices and other admission charges, as well as any associated service, delivery, processing and
other charges (collectively, the "Admission Fees") in connection with Home Minor League
Team Games.
(b) Ticketing Operations. The Club shall have the sole right and responsibility to manage all
ticketing operations (including but not limited to personnel, and the selection of any software
or third party service providers) in connection with Home Minor League Team Games.
(c) Right to Collect and Retain Revenues. The Club shall have the sole right and responsibility to
collect and retain all revenues from the foregoing activities
11. PARKING. Unless otherwise mutually agreed, for all Home Minor League Team Games at
the Jack Russell Facilities, the Club shall have the right to control the public parking areas of the
Jack Russell Facilities, including the right to charge for such parking and to retain any and all
revenues generated therefrom. The City represents and warrants that, as of the date hereof, there
are approximately one hundred and ten (110) marked public parking spots at the Jack Russell
Facilities and the City shall ensure that this number of spots remains available for the Club's use
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throughout the Term. There are additional unmarked parking spots at the Jack Russell Facilities,
however, the City makes no representation as to a specific minimum number in respect of the
unmarked spots. Either party will be entitled to establish off-site parking for Home Minor League
Team Games. In the event that a party does so, such party will be entitled to collect and retain any
revenues generated from the off-site parking it establishes and will be responsible for any expenses
associated with same, including shuttle transportation services, if any. The parties hereby agree to
communicate proactively and in good faith regarding the establishment of any off-site parking.
12. FOOD AND BEVERAGE CONCESSIONS.
(a) During each Club Use Period, the Club will be entitled to exclusively control, manage and
operate, whether directly or through one or more third parties:
(i) all Food and Beverage Concession Facilities, and
(ii) all food and beverage sales.
The Club shall be entitled to retain all revenues generated from the foregoing activities.
(b) The City hereby confirms that, as of the date hereof, the Jack Russell Facilities do not contain
any equipment used for the storage or preparation of food or beverage items. The Club shall
be entitled to utilize portable carts, food trucks and any other tools or equipment it provides or
arranges in support of its food and beverage operations and shall be further entitled to remove
same as and when desired. The City shall provide the Club with appropriate, secure space
where it may store its equipment (or that of any third party assisting the Club with food and
beverage sales hereunder).
(c) Food and Beverage Concession Facilities may be used and operated by the City and by other
organizations authorized by the City outside of the Club Use Periods; provided that when the
City or another organization is permitted to use and operate any of the Food and Beverage
Concession Facilities, the City will be responsible for cleaning and maintaining same, and
the City will indemnify the Club for any damages to or additional maintenance or any other
loss, cost or liability incurred by the Club as a result of such use. In the event that the Club
provides any of its own equipment (either directly or through a third party), the City shall not
use or permit any other person or entity to use same without the Club's advance written
consent.
(d) During the Club's operation of the Food and Beverage Concession Facilities and Equipment
hereunder, the City will cooperate with the Club to obtain such consents, permissions or
licenses as may be required to allow the Club, whether directly or through a third party, to sell
or authorize the sale of alcoholic beverages during Minor League Team Home Games. The
Club shall be entitled to obtain a liquor license from the appropriate authorities for the
operation of the Food and Beverage Concession Facilities and Equipment, either directly or
through its concessionaire. In the event that the City sells alcoholic beverages from the
Concession Facilities during City events or authorizes a third party to do so, the City or such
third party, as applicable, will be responsible for obtaining the necessary license for the same.
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(e) As between the parties, the Club will be responsible for any additional permits or licenses as
are required in connection with its food and beverage sales, provided that the City will provide
reasonable assistance to the Club if requested.
13. OTHER CONCESSIONS AND MERCHANDISE. During each Club Use Period and
subject only to the following subsection, the Club shall have the sole right and responsibility to
control the sale of all apparel, merchandise, novelties, programs and other items at the Jack Russell
Facilities and shall have the exclusive control of all spaces and equipment utilized for the
foregoing, if any. The Club shall be free to contract with a third party to operate any or all of the
foregoing on terms and conditions approved by the Club in its sole and absolute discretion. The
Club shall have the sole right and responsibility to collect and retain all revenues from the
foregoing activities.
14. BROADCAST RIGHTS AND REVENUE. The Club shall have all of the radio, television,
internet, wireless and other broadcast and distribution rights, whether now known or hereafter
invented, in connection with the Minor League Team and all Club Activities, and the Club shall
be solely entitled to collect and retain all revenues associated with the foregoing.
15. ADVERTISING, MARKETING AND SPONSORSHIP.
(a) City Rights. The City hereby represents and warrants that it has valid, existing contractual
commitments that were entered into prior the commencement of the Term of this Agreement
and pursuant to which it is required to display third party signage on the outfield wall of Jack
Russell Memorial Stadium during the Term (the "Pre-existing Signage Commitments"). The
Club hereby acknowledges and agrees that the City will be permitted to keep outfield wall
signage in place to the extent required by the Pre-existing Signage Commitments, including,
to the extent applicable, during Minor League Team Home Games.
(b) Club Rights. Subject only to the City's rights as described in the preceding subsection, the
Club shall have all advertising, sponsorship, marketing and related rights in connection with
the Minor League Team and all Club Activities, and the Club shall be solely entitled to collect
and retain all revenues associated with the foregoing and those otherwise generated from the
Club's activities at the Jack Russell Facilities. By way of illustration and not limitation, the
Club shall be solely entitled to collect and retain all revenues generated by fence signs,
Scoreboards, signboards, and billboards. The Club shall be entitled to all revenue arising from
or incidental to the operation of all Club Activities not otherwise expressly dealt with under
the terms of this Agreement.
(c) Signage to be Provided by the City. Unless otherwise mutually agreed by the parties in writing
during Term, the City shall be responsible to provide the following signage for the benefit of
the Club:
(i) Outfield Wall Signage Positions. The City shall, as and when requested by the Club, ensure
that the Club has the use of two (2) outfield wall signage positions (whether for the purpose
of promoting the Club, the Minor League Team, or any of their respective sponsors or
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advertisers). Such positions shall not be materially different in size or placement than the
outfield wall signage positions used by the City for the purposes of Pre-existing Signage
Commitments. The Club shall be solely responsible for any design and production costs
of signage, and the City will be responsible for installation and removal at its sole expense,
(ii) Directional and Street Signs. The City will ensure that there is ample street signage and
directional signage located throughout the City that directs persons to the location of the
Jack Russell Facilities. For certainty, the City will be solely responsible for the costs of
such signage and shall ensure that it always contains the name of the Jack Russell Facilities.
16. PUBLIC ADDRESS SYSTEMS, SCOREBOARDS AND SIGNBOARDS. During Club
Activities, the Club shall be entitled to operate all of the following as are, as of the commencement
of the Term, located within the Jack Russell Facilities and to retain any revenues generated from
the use therefrom in connection with Home Minor League Games: scoreboards, signboards,
billboards and all other video, screens and signage -type spaces, along with all related equipment
and technology (collectively, the "Scoreboards").
The City represents and warrants that the Scoreboards are currently operational and shall ensure
that they remain so throughout the Term.
17. DAMAGES OR DESTRUCTION OF PREMISES. For the purposes of this Section 17, a
"Casualty Event" means any of the following: hazard, fire, lightning, smoke, windstorm, flood,
hurricane, rain, snow, mold, earthquake, sinkhole, mudslide, other earth movements, malicious
damage, war, insurrection, riot, terrorism (whether certified or uncertified) or other similar
casualty. If, as a result of a Casualty Event, a material portion of the Jack Russell Facilities is
damaged or rendered unsuitable for the Club's uses under this Agreement or otherwise results in
interference with the Club operations, activities or ability to use the Jack Russell Facilities the City
shall act promptly and in good faith to rectify the issue with thorough diligence, restoring the
affected portions to their condition immediately before such loss or the condition required by law,
whichever is greater (the "Restoration Standard"). The City shall use the proceeds from the
property insurance maintained by the City on the Jack Russell Facilities and its structural
components (as further described in paragraph 21(b)(ii) of this Agreement). If the Club is not
satisfied that full use of the Jack Russell Facilities can be restored within a reasonable period of
time and without material negative impact on Minor League Team Home Games, the Club shall
have the right to terminate this Agreement immediately upon written notice to the City.
18. PERSONAL PROPERTY. Any equipment or personal property brought into the Jack Russell
Facilities by the Club shall remain the property of the Club and shall be used only with the
permission of the Club.
19. UTILITIES AND ASSOCIATED COSTS. The Club shall have the use of the Jack Russell
Facilities during the Term with no obligation to pay for utilities (including costs of water,
electricity and sewage). Utility costs attributable to the use of the Jack Russell Facilities will be
paid by the City and the Club will be not be charged for same.
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20. INDEMNITIES.
(a) Club Indemnity. The Club hereby agrees to indemnify the City for claims brought against the
City only to the extent that the claims are found to result from the sole negligence of the Club,
including its employees. This indemnification shall not be construed to be an indemnification
for the acts or omissions of third parties, independent contractors or third -party agents of the
Club. In addition, this indemnification shall be construed to limit recovery by the City against
the Club to only those damages caused by the Club's sole negligence, and specifically not
include any attorney's fees or costs associated therewith.
(b)
City Indemnity. The City hereby agrees to indemnify the Club for claims brought against the
Club only to the extent that the claims are found to result from the sole negligence of the City,
its governing body, or its employees. This indemnification shall not be construed to be an
indemnification for the acts or omissions of third parties, independent contractors or third -party
agents of the City. This indemnification shall not be construed as a waiver of the City's
sovereign immunity and shall be interpreted as limited to only such traditional liabilities for
which the City could be liable under the common law interpreting the limited waiver of
sovereign immunity. Any claims against the City must comply with the procedures found in
§768.28, Florida Statues. In order to comply with the requirements of §166.241, Florida
Statutes, and Article VII, section 10 of the Florida Constitution, the value of this
indemnification is limited to the limitations of §768.28, Florida Statutes. In addition, this
indemnification shall be construed to limit recovery by the indemnified party against the City
to only those damages caused by the City's sole negligence, and specifically not include any
attorney's fees or costs associated therewith. Furthermore, this provision is not intended to nor
shall be interpreted as limiting or in any way affecting any defense the City may have
under §768.28, Florida Statutes or as consent to be sued by third parties.
This Section will survive the expiry or early termination of this Agreement.
21. INSURANCE.
(a) Club Insurance. The Club shall, at its expense, obtain and continuously maintain, without
lapse, the following insurance coverage:
(i) Workers' Compensation and Employer's Liability insurance in compliance with applicable
federal and state laws for Club employees,
(ii) An occurrence -based Commercial General Liability Insurance Policy, providing coverage
for bodily injury and property damage and personal and advertising injury, including but
not limited to, contractual liability coverage, host liquor liability coverage, damage to
rented premises and products / completed operations coverage, with minimum limits of:
• USD $2,000,000 Each Occurrence,
• USD $2,000,000 Damages to Rented Premises,
• USD $4,000,000 General Aggregate, and
• USD $4,000,000 Products / Completed Operations Aggregate,
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(iii)Special Causes of Loss Form Property Insurance (aka All -Risk) coverage in an amount
equal to the full replacement value for all Club property located within the Jack Russell
Facilities, and
(iv)Comprehensive Automobile Insurance, covering owned, non -owned, leased, borrowed or
hired vehicles, with a minimum combined single limit of $1,000,000 Each Accident.
Coverage limits may be satisfied through a combination of primary and umbrella/excess
policies. Umbrella / Excess policies shall be substantially similar to the underlying
coverage. All insurance policies must be issued by an admitted insurance carrier with an A.M.
Best rating of A-7 or better. The Club shall name the City as an Additional Insured under the
Club's Comprehensive General Liability, Umbrella / Excess, and Automobile policies for any
liability arising out of any acts and/or omissions of the Club where required by written contract
or agreement with respect to the Jack Russell Facilities. All Commercial General Liability and
Umbrella / Excess policies must provide cross liability coverage (separation of insureds or
severability of interests provision) and shall not include any exclusion for third -party over
actions. Further, coverage for the City as an Additional Insureds under the Club's policies
shall apply on a primary and non-contributory basis irrespective of any other insurance,
whether collectible or not, as per written contract or agreement, for claims arising in connection
with the Club's operations. The Club shall remain solely responsible for payment of any Club
policy deductibles and self-insured retentions or self-insured amounts. All Club insurance
policies shall be endorsed to provide a waiver of subrogation in favor of the City as "Additional
Insured." The Club shall provide the City with at least thirty (30) days written notice in the
event of cancellation, non -renewal or material modification of any of the Club's insurance
policies. The Club shall furnish City with certificates of insurance evidencing compliance with
all insurance provisions noted above at least fifteen (15) business days prior to the
commencement of the use of the Jack Russell Facilities.
(b) Required City Insurance. The City shall, at its expense, obtain and continuously maintain,
without lapse, the following insurance coverage:
(i) Workers' Compensation and Employer's Liability insurance in compliance with applicable
federal and state laws. Without limiting the generality of the foregoing, such insurance
will be required for all fire, police, EMT, or other emergency personnel, whether working
at or near the Jack Russell Facilities or at other locations. The City will continue to insure
all of the aforementioned City emergency personnel regardless of whether the City receives
payment for their services from the Club arising out of or in connection with the Club's
operations.
(ii) Special Causes of Loss Form Property Insurance (aka All -Risk) coverage in an amount
equal to the full replacement value of the Jack Russell Facilities (including, but not limited
to buildings and building glass, boilers, equipment, machinery, fields, parking lots,
driveways, and other elements) and all other structural alterations and improvements to and
within the Jack Russell Facilities, whether made by City or Club. Without limiting the
generality of the foregoing, the aforementioned insurance coverage shall, at a minimum,
Page 13 of 22
provide coverage for hazard, fire, lightning, smoke, windstorm (including Named
Windstorm), flood, hurricane, rain, snow, mold, earthquake, sinkhole, mudslide, other
earth movements, malicious damage, riot and terrorism (whether certified or uncertified)
and other similar casualties. Property insurance should also include coverage for
equipment and/or mechanical breakdown. The City shall ensure that all such property
insurance policies name the Club as a loss payee as its interests may appear. The foregoing
policy/ies of insurance will be primary, and the proceeds of same will be used for the repair
and/or reconstruction of the Jack Russell Facilities pursuant to Section 17 of this
Agreement. Provided that (A) on an annual basis the City shall review its total insured
values and reconfirm and increase its coverage limits as necessary, and (B) the insurance
in fact provides coverage sufficient to permit the City to meet all its associated obligations
under the Agreement, then the insurance required hereunder from the City may be covered
by a blanket policy insuring multiple City properties. The City shall, on an annual basis,
consult with the Club and provide the Club with all information pertinent to the matters set
out in (A) and (B) in the preceding sentence and the Club shall, acting reasonably, have the
right to have input on such matters.
(iii)City Commercial General Liability and Automobile Liability Coverage. The parties have
agreed that the City shall have the discretion to carry one or more Commercial General
Liability and/or Comprehensive Automobile Insurance policies or to self -insure with
respect to such areas of actual or potential liability. As of the date of execution of this
Agreement, the City is self-insured. In the event that, at any point during the Term, the
City secures one or more Commercial General Liability and/or Comprehensive
Automobile Insurance policies of insurance (whether primary or excess), it shall ensure
that:
(A) Any Commercial General Liability policies provide coverage for bodily injury and
property damage and personal and advertising injury, including but not limited to,
contractual liability coverage, host liquor liability coverage, coverage for Damages to
Premises Rented by You and products / completed operations coverage,
(B) Comprehensive Automobile Insurance, covering owned, non -owned, leased, borrowed
or hired vehicles, with a minimum combined single limit of $1,000,000 Each Accident,
(C) Umbrella / Excess policies, if any, are substantially similar to the underlying coverage,
(D) All policies are issued by an admitted insurance carrier with an A.M. Best rating of A-
7 or better,
(E) Each member of the Club Group is named as an Additional Insured under the policies
for any liability arising out of any acts and/or omissions of the City where required by
written contract or agreement with respect to the Premises. Further, coverage for the
Club Group as "Additional Insureds" under the City's insurance policies shall apply on
a primary and non-contributory basis irrespective of any other insurance, whether
collectible or not, as per written contract or agreement, and
Page 14 of 22
(F) All policies provide cross liability coverage (separation of insureds or severability of
interests provision) and may not include any exclusion for third -party over actions.
(iv)The City shall remain solely responsible for payment of any City policy deductibles and
self-insured retentions or self-insured amounts. All City insurance policies shall be
endorsed to provide a waiver of subrogation in favor of the Club and the other members of
the Club Group and where the City is self-insured it waives all rights of subrogation in
favor of the Club Group. The existence of any self-insurance (regardless of whether the
City has an insurance policy) shall not relieve the City or its carrier of the obligation to
indemnify and defend the Club Group from the inception of any claim or action triggering
such indemnity and defense obligations. In addition to City's obligations above, in the
event the City has any self-insurance exposure, it shall have the same obligations that any
open market insurance carrier would have. The City shall provide the Club with at least
thirty (30) days written notice in the event of cancellation, non -renewal or material
modification of any of the City's insurance policies. The City shall furnish the Club
evidence of compliance with all insurance provisions noted above at least fifteen (15)
business days prior to the commencement of the use of the Jack Russell Facilities, again
upon each renewal and further upon the Club's request. The City acknowledges that the
Club shall not insure the City's property and the Club shall not insure or protect the
property of the City's employees, agents, temporary or leased workers, independent or sub-
contractors, contractors, volunteers, exhibitors, performers, sub -licensees, personnel,
members, and guests while at the Jack Russell Facilities. The City waives all claims against
the Club for loss or damage thereto no matter how caused.
(c) Mutual Release and Waiver of Subrogation. The City and the Club, on behalf of themselves
and all others claiming under them (including any insurer) waive all claims, demands, or rights
of indemnity that either of them may have against the other (including all rights of subrogation)
arising out of damage to any property, real or personal, resulting from fire or other casualties,
no matter what the cause thereof may be. The parties waive their respective rights, as set forth
herein, because adequate insurance is to be maintained by each of them to protect themselves
against all such casualties and they have obtained or agree to obtain from their insurance
carriers appropriate "waiver of subrogation" provisions in all such policies of insurance.
22. LIMITATION OF LIABILITY.
(a-) In no event shall one party be liable to the other party for any special, exemplary, indirect,
incidental, consequential or punitive damages, loss of profits or loss of business opportunity
(collectively, "Special Damages").
This Section will survive the expiry or early termination of this Agreement.
Page 15 of 22
23. SUSPENSION OF AGREEMENT.
(a) Enumerated Events Interfering With Club Operations. If, at any time during the Term, the
Club is prevented from using all or any material part of the Jack Russell Facilities for its
intended purposes as a result of any of the following (each, and "Enumerated Event"):
(i) a national or local emergency,
(ii) an actual or threatened terrorist attack,
(iii) the United States being in a state of war,
(iv) a labor dispute other than a lock -out or strike of Major League Baseball players,
(v) the gross negligence or willful misconduct of the City (including its employees and
agents),
(vi) the MiLB Rules and Regulations or the rules and regulations of Florida State League of
Professional Baseball Clubs Inc., or such other league which has authority over a team
operated by the Club,
(vii) any other event beyond the reasonable control of the Club,
this Agreement shall be regarded as suspended for the period during which the Club's use of
the Jack Russell Facilities is interfered with, except each party's obligation to pay for and
maintain required insurance coverages. During any such suspension of the Agreement, neither
party shall have liability for damages to the other party as a result of the suspension or the
Enumerated Event causing the suspension.
24. NATURE OF AGREEMENT/MISCELLANEOUS.
(a) License. This Agreement shall be deemed to be a use agreement in the nature of a license and
shall not be deemed to be a lease or conveyance of any real property rights nor shall this
Agreement constitute an agreement for the use of real property that would subject the parties
to the provisions of any statute regarding landlord and tenant rights. This Agreement shall not
establish a landlord -tenant relationship between the parties. This Agreement shall not
constitute a partnership, joint venture or create an agency relationship between the parties.
(b) Governing Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida regardless of any principles of conflict of
laws or choice of laws of any jurisdiction. The exclusive jurisdiction, venue and forum of any
lawsuit or legal proceeding arising out of this Agreement shall only be the state courts of
Florida located in Pinellas County, Florida and the Federal Courts located in Hillsborough
County, Florida. The Parties waive any and all rights to object to jurisdiction or venue in other
forums.
Page 16 of 22
(c) Compliance. The City shall be solely responsible to ensure that that Jack Russell Facilities
comply with all applicable building codes, laws and ordinances of the City of Clearwater, the
State of Florida, Pinellas County and other governmental agencies and shall, in connection
with the foregoing, have the right, from time to time and on reasonable advance notice to the
Club, to inspect the Jack Russell Facilities.
(d) Entire Agreement. This Agreement and the Exhibits attached hereto constitute the entire
agreement between the parties and replace and supersede all prior agreements and
representations. No alteration, amendment or modification to this Agreement shall be valid
unless executed in writing by the parties, and no subsequent oral agreement shall have any
validity or in any way affect the terms of this Agreement; provided, however, that no provision
of this Agreement will be supplemented, modified, amended or waived without MLB
Approval.
(e) Assignment. The Club may assign this Agreement or any of its rights or obligations hereunder
to any entity affiliated with the Club or to the successor of the Club in its ownership of the
Major League Team. Subject to the foregoing and except as otherwise expressly provided
herein or consented to by the City, the Club shall have no right to assign or transfer any rights,
privileges or obligations granted by the terms of this Agreement to any third party. In the event
of an assignment in contravention of the preceding sentence, the Club shall continue to be
primarily responsible to the City for the performance of the Club's obligations under the terms
of this Agreement.
(f) Inurement. This agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns. Nothing in this Agreement shall be
interpreted to be for the benefit of a third party.
(g) Currency. All dollar amounts hereunder are expressed in U.S. currency.
(h) Counterparts. This Agreement may be signed in any number of counterparts, each of which is
an original, and all of which taken together constitute one single document. Counterparts may
be transmitted by fax or in electronically scanned form. Parties transmitting by fax or
electronically will also deliver the original counterpart to the other party, but failure to do so
does not invalidate this Agreement.
(i) Invalidity. In the event any provision of this Agreement shall be held invalid or unenforceable
by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
(j) Delegation. No provision of this Agreement shall be construed to have made, permit or require
the delegation by the City to the Club or any other party of any governmental function of the
City.
(k) Radon. As required by law, the City hereby makes the following disclosure:
Radon is a naturally occurring radioactive gas that, when it has accumulated in a
Page 17 of 22
building in sufficient quantities, may present health risks to persons who are exposed
to it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon testing
may be obtained from your County Public Health Unit. This acknowledgment is given
pursuant to Florida Statutes 404.056(8) and is required by law to be given at or before
the time a contract for the use of real estate is signed.
(1) The parties hereby agree to furnish upon request to each other such further information, to
execute and deliver to each other such other documents, and to do such other acts and things,
all as the other party may reasonably request for the purpose of carrying out the intent of this
Agreement.
25. NOTICES. Any notice or other communication relating to enforcement of this Agreement
shall be in writing, and shall be deemed given: (a) in the case of hand delivery, upon delivery to
the addresses set forth below; and/or (b) in the case of mail, five (5) business days after mailing to
the addresses set forth below; and/or (c) in the case of facsimile, upon receipt of transmission if
received on a business day or otherwise at the commencement of the first business day following
transmission to the facsimile numbers set forth below, and/or (d) in the case of courier, upon
confirmation of delivery to the addresses set forth below:
If to the City: The City of Clearwater
P.O. Box 4748
Clearwater, Florida, USA 33758
Attention: Kevin Dunbar
Kevin.Dunbar@myclearwater.com
If to the Club: Rogers Blue Jays Baseball Partnership
373 Douglas Ave.
Dunedin, Florida, USA 34698
Attention: Director of Florida Operations
Fax: (727) 734-7661
And a further copy to:
Rogers Blue Jays Baseball Partnership
One Blue Jays Way, Suite 3200
Toronto, Ontario, Canada
M5V 1J1
Attention: Vice President, Legal & Government Affairs and
General Counsel
Fax: (416) 341-1427
Page 18 of 22
And a further copy to:
Baker & Hostetler LLP
200 South Orange Avenue, Ste. 2300
Orlando, Florida, USA
328801
Attention: Gregory D. Lee, Esq
Fax: (407) 841-0168
26. MiLB SUBSERVIENCE. Notwithstanding any other provision of this Agreement, this
Agreement and any rights or exclusivities granted by the Club hereunder shall in all respects be
subordinate to the MiLB rules and regulations.
[Signature Page Follows]
Page 19 of 22
27. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
the appropriate officials and the necessary seal affixed thereto as of the day and year first above
written.
ATTEST
1.,.scirLiz/u.,- a
Rosemarie Call
City Clerk
(Seal)
CITY OF CLEARWATER, FLORIDA
A Municipal Corporation of Florida
George N. Cretekos
Mayor £,th-€r'
AP DAS; O FORM:
✓L
Owen Kohler
Assistant City Attorney
WITNESSES:
Name:
Name: S I(.A -1N LA -(A
By; William B. Horne II
City Manager
ROGERS BL
PARTNER
SEBALL
rew Miller, EVP, Busines • s erations
By: Matthew J. uber, VP, Legal and
Government Affairs
Page 20 of 22
EXHIBIT "A"
Parking
Bullpen
Home
Clubhouse
Turf Field
Bullpen
Bleachers/
Future Press Box
Batting Cage
silo* Ps
Concessions
Page 21 of 22
EXHIBIT "B"
Club Use Dates
April 7, 12, 14, 18 and 19, 2019 (5 dates)
May 3, 4, 5, 9, 10, 11, 13, 14, 15, 16, 19, 23, 24, 25, 26, 28, 29, and 30, 2019 (18 dates)
June 3, 4, 5, 6, 17, 18, 19, 20, 21, 22, and 23, 2019 (11 dates)
July 1, 2, 3, 12, 13, 14, 16, 17, 18, 22, 23, and 24, 2019 (12 dates)
August 2, 3, 4, 16, 17, 18, 20, 21, 22, 26, 27, 28, 29, 30, and 31, 2019 (15 dates)
September 1, 2019 (1 date)
Total: 62 dates
Page 22 of 22