Loading...
HomeMy WebLinkAbout2008-2023USE AGREEMENT BETWEEN CITY AND SEBASTIAN RNER AREA LITTLE LEAGUE, INC. IN AND FOR CONSIDERATION of the mutual promises herein, the sufficiency of which is hereby acknowledged, the CITY OF SEBASTIAN, a Florida municipal corporation, hereinafter referred to as "CITY", and the SEBASTIAN RIVER AREA LITTLE LEAGUE, INC., a non-profit Florida corporation, hereinafter referred to as "LITfLE LEAGUE", agree to be legally bound as follows: I. USE OF PREMISES From January 1 through December 31 of the years 2008 through 2023, LITTLE LEAGUE shall be allowed use of Fields 1, 2, 3 and 4 and the batting cages located on the northern portion of the Barber Street Sports Complex as shown in the schematic attached hereto marked Exhibit I, as well as the use of the Refreshment stand/Restroom building in said Exhibit, in accordance with the terms set forth herein, for the purpose of operating a youth baseball league. The areas subject to this use agreement shall hereinafter be called the "Premises". LITTLE LEAGUE shall be entitled to ancillary use of public parking and recreational facilities within the Barber Street Sports Complex on the same terms as all other members of the public. II. MAINTENANCE AND REPAIRS CITY shall generally maintain the Premises in the same manner as other similar City parks. LITTLE LEAGUE shall have the following responsibility: a) Preparation of Fields: Assume responsibility for and undertake any and all preparations and efforts required to be performed on the Premises in order that it may be used as a playing field for the game of baseball, including, but not by way of limitation, lining, dragging, and raking of batter boxes, base lines and warning tracks. Furthermore, it shall be LITTLE LEAGUE responsibility to furnish all equipment necessary to play baseball; provided, however, that the CITY shall, on a yearly or as needed bases, due to normal ordinary wear and tear, replace sets of bases and pitching rubbers b) CleaninQ: Keep the Premises and all improvements erected thereon in a clean and orderly state, including, but not by way of limitation, all fields and adjacent spectator areas, the announcers' stands and scoreboards, the "dugouY' areas of each field, the refreshment stand, and the restrooms. LITTLE LEAGUE's obligation to clean shall include the duty to collect and deposit all trash and garbage into the containers located on the Premises for this purpose. LITTLE LEAGUE's responsibilities shall also include the duty to supply the restrooms with toilet paper and all other necessary sanitary items. c) Improvements: LITTLE LEAGUE shall not cause any improvements to be made to the Premises without the advance written consent of the CITY. Provided, however, that this provision shall not be deemed to prevent the LITTLE LEAGUE from performing or arranging for the performance of any of its duties or exercising any of its rights under the Agreement. Unless otherwise agreed in writing between the parties hereto, all costs of any improvements shall be borne by the LITTLE LEAGUE. All improvements made on the Premises, including the construction of buildings and installation of fixtures, shall become the property of the CITY upon their construction or installation, but shall be deemed part of the Premises for purpose of this Agreement. d) Siqns: LITTLE LEAGUE shall be permitted the right to post commercial or private advertising signs as a fund raiser. All funds derived from this advertisement shall be used to make Premises improvements or directly fund LITTLE LEAGUE. Signs shall not be posted on the outfield fence of field #3 and #4. The CITY reserves the right to reject and prohibit posting of signs on the Premises at any time. e) Securitv: Keep locked the announcers' stands and the refreshment stand/restroom building, including related storage areas, when such premises are not being used. III. POSSESSION AND ACCESS The rights granted LITTLE LEAGUE herein relate to use of public facilities and do not in any way constitute possession of the Premises by LITTLE LEAGUE. At all times CITY retains all rights of control and access to facilities subject to this agreement. N. CITY USE DURING TIME OF USE RIGHTS Between the months of December 1— July 31, LITfLE LEAGUE shall have use of the Premises as stated herein; however, if it does not interfere with a scheduling, upon fifteen (15) days written notice, CITY shall be entitied to use of the facilities on a short-term basis for special events. Between the months of August 1— November 30, LITTLE LEAGUE shall be permitted use of the Premises as stated herein; however, the CITY reserves the right to schedule the fields for other leagues and special events as deemed appropriate by the CITY. If scheduling conflicts arise between the months of August 1— November 30, the CITY shall have final authority to arrange use and scheduling of the Premises. V. REFRESHMENT STAND OPERATIONS LITTLE LEAGUE shall comply with all applicable laws, orders and regulations prescribed by any lawful authority having jurisdiction over the operations of the refreshment stand. In the event LITTLE LEAGUE is unable to operate said refreshment stand in accordance with all such regulatory requirements, or for any other reason ceases to operate the same, CITY shall have the option to otherwise provide for operation of the refreshment stand and LITTLE LEAGUE shall have no further interest therein. VII. LITTLE LEAGUE RESPONSIBILITY LITTLE LEAGUE shall not commit or permit the commission of any acts on the Premises, nor use nor permit the use of the premises in any way that: (a) violates or conflicts with any law, statute, ordinance, or governmental rule or regulation, whether now in force or hereinafter enacted, governing the Premises; or (b) constitutes the commission of waste on the premises or the commission or maintenance of a nuisance. VIII. ASSIGNMENT LITTLE LEAGUE may not assign, or otherwise transfer any right or interest in this Agreement without the prior express written consent of CITY. IX. INSURANCE LITTLE LEAGUE shall during the period of use of the refreshment stand area, at its sole cost and expense, procure and keep in effect such standard policies of property casualty, fire and extended coverage insurance in an amount equivalent to the value of the Refreshment Stand Building. Upon request, the LITTLE LEAGUE shall provide to the CITY a certificate of such insurance with evidence of the payment of the premium therefor. The CITY shall have no obligation to keep the buildings and improvements on the Premises insured nor shall the CITY have any obligation to insure any personal property used in connection with the Premises. In the event that the LITTLE LEAGUE's use and occupancy of the Premises causes any increase in the premium for any property casualty or fire insurance maintained by CITY on the Premises or any portion thereof, LITTLE LEAGUE shall reimburse CITY for the amount of said increase within thirty days of notice of the same. From January 1 through December 31 of each year of the term of this Agreement, LITTLE LEAGUE shall, at its own cost and expense, secure and maintain a broad form comprehensive coverage policy of public liability insurance issued by an insurance company acceptable to CITY and insuring CITY against loss or liability caused by or connected with LITTLE LEAGUE's occupation and use of the Premises under this Agreement in amounts not less than: (a) $300,000 for injury to or death of one person and, subject to such limitation for the injury or death to one person, of not less than $1,000,000 for injury to or death of two or more persons as a result of any one accident or incident; and (b) $300,000 for damage to or destruction of any property of others; or such higher amount as may be set as the liability limits under the waiver of sovereign immunity provisions of law. Any policy or policies of insurance required pursuant to this Agreement shall be issued by one or more insurance companies authorized to engage in business in the State of Florida and which have a rating of at least A+ by A.M. Best and Company and at least an AA rating by both Moody's and Standard and Poors. Such shall contain a clause preventing cancellation of any coverage before thirty (30) days written notice to the CITY and shall name the CITY as an additional insured. Upon the request of the CITY, the LITTLE LEAGUE shall provide copies of said policies to the CITY. Nothing in this Agreement shall be construed as a waiver by CITY of the protections of sovereign immunity. X. DESTRUCTION OF PREMISES In the event the building and/or other improvements erected on the Premises are destroyed or damaged by fire or other casualty, the CITY shall have no responsibility or obligation to make any expenditures toward the repair and/or replacement of the building and other improvements on the Premises. CITY, at its option, shall either cause said building and/or other improvements to be replaced or said damage to be repaired as rapidly as practicable, or shall elect not to repair the Premises and terminate the Agreement. Any insurance proceeds relating to the Premises, whether CITY elects to repair or replace the improvements on the Premises or not, shall be the sole property of CITY and LITTLE LEAGUE shall have no claims against any insurance proceeds paid on account of such damage. XI. ALTERATIONS LITTLE LEAGUE shall not make or permit any other person to make alterations to the Premises without the prior written consent of CITY. Any alterations to the Premises by LITTLE LEAGUE shall be made at the sole cost and expense of LITTLE LEAGUE, but shall be the property of CITY. XII. INDEMNITY LITTLE LEAGUE shall indemnify, defend and hold CITY and the property of CITY, including the premises, free and harmless from any and all liability, claims, loss, damages or expenses, including counsel fees and costs, arising by reason of the death or injury of any person, including any person who is an employee or agent of LITTLE LEAGUE, or by reason of damage to or destruction of any property, including property owned by LITTLE LEAGUE or any person who is an employee or agent of LITTLE LEAGUE, in any way caused by, connected with or occurring during LITTLE LEAGUE's use of the Premises or other appurtenant or related CITY properties arising under this Agceement other than intentional acts of CITY or an employee or agent of CITY. XIII. UNREMOVED PERSONAL PROPERTY AND FIXTURES Any personal property or trade fixtures that are not removed from the Premises by LI17LE LEAGUE within thirty (30) days after the last game of a season or termination of this Agreement shall be deemed abandoned by LITTLE LEAGUE and shall automatically become the property of CITY as owner of the real property. XN. REMEDIES FOR DEFAULT Should LITTLE LEAGUE be guilty of a material default and breach of this Agreement, CITY, in addition to any other remedies given by law or equity, may terminate LITTLE �EAGUE's right to use the Premises immediately. The parties waive the right to trial by jury of all issues so triable. XV. WAIVER OF BREACH The waiver by CITY of any breach by LITTLE LEAGUE of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by LITTLE LEAGUE either of the same or another provision of this Agreement. XVI. NOTICES Any notice, report, statement, approval, consent designation, demand or request to be given and any option or election to be exercised by a party under the provisions of this Agreement shall be effective only when made in writing and delivered (or mailed by registered or certified mail with postage prepaid) to the other party at the address given below: CITY: City of Sebastian 1225 Main Street Sebastian, FL 32958 Attn: City Manager UTTLE LEAGUE: """**""""*'`"`, Inc. ****`"'* Avenue Sebastian, FL 3295860 Attn: President provided, however, that either party may designate a different representative or address from time to time by giving to the other party notice in writing of the change. XVII. LITIGATION In the event of litigation arising out of this writing, venue shall be in Indian River County, Florida and the terms of this Agreement shall be construed and enforced according to the laws of the State of Florida. In any action arising out of the enforcement of this writing, the prevailing party shall be entitled to an award of reasonable attorneys fees and costs, both at trial and all appellate levels, based upon the prevailing rates of private attorneys in the venue. THE PARTIES HERETO SPECIFICALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY SUCH LEGAL PROCEEDING. XVIII. WHOLE AGREEMENT This Agreement contains all of the understandings by and between the parties hereto relative to the use of the Premises, and all prior or contemporaneous agreements relative thereto have been merged herein or are voided by this instrument, which may be amended, modified, altered, changed, revoked or rescinded in whole or in part only by an instrument in writing signed by each of the parties hereto. Neither party has in any way relied, nor shall in any way rely, upon any oral or written agreements, representations, warranties, statements, promises or understandings not specifically set forth in the Agreement Documents. This Agreement shall not be construed against the party who drafted the same, as both parties have obtained experts of their choosing to review the legal and business adequacy of the same. EXECUTED on this 23rd day of S ep tember , 2010, at Sebastian, Florida. �i�� � � O VI � Sally A. Mai , MMC City Cler Approved as to Form and Legality for Relian�e by the City of Sebastian only: /° � ;rR�� Robert A. Ginsburg, City Attor SEBASTIAN RIVER AREA LITTLE LEAGUE, INC. a non-profit Florida corporation CITY OF SE A Munidipal I_V�i�•��l IAN ner, III, City Manager ,,� f, ,,.i -- � �fJ/ � .� ��:�..L.. �-��%�� rf��G�-r:JL. .��/��� ! � � Secretary: (Seal) - .� USE AGREEMENT BETWEEN CITY AND SEBASTIAN RIVER AREA LIl?LE LEAGUE, INC. IN AND FOR CONSIDERATION of the mutual promises herein, the sufficiency of which is hereby acknowledged, the CITY OF SEBASTIAN, a Florida municipal corporation, hereinafter referred to as "CITY", and the SEBASTIAN RIVER AREA LITTLE LEAGUE, INC., a non-profit Florida corporation, hereinafter referred to as "LITTLE LEAGUE", agree to be legally bound as follows: I. USE OF PREMISES From December 1 through July 31 of the years 2008 through 2023, LITTLE LEAGUE shall be allowed use of Fields 1, 2, 3 and 4 and the batting cages located on the northern portion of the Barber Street Sports Complex as shown in the schematic attached hereto marked Exhibit 1, as well as the use of the Refreshment stand/Restroom building in said Exhibit, in accordance with the terms set forth herein, for the purpose of operating a youth baseball league. The areas subject to this use agreement shall hereinafter be called the "Premises". LITTLE LEAGUE shall be entitled to ancillary use of public parking and recreational facilities within the Barber Street Sports Complex on the same terms as all other members of the public. II. MAINTENANCE AND REPAIRS CITY shall generally maintain the Premises in the same manner as other similar City parks. LITTLE LEAGUE shall have the following responsibility: a) Preparation of Fields: Assume responsibility for and undertake any and all preparations and efforts required to be pertormed on the Premises in order that it may be used as a playing field for the game of baseball, including, but not by way of limitation, lining, dragging, and raking of batter boxes, base lines and warning tracks. Furthermore, it shall be LITTLE LEAGUE responsibility to furnish all equipment necessary to play baseball; provided, however, that the CITY shall, on a yearly or as needed bases, due to normal ordinary wear and tear, replace sets of bases and pitching rubbers b) Cleaninq: Keep the Premises and all improvements erected thereon in a clean and orderly state, including, but not by way of limitation, all fields and adjacent spectator areas, the announcers' stands and scoreboards, the "dugouY' areas of each field, the refreshment stand, and the restrooms. LITTLE LEAGUE's obligation to clean shall include the duty to collect and deposit all trash and garbage into the containers located on the Premises for this purpose. LITTLE LEAGUE's responsibilities shall also include the duty to supply the restrooms with toilet paper and all other necessary sanitary items. c) Improvements: LITTLE LEAGUE shall not cause any improvements to be made to the Premises without the advance written consent of the CITY. Provided, however, that this provision shall not be deemed to prevent the LITTLE LEAGUE from perForming or arranging for the performance of any of its duties or exercising any of its rights under the Agreement. Unless otherwise agreed in writing between the parties hereto, all costs of any improvements shall be borne by the LITTLE LEAGUE. All improvements made on the Premises, including the construction of buildings and installation of fixtures, shall become the property of the CITY upon their construction or installation, but shall be deemed part of the Premises for purpose of this Agreement. d) Signs: LITTLE LEAGUE shall be permitted the right to post commercial or private advertising signs as a fund raiser. All funds derived from this advertisement shall be used to make Premises improvements or directly fund LITTLE LEAGUE. Signs shall not be posted on the outfield fence of field #3 and #4. The CITY reserves the right to reject and prohibit posting of signs on the Premises at any time. Advertising signs shall only be posted between December 1 through July 31. .` e) Securitv: Keep locked the announcers' stands and the refreshment stand/restroom building, including related storage areas, when such premises are not being used. III. POSSESSION AND ACCESS The rights granted LITTLE LEAGUE herein relate to use of public facilities and do not in any way constitute possession of the Premises by LITTLE LEAGUE. At all times CITY retains all rights of control and access to facilities subject to this agreement. IV. CITY USE DURING TIME OF USE RIGHTS LITTLE LEAGUE shall have use of the Premises as stated herein; however, if it does not interfere with a scheduling, upon fifteen (15) days written notice, CITY shall be entitled to use of the facilities on a short-term basis for special events. V. REFRESHMENT STAND OPERATIONS LITTLE LEAGUE shall comply with all applicable laws, orders and regulations prescribed by any lawful authority having jurisdiction over the operations of the refreshment stand. In the event LITTLE IEAGUE is unable to operate said refreshment stand in accordance with all such regulatory requirements, or for any other reason ceases to operate the same, CITY shall have the option to otherwise provide for operation of the refreshment stand and LITTLE LEAGUE shall have no further interest therein. VII. LITTLE LEAGUE RESPONSIBILITY LITTLE LEAGUE shall not commit or permit the commission of any acts on the Premises, nor use nor permit the use of the premises in any way that: (a) violates or conflicts with any law, statute, ordinance, or governmental rule or regulation, whether now in force or hereinafter enacted, governing the Premises; or (b) constitutes the commission of waste on the premises or the commission or maintenance of a nuisance. VIII. ASSIGNMENT LITTLE LEAGUE may not assign, or otherwise transfer any right or interest in this Agreement without the prior express written consent of CITY. IX. INSURANCE LITTLE LEAGUE shall during the period of use of the refreshment stand area, at its sole cost and expense, procure and keep in effect such standard policies of property casualty, fire and extended coverage insurance in an amount equivalent to the value of the Refreshment Stand Building. Upon request, the LITTLE LEAGUE shall provide to the CITY a certificate of such insurance with evidence of the payment of the premium therefor. The CITY shall have no obligation to keep the buildings and improvements on the Premises insured nor shall the CITY have any obligation to insure any personal property used in connection with the Premises. In the event that the IITTLE LEAGUE's use and occupancy of the Premises causes any increase in the premium for any property casualty or fire insurance maintained by CITY on the Premises or any portion thereof, LITTLE LEAGUE shall reimburse CITY for the amount of said increase within thirty days of notice of the same. From December 1 through July 31 of each year of the term of this Agreement, LITTLE LEAGUE shall, at its own cost and expense, secure and maintain a broad form comprehensive coverage policy of public liability insurance issued by an insurance company acceptable to CITY and insuring CITY against loss or liability caused by or connected with LITTLE LEAGUE's occupation and use of the Premises under this Agreement in amounts not less than: (a) $300,000 for injury to or death of one person and, subject to such limitation for the injury or death to one person, of not less than $1,000,000 for injury to or death of two or more persons as a result of any one accident or incident; and (b) $300,000 for damage to or destruction of any property of others; or such higher amount as may be set as the liability limits under the waiver of sovereign immunity provisions of law. Any policy or policies of insurance required pursuant to this Agreement shall be issued by one or more insurance companies authorized to engage in business in the State of Florida and which have a rating of at least A+ by A.M. Best and Company and at least an AA rating by both Moody's and Standard and Poors. Such shall contain a clause preventing cancellation of any coverage before thirty (30) days i � written notice to the CITY and shall name the CITY as an additional insured. Upon the request of the CITY, the LITTLE LEAGUE shall provide copies of said policies to the CITY. Nothing in this Agreement shall be construed as a waiver by CITY of the protections of sovereign immunity. X. DESTRUCTION OF PREMISES In the event the buitding and/or other improvements erected on the Premises are destroyed or damaged by fire or other casualty, the CITY shall have no responsibility or obligation to make any expenditures toward the repair and/or replacement of the building and other improvements on the Premises. CITY, at its option, shall either cause said building and/or other improvements to be replaced or said damage to be repaired as rapidly as practicable, or shall elect not to repair the Premises and terminate the Agreement. Any insurance proceeds relating to the Premises, whether CITY elects to repair or replace the improvements on the Premises or not, shall be the sole property of CITY and LITTLE LEAGUE shall have no claims against any insurance proceeds paid on account of such damage. XI. ALTERATIONS LITTLE LEAGUE shall not make or permit any other person to make alterations to the Premises without the prior written consent of CITY. Any alterations to the Premises by LITfLE �EAGUE shall be made at the sole cost and expense of LITTLE LEAGUE, but shall be the property of CITY. XII. INDEMNITY LITfLE LEAGUE shall indemnify, defend and hold CITY and the property of CITY, including the premises, free and harmless from any and all liability, claims, loss, damages or expenses, including counsel fees and costs, arising by reason of the death or injury of any person, including any person who is an employee or agent of LITTLE LEAGUE, or by reason of damage to or destruction of any property, including property owned by LITTLE LEAGUE or any person who is an employee or agent of LITTLE LEAGUE, in any way caused by, connected with or occurring during LITTLE LEAGUE's use of the Premises or other appurtenant or related CITY properties arising under this Agreement other than intentional acts of CITY or an employee or agent of CITY. XIII. UNREMOVED PERSONAL PROPERTY AND FIXTURES Any personal property or trade fixtures that are not removed from the Premises by LITTLE LEAGUE within thirty (30) days after the last game of a season or termination of this Agreement shall be deemed abandoned by LITTLE LEAGUE and shall automatically become the property of CITY as owner of the real property. XIV. REMEDIES FOR DEFAULT Should LITTLE LEAGUE be guilty of a material default and breach of this Agreement, CITY, in addition to any other remedies given by law or equity, may terminate LITTLE LEAGUE's right to use the Premises immediately. The parties waive the right to trial by jury of all issues so triable. XV. WAIVER OF BREACH The waiver by CITY of any breach by LITTLE LEAGUE of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by LITTLE LEAGUE either of the same or another provision of this Agreement. XVI. NOTICES Any notice, report, statement, approval, consent designation, demand or request to be given and any option or election to be exercised by a party under the provisions of this Agreement shall be effective only when made in writing and delivered (or mailed by registered or certified mail with postage prepaid) to the other party at the address given below: CITY: City of Sebastian 1225 Main Street Sebastian, FL 32958 Attn: City Manager LITTLE IEAGUE: *****""*****, Inc. "*****" Avenue Sebastian, FL 3295860 Attn: President • r provided, however, that either party may designate a different representative or address from time to time by giving to the other party notice in writing of the change. XVII. LITIGATION In the event of litigation arising out of this writing, venue shall be in Indian River County, Florida and the terms of this Agreement shall be construed and enforced according to the laws of the State of Florida. In any action arising out of the enforcement of this writing, the prevailing party shall be entitled to an award of reasonable attorneys fees and costs, both at trial and all appellate levels, based upon the prevailing rates of private attorneys in the venue. THE PARTIES HERETO SPECIFICALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY SUCH LEGAL PROCEEDING. XVIII. WHOLE AGREEMENT This Agreement contains all of the understandings by and between the parties hereto relative to the use of the Premises, and all prior or contemporaneous agreements relative thereto have been merged herein or are voided by this instrument, which may be amended, modified, altered, changed, revoked or rescinded in whole or in part only by an instrument in writing signed by each of the parties hereto. Neither party has in any way relied, nor shall in any way rely, upon any oral or written agreements, representations, warranties, statements, promises or understandings not specifically set forth in the Agreement Documents. This Agreement shall not be construed against the party who drafted the same, as both pa�ties have obtained experts of their choosing to review the legal and business adequacy of the same. EXECUTED on this ��� day of �'/� , 2009, at Sebastian, Florida. ATTEST: .. �! . � � Sally A. M o, MMC City Clerl Approved as to Form and Legality for Reliance by the City of Sebastian only: � obert A. Ginsburg, City Attorney SEBASTIAN RIVER AREA LITTLE LEAGUE, INC. a non-profit Florida corp ' n B:V� Y Its: CITY OF SE A Municidal � ATTEST: � Secretary: (Seal) er, III, City Manager