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HomeMy WebLinkAbout2003 07 28 Consent G Winter Springs Basketball League COMMISSION AGENDA ITEM G CONSENT X INFORMATIONAL PUBLIC HEARING REGULAR 7/28/03 Meeting MGR. ~ Authorization /DEPT LG REQUEST: The Parks and Recreation Department requesting the City Commission to authorize the City Manager to execute the City of Winter Springs Recreation Program Agreement with the Winter Springs Basketball League. PURPOSE: The purpose ofthis item is to obtain Commission approval to execute the Agreement necessary to partner with the Winter Springs Basketball League, Inc. CONSIDERTIONS: . The Winter Springs Basketball League has been conducting youth basketball programs for the youth of the Winter Springs area. They desire to again partner with the City of Winter Springs with another 2- Y ear Agreement. . The Parks and Recreation Department desires to provide facilities owned by or scheduled by the City of Winter Springs for games and practices and to enhance youth sports through program promotions, background checks and coaches certification. . The Parks and Recreation Department will provide Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School gymnasiums for this program. . The partnership between Parks and Recreation and the major youth sports providers has been mutually beneficial to meet the youth sports needs of the city residents. . Staff and the City Attorney have reviewed the Agreement and recommend approval. 1 FUNDING: The program will provide to the City of Winter Springs approximately $1 0,000.00 per year. In return Parks and Recreation will provide printing and mailing of brochures, phone line with voice mail, criminal history background checks and NYCSA coach's certification for coaches. Projected total revenue from all Six (6) agreements is $50,000.00 per year. Total expenses are $46,100.00 per year. Total net revenue to the City is $3,900.00 per year. RECOMMENDATION: Staff is recommending approval to authorize the City Manager to execute the City of Winter Springs Recreational Program Agreement with the Winter Springs Basketball League. IMPLEMENTATION SCHEDULE: July 29,2003 Promotion of youth basketball program. ATTACHMENTS: Attachment # 1 City of Winter Springs Recreational Program Agreement with the Winter Springs Basketball League. COMMISSION ACTION: 2 ATTACHMENT #1 CITY OF WINTER SPRINGS RECREATIONAL PROGRAM AGREEMENT THIS AGREEMENT, made and entered into this 23rd day of July, 2003, by and between the City of Winter Springs, a Florida municipal corporation (the "City"), and the Winter Springs Basketball League, Inc., a Florida corporation ("Basketball League"). WIT N E SSE T H: WHEREAS, the City has certain public recreational facilities available for use by the public; and WHEREAS, the Basketball League is desirous of offering a public recreational program for the benefit of the public using the recreational facilities available to the City; and WHEREAS, the City is willing to permit the Basketball League program to take place at the Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School gymnasiums and other City recreational facilities located within the City of Winter Springs, Florida. NOW, THEREFORE, in consideration ofthe mutual covenants and provisions hereof, and other good and valuable consideration, the receipt and sufficiency all of which are hereby acknowledged, the parties desire to be legally bound by the terms and conditions of this agreement as follows: 1.0 Recitals. The foregoing recitals are hereby incorporated herein in their entirety by this reference. 2.0 Term of Agreement. The term of this Agreement shall commence on August 1,2003, and end on July 31,2005. 3.0 School Board Contract. The Basketball League hereby acknowledges that the City and the School Board of Seminole County have entered into that certain agreement that permits the City to utilize facilities owned by the School Board of Seminole County. The Basketball League agrees that its use of any facilities owned by the School Board is subject to the terms and conditions of that agreement between the City and the School Board of Seminole County. 4.0 Program a nd Additional Services Conducted by the Basketball League. The Basketball League shall provide and promote a basketball program to enhance the existing recreational programs offered by the City. The program shall include, but shall not be limited to, a winter, spring, and summer soccer league for grades K through 12, a travel and tournament basketball team, basketball camps, motivational seminars, and other recreational type special events. Camps and clinics shall include, but not be limited to, clinics for youth, teams, coaches, officials, parents, and Special Olympics. Special events shall include, but not be limited to, free throw Page 1 of8 contests "3" point contests, shoot-ins, fundraisers, academic sports symposiums and hot shot contests. Unless otherwise provided in this Agreement, the aforesaid programs shall hereinafter be referred to as Programs. The Basketball League shall not deviate from the Programs set forth in this agreement without the prior written consent ofthe City. Programs should be held during non-school hours. 4.1 The Basketball League shall also provide any and all additional services and equipment necessary for the Program including, but not limited to: (i) providing administrative personnel to collect fees, forms, and answer telephone inquiries regarding Programs; (ii) providing coaches, referees, speakers, clock operators, scorers, and administrative and support personnel to operate the Programs; (iii) providing all equipment necessary to participate in the Programs, such as basketballs, training aids, camp equipment, materials; (iv) providing uniforms to participants which shall have the City of Winter Springs League logo on all league, camp, and clinic shirts; (v) providing trophies, certificates, and other give away items; (vi) providing all schedules and league handouts; (vii) providing for the set up of all gymnasiums and equipment necessary for the Programs; and (viii) providing for the clean-up and removal of all equipment and trash and debris brought to facilities by the Basketball League and their guests, invitees, spectators, participants and personnel (clean-up shall be completed as soon as practicable after each Program). 5.0 Certificates. Upon execution of this Agreement by the Basketball League, and as a continuing obligations hereunder, the Basketball League shall provide copies to the City of all occupational licenses, competency cards, or certificates necessary for the performance of the Programs. 6.0 Program Materials; Sale of Non-Food Items. The Basketball League shall be permitted to distribute programs, pictures, advertising and other promotional materials regarding the Programs. The Basketball League shall also be permitted to sell and distribute food or drink items during the course of any Program only upon prior written request and approval of the City. The Basketball League may also offer awards or trophies to Program participants that successfully complete or win contests or other events conducted as part of this Agreement. 7.0 Use of Facilities; City Services. The Basketball League shall offer the Programs at Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School gymnasiums, and at other designated owned or controlled facilities that may be authorized by the City for use by the Basketball League. The Basketball League agrees that they will not use any other City facility unless authorized pursuant to this Agreement. In addition, the City will provide the following services: (i) coordinate with the Basketball League to conduct the Programs; (ii) provide a criminal background check for the Basketball League personnel; (iii) provide printing and mailing of program information & brochures; (iv) provide a phone line with voice mail for the Basketball League information; and ( v) provide coaches certification for the league coaches. Page 2 of8 8.0 Compensation. For the use ofthe City facilities and receipt of City services set forth in paragraph 7.0 ofthis Agreement, the Basketball League agrees to pay compensation to the City as follows: 8.1 Ten percent (10%) of all monies collected for the registration and enrollment of a person into the Program at the beginning of each season. Non-resident fees established by the commission are $5.00 per person per season for all registrations. 8.2 The Basketball League shall be responsible for collecting any and all fees necessary for a person to register and participate in a Program. The Basketball League shall also retain copies of all receipts issued to participants for the payment of said fees. 8.3 The first payment of the registration fees and non-resident fees shall be paid to the City by the beginning ofthe Fall, Winter, Spring, or Summer season along with a complete listing of Program participants to include the name, address, and phone number only and what Program the participant is participating in. All subsequent payments of collected registration fees, if any, shall be paid by the last day of each month thereafter. Failure to make payments within the time proscribed shall result in a five percent (5%) late fee being added to the payment amount. The late fee shall be paid with the payment of registration fees. 8.4 Within three (3) business days following the termination of this Agreement, the Basketball League shall provide the City a revenue and expenditure report, which shall set forth the revenues, collected and all expenditures resulting from operating any and all Programs. The City reserves the right to demand an additional payment of compensation from the Basketball League if the report shows any discrepancy in the amount of revenue generated by the Basketball League and any previous payments actually paid to the City under this Agreement. 9.0 Reimbursement of Expenses. Reimbursement of any and all actual expenses incurred by the City in assisting the Basketball League regarding any program 0 ffered by the Basketball League for the use of facilities not owned and maintained by the City of Winter Springs, including, but not limited to, field rental and supervision/maintenance charges. The City will provide the Basketball League a written invoice(s) itemizing these expenses and payment shall be made by the Basketball League within thirty (30) days of receiving the invoice. 10.0 Disorderly Conduct, Alcohol and Controlled Substances. The Basketball League shall not permit any guests, invitees, employees, agents, or other Program participants to engage in any disorderly conduct or criminal conduct while participating in any Program. The Basketball League shall promote good sportsmanship to all Program participants. The City representative responsible for the partnerships is the Recreation Supervisor, he has the authority and responsibility to investigate and resolve complaints and other inquires from the public, suspend coaches, players or parents from games or facilities with approval from the Parks & Recreation Director. The use of alcoholic beverages or illegal controlled substances by Program participants and the Basketball Page 3 of8 League prior to, during, or after any Program shall be strictly prohibited. 11.0 Status Conferences. At the request ofthe City, the Basketball League shall attend status conferences with the City for purposes of evaluating the status of any Program. The date and time ofthe status conferences shall be by mutual agreement of the parties. 12.0 Independent Contractor, Hiring of Personnel. The Basketball League shall be considered an independent contractor under this Agreement. The Basketball League shall be solely responsible and liable for hiring and retaining all of its employees, personnel, contractors, coaches, and volunteers. 13.0 Indemnification and Hold Harmless. The Basketball League shall indemnify and hold harmless the City and its employees, officers, attorneys, agents, and contractors from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability to the person or property (including reasonable attorney's fees through any and all administrative, trial, post judgment and appellate proceedings), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from the Basketball League's scheduling, permitting, promoting, maintaining, supervising, managing, coordinating, and conducting any Program under this Agreement. The indemnification provided above shall obligate the name the Basketball League to defend at its own expense or to provide for such defense, at the option ofthe City, as the case may be, of any and all claims ofliability and all suits and actions of every name and description that may be brought against the City or its employees, attorneys, and officers which may result from the Basketball League's performance under this Agreement whether performed by the Basketball League, or anyone directly or indirectly employed, controlled, supervised, or directed by the Basketball League. In all events the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be subject to and included with this indemnification provided herein, as long as said fees are considered reasonable within the Central Florida area. 14.0 Assignment. This Agreement shall not be assigned by any party without the prior written consent of all ofthe parties hereto. 15.0 Public Record. It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing of the Basketball League related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or the Basketball League. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Basketball League is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City Manager. Upon request by the City, the Basketball League shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal business hours of the Basketball League be open and Page 4 of8 freely exhibited to the City for the purpose of examination and/or audit. 16.0 General Liability Insurance. For the Programs performed hereunder, Basketball League shall purchase and maintain, at its own expense, such general liability insurance to cover claims for damages because of bodily injury or death of any person or property damage arising in any way out of the Programs performed by the Basketball League under this Agreement. The insurance shall have minimum limits of coverage of$I,OOO,OOO.OO per occurrence combined single limit for bodily injury liability and property damage liability. All insurance coverage shall be with insurer(s) approved by the City and licensed by the State of Florida to engage in the business of writing of insurance. The City shall be named on the foregoing insurance policies as "additional insured." The Basketball League shall cause its insurance carriers to furnish insurance certificates and endorsements specifying the types arid amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days prior written notice to the City in compliance with other provisions of this Agreement. If the City has any objection to the coverage afforded by or other provision of the insurance required to be purchased and maintained by the Basketball League in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notify the Basketball League in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. The Basketball League shall continuously maintain such insurance in the amounts, type, and quality as required by this paragraph. 17.0 Modification. Modifications of this Agreement shall only be made in writing signed by both parties. 18.0 Compliance with Laws. The Basketball League shall comply with all local, state, and federal laws and regulations that are applicable to the operation of its business and in the performance of any Program. The Basketball League acknowledges and agrees that it will take any and all reasonable and prudent steps necessary to be informed and advised of all applicable local, state, and federal laws and regulations affecting its business and performance of any Program. 19.0 Due Diligence. The Basketball League acknowledges that they have investigated prior to the execution ofthis Agreement and satisfied themselves as to the conditions affecting the City's facilities that will or may be utilized by the Basketball League to conduct the Programs, the availability of materials and labor, the cost thereof, the requirements to obtain necessary insurance, permits, equipment, and the steps necessary to complete the Programs. The Basketball League warrants unto the City that they have the competence and abilities to carefully, professionally, and faithfully complete the Programs in the manner and within the time limits proscribed herein. The Basketball League will perform the Programs with due and reasonable diligence consistent with sound professional and labor practices. 20.0 Time is of the Essence. Time is of the essence of this Agreement. 21.0 Third Party Rights. This Agreement is not a third party beneficiary contract and shall Page 5 of8 not in any respect whatsoever create any rights on behalf of any party not expressly a party to this Agreement. 22.0 Further Assurances. From and after the execution of this Agreement, each of the parties hereto shall fully cooperate with each other and perform any further act(s) and execute and deliver any further documents which may be necessary or desirable in order to carry out the purposes and intentions of this Agreement. 23.0 Severability. If any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions shall nevertheless remain in full force and effect, unless the absence ofthe invalid, void or unenforceable provision or provisions causes this Agreement to fail in its essential purposes. 24.0 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws ofthe State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the trial courts located in Seminole County, Florida, for state actions and Orlando, Florida, for federal actions. Any objections as to jurisdiction or venue in such courts being expressly waived. 25.0 Attorney's Fees. In the event any litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such litigation or controversy shall be entitled to recover from the other party or parties all reasonable attorney's fees and paralegal fees, expenses and suit costs, including those associated with any appellate or post-judgment collection proceedings. 26.0 Non-Waiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. 27.0 Notices. Any notice, request, instruction, or other document to be given as part ofthis Agreement shall be in writing and shall be deemed given under the following circumstances: when delivered in person; or three (3) business days after being deposited in the United States Mail, postage prepaid, certified or registered; or the next business day after being deposited with a recognized overnight mail or courier delivery service; or when transmitted by facsimile or telecopy transmission, with receipt acknowledged upon transmission; and addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein): To City: City of Winter Springs Attn: Parks And Recreation Department Mr. Chuck Pula, Director 1000 E. State Road 434 Winter Springs, Florida 32708 Page 6 of8 PH: (407) 327-4761 FAX: (407) 327-4763 To Basketball League: Winter Springs Basketball League, Inc., Mr. Christopher R. Marlette 102 Laurel Dr. Sanford, Florida 32773 PH: (407) 327-8952 FAX: (407) 322-9854 28.0 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same instrument. 29.0 Standard of Care. In performing the Programs, the Basketball League shall use that degree of care and skill ordinarily exercised, under similar circumstances by reputable members of their professions practicing in the same or similar locality. The Basketball League shall take all necessary and reasonable precautions to protect the program participants and the public from being injured during the Programs. 30.0 Termination. This Agreement may be terminated by either party with thirty (30) days written notice. 1ft his Agreement is terminated bye ither party, the indemnification provision contained in paragraph 12.0 of this Agreement shall remain in full force and effect for any claims, losses, damages, personal injuries, or liability which may occur under this Agreement. The Basketball League shall also immediately pay all compensation due to the City pursuant to paragraph 8.0 of this Agreement. 31.0 Basketball League Signatory. The undersigned person executing this Agreement on behalf ofthe Basketball League hereby represents and warrants that he has the full authority to sign the Agreement on behalf of the Basketball League and that he has the authority to fully bind the Basketball League to the terms and conditions set forth in this Agreement. 32.0 Interpretation. The City and the Basketball League have participated in the drafting of all parts 0 f t his A greement. A s a result, it is the intent 0 f t he parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 33.0 Entire Agreement. The drafting, execution, and delivery of this Agreement by the parties has been induced by no representations, statements, warranties, or agreements other than those expressed herein. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. Page 7 of8 34.0 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. 35.0 Use of School Board of Seminole County Facilities. The City of Winter Springs will coordinate with the Basketball League to enter into agreements with Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School to utilize the gymnasium facilities for all Basketball League programs. 36.0 No Guarantee by City. Nothing contained in this agreement shall be construed as a guarantee for the use of any city owned or maintained facility. The parties fully understand and agree that city owned or maintained facilities may not be suitable, at the discretion of the city, for play or practice due to inclement weather, lightning, vandalism, emergencies, acts of God, hazardous conditions, or any other circumstances that the city deems could injure participants or damage the facilities. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY: BASKETBALL LEAGUE: CITY OF WINTER SPRINGS WINTER SPRINGS BASKETBALL LEAGUE By: By: Ronald W. McLemore, City Manager Christopher R. Marlette Date: Date: Page 8 of8 , ,. CITY OF WINTER SPRINGS RECREATIONAL PROGRAM AGREEMENT THIS AGREEMENT, made and entered into this 23rd day of July, 2003, by and between the City of Winter Springs, a Florida municipal corporation (the "City"), and the Winter Springs Basketball League, Inc., a Florida corporation ("Basketball League").. WIT N E SSE T H: WHEREAS, the City has certain public recreational facilities available for use by the public; and WHEREAS, the Basketball League is desirous of offering a public recreational program for the ben~fit of the public using the recreational facilities available to the City; and . . WHEREAS, the City is willing to permit the Basketball League program to take place at the Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School gymnasiums and other City recreational facilities located within the City of Winter Springs, Florida. NOW, THEREFORE, in consideration of the mutual covenants and provisions hereof, and other good and valuable consideration, the receipt and sufficiency all of which are hereby acknowledged, the parties desire to be legally bound by the terms and conditions of this agreement as follows: 1.0 Recitals. The foregoing recitals are hereby incorporated herein in their entirety by this reference. 2.0 Term of Agreement. The term of this Agreement shall commence on August 1,2003, and end on July 31,2005. 3.0 School Board Contract. The Basketball League }1ereby acknowledges that the City and the School Board of Seminole County have entered into that certain agreement that permits the City to utilize facilities owned by the School Board of Seminole County. The Basketball League agrees that its use of any facilities. owned by the School Board is subject to the terms and conditions of that agreement between the City and the School Board of Seminole County. 4.0 Program and Additional Services Conducted by the Bdsketball League. The Basketball League shall provide and promote a basketball program to enhance the existing recreational programs offered by the City. The program shall include, but shall not be limited to, a winter, spring, and summer soccer league for grades K through 12, a travel and tournament basketball Page 1 of8 i . team, basketball camps, motivational seminars, and other recreational type special events. Camps and clinics shall include, but not be limited to, clinics for youth, teams, coaches, officials, parents, and Special Olympics. Special events shall include, but not be limited to, free throw contests "3" point contests, shoot-ins, fundraisers, academic sports symposiums and hot shot contests. Unless otherwise provided in this Agreement, the aforesaid programs shall hereinafter be referred to as "Programs." The Basketball League shall not deviate from the Programs set forth in this agreement without the prior written consent of the City. Programs should be held during non-school hours. 4. I The Basketball League shall also provide any and all additional services and equipment necessary for the Program including, but not limited to: (i) providing administrative personnel to collect fees, forms, and answer telephone inquiries regarding Programs; (ii) providing coaches, referees, speakers, clock operators, scorers, and administrative and support personnel to operate the Programs; (iii) providing all equipment necessary to participate in the Programs, such as basketballs, trainin~ ~ids, camp equipment, materials; (iv) providing uniforms to parti~ipants which shall have the City of Winter Springs League logo on all league, camp, and clinic shirts; (v) providing trophies, certificates, and other give away items; (vi) providing all schedules and league handouts; (vii) providing for the set up of all gymnasiums and equipment necessary for the Programs; and (viii) providing for the clean-up and removal of all equipment and trash and debris brought to facilities by the Basketball League and their guests, invitees, spectators, participants and personnel (clean-up shall be completed as soon as practicable after each Program). 5.0 Certificates. Upon execution of this Agreement by the Basketball League, and as a continuing obligations hereunder, the Basketball League shall provide copies to the City of all occupational licenses, competency cards, or certificates necessary for the performance of the Programs. /' 6.0 Program Materials; Sale of Non-Food Items. The Basketball League shall be permitted to distribute programs; pictures, advertising and other promotional materials regarding the Programs. The Basketball League shall also be permitted to sell and distribute food or drink items during the course of any Program only upon prior written request and approval of the City. The Basketball League may also offer awards or trophies to Program participants that successfully complete or win contests or other events conducted as part of this Agreement. 7.0 Use of Facilities; City Services. The Basketball League shall offer the Programs at Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School gymnasiums, and at other designated owned or controlled facilities that may be authorized by the City for use by the Basketball League. The Basketba\l League agrees that they will not use any other City facility unless authorized pursuant to this Agreerfient. In addition, the City will provide the following services: (i) coordinate with the Basketball League to conduct the Programs; (ii) provide a criminal background check for the Basketball League personnel; (iii) provide printing and mailing of program information & brochures; (iv) provide a phone line with Page 2 of8 voice mail for the Basketball League information; and (v) provide coaches certification for the league coaches. 8.0 Compensation. For the use ofthe City facilities and receipt of City services set forth in paragraph 7.0 of this Agreement, the Basketball League agrees to pay compensation to the City as follows: 8.1 Ten percent (10%) of all monies collected for the registration and enrollment of a person into the Program at the beginning of each season. In addition, a non-resident fee of Five and No/toO Dollars ($5.00) per person per season, as established by the City Commission shall be collected and remitted to the City. .8.2 The Basketball League shall be responsible for collecting any and all fees necessary for a person to register and participate in a Program. The Basketball League shall also retain copies of all receipts issued to participants for the payment of said fees. 8.3 The first payment ofthe registration fees and non-resident fees shall be paid to the City by the beginning of the Fall, Winter, Spring, or Summer season along with a complete listing of Program participants to include the name, address, and phone number only and what Program the participant is participating in. All subsequent payments of collected registration fees, if any, shall be paid by the last day of each month thereafter. Failure to make payments within the time proscribed shall result in a five percent (5%) late fee being added to the payment amount. The late fee shall be paid with the payment of registration fees. 8.4 /' Within three (3) business days following the termination of this Agreement, the Basketball League shall provide the City a revenue and expenditure report, which shall set forth the revenues, collected and all expenditures resulting from operating any and all Programs. The City reserves the right to demand an additional payment of compensation from the Basketball League if the report shows any discrepancy in the amount of revenue generated by the Basketball League and any previous payments actually paid to the City under this Agreement. 9.0 Reimbursement of Expenses. Reimbursement of any and all actual expenses incurred by the City in assisting the Basketball League regarding any program offered by the Basketball League for the use of facilities not owned and maintained by the City of Winter Springs, including, but not limited to, field rental and supervision/maintenance charges. The City will provide the Basketball League a written invoice(s) itemizing these expenses and payment shall be made by the Basketball League within thirty (30) days of receiving the invoice. .' 10.0 Disorderly Conduct, Alcohol and Controlled Substances. The Basketball League shall not permit any guests, invitees, employees, agents, or other Program participants to engage in Page 3 of8 any disorderly conduct or criminal conduct while participating in any Program. The Basketball League shall promote good sportsmanship to all Program participants. The City's Recreation Supervisor has the authority and responsibility to investigate and resolve complaints and other inquires from the public, suspend coaches, players or parents from games or facilities with approval from the Parks & Recreation Director: The use of alcoholic beverages or illegal controlled substances by Program participants and the Basketball League prior to, during, or after any Program shall be strictly prohibited. 11.0 Status Conferences. At the request of the City, the Basketball League shall attend status conferences with the City for purposes of evaluating the status of any Program. The date and time of the status conferences shall be by mutual agreement of the parties. 12.0 Independent Contractor, Hiring of Personnel. The Basketball League shall be consid~r:ed an independent contractor under this Agreement. The Basketball League shall be solely responsible and liable for hiring and retaining all of its employees, personnel, contractors, coaches, and volunteers. 13.0 Indemnification and Hold Harmless. The Basketball League shall indemnify and hold harmless the City and its employees, officers, attorneys, agents, and contractors from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability to the person or property (including reasonable attorney's fees through any and all administrative, trial, post judgment and appellate proceedings), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from the Basketball League's scheduling, permitting, promoting, maintaining, supervising, managing, coordinating, and conducting any Program under this Agreement. ,.. The indemnification provided above shall obligate the name the Basketball League to defend at its own expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City or its employees, attorneys, and officers which may result from the Basketball League's performance under this Agreement whether performed by the Basketball League, or anyone directly or indirectly employed, controlled, supervised, or directed by the Basketball League. In all events the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be subject to and included with this indemnification provided herein, as long as said fees are considered reasonable within the Central Florida area. 14.0 Assignment. This Agreement shall not be assigned by al)Y party without the prior written consent of all of the parties hereto. ( 15.0 Public Record. It is hereby specifically agreed that any record, document, Page 4 of8 r~ . computerized information and program, audio or video tape, photograph, or other writing of the Basketball League related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether .in the possession or control of the City or the Basketball League. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Basketball League is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City Manager. Upon request by the City, the Basketball League shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal business hours of the Basketball League be open and freely exhibited to the City for the purpose of examination and/or audit. 16.0 General Liability Insurance. For the Programs performed hereunder, Basketball League shall purchase and maintain, at its own expense, such general liability insurance to cover claims f9r damages because of bodily injury or death of any person or property damage arising in any way out of the Programs performed by the Basketball League under this Agreement. The insurance shall have minimum limits of cove~age of $1,000,000.00 per occurrence combined single limit for bodily injury liability and property damage liability. All insurance coverage shall be with insurer(s) approved by the City and licensed by the State of Florida to engage in the business of writing of insurance. The City shall be named on the foregoing insurance policies as "additional insured." The Basketball League shall cause its insurance carriers to furnish insurance certificates and endorsements specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days prior written notice to the City in compliance with other provisions of this Agreement. If the City has any objection to the coverage afforded by or other provision of the insurance required to be purchased and maintained by the Basketball League in accordance with this paragraph on the basis . of its not complying with the Agreement, the City shall notify the Basketball League in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. The Basketball League shall continuously maintain such insurance in the amounts, type, and quality as required by this paragraph. 17.0 Modification. signed by both parties. Modifications of this Agreement shall only be made in writing 18.0 Compliance with Laws. The Basketball League shall comply with all local, state, and federal laws and regulations that are applicable to the operation of its business and in the performance of any Program. The Basketball League acknowledges and agrees that it will take any and all reasonable and prudent steps necessary to be informed and advi~ed of all applicable local, state, and federal laws and regulations affecting its business and performance of any Program. 19.0 Due Diligence. The Basketball League acknowledges that they have investigated prior to the execution of this Agreement and satisfied themselves as to the conditions affecting the Page 5 of8 ,- City's facilities that will or may be utilized by the Basketball League to conduct the Programs, the availability of materials and labor, the cost thereof, the requirements to obtain necessary insurance, permits, equipment, and the steps necessary to complete the Programs. The Basketball League warrants unto the City that they have the competence and abilities to carefully, professionally, and faithfully complete the Programs in the manner and within the time limits proscribed herein. The Basketball League will perform the Programs with due and reasonable diligence consistent with sound professional and labor practices. 20.0 Time is ofthe Essence. Time is of the essence of this Agreement. 21.0 Third Party Rights. This Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights on behalf of any party not expressly a party to this Agreement. 22.0 Further Assurances. From and after the execution of this Agreement, each of the parties hereto shall fully cooperate with each other and perform any further act(s) and execute and deliver any further documents which may be necessary or desirable in order to carry out the purposes and intentions of this Agreement. 23.0 Severability. If any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions shall nevertheless remain in full force and effect, unless the absence of the invalid, void or unenforceable provision or provisions causes this Agreement to fail in its essential purposes. 24.0 Governing Law and Venue. This Agreement shall be construed and enforced in accordance With the laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the trial courts located in Seminole County, Florida, for state actions and Orlando, Florida, for federal actions. Any objections as to jurisdiction or venue in such courts being expressly waived. 25.0 Attorney?s Fees. In the event any litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such litigation or controversy shall be entitled to recover from the other party or parties all reasonable attorney's fees and paralegal fees, expenses and suit costs, including those associated with any appellate or post- judgment collection proceedings.. 26.0 Non-Waiver. No delay or failure by either party to' exeJ,"cise any right under this Agreement, and no partial or single exercise of that right, shall constitute a tvaiver of that or any other right, unless otherwise expressly provided herein. Page 6 of8 :' 27.0 Notices. Any notice, request, instruction, or other document to be given as part of this Agreement shall be in writing and shall be deemed given under the following circumstances: when delivered in person; or three (3) business days after being deposited in the United States Mail, postage prepaid, certified or registered; or the next business day after being deposited with a recognized overnight mail or courier delivery service; or when transmitted by facsimile or telecopy transmission, with receipt acknowledged upon transmission; and addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein): To City: City of Winter Springs Attn: Parks And Recreation Department Mr. Chuck Pula, Director 1000 E. State Road 434 Winter Springs, Florida 32708 PH: (407) 327-4761 FAX: (407) 327-4763 . . To Basketball League: Winter Springs Basketball League, Inc., Mr. Christopher R. Marlette 102 Laurel Dr. Sanford, Florida 32773 PH: (407) 327-8952 FAX: (407) 322-9854 28.0 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered, shall be an original; but such counterparts shall together constitute but One and the same instrument. 29.0 Standard of Care. In performing the Programs, the Basketball League shall use that degree of care and skill ordinarily exercised, under similar circumstances by reputable members of their professions practicing in the same or similar locality. The Basketball League shall take all necessary and reasonable precautions to protect the program participants and the public from being injured during the Programs. 30.0 Termination. This Agreement may be terminated by either party with thirty (30) days written notice. If this Agreement is terminated by either party, the indemnification provision contained in paragraph 13.0 of this Agreement shall remain in full force and effect for any claims, losses, damages, personal injuries, or liability which may occur under tl)is Agreement. The Basketball League shall also immediately pay all compensation due to the City pursuailt to paragraph 8.0 of this Agreement. Page 7 of8 " 31.0 Basketball League Signatory. The undersigned person executing this Agreement on behalf of the Basketball League hereby represents and warrants that he has the full authority to sign the Agreement on behalf of the Basketball League and that he has the authority to fully bind the Basketball League to the terms and conditions set forth in this Agreement. 32.0 Interpretation. The City and the Basketball League have participated in the drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 33.0 Entire Agreement. The drafting, execution, and delivery of this Agreement by the parties has been induced by no representations, statements, warranties, or agreements other than those expressed herein. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. ~ . 34.0 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. 35.0 Use of School Board of Seminole County Facilities. The City of Winter Springs will coordinate with the Basketball League to enter into agreements with Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School to utilize the gymnasium facilities for all Basketball League programs. 36.0 No Guarantee by City. Nothing contained in this agreement shall be construed as a guarantee fOr the use of any city owned or maintained facility. The parties fully understand and agree that city owned or maintained facilities may not be suitable, at the discretion of the city, for play or practice due to inclement weather, lightning, vandalism, emergencies, acts of God, hazardous conditions, or any other circumstances that the city deems could injure participants or damage the facilities. , ~ Page 8 of8 ~, ,i' IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY : BASKETBALL LEAGUE: CITY OF WINTER SPRINGS WINTER SPRINGS BASKETBALL LEAGUE By: /~~,.:~ Ronald W. McLemore, City Manager By: Christopher R. Marlette Date: · 'July 30, 2003 Date: / . l: Page 9 of8 ." t' CITY OF WINTER SPRINGS RECREATIONAL PROGRAM AGREEMENT THIS AGREEMENT, made and entered into this 23rd day of July, 2003, by and between the City of Winter Springs, a Florida municipal corporation (the "City"), and the Winter Springs Basketball League, Inc" a Florida corporation ("Basketball League"). WIT.N E SSE T H: WHEREAS, the City has certain public recreational facilities available for use by the public; and WHEREAS, the Basketball League is desirous of offering a public recreational program for the benefit of the public using the recreational facilities available to the City; and WHEREAS, the City is willing to permit the Basketball League program to take place at the Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School gymnasiums and other City recreational facilities located within the City of Winter Springs, Florida. NOW, THEREFORE, in consideration of the mutual covenants and provisions hereof, and other good and valuable consideration, the receipt and sufficiency all of which are hereby acknowledged, the parties desire to be legally bound by the terms and conditions of this agreement as follows: 1.0 Recitals. The foregoing recitals are hereby incorporated herein in their entirety by this reference. 2.0 Term of Agreement. The term of this Agreement shall commence on August 1,2003, and end on July 31,2005. 3.0 School Board Contract. The Basketball League hereby acknowledges that the City and the School Board of Seminole County have entered into that certain agreement that permits the City to utilize facilities owned by the School Board of Seminole County. The Basketball League agrees that its use of any facilities owned by the School Board is subject to the terms and conditions of that agreement between the City and the School Board of Seminole County. 4.0 Program and Additional Services Conducted by the Basketball League. The Basketball League shall provide and promote a basketball program to enhance the existing recreational programs offered by the City. The program shall include, but shall not be limited to, a winter, spring, and summer soccer league for grades K through 12, a travel and tournament basketball Page 1 of8 team, basketball camps, motivational seminars, and other recreational type special events. Camps and clinics shall include, but not be limited to, clinics for youth, teams, coaches, officials, parents, and Special Olympics. Special events shall include, but not be limited to, free throw contests "3" point contests, shoot-ins, fundraisers, academic sports symposiums and hot shot contests. Unless otherwise provided in this Agreement, the aforesaid programs shall hereinafter be referred to as "Programs." The Basketball League shall not deviate from the Programs set forth in this agreement without the prior written consent of the City, Programs should be held during non-school hours. 4.1 The Basketball League shall also provide any and all additional services and equipment necessary for the Program including, but not limited to: (i) providing administrative personnel to collect fees, forms, and answer telephone inquiries regarding Programs; (ii) providing coaches, referees, speakers, clock operators, scorers, and administrative and support personnel to operate the Programs; (iii) providing all equipment necessary to participate in the Programs, such as basketballs, training aids, camp equipment, materials; (iv) providing uniforms to participants which shall have the City of Winter Springs League logo on all league, camp, and clinic shirts; (v) providing trophies, certificates, and other give away items; (vi) providing all schedules and league handouts; (vii) providing for the set up of all gymnasiums and equipment necessary for the Programs; and (viii) providing for the clean-up and removal of all equipment and trash and debris brought to facilities by the Basketball League and their guests, invitees, spectators,. participants and personnel (clean-up shall be completed as soon as practicable after each Program). 5.0 Certificates. Upon execution of this Agreement by the Basketball League, and as a continuing obligations hereunder, the Basketball League shall provide copies to the City of all occupational licenses, competency cards, or certificates necessary for the performance of the Programs. 6.0 Program Materials; Sale of Non-Food Items. The Basketball League shall be permitted to distribute programs; pictures, advertising and other promotional materials regarding the Programs, The Basketball League shall also be permitted to sell and distribute food or drink items during the course of any Program only upon prior written request and approval of the City. The Basketball League may also offer awards or trophies to Program participants that successfully complete or win contests or other events conducted as part of this Agreement. 7.0 Use of Facilities; City Services. The Basketball League shall offer the Programs at Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School gymnasiums, and at other designated owned or controlled facilities that may be authorized by the City for use by the Basketball League, The Basketball League agrees that they will not use any other City facility unless authorized pursuant to this Agreement. In addition, the City will provide the following services: (i) coordinate with the Basketball League to conduct the Programs; (ii) provide a criminal background check for the Basketball League personnel; (iii) provide printing and mailing of program information & brochures; (iv) provide a phone line with Page 2 of8 voice mail for the Basketball League information; and (v) provide coaches certification for the league coaches. 8.0 Compensation. For the use of the City facilities and receipt of City services set forth in paragraph 7.0 of this Agreement, the Basketball League agrees to pay compensation to the City as follows: 8.1 Ten percent (10%) of all monies collected for the registration and enrollment ofa person into the Program at the beginning of each season, In addition, a non-resident fee of Five and No/lOO Dollars ($5.00) per person per season, as established by the City Commission shall be collected and remitted to the City. 8.2 The Basketball League shall be responsible for collecting any and all fees necessary for a person to register and participate in a Program. The Basketball League shall also retain copies of all receipts issued to participants for the payment of said fees. 8.3 The first payment ofthe registration fees and non-resident fees shall be paid to the City by the beginning of the Fall, Winter, Spring, or Summer season along with a complete listing of Program participants to include the name, address, and phone number only and what Program the participant is participating in. All subsequent payments of collected registration fees, if any, shall be paid by the last day of each month thereafter. Failure to make payments within the time proscribed shall result in a five percent (5%) late fee being added to the payment amount. The late fee shall be paid with the payment of registration fees. 8.4 Within three (3) business days following the termination of this Agreement, the Basketball League shall provide the City a revenue and expenditure report, which shall set forth the revenues, collected and all expenditures resulting from operating any and all Programs. The City reserves the right to demand an additional payment of compensation from the Basketball League if the report shows any discrepancy in the amount of revenue generated by the Basketball League and any previous payments actually paid to the City under this Agreement. 9.0 Reimbursement of Expenses. Reimbursement of any and all actual expenses incurred by the City in assisting the Basketball League regarding any program offered by the Basketball League for the use of facilities not owned and maintained by the City of Winter Springs, including, but not limited to, field rental and supervision/maintenance charges. The City will provide the Basketball League a written invoice(s) itemizing these expenses and payment shall be made by the Basketball League within thirty (30) days of receiving the invoice. 10.0 Disorderly Conduct, Alcohol and Controlled Substances. The Basketball League shall not permit any guests, invitees, employees, agents, or other Program participants to engage in Page 3 of8 any disorderly conduct or criminal conduct while participating in any Program. The Basketball League shall promote good sportsmanship to all Program participants. The City's Recreation Supervisor has the authority and responsibility to investigate and resolve complaints and other inquires from the public, suspend coaches, players or parents from games or facilities with approval from the Parks & Recreation Director. The use of alcoholic beverages or illegal controlled substances by Program participants and the Basketball League prior to, during, or after any Program shall be strictly prohibited. 11.0 Status Conferences. At the request of the City, the Basketball League shall attend status conferences with the City for purposes of evaluating the status of any Program. The date and time of the status conferences shall be by mutual agreement of the parties. 12.0 Independent Contractor, Hiring of Personnel. The Basketball League shall be considered an independent contractor under this Agreement. The Basketball League shall be solely responsible and liable for hiring and retaining all of its employees, personnel, contractors, coaches, and volunteers, 13.0 Indemnification and Hold Harmless. The Basketball League shall indemnify and hold harmless the City and its employees, officers, attorneys, agents, and contractors from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability to the person or property (including reasonable attorney's fees through any and all administrative, trial, post judgment and appellate proceedings), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from the Basketball League's scheduling, permitting, promoting, maintaining, supervising, managing, coordinating, and conducting any Program under this Agreement. The indemnification provided above shall obligate the name the Basketball League to defend at its own expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City or its employees, attorneys, and officers which may result from the Basketball League's performance under this Agreement whether performed by the Basketball League, or anyone directly or indirectly employed, controlled, supervised, or directed by the Basketball League. In all events the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be subject to and included with this indemnification provided herein, as long as said fees are considered reasonable within the Central Florida area. 14.0 Assignment. This Agreement shall not be assigned by any party without the prior written consent of all of the parties hereto. 15.0 Public Record. It is hereby specifically agreed that any record, document, Page 4 of8 ~ computerized information and program, audio or video tape, photograph, or other writing of the Basketball League related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or the Basketball League. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Basketball League is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City Manager. Upon request by the City, the Basketball League shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal business hours of the Basketball League be open and freely exhibited to the City for the purpose of examination and/or audit. 16,0 General Liability Insurance. For the Programs performed hereunder, Basketball League shall purchase and maintain, at its own expense, such general liability insurance to cover claims for damages because of bodily injury or death of any person or property damage arising in any way out of the Programs performed by the Basketball League under this Agreement. The insurance shall have minimum limits of coverage of $1,000,000.00 per occurrence combined single limit for bodily injury liability and property damage liability. All insurance coverage shall be with insurer(s) . approved by the City and licensed by the State of Florida to engage in the business of writing of insurance. The City shall be named on the foregoing insurance policies as "additional insured." The Basketball League shall cause its insurance carriers to furnish insurance certificates and endorsements specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days prior written notice to the City in compliance with other provisions of this Agreement. If the City has any objection to the coverage afforded by or other provision of the insurance required to be purchased and maintained by the Basketball League in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notify the Basketball League in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. The Basketball League shall continuously maintain such insurance in the amounts, type, and quality as required by this paragraph. 17.0 Modification, signed by both parties. Modifications of this Agreement shall only be made in writing 18.0 Compliance with Laws. The Basketball League shall comply with all local, state, and federal laws and regulations that are applicable to the operation of its business and in the performance of any Program, The Basketball League acknowledges and agrees that it will take any and all reasonable and prudent steps necessary to be informed and advised of all applicable local, state, and federal laws and regulations affecting its business and performance of any Program. 19.0 Due Diligence. The Basketball League acknowledges that they have investigated prior to the execution of this Agreement and satisfied themselves as to the conditions affecting the Page 5 of8 City's facilities that will or may be utilized by the Basketball League to conduct the Programs, the availability of materials and labor, the cost thereof, the requirements to obtain necessary insurance, permits, equipment, and the steps necessary to complete the Programs. The Basketball League warrants unto the City that they have the competence and abilities to carefully, professionally, and faithfully complete the Programs in the manner and within the time limits proscribed herein. The Basketball League will perform the Programs with due and reasonable diligence consistent with sound professional and labor practices. 20.0 Time is of the Essence. Time is of the essence of this Agreement. 21.0 Third Party Rights. This Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights on behalf of any party not expressly a party to this Agreement. 22.0 Further Assurances. From and after the execution of this Agreement, each of the parties hereto shall fully cooperate with each other and perform any further act(s) and execute and deliver any further documents which may be necessary or desirable in order to carry out the purposes and intentions of this Agreement. 23.0 Severability. If any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions shall nevertheless remain in full force and effect, unless the absence of the invalid, void or unenforceable provision or provisions causes this Agreement to fail in its essential purposes. 24.0 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the trial courts located in Seminole County, Florida, for state actions and Orlando, Florida, for federal actions. Any objections as to jurisdiction or venue in such courts being expressly waived. 25.0 Attorney?s Fees. In the event any litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such litigation or controversy shall be entitled to recover from the other party or parties all reasonable attorney's fees and paralegal fees, expenses and suit costs, including those associated with any appellate or post- judgment collection proceedings, 26.0 Non-Waiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. Page 6 of8 .. 27.0 Notices. Any notice, request, instruction, or other document to be given as part of this Agreement shall be in writing and shall be deemed given under the following circumstances: when delivered in person; or three (3) business days after being deposited in the United States Mail, postage prepaid, certified or registered; or the next business day after being deposited with a recognized overnight mail or courier delivery service; or when transmitted by facsimile or telecopy transmission, with receipt acknowledged upon transmission; and addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein): To City: City of Winter Springs Attn: Parks And Recreation Department Mr, Chuck Pula, Director 1000 E. State Road 434 Winter Springs, Florida 32708 PH: (407) 327-4761 FAX: (407) 327-4763 To Basketball League: Winter Springs Basketball League, Inc., Mr, Christopher R. Marlette 102 Laurel Dr. Sanford, Florida 32773 PH: (407) 327-8952 FAX: (407) 322-9854 28.0 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same instrument. 29.0 Standard of Care. In performing the Programs, the Basketball League shall use that degree of care and skill ordinarily exercised, under similar circumstances by reputable members of their professions practicing in the same or similar locality. The Basketball League shall take all necessary and reasonable precautions to protect the program participants and the public from being injured during the Programs. 30.0 Termination. This Agreement may be terminated by either party with thirty (30) days written notice. If this Agreement is terminated by either party, the indemnification provision contained in paragraph 13.0 of this Agreement shall remain in full force and effect for any claims, losses, damages, personal injuries, or liability which may occur under this Agreement. The Basketball League shall also immediately pay all compensation due to the City pursuant to paragraph 8.0 of this Agreement. Page 7 of8 .. 31.0 Basketball League Signatory. The undersigned person executing this Agreement on behalf of the Basketball League hereby represents and warrants that he has the full authority to sign the Agreement on behalf of the Basketball League and that he has the authority to fully bind the Basketball League to the terms and conditions set forth in this Agreement. 32,0 Interpretation. The City and the Basketball League have participated in the drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 33.0 Entire Agreement. The drafting, execution, and delivery of this Agreement by the parties has been induced by no representations, statements, warranties, or agreements other than those expressed herein. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. 34.0 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. 35.0 Use of School Board of Seminole County Facilities. The City of Winter Springs will coordinate with the Basketball League to enter into agreements with Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School to utilize the gymnasium facilities for all Basketball League programs. 36.0 No Guarantee by City. Nothing contained in this agreement shall be construed as a guarantee for the use of any city owned or maintained facility. The parties fully understand and agree that city owned or maintained facilities may not be suitable, at the discretion of the city, for play or practice due to inclement weather, lightning, vandalism, emergencies, acts of God, hazardous conditions, or any other circumstances that the city deems could injure participants or damage the facilities. Page 8 of8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY : BASKETBALL LEAGUE: CITY OF WINTER SPRINGS WINTER SPRINGS BASKETBALL LEAGUE By: 4~~~-=:> Ronald W. McLemore, City Manager By: Christopher R. Marlette Date: July. 30, 2003 Date: Page 9 of8 PER PARKS AND RECREATION DEPARTMENT, THERE IS NO ORIGINAL ON FILE FOR THIS AGREEMENT. CITY OF WINTER SPRINGS RECREATIONAL PROGRAM AGREEMENT THIS AGREEMENT, made and entered into this 23rd day of July, 2003, by and between the City of Winter Springs, a Florida municipal corporation (the "City"), and the Winter Springs Basketball League, Inc., a Florida corporation ("Basketball League"). WITNESSETH: WHEREAS, the City has certain public recreational facilities available for use by the public; and WHEREAS, the Basketball League is desirous of offering a public recreational program for the benefit of the public using the recreational facilities available to the City; and a WHEREAS, the City is willing to permit the Basketball League program to take place at the Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School gymnasiums and other City recreational facilities located within the City of Winter Springs, Florida. NOW, THEREFORE, inconsideration of the mutual covenants and provisions hereof, and other good and valuable consideration, the receipt and sufficiency all of which are hereby acknowledged, the parties desire to be legally bound by the terms and conditions of this agreement as follows: 1.0 Recitals. The foregoing recitals are hereby incorporated herein in their entirety by this reference. 2.0 Term of Agreement. The term of this Agreement shall commence on August 1, 2003, and end on July 31, 2005. 3.0 School Board Contract. The Basketball League hereby acknowledges that the City and the School Board of Seminole County have entered into that certain agreement that permits the City to utilize facilities owned by the School Board of Seminole County. The Basketball League agrees that its use of any facilities.owned bythe School Board is subject to the terms and conditions of that agreement between the City and the School Board of Seminole County. 4.0 Program and Additional Services Conducted by the B~"sketball League. The Basketball League shall provide and promote a basketball program to enhance the existing recreational programs offered by the City. The program shall include, but shall not be limited to, a winter, spring, and summer soccer league for grades K through 12, a travel and tournament basketball Page 1 of 8 team, basketball camps, motivational seminars, and other recreational type special events. Camps and clinics shall include, but not be limited to, clinics for youth, teams, coaches, officials, parents, and Special Olympics. Special events shall include, but not be limited to, free throw contests " 3" point contests, shoot-ins, fundraisers, academic sports symposiums and hot shot contests. Unless otherwise provided in this Agreement, the aforesaid programs shall hereinafter be referred to as "Programs." The Basketball League shall not deviate from the Programs set forth in this agreement without the prior written consent of the City. Programs should be held during non-school hours. 4.1 The Basketball League shall also provide any and all additional services and equipment necessary for the Program including, but not limited to: (i) providing administrative personnel to collect fees, forms, and answer telephone inquiries regarding Programs; (ii) providing coaches, referees, speakers, clock operators, scorers, and administrative and support personnel to operate the Programs;. (iii) providing all equipment necessary to participate in the Programs, such as basketballs, trainin aids, camp equipment, materials; (iv) providing uniforms to participants which shall have the City o~Winter Springs League logo on all league, camp, and clinic shirts; (v) providing trophies, certificates, and other give away items; (vi) providing all schedules and league handouts; (vii) providing for the set up of all gymnasiums and equipment necessary for the Programs; and (viii) providing for the clean-up and removal of all equipment and trash and debris brought to facilities by the Basketball League and their guests, invitees, spectators, participants and personnel (clean-up shall be completed as soon as practicable after each Program). 5.0 Certificates. Upon execution of this Agreement by the Basketball League, and as a continuing obligations hereunder, the Basketball League shall provide copies to the City of all occupational licenses, competency cards, or certificates necessary for the performance of the Programs. 6.0 Program Materials; Sale of Non-Food Items. The Basketball League shall be permitted to distribute programs; pictures, advertising and other promotional materials regarding the Programs. The Basketball League shall also be permitted to sell and distribute food or drink items during the course of any Program only upon prior written request and approval of the City. The Basketball League may also offer awards or trophies to Program participants that successfully complete or win contests or other events conducted as part of this Agreement. 7.0 Use of Facilities; City Services. The Basketball League shall offer the Programs at Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School gymnasiums, and at other designated owned or controlled facilities that may be authorized by the City for use by the Basketball League. The Basketball League agrees that they will not use any other City facility unless authorized pursuant to this Agreerfient. In addition, the City will provide the following services: (i) coordinate with the Basketball League to conduct the Programs; (ii) provide a criminal background check for the Basketball League personnel; (iii) provide printing and mailing of program information & brochures; (iv) provide a phone line with Page 2 of 8 voice mail for the Basketball League information; and (v) provide coaches certification for the league coaches. 8.0 Compensation. For the use of the City facilities and receipt of City services set forth in paragraph 7.0 of this Agreement, the Basketball League agrees to pay compensation to the City as follows: 8.1 Ten percent (10%) of all monies collected for the registration and enrollment of a person into the Program at the beginning of each season. In addition, anon-resident fee of Five and No/100 Dollars ($5.00) per person per season, as established by the City Commission shall be collected and remitted to the City. 8.2 The Basketball League shall be responsible for collecting any and all-fees necessary for a person to register and participate in a Program. The Basketball League shall also retain copies of all receipts issued to participants for the payment of said fees. 8.3 The first payment ofthe registration fees and non-resident fees shall be paid to the City by the beginning of the Fall, Winter, Spring, or Summer season along with a complete listing of Program participants to include the name, address, and phone number only and what Program the participant is participating in. All subsequent payments of collected registration fees, if any, shall be paid by the last day of each month thereafter. Failure to make payments within the time proscribed shall result in a five percent (5%) late fee being added to the payment amount. The late fee shall be paid with the payment of registration fees. 8.4 ~ Within three (3) business days following the termination of this Agreement, the Basketball League shall provide the City a revenue and expenditure report, which shall set forth the revenues, collected and all expenditures resulting from operating any and all Programs. The City reserves the right to demand an additional payment of compensation from the Basketball League if the report shows any discrepancy in the amount of revenue generated by the Basketball League and any previous payments actually paid to the City under this Agreement. 9.0 Reimbursement of Expenses. Reimbwsement of any and all actual expenses incurred by the City in assisting the Basketball League regarding any program offered by the Basketball League for the use of facilities not owned and maintained by the City of Winter Springs, including, but not limited to, field rental and supervision/maintenance charges. The City will provide the Basketball League a written invoice(s) itemizing these expenses and payment shall be made by the Basketball League within thirty (30) days of receiving the invoice. 10.0 Disorderly Conduct, Alcohol and Controlled Substances. The Basketball League shall not permit any guests, invitees, employees, agents, or other Program participants to engage in Page 3 of 8 any disorderly conduct or criminal conduct while participating in any Program. The Basketball League shall promote good sportsmanship to all Program participants. The City's Recreation Supervisor has the authority and responsibility to investigate and resolve complaints and other inquires from the public, suspend coaches; players or parents from games or facilities with approval from the Parks & Recreation Director.' The use of alcoholic beverages or illegal controlled substances by Program participants and the Basketball League prior to, during, or after any Program shall be strictly prohibited. 11.0 Status Conferences. At the request of the City, the Basketball League shall attend status conferences with the City for purposes of evaluating the status of any Program. The date and time of the status conferences shall be by mutual agreement of the parties. 12.0 Independent Contractor, Hiring of Personnel. The Basketball League shall be considered an independent contractor under this Agreement. The Basketball League shall be solely responsible and liable for hiring and retaining all of its employees, personnel, contractors, coaches, and volunteers. 13.0 Indemnification and Hold Harmless. The Basketball League shall indemnify and hold harmless the City and its employees, officers, attorneys, agents, and contractors from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability to the person or property (including reasonable attorney's fees through any and all administrative, trial, post judgment and appellate proceedings), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from the Basketball League 's scheduling, permitting, promoting, maintaining, supervising, managing, coordinating, and conducting any Program under this Agreement. The indemnification provided above shall obligate the name the Basketball League to defend at its own expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City or its employees, attorneys, and officers which may result from the Basketball League's performance under this Agreement whether performed by the Basketball League, or anyone directly or indirectly employed, controlled, supervised, or directed by the Basketball League. In all events the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be subject to and included with this indemnification provided herein, as long as said fees are considered reasonable within the Central Florida area. 14.0 Assignment. This Agreement shall not be assigned by arty party without the prior written consent of all of the parties hereto. 15.0 Public Record. It is hereby specifically agreed that any record, document, Page 4 of 8 computerized information and program, audio or video tape, photograph, or other writing of the Basketball League related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or the Basketball League. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Basketball League is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City Manager. Upon request by the City, the Basketball League shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal business hours of the Basketball League be open and freely exhibited to the City for the purpose of examination and/or audit. 16.0 General Liability Insurance. For the Programs performed hereunder, Basketball League shall purchase and maintain, at its own expense, such general liability insurance to cover claims for damages because ofbodily injury or death of any person or property damage arising in any way out of the Programs performed by the Basketball League under this Agreement. The insurance shall have minimum limits of coverage of $1,000,000.00 per occurrence combined single limit for bodily injury liability and property damage liability. All insurance coverage shall be with insurer(s) approved by the City and licensed by the State of Florida to engage in the business of writing of insurance. The City shall be named on the foregoing insurance policies as "additional insured." The Basketball League shall cause its insurance carriers to furnish insurance certificates and endorsements specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days prior written notice to the City in compliance with other provisions of this Agreement. If the City has any objection to the coverage afforded by or other provision of the insurance required to be purchased and maintained by the Basketball League in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notify the Basketball League in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. The Basketball League shall continuously maintain such insurance in the amounts, type, and quality as required by this paragraph. 17.0 Modification. Modifications of this Agreement shall only be made in writing signed by both parties. 18.0 Compliance with Laws. The Basketball League shall comply with all local, state, and federal laws and regulations that are applicable to the operation of its business and in the performance of any Program. The Basketball League acknowledges and agrees that it will take any and all reasonable and prudent steps necessary to be informed and advised of all applicable local, state, and federal laws and regulations affecting its business and performance of any Program. 19.0 Due Diligence. The Basketball League acknowledges that they have investigated prior to the execution of this Agreement and satisfied themselves as to the conditions affecting the Page 5 of 8 City's facilities that will or may be utilized by the Basketball League to conduct the Programs, the availability of materials and labor, the cost thereof, the requirements to obtain necessary insurance, permits, equipment, and the steps necessary to complete the Programs. The Basketball League warrants unto the City that they have the competence and abilities to carefully, professionally, and faithfully complete the Programs in the manner and within the time limits proscribed herein. The Basketball League will perform the Programs with due and reasonable diligence consistent with sound professional and labor practices. 20,0 Time is of the Essence. Time is of the essence of this Agreement. 21.0 Third Party Rights. This Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights on behalf of any party not expressly a party to this Agreement. * 22.0 Further Assurances. From and after the execution of this Agreement, each of the parties hereto shall fully cooperate with each other and perform any further act(s) and execute and deliver any further documents which may be necessary or desirable in order to carry out the purposes and intentions of this Agreement. 23.0 Severability. If any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions shall nevertheless remain in full force and effect, unless the absence of the invalid, void or unenforceable provision or provisions causes this Agreement to fail in its essential purposes. 24.0 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws ofthe State ofFlorida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the trial courts located in Seminole County, Florida, for state actions and Orlando, Florida, for federal actions. Any objections as to jurisdiction or venue in such courts being expressly waived. 25.0 Attorney?s Fees. In the event any litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such litigation or controversy shall be entitled to recover from the other party or parties all reasonable attorney's fees and paralegal fees, expenses and suit costs, including those associated with any appellate or post- judgment collection proceedings. 26.0 Non-Waiver. No delay or failure by either party to' exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. Page 6 of 8 27.0 Notices. Any notice, request, instruction, or other document to be given as part of this Agreement shall be in writing and shall be deemed given under the following circumstances: when delivered in person; or three (3) business days after being deposited in the United States Mail, postage prepaid, certified or registered; or the next business day after being deposited with a recognized overnight mail or courier delivery service; or when transmitted by facsimile or telecopy transmission, with receipt acknowledged upon transmission; and addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein): To City: City of Winter Springs Attn: Parks And Recreation Department Mr. Chuck Pula, Director 1000 E. State Road 434 Winter Springs, Florida 32708 PH: (407) 327-4761 , FAX: (407) 327-4763 To Basketball League: Winter Springs Basketball League, Inc., Mr. Christopher R. Marlette 102 Laurel Dr. Sanford, Florida 32773 PH: (407) 327-8952 FAX: (407) 322-9854 28.0 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same instrument. 29.0 Standard of Care. In performing the Programs, the Basketball League shall use that degree of care and skill ordinarily exercised, under similar circumstances by reputable members of their professions practicing in the same or similar locality. The Basketball League shall take all necessary and reasonable precautions to protect the program participants and the public from being injured during the Programs. 30.0 Termination. This Agreement may be terminated by either party with thirty (30) days written notice. If this Agreement is terminated by either party, the indemnification provision contained in paragraph 13.0 of this Agreement shall remain in full force and effect for any claims, losses, damages, personal injuries, or liability which may occur under this Agreement. The Basketball League shall also immediately pay all compensation due to the City pursuant to paragraph 8.0 of this Agreement. Page 7 of 8 31.0 Basketball League Signatory. The undersigned person executing this Agreement on behalf of the Basketball League hereby represents and warrants that he has the full authority to sign the Agreement on behalf of the Basketball League and that he has the authority to fully bind the Basketball League to the terms and conditions set forth in this Agreement. 32.0 Interpretation. The City and the Basketball League have participated in the drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 33.0 Entire Agreement. The drafting, execution, and delivery of this Agreement by the parties has been induced by no representations, statements, warranties, or agreements other than those expressed herein. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. , 4 . 34.0 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. 35.0 Use of School Board of Seminole County Facilities. The City of Winter Springs will coordinate with the Basketball League to enter into agreements with Winter Springs High School, Indian Trails Middle School, Tuscawilla Middle School, and Jackson Heights Middle School to utilize the gymnasium facilities for all Basketball League programs. 36.0 No Guarantee by City. Nothing contained in this agreement shall be construed as a guarantee for the use of any city owned or maintained facility. The parties fully understand and agree that city owned or maintained facilities may not be suitable, at the discretion ofthe city, for play or practice due to inclement weather, lightning, vandalism, emergencies, acts of God, hazardous conditions, or any other circumstances that the city deems could injure participants or damage the facilities. Page 8 of 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY: CITY OF WINTER SPRINGS Ronald W. McLemore, City Manager Date: ~ July 3U, 2003 BASKETBALL LEAGUE: WINTER SPRINGS BASKETBALL LEAGUE ~~~~~~ ,~ LG(~ sy: Christopher R. Marlette Date: ~ ,~v v 3 i Page 9 of 8