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HomeMy WebLinkAbout12-80 t Resolution No. 12-80 RESOLUTION AUTHORIZING EXECUTION OF A LICENSE AGREEMENT WITH JUSTIN A. HODGE d/b/a BLUE HIPPO PEDAL BOATS AND JAH'S CONCESSIONS STAND BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Sean R. Stegall,City Manager,and Kimberly A.Dewis,City Clerk,be and are hereby authorized and directed to execute a license agreement on behalf of the City of Elgin with Justin A. Hodge d/b/a Blue Hippo Pedal Boats and Jah's Concessions Stand in connection with the operation of a pedal boat rental business and a concession stand at Festival Park, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: April 25, 2012 Adopted: April 25, 2012 Omnibus Vote: Yeas: 5 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk c , LICENSE AGREEMENT THIS AGREEMENT is hereby made and entered into this 25th day of April , 2012, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as the "City") and Justin A. Hodge, d/b/a Blue Hippo Pedal Boats and Jah's Concessions Stand (hereinafter referred to as the "Licensee"). WHEREAS, the City owns, operates and maintains a public park and open space commonly known as Festival Park, located at 132 South Grove Avenue, Elgin, Illinois; and, WHEREAS,the Licensee has proposed to conduct an enterprise in Festival Park whereby the Licensee would be permitted to operate a pedal boat rental business and a concession stand, as further described herein (hereinafter referred to as the "Subject Services"); and, WHEREAS, the City has determined that the Subject Services will attract additional interest in Festival Park and the downtown area, and will assist in promoting further redevelopment in the City; and, WHEREAS, the City is a home rule municipality as defined in Article VII, Section 6A of the 1970 Constitution of the State of Illinois; and, WHEREAS, as a home rule unit the City may exercise any power and perform any function pertaining to its government and affairs; and, WHEREAS, permitting the Subject Services in Festival Park and promoting the further interest in the redevelopment of the City's downtown area pertains to the government and affairs of the City; and, WHEREAS, City has determined it to be in its best interests to permit Licensee to offer for sale the Subject Services, in accordance with and pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: I. Incorporation of Recitals. The foregoing recitals are hereby incorporated into this Agreement in their entirety. 2. Grant of License. The City hereby grants to Licensee a temporary and non-exclusive personal privilege and permission to enter upon Festival Park for the following purposes, and for no other purposes (hereinafter referred to as the "License"): t , A. Operation of pedal boat rental business. B. Operation of a concession stand. The portion Festival Park from which Licensee shall be permitted to offer the Subject Services is limited to that area of Festival Park depicted on Exhibit A, which is attached hereto and incorporated into this Agreement by this reference (hereinafter referred to as the "Subject Property"). The Licensee's provision of the Subject Services shall be subject to the terms, conditions and limitations of this Agreement, including but not limited to the limitations set forth in paragraph 7, herein. The License herein granted shall be subject to all existing utility easements, if any, located within Festival Park, or any other easements, conditions, covenants or restrictions of record. 3. Term. This Agreement and the License granted to Licensee hereunder shall commence as of the date of this Agreement and shall continue until December 31, 2012 or until otherwise terminated in accordance with the terms of this Agreement. 4. Consideration. The consideration to be paid by Licensee to the City for the privilege granted by this Agreement shall be Ten Dollars ($10.00), the receipt of which is hereby acknowledged by the City. 5. No Interest in Land. Licensee understands, acknowledges and agrees that this Agreement does not create an interest or estate in Licensee's favor in Festival Park or the Subject Property. The City retains legal possession of the full boundaries of its property and this Agreement merely grants to Licensee the personal privilege to use the Subject Property described above throughout the term of this Agreement. 6. No Vested Right. Notwithstanding any expenditure of money, time and/or labor by Licensee on or within the Subject Property, this Agreement shall in no event be construed to create an assignment coupled with an interest or any vested rights in favor of Licensee. Licensee shall expend any time, money or labor on or in the Subject Property at Licensee's own risk and peril. 7. Limited Scope of License. The License granted to Licensee is limited in scope to providing the Subject Services from the Subject Property, and only in accordance with the terms and conditions of this Agreement and the exhibits hereto. Licensee shall not have the right to expand the Subject Property or to alter or change the Subject Services without the City's prior written consent. Licensee's operation of the pedal boat rental business and the concession stand shall be conducted pursuant to and in accordance with the following terms, conditions and limitations: A. The number of pedal boats rented or available to be rented at any given time shall not exceed five (5)pedal boats. 2 f . B. The hours of operation for the Subject Services shall begin no earlier than 10:00 a.m. and shall end no later than 8:00 p.m. or sunset, whichever is earlier. No pedal boat shall be rented to any person less than one (1) hour before the end of operations for a given day. C. All pedal boats shall be rated for a commercial use in conjunction with a rental business, adequately maintained, and capable of performing their intended use. D. Pedal boats shall only be rented to persons eighteen (18) years of age or older. Minor persons under eighteen (18) years of age must be accompanied by the minor's parent or guardian. E. Each renter will be equipped with a Coast Guard approved life jacket and a two- way radio to communicate with the Licensee and/or its employees. F. Pedal boats will be restricted in their operation to the area generally bounded by Walton Island to the north and the corporate limits of the City of Elgin to the south. Each pedal boat will be equipped with a GPS tracking devise to track the movement of the pedal boats. G. An employee of the Licensee will be equipped with a bicycle to allow the employee to ride along the area of pedal boat operations to enforce area restrictions and monitor pedal boat activities and safety. H. During the hours of operation of the pedal boat rental business, the Licensee shall have at least two (2) employees with CPR and First Aid training present and available at all times. I. Licensee shall maintain and have available at all times a jet ski at the Subject Property to provide necessary assistance to renters. J. Licensee shall comply with any restrictions set forth by the Grand Victoria Casino with respect to the operation of the pedal boats in the vicinity of the casino. Licensee shall advise renters of any such restrictions and require renters to comply with the same. K. The concession stand shall be operated only in conjunction with the pedal boat rental business. The Licensee is not permitted to operate the concession stand during times when the pedal boat rental business is not operating. L. Licensee shall be permitted to erect a ten-foot by fifteen-foot(10' x 15')tent to be utilized as the site of the Subject Services. Such tent shall be removed at the end of each day. M. Licensee shall be permitted to display the following signs, only on the Subject Property and only during the hours of operation of the Subject Services: 3 t , i. A banner no larger than 2.5' by 5' advertising for Blue Hippo Pedal Boats; ii. A sign no larger than 2.5' by 5' setting forth rules relating to the operation of the pedal boats; iii. A banner no larger than 2.5' by 5' advertising for Jah's Concession Stand; iv. A sign no larger than 2.5' by 5' displaying the menu for the concession stand. All such signs shall be removed at the end of each day. No other signs may be displayed without the written consent of the City. N. Licensee and its employees shall not unreasonably disturb members of the public utilizing Festival Park or interfere with a program or event in progress. 8. Non-Transferability of License. The License granted to Licensee by this Agreement is a mere personal privilege granted by the City to Licensee, and is neither transferable nor assignable by Licensee without the City's prior written consent. 9. Termination. This Agreement and the License herein granted to Licensee may be terminated by either party for any reason or no reason upon giving ten (10) days written notice to the Licensee. In addition, this Agreement may be immediately terminated by the City upon a breach of any term or condition of this Agreement. In the event of termination of this Agreement for any reason whatsoever, Licensee shall not be entitled to any compensation or reimbursement for any costs or expenses incurred in any way relating to this Agreement or arising from the Licensee's provision of the Subject Services, nor any monetary damages of any kind whatsoever. 10. Alterations or Additions. No permanent fixtures shall be permitted at Festival Park or on the Subject Property. Licensee shall not make any alterations in or additions to Festival Park or the Subject Property without the written consent of the City. All equipment, supplies, materials or appurtenances relating to the provision of the Subject Services shall be removed from the Subject Property at the end of each business day. Any other provision of this Agreement to the contrary notwithstanding, Licensee shall immediately remove, at its sole cost and expense, any such equipment, supplies, materials or appurtenances in the event that the City determines that any such encroachments interfere with pedestrian or vehicular traffic, public utilities, or constitute a safety hazard, or in the event that the City determines that such removal is necessary or convenient for the installation, repair or replacement of any utilities or other public improvements in Festival Park or the Subject Property. If the Licensee fails to exercise its duties under this paragraph, the City shall have the right to remove such equipment, supplies, materials or appurtenances, the full and complete cost of which shall be borne by 4 Licensee. Licensee covenants and agrees to reimburse the City its full cost and expense for any such removal. 11. Insurance. A. Comprehensive Liability. Licensee shall provide,pay for and maintain in effect, during the term of this Agreement, a policy of comprehensive general liability insurance with limits of at least $1,000,000 aggregate for bodily injury and $1,000,000 aggregate for property damage. Licensee shall name the City as co-insured or as an additional insured and shall furnish the City with duplicate policies or Certificates of Insurance evidencing insurance in force as required. Evidence of payment of premiums shall also be delivered to the City. Such policy or policies shall provide that the coverage afforded thereunder shall not be canceled, terminated or materially changed without thirty(30) days prior written notice to the City. The Certificate of Insurance shall include, but not be limited to, coverage for contractual obligation assumed by the Licensee under paragraph 14 entitled "Indemnification" herein. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the City. There shall be no endorsement or modification of this insurance to make it excess over other available insurance; alternatively, if the insurance states that it is excess or prorated, it shall be endorsed to be primary with respect to the City. B. Comprehensive Automobile Liability. Comprehensive Automobile Liability Insurance covering all owned, non-owned and hired motor vehicles with limits of not less than $500,000 per occurrence for damage to property. C. Combined Single Limit Policy. The requirements for insurance coverage for the general liability and auto exposures may be met with a combined single limit of $1,000,000 per occurrence subject to a$1,000,000 aggregate. D. Excess Liability. Licensee shall also provide, pay for and maintain in effect, during the term of this Agreement a policy of excess liability coverage with limits of at least $5,000,000 aggregate for bodily injury. Licensee shall name the City as co-insured or as an additional insured and shall furnish the City with duplicate policies or Certificates of Insurance evidencing insurance in force as required. Evidence of payment of premiums shall also be delivered to the City. Such policy or policies shall provide that the coverage afforded thereunder shall not be canceled, terminated or materially changed without thirty (30) days prior written notice to the City. The Certificate of Insurance shall include, but not be limited to, coverage for contractual obligation assumed by the Licensee under paragraph 14 entitled "Indemnification" herein. E. Worker's Compensation. The Licensee shall also provide, pay for and maintain in effect during the term of this Agreement worker's compensation insurance in amounts required under the laws of the State of Illinois. 5 12. Maintenance. Licensee agrees that the Subject Property shall be maintained at all times in a safe, neat, sightly and good physical condition and in accordance with all requirements of the Elgin Municipal Code, 1976, as amended, during Licensee's use of the Subject Property. 13. Licenses and Permits. Licensee shall adhere to and comply with all ordinances, laws, rules and regulations that may pertain to or apply to the Subject Property and the Licensee's provision of the Subject Services. Licensee agrees and warrants that it has procured or shall procure any licenses, permits or like permission required by law, if any, to conduct or engage in the use of the Subject Property for the Subject Services described herein, that Licensee will procure all additional licenses, permits or like permission hereinafter required by law during the term of this Agreement, and that Licensee will keep the same in full force and effect during the term of this Agreement. Licensee shall perform under this Agreement in accordance with all applicable legal requirements. 14. Indemnification. To the fullest extent permitted by law, Licensee agrees to indemnify, defend and save the City, its officers, agents, servants, employees, boards and commissions harmless from and against: a. Damage to Licensee's Property. Any and all claims, loss or damage (including reasonable attorney's fees) to the Licensee's equipment, supplies, materials or appurtenances or any property belonging to or rented by Licensee, its officers, servants, agents or employees, which may be stolen, destroyed, or in any way damaged, by any cause whatsoever. b. Damage to Others. Any and all claims, suits,judgments, costs, attorney's fees, loss, liability, damage or other relief, including but not limited to workers' compensation claims, to any person or property in any way resulting from or arising out of the existence or performance of this Agreement and/or the Licensee's provision of the Subject Services on the Subject Property. In the event of any action against the City, its officers, agents, servants, employees, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this paragraph shall survive any termination and/or expiration of this Agreement. 15. Damage to City Property. Licensee shall pay to City the cost of any damage to City property or goods arising out of or in connection with Licensee's negligent performance of this agreement upon thirty (30) days written notice of the cost of such damage by City. 16. Condition of Property. In connection with the Subject Services to be performed, the Licensee warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. The Licensee agrees and warrants that the Licensee will periodically inspect all of such facilities and equipment for such purposes. The Licensee also warrants that the Licensee and the facilities and equipment used in the 6 performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City, the Licensee agrees and warrants to use, and to cause persons participating in the Subject Services to use, through proper supervision and control, all facilities with due care, and to report all defects in or damage to any such facilities, and the cause thereof, if known, immediately to the City. 17. Breach and Limitation on Damages. If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party shall have the right to seek such administrative, contractual or legal remedies as may be suitable for such violation or breach; provided, however, that in no event shall the City be liable to Licensee for monetary damages of any kind relating to or arising from any breach of this Agreement, and that no action of any kind shall be commenced by Licensee against the City for monetary damages. In the event any legal action is brought by the City for the enforcement of any of the obligations of Licensee related to or arising from this Agreement and the City is the prevailing party in such action, the City shall be entitled to recover from Licensee reasonable interest and attorney's fees. 18. It agreed and understood by the parties hereto that this Agreement is not intended nor shall be construed to alter, limit, or constitute a waiver of any of the civil immunities afforded the City and/or District and/or their officials, officers, employees and/or agents pursuant to the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq., as amended, the Recreational Use of Land and Water Areas Act, 745 ILCS 65/1, et seq., and/or otherwise provided by law, it being agreed that all the civil immunities as set forth in such Acts, as amended, and/or as otherwise provided by law shall fully apply to any claims asserted or which might be asserted against the City and/or its officials, officers, employees and/or agents as a result of this Agreement or any actions of the parties pursuant to this Agreement. Notwithstanding anything to the contrary in this Agreement, it is agreed and understood that no third party beneficiaries are intended or shall be construed to be created by the provisions of this Agreement and it is the intention of the parties hereto that no action may be commenced by any person or entity against the City and/or its officials, officers, employees, agents and/or other related persons or entities for monetary damages for any alleged breach or failure to provide services described in this Agreement. The provisions of this section shall survive any expiration and/or termination of this Agreement. 19. Audit. Licensee shall keep and maintain records of all sales relating to its provision of the Subject Services pursuant to this Agreement. All records shall be in a form in accordance with good accounting practice. The aforementioned records shall be made available upon request to the City or its duly authorized representatives for inspection, copying or auditing purposes upon reasonable notice. 20. Notices. Any notice required or permitted under this Agreement shall be in writing and shall be sufficient if personally delivered or mailed by certified mail, return receipt requested, addressed as follows: 7 To the City: To the Owner: City Manager Justin A. Hodge City of Elgin 444 Raymond Street 150 Dexter Court Elgin, IL 60120 Elgin, IL 60120-5555 With a copy to: With a copy to Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 Notices mailed in accordance with the provisions of this paragraph shall be deemed to have been given on the third business day following mailing. Notices personally delivered shall be deemed to have been given upon delivery. 21. No Joint Venture or Partnership. This Agreement shall not be construed so as to create a joint venture, partnership, employment, or other agency relationship between the parties hereto. Licensee shall not hold itself out as an agent of the City. 22. No Personal Liability. No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement, or because of their execution, approval or attempted execution of this Agreement. 23. Joint and Collective Work Product. This Agreement is and shall be deemed and construed to be a joint and collective work product of the City and Licensee, and as such, this Agreement shall not be construed against any other party as the otherwise purported drafter of the same by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. 24. Severability. The terms of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable, for any reason,the remainder of this Agreement shall remain in full force and effect. 25. Governing Law. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this License agreement shall be in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois. 26. References in Agreement. All references in this Agreement to the singular shall include the plural where applicable, and all reference to the masculine shall include the feminine 8 and vice versa. If either reference shall be declared invalid, such decision shall not affect the validity of any remaining portion that shall remain in full force and effect. 27. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 28. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way limit or define the interpretation to be placed upon this Agreement. 29. Binding Agreement on Parties. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. 30. Assignment. This Agreement and the obligations herein may not be assigned without the express written consent of each of the parties hereto. The License granted herein is personal to Licensee. Any attempt to assign this License will automatically terminate the license privileges granted to Licensee hereunder. 31. Entire Agreement. This Agreement and its exhibits constitute the entire agreement and understanding between the parties and supersede any prior agreement or understanding relating to the subject matter of this Agreement. 32. Modification. This Agreement may be changed, modified or amended only by a duly- authorized written instrument executed by the parties hereto. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly-authorized and executed amendment hereof. 33. Compliance with Laws. Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement and providing the Subject Services that the Licensee shall comply with all applicable Federal, State, City and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Licensee hereby certifies, represents and warrants to the City that all the Licensee's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legal residents of the United States. The Licensee shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The City shall have the right to audit any records in the possession or control of the Licensee to determine The Licensee's compliance with the provisions of this section. In the event the City proceeds with such an audit, the Licensee shall make available to the City the Licensee's relevant records at no cost to the City. SIGNATURE PAGE FOLLOWS 9 CITY OF ELGIN JUSTIN A. HODGE By. / Cit Manager Ju' in A. Hodge Attest: 10 Exhibit A - Pedal Boat Rental Area Ci Iv U• Address Points (Kane) Address Points (Cook) ---- Elgin Streets (Kane) -- Elgin Streets (Cook) Streets ROW(Kane) Streets ROW(Cook) Elgin Parcels (Kane) f Elgin Parcels (Cook) Elgin City Limits Creeks . Water 95 ft THE CITY IN THE SUBURBS- AGENDA ITEM: MEETING DATE: April 11, 2012 ITEM: License Agreement with Justin Hodge to Allow Pedal Boat Rental and Food Concessions in Fes- tival Park (No Cost to the City) OBJECTIVE: Provide additional activities and amenities for Festival Park visitors. RECOMMENDATION: Approve the license agreement with Justin Hodge for pedal boat rental and food concession operations in Festival Park. BACKGROUND At the May 25, 2011 city council meeting, the council approved entering into an agreement with Mr. Justin Hodge to operate a pedal boat rental and food concession operation in Festival Park. However, due to delays he experienced in acquiring the required insurances and some capital items, the operation did not begin. He has now has the capacity to start and is request- ing permission to operate his business at Festival Park. The attached agreement is identical to the agreement presented to council last year, with the exception of the changed dates. Festival Park opened in 2007. Since that time, all activities, programs and food concessions available in the park have been associated with special events. The number of special events annually offered in the park has declined significantly since 2008, due mostly to the downturn in the economy. In June of 2010, the city amended its ordinances to allow vendors to operate in city parks without an attendant special event provided a written agreement with the city is first obtained. Mr. Hodge is seeking to operate the concession on weekends and some weekdays. Given the large number of visitors that frequent Festival Park and the adjacent bike path, these offerings are expected to be quite popular and could enhance the visitor's experience to the park. No other vendors of any kind are operated out of Festival Park at this time. kk 1 OPERATIONAL ANALYSIS The legal department drafted the attached license agreement governing Mr. Hodge's operation in Festival Park. The agreement requires Mr. Hodge to handle all aspects of his operations and marketing with no assistance from the city. It also requires Mr. Hodge to set up and take down his canopy and boats every day. The concessions operating hours would be 10:00 a.m. to 8:00 p.m. and will begin operating as soon as the license agreement is approved. The operation will continue through the end of September. The license agreement caps the maximum number of boats that can be rented at five, plus one jet-ski to handle emergencies. Each pedal boat is to be equipped with a U.S. Coast Guard approved life jacket for each boater, a two-way radio to communicate with the licensee and a GPS system for tracking the boats. The boats will be lim- ited to that section of the river bounded by Walton Island on the north and the corporate limits of Elgin to the south. During the hours of operation, the licensee will have a minimum of two employees with CPR and first aid training on site. Mr. Hodge will be licensing each pedal boat through the Illinois Department of Natural Re- sources. The fire department has reviewed Mr. Hodges' proposed operation and has provided safety requirements that are incorporated into the license agreement. Mr. Hodge is required to submit a seasonal food handling application to the city's health department and have his food cart and commissary (base of operation) inspected. INTERESTED PERSONS CONTACTED The Park and Recreation Advisory Board discussed pedal boat rentals at Festival Park and rec- ommended allowing the activity. FINANCIAL ANALYSIS There will be no direct financial impact to the city as a result of approving this license agree- ment. Mr. Hodge will be required to pay $365 to the city for a seasonal food handling permit. These fees will be deposited in the general fund. BUDGET IMPACT FUND(S) ACCOUNT(S) PROJECT#(S) AMOUNT AMOUNT BUDGETED AVAILABLE N/A N/A N/A N/A N/A LEGAL IMPACT None. Ash 2 ALTERNATIVES The city council may choose to not approve the license agreement, in which case there would be no pedal boat rental or food concession operations in Festival Park. NEXT STEPS 1. Inspect the food concessions operations, prior to opening, to be sure that all health rules and regulations are being met. 2. Distribute Mr. Hodge's contact information to all city departments and post on the city's website in preparation for inquiries related to his services. Originators: Randy Reopelle, Parks and Recreation Director Final Review: Colleen Lavery, Chief Financial Officer William A. Cogley, Corporation Counsel/Chief Development Officer Richard G. Kozal, Assistant City Manager/Chief Operating Officer * Sean R. Stegall, City Manager FL ATTACHMENTS A. Location Map of Pedal Boat Rental Area B. License Agreement All 3 Exhibit A - Pedal Boat Rental Area Address Points (Kane) Address Points (Cook) Elgin Streets (Kane) Elgin Streets (Cook) Streets ROW(Kane) a Streets ROW(Cook) rS � Elgin Parcels (Kane) x ; Elgin Parcels (Cook) Elgin City Limits Creeks E } Water c 6 > z r , � 95 ft NO- OV� 0 n d^g LICENSE AGREEMENT THIS AGREEMENT is hereby made and entered into this day of , 2012, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as the "City") and Justin A. Hodge, d/b/a Blue Hippo Pedal Boats and Jah's Concessions Stand (hereinafter referred to as the "Licensee"). WHEREAS, the City owns, operates and maintains a public park and open space commonly known as Festival Park, located at 132 South Grove Avenue, Elgin, Illinois; and, WHEREAS, the Licensee has proposed to conduct an enterprise in Festival Park whereby the Licensee would be permitted to operate a pedal boat rental business and a concession stand, as further described herein (hereinafter referred to as the "Subject Services"); and, WHEREAS, the City has determined that the Subject Services will attract additional interest in Festival Park and the downtown area, and will assist in promoting further redevelopment in the City; and, WHEREAS, the City is a home rule municipality as defined in Article VII, Section 6A of the 1970 Constitution of the State of Illinois; and, WHEREAS, as a home rule unit the City may exercise any power and perform any function pertaining to its government and affairs; and, WHEREAS, permitting the Subject Services in Festival Park and promoting the further interest in the redevelopment of the City's downtown area pertains to the government and affairs of the City; and, WHEREAS, City has determined it to be in its best interests to permit Licensee to offer for sale the Subject Services, in accordance with and pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: 1. Incorporation of Recitals. The foregoing recitals are hereby incorporated into this Agreement in their entirety. 2. Grant of License. The City hereby grants to Licensee a temporary and non-exclusive personal privilege and permission to enter upon Festival Park for the following purposes, and for no other purposes (hereinafter referred to as the"License"): A. Operation of pedal boat rental business. B. Operation of a concession stand. The portion Festival Park from which Licensee shall be permitted to offer the Subject Services is limited to that area of Festival Park depicted on Exhibit A, which is attached hereto and incorporated into this Agreement by this reference (hereinafter referred to as the "Subject Property"). The Licensee's provision of the Subject Services shall be subject to the terms, conditions and limitations of this Agreement, including but not limited to the limitations set forth in paragraph 7, herein. The License herein granted shall be subject to all existing utility easements, if any, located within Festival Park, or any other easements, conditions, covenants or restrictions of record. 3. Term. This Agreement and the License granted to Licensee hereunder shall commence as of the date of this Agreement and shall continue until December 31, 2012 or until otherwise terminated in accordance with the terms of this Agreement. 4. Consideration. The consideration to be paid by Licensee to the City for the privilege granted by this Agreement shall be Ten Dollars ($10.00), the receipt of which is hereby acknowledged by the City. 5. No Interest in Land. Licensee understands, acknowledges and agrees that this Agreement does not create an interest or estate in Licensee's favor in Festival Park or the Subject Property. The City retains legal possession of the full boundaries of its property and this Agreement merely grants to Licensee the personal privilege to use the Subject Property described above throughout the term of this Agreement. 6. No Vested Right. Notwithstanding any expenditure of money, time and/or labor by Licensee on or within the Subject Property, this Agreement shall in no event be construed to create an assignment coupled with an interest or any vested rights in favor of Licensee. Licensee shall expend any time, money or labor on or in the Subject Property at Licensee's own risk and peril. 7. Limited Scope of License. The License granted to Licensee is limited in scope to providing the Subject Services from the Subject Property, and only in accordance with the terms and conditions of this Agreement and the exhibits hereto. Licensee shall not have the right to expand the Subject Property or to alter or change the Subject Services without the City's prior written consent. Licensee's operation of the pedal boat rental business and the concession stand shall be conducted pursuant to and in accordance with the following terms, conditions and limitations: A. The number of pedal boats rented or available to be rented at any given time shall not exceed five (5)pedal boats. 2 B. The hours of operation for the Subject Services shall begin no earlier than 10:00 a.m. and shall end no later than 8:00 p.m. or sunset, whichever is earlier. No pedal boat shall be rented to any person less than one (1) hour before the end of operations for a given day. C. All pedal boats shall be rated for a commercial use in conjunction with a rental business, adequately maintained, and capable of performing their intended use. D. Pedal boats shall only be rented to persons eighteen (18) years of age or older. Minor persons under eighteen (18) years of age must be accompanied by the minor's parent or guardian. E. Each renter will be equipped with a Coast Guard approved life jacket and a two- way radio to communicate with the Licensee and/or its employees. F. Pedal boats will be restricted in their operation to the area generally bounded by Walton Island to the north and the corporate limits of the City of Elgin to the south. Each pedal boat will be equipped with a GPS tracking devise to track the movement of the pedal boats. G. An employee of the Licensee will be equipped with a bicycle to allow the employee to ride along the area of pedal boat operations to enforce area restrictions and monitor pedal boat activities and safety. H. During the hours of operation of the pedal boat rental business, the Licensee shall have at least two (2) employees with CPR and First Aid training present and available at all times. I. Licensee shall maintain and have available at all times a jet ski at the Subject Property to provide necessary assistance to renters. J. Licensee shall comply with any restrictions set forth by the Grand Victoria Casino with respect to the operation of the pedal boats in the vicinity of the casino. Licensee shall advise renters of any such restrictions and require renters to comply with the same. K. The concession stand shall be operated only in conjunction with the pedal boat rental business. The Licensee is not permitted to operate the concession stand during times when the pedal boat rental business is not operating. L. Licensee shall be permitted to erect a ten-foot by fifteen-foot (10' x 15')tent to be utilized as the site of the Subject Services. Such tent shall be removed at the end of each day. M. Licensee shall be permitted to display the following signs, only on the Subject Property and only during the hours of operation of the Subject Services: i. A banner no larger than 2.5' by 5' advertisin g Hippo for Blue Hi o Pedal Boats; ii. A sign no larger than 2.5' by 5' setting forth rules relating to the operation of the pedal boats; iii. A banner no larger than 2.5' by 5' advertising for Jah's Concession Stand; iv. A sign no larger than 2.5' by 5' displaying the menu for the concession stand. All such signs shall be removed at the end of each day. No other signs may be displayed without the written consent of the City. N. Licensee and its employees shall not unreasonably disturb members of the public utilizing Festival Park or interfere with a program or event in progress. 8. Non-Transferability of License. The License granted to Licensee by this Agreement is a mere personal privilege granted by the City to Licensee, and is neither transferable nor assignable by Licensee without the City's prior written consent. 9. Termination. This Agreement and the License herein granted to Licensee may be terminated by either party for any reason or no reason upon giving ten (10) days written notice to the Licensee. In addition, this Agreement may be immediately terminated by the City upon a breach of any term or condition of this Agreement. In the event of termination of this Agreement for any reason whatsoever, Licensee shall not be entitled to any compensation or reimbursement for any costs or expenses incurred in any way relating to this Agreement or arising from the Licensee's provision of the Subject Services, nor any monetary damages of any kind whatsoever. 10. Alterations or Additions. No permanent fixtures shall be permitted at Festival Park or on the Subject Property. Licensee shall not make any alterations in or additions to Festival Park or the Subject Property without the written consent of the City. All equipment, supplies, materials or appurtenances relating to the provision of the Subject Services shall be removed from the Subject Property at the end of each business day. Any other provision of this Agreement to the contrary notwithstanding, Licensee shall immediately remove, at its sole cost and expense, any such equipment, supplies, materials or appurtenances in the event that the City determines that any such encroachments interfere with pedestrian or vehicular traffic, public utilities, or constitute a safety hazard, or in the event that the City determines that such removal is necessary or convenient for the installation, repair or replacement of any utilities or other public improvements in Festival Park or the Subject Property. If the Licensee fails to exercise its duties under this paragraph, the City shall have the right to remove such equipment, supplies, materials or appurtenances, the full and complete cost of which shall be borne by 4 Licensee. Licensee covenants and agrees to reimburse the City its full cost and expense for any such removal. 11. Insurance. A. Comprehensive Liability. Licensee shall provide, pay for and maintain in effect, during the term of this Agreement, a policy of comprehensive general liability insurance with limits of at least $1,000,000 aggregate for bodily injury and $1,000,000 aggregate for property damage. Licensee shall name the City as co-insured or as an additional insured and shall furnish the City with duplicate policies or Certificates of Insurance evidencing insurance in force as required. Evidence of payment of premiums shall also be delivered to the City. Such policy or policies shall provide that the coverage afforded thereunder shall not be canceled, terminated or materially changed without thirty (30) days prior written notice to the City. The Certificate of Insurance shall include, but not be limited to, coverage for contractual obligation assumed by the Licensee under paragraph 14 entitled "Indemnification" herein. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the City. There shall be no endorsement or modification of this insurance to make it excess over other available insurance; alternatively, if the insurance states that it is excess or prorated, it shall be endorsed to be primary with respect to the City. B. Comprehensive Automobile Liability. Comprehensive Automobile Liability Insurance covering all owned, non-owned and hired motor vehicles with limits of not less than $500,000 per occurrence for damage to property. C. Combined Single Limit Policy. The requirements for insurance coverage for the general liability and auto exposures may be met with a combined single limit of $1,000,000 per occurrence subject to a $1,000,000 aggregate. D. Excess Liability. Licensee shall also provide, pay for and maintain in effect, during the term of this Agreement a policy of excess liability coverage with limits of at least$5,000,000 aggregate for bodily injury. Licensee shall name the City as co-insured or as an additional insured and shall furnish the City with duplicate policies or Certificates of Insurance evidencing insurance in force as required. Evidence of payment of premiums shall also be delivered to the City. Such policy or policies shall provide that the coverage afforded thereunder shall not be canceled, terminated or materially changed without thirty (30) days prior written notice to the City. The Certificate of Insurance shall include, but not be limited to, coverage for contractual obligation assumed by the Licensee under paragraph 14 entitled "Indemnification" herein. E. Worker's Compensation. The Licensee shall also provide, pay for and maintain in effect during the term of this Agreement worker's compensation insurance in amounts required under the laws of the State of Illinois. 5 12. Maintenance. Licensee agrees that the Subject Property shall be maintained at all times in a safe, neat, sightly and good physical condition and in accordance with all requirements of the Elgin Municipal Code, 1976, as amended, during Licensee's use of the Subject Property. 13. Licenses and Permits. Licensee shall adhere to and comply with all ordinances, laws, rules and regulations that may pertain to or apply to the Subject Property and the Licensee's provision of the Subject Services. Licensee agrees and warrants that it has procured or shall procure any licenses, permits or like permission required by law, if any, to conduct or engage in the use of the Subject Property for the Subject Services described herein, that Licensee will procure all additional licenses, permits or like permission hereinafter required by law during the term of this Agreement, and that Licensee will keep the same in full force and effect during the term of this Agreement. Licensee shall perform under this Agreement in accordance with all applicable legal requirements. 14. Indemnification. To the fullest extent permitted by law, Licensee agrees to indemnify, defend and save the City, its officers, agents, servants, employees, boards and commissions harmless from and against: a. Damage to Licensee's Property. Any and all claims, loss or damage (including reasonable attorney's fees) to the Licensee's equipment, supplies, materials or appurtenances or any property belonging to or rented by Licensee, its officers, servants, agents or employees, which may be stolen, destroyed, or in any way damaged, by any cause whatsoever. b. Damage to Others. Any and all claims, suits,judgments, costs, attorney's fees, loss, liability, damage or other relief, including but not limited to workers' compensation claims, to any person or property in any way resulting from or arising out of the existence or performance of this Agreement and/or the Licensee's provision of the Subject Services on the Subject Property. In the event of any action against the City, its officers, agents, servants, employees, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this paragraph shall survive any termination and/or expiration of this Agreement. 15. Damage to City Property. Licensee shall pay to City the cost of any damage to City property or goods arising out of or in connection with Licensee's negligent performance of this agreement upon thirty(30) days written notice of the cost of such damage by City. 16. Condition of Property. In connection with the Subject Services to be performed, the Licensee warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. The Licensee agrees and warrants that the Licensee will periodically inspect all of such facilities and equipment for such purposes. The Licensee also warrants that the Licensee and the facilities and equipment used in the 6 performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City, the Licensee agrees and warrants to use, and to cause persons participating in the Subject Services to use, through proper supervision and control, all facilities with due care, and to report all defects in or damage to any such facilities, and the cause thereof, if known, immediately to the City. 17. Breach and Limitation on Damages. If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party shall have the right to seek such administrative, contractual or legal remedies as may be suitable for such violation or breach; provided, however, that in no event shall the City be liable to Licensee for monetary damages of any kind relating to or arising from any breach of this Agreement, and that no action of any kind shall be commenced by Licensee against the City for monetary damages. In the event any legal action is brought by the City for the enforcement of any of the obligations of Licensee related to or arising from this Agreement and the City is the prevailing party in such action, the City shall be entitled to recover from Licensee reasonable interest and attorney's fees. 18. It agreed and understood by the parties hereto that this Agreement is not intended nor shall be construed to alter, limit, or constitute a waiver of any of the civil immunities afforded the City and/or District and/or their officials, officers, employees and/or agents pursuant to the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq., as amended, the Recreational Use of Land and Water Areas Act, 745 ILCS 65/1, et seq., and/or otherwise provided by law, it being agreed that all the civil immunities as set forth in such Acts, as amended, and/or as otherwise provided by law shall fully apply to any claims asserted or which might be asserted against the City and/or its officials, officers, employees and/or agents as a result of this Agreement or any actions of the parties pursuant to this Agreement. Notwithstanding anything to the contrary in this Agreement, it is agreed and understood that no third party beneficiaries are intended or shall be construed to be created by the provisions of this Agreement and it is the intention of the parties hereto that no action may be commenced by any person or entity against the City and/or its officials, officers, employees, agents and/or other related persons or entities for monetary damages for any alleged breach or failure to provide services described in this Agreement. The provisions of this section shall survive any expiration and/or termination of this Agreement. 19. Audit. Licensee shall keep and maintain records of all sales relating to its provision of the Subject Services pursuant to this Agreement. All records shall be in a form in accordance with good accounting practice. The aforementioned records shall be made available upon request to the City or its duly authorized representatives for inspection, copying or auditing purposes upon reasonable notice. 20. Notices. Any notice required or permitted under this Agreement shall be in writing and shall be sufficient if personally delivered or mailed by certified mail, return receipt requested, addressed as follows: 7 To the City: To the Owner: City Manager Justin A. Hodge City of Elgin 444 Raymond Street 150 Dexter Court Elgin, IL 60120 Elgin, IL 60120-5555 With a copy to: With a copy to Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 Notices mailed in accordance with the provisions of this paragraph shall be deemed to have been given on the third business day following mailing. Notices personally delivered shall be deemed to have been given upon delivery. 21. No Joint Venture or Partnership. This Agreement shall not be construed so as to create a joint venture, partnership, employment, or other agency relationship between the parties hereto. Licensee shall not hold itself out as an agent of the City. 22. No Personal Liability. No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement, or because of their execution, approval or attempted execution of this Agreement. 23. Joint and Collective Work Product. This Agreement is and shall be deemed and construed to be a joint and collective work product of the City and Licensee, and as such, this Agreement shall not be construed against any other party as the otherwise purported drafter of the same by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. 24. Severability. The terms of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable, for any reason, the remainder of this Agreement shall remain in full force and effect. 25. Governing Law. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this License agreement shall be in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois. 26. References in Agreement. All references in this Agreement to the singular shall include the plural where applicable, and all reference to the masculine shall include the feminine 8 and vice versa. If either reference shall be declared invalid, such decision shall not affect the validity of any remaining portion that shall remain in full force and effect. 27. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 28. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way limit or define the interpretation to be placed upon this Agreement. 29. Binding Agreement on Parties. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. 30. Assignment. This Agreement and the obligations herein may not be assigned without the express written consent of each of the parties hereto. The License granted herein is personal to Licensee. Any attempt to assign this License will automatically terminate the license privileges granted to Licensee hereunder. 31. Entire Agreement. This Agreement and its exhibits constitute the entire agreement and understanding between the parties and supersede any prior agreement or understanding relating to the subject matter of this Agreement. 32. Modification. This Agreement may be changed, modified or amended only by a duly- ' authorized written instrument executed by the parties hereto. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly-authorized and executed amendment hereof. 33. Compliance with Laws. Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement and providing the Subject Services that the Licensee shall comply with all applicable Federal, State, City and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Licensee hereby certifies, represents and warrants to the City that all the Licensee's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legal residents of the United States. The Licensee shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The City shall have the right to audit any records in the possession or control of the Licensee to determine The Licensee's compliance with the provisions of this section. In the event the City proceeds with such an audit, the Licensee shall make available to the City the Licensee's relevant records at no cost to the City. SIGNATURE PAGE FOLLOWS 9 CITY OF ELGIN JUSTIN A. HODGE By: City Manager Justin A. Hodge Attest: 10 ELGIN THE CITY IN THE SUBURBS" DATE: May 9, 2012 TO: Randy Reopelle, Parks and Recreation Director FROM: Jennifer Quinton, Deputy City Clerk SUBJECT: Resolution No. 12-80 Adopted at the April 25, 2012, Council Meeting Enclosed you will find the agreement listed below. Please distribute this agreement to the other party and keep a copy for your records if you wish. If you have any questions please feel free to contact our office 847-931-5660 and we will do our best to assist you. Thank you. • License Agreement with Justin A. Hodge d/b/a Blue Hippo Pedal Boats and JAH's Concessions Stand