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HomeMy WebLinkAbout15-0624 GVC Concert SeriesL I C E N S E A G R E E M E N T This License Agreement (hereinafter the "Agreement") is made and entered into at Elgin, Illinois this _ day of June, 2015, by and between the City of Elgin, an Illinois municipal corporation (hereinafter the "the City") and Elgin Riverboat Resort - Riverboat Casino d^/a Grand Victoria Casino, an Illinois joint venture (hereinafter the "Licensee"). Recitals 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, Licensee operates a riverboat casino located at 250 South Grove Avenue, Elgin, Illinois, said property being adjacent to Festival Park; and, WHEREAS, the City and Licensee have previously agreed to permit Licensee to conduct a series of concerts at Festival Park fi-om June 3, 2015 to September 15, 2015, said concerts being known and referred to as the Summer Concert Series; and, WHEREAS, Licensee has requested that the City permit Licensee to store certain property and maintain certain temporary improvements relating to the Summer Concert Series at Festival Park for the duration of the Summer Concert Series; and, WHEREAS, the City has determined that the Summer Concert Series attracts additional interest in Festival Park and the downtown area, and assists in promoting further redevelopment in the City; and, WHEREAS, the City has further determined that it is in the best interests of the City to permit Licensee to store said property and maintain said temporary improvements in Festival Park for the duration of the Summer Concert Series in accordance with the terms and conditions of this License Agreement; and, WHEREAS, the City is a home mle 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, the entry into this Agreement to facilitate the Summer Concert Series and promoting further interest in the redevelopment of the City's downtown area pertains to the government and affairs of the City; and, NOW, THEREFORE, in consideration of the mutual promises and undertakings contained herein, and other good and valuable consideration, 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 exclusive personal privilege and permission to enter upon Festival Park and a portion of Grove Avenue immediately adjacent to Festival Park, and to store and maintain certain personal property and temporary improvements relating to the Summer Concert Series, as further described in paragraph 7 herein (hereinafter the "License"). The portions Festival Park and Grove Avenue within which Licensee shall be permitted to store and maintain its property and improvements 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 "License Area"). The scope of the License granted herein 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 Grove Avenue, 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 the end of the Summer Concert Series 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 Festival Park, Grove Avenue, or the License Area. 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 License Area described above for the term of this Agreement. 6. No Vested Right. Notwithstanding any expenditure of money, time and/or labor by Licensee on or within the License Area, 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 License Area at Licensee's own risk and peril. 7. Limited Scope of License. The License granted to Licensee is limited in scope to the following use or uses: Installation, maintenance and use of certain personal property and temporary improvements for the Summer Concert Series in the License Area as depicted in the above-referenced Exhibit A for the duration of the Summer Concert Series. Such property or temporary improvements include trailers, a stage area, tents, bathroom facilities, and fencing, and a ticket booth and additional fencing in the Grove Avenue right-of-way. In addition. Licensee shall be permitted to install 2 and maintain a banner sign across Grove Avenue, said sign measuring [INSERT DIMENSIONS], and said sign to be affixed to the walkway extending across Grove Avenue. Any other provisions of this Agreement notwithstanding, the City reserves the right to require the removal of any property or improvements at any time in the City's sole discretion and at the Licensee's sole cost and expense. At the end of the Summer Concert Series or the termination of this Agreement, Licensee shall remove all property and improvements fi-om the License Area and/or the City's property at its sole cost and expense. Licensee is responsible at its cost for the removal of all trash inside and around the perimeter of the License each day. Licensee's maintenance of the Licensee Area shall be subject to the sole approval of the City. Licensee shall not have the right to expand the License Area or alter or change Licensee's use of the License Area without the City's prior written consent. 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. 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 arising from this Agreement or relating to the construction, installation, maintenance and/or removal of the property or improvements in the License Area, nor shall Licensee be entitled to any monetary damages of any kind whatsoever. 10. Alterations and Additions; Permanent Removal of Property Upon Termination. No permanent fixtures shall be permitted at Festival Park, Grove Avenue, or the License Area, and Licensee shall not make any alterations in or additions to Festival Park, Grove Avenue, or the License Area without the written consent of the City. At such time as this Agreement and the License herein granted to Licensee is terminated, for any reason whatsoever. Licensee shall remove, at Licensee's sole cost and expense, all property, improvements, equipment, or other materials owned or maintained by Licensee in the License Area, Festival Park, or Grove Avenue, and to fully restore the License Area, Festival Park, and Grove Avenue to the same condition as existed prior to the beginning of the Summer Concert Series. Any other provision of this Agreement to the contrary notwithstanding. Licensee shall immediately remove, at its sole cost and expense, any of Licensee's property or improvements 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 Grove Avenue, or in the event that the City determines that any such property or improvements interfere with pedestrian or vehicular traffic, public utilities, or constitute a safety hazard. 3 Any replacement or repair of such property shall be at the sole cost and expense of the Licensee. If the Licensee fails to perform its duties under this paragraph, the City shall have the right to remove the property and restore the License Area, Festival Park and or Grove Avenue, the full and complete cost of which shall be borne by Licensee. Licensee covenants and agrees to reimburse the City its full cost and expense for any such removal and/or restoration performed by the City, 11. Insurance. Licensee shall maintain at all times during the term of this Agreement, at Licensee's sole cost, a policy or policies of comprehensive general liability coverage on an occurrence basis from an insurance company licensed with the State of Illinois or other insurer approved by Licensee with at least $1,000,000.00 single limit coverage on all risks. Such policy or policies shall provide that the coverage afforded thereunder shall not be canceled, terminated or materially changed until at least thirty (30) days written notice has been given to the City. Licensee shall name the City as co-insured and shall furnish the City with duplicate policies or certificates evidencing insurance in force as required herein prior to utilizing the License Area. Evidence of payment of premiums shall be delivered to the City at least thirty (30) days prior to the expiration dates of each existing insurance policy. 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. 12. Construction and Maintenance. Licensee agrees that the property described herein 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 the term of this Agreement, Licensee shall, at Licensee's sole cost and expense, maintain the License Area and any property or improvements thereon in good condition and in compliance with any applicable requirements of law. The City shall be the sole judge of the quality of the construction and maintenance and, upon written notice of the City stating in general terms how and in what manner maintenance is required. Licensee shall be required to perform such maintenance. If Licensee fails to do so, then the City shall have the right to perform such maintenance, the full and complete cost of which shall be borne by Licensee. Licensee covenants and agrees to reimburse the City its full cost and expense for any such maintenance. 13. Compliance with Law. Licensee shall adhere to and comply with all ordinances, laws, rules and regulations that may pertain to or apply to the License Area and the Licensee's use thereof. 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 License Area 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. 4 14. Indemnification. To the fullest extent permitted by law, unless caused by intentional or reckless misconduct of the city or its agents, 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 improvements 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 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 of this Agreement and/or the existence, maintenance, use or location of Licensee's improvements within the License Area. 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. c. Mechanic's Lien. Any loss, liability, claim or suit arising from the foreclosure, or attempted foreclosure, of a mechanic's or materialmen's lien for goods delivered to Licensee or work performed by or for Licensee upon or at the License Area or Licensee's property. Such indemnification shall include the City's reasonable attorney's fees incurred in connection with any such loss, claim or suit. The provisions of this paragraph shall survive any termination and/or expiration of this Agreement. 15. Breach and Limitation on Damages. If Licensee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek such administrative, contractual or legal remedies as may be suitable for such violation or breach; and, in addition, the City may terminate this Agreement. If the City violates or breaches any material term of this Agreement, such violation or breach shall be deemed to constitute a default and, in the event the City fails to within fifteen (15) days after notice thereof by Licensee comply with the conditions of this Agreement, Licensee as its sole and exclusive remedy may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement, 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 no action of any kind shall be commenced by Licensee, any related persons or entities, and/or any of its successors or assigns, 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. The provisions of this section shall survive any expiration, completion and/or termination of this Agreement. 5 16. Non-waiver of Immunities. 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 its 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 oth erwise provided by law shall fiilly apply to any claims asserted or which might be assert ed 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 an ything 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. 17. 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: To the City: To the Owner: C i t y E n g i n e e r [ I N S E R T N A M E A N D A D D R E S S ] City of Elgin 150 Dexter Court Elgin, IL 60120-5555 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. 18. 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. 6 19. 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. 20. 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. 21. 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. 22. Governing Law. This Agreement shall be subject to and govemed 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. 23. 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 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. 24. Multiple Counterparts and Execution. 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. For the purpose of executing this Agreement, any signed copy of this Agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this Agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature and any such fax or e-mail copy of this Agreement shall be considered to have the same binding legal effect as an original document. 25. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way limit or define the interpretation to be placed upon this Agreement. 26. Binding Agreement on Parties. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. 27. 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. 7 28. Entire Agreement. This Agreement and its exhibits constitute the entire agreement and understanding between the parties and supersedes any prior agreement or understanding relating to the subject matter of this Agreement. 29. 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. 30. Authority of the City. This Agreement is authorized pursuant to section 13.04.130 of the Elgin Municipal Code, 1976 as amended. nSl WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its duly authorized representative as of the day and year first above written. CITY OF ELGIN ELGIN RIVERBOAT RESORT - RIVERBOAT CASINO dihldi GRAND VICTORIA CASINO ity Manager Name: ATTEST: City Clerk F:\Legal Dept\Agreement\License Agreement-GVC-Festival Park-6-18-15.docx 8 EXHIBIT A Depiction of the License Area to be inserted. 9