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HomeMy WebLinkAbout09-105 1 Resolution No. 09-105 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE OF SERVICE AGREEMENT WITH THE HILL BMX ELGIN ASSOCIATION FOR THE OPERATION OF THE BMX TRACK AT THE ELGIN SPORTS COMPLEX BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Olufemi Folarin, City Manager, and Diane Robertson, City Clerk, be and are hereby authorized and directed to execute a Purchase of Service Agreement on behalf of the City of Elgin with The Hill BMX Elgin Association for the operation of the BMX Track at the Elgin Sport Complex,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock,Mayor Presented: April 29, 2009 Adopted: April 29, 2009 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk AGREEMENT BETWEEN THE HILL BMX ELGIN ASSOCIATION AND THE CITY OF ELGIN THIS AGREEMENT is made and entered into on this f 1h day of Ape 1 I , 2009, by and between The Hill BMX Elgin Association, a not-for-profit corporation, organization and existing under the laws of the State of Illinois,(hereinafter referred to as"BMX")and the CITY OF ELGIN, Illinois,a municipal corporation, (hereinafter referred to as the "City"). Now, therefore, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged,the parties hereto agree as follows: 1. BMX shall maintain,and City shall permit BMX to maintain a BMX official size track, starting tower, light and starting gate at the Elgin Sports Complex in Elgin, Illinois at BMX's sole expense during the term of this agreement. The location of the BMX facility shall be approved in advance by the Director of the City's Parks and Recreation Department. BMX represents and warrants it has the skills and knowledge necessary to operate said facility. It is agreed and understood that the City is relying on such representations and it is further agreed and understood that this agreement shall not be modified,amended or altered except by a written amendment to this agreement agreed to and executed by both parties hereto. 2. BMX shall bear all operating costs,including,but not limited to those which insure the facility,sanction races,obtain permanent equipment and provide awards.BMX warrants and agrees to keep all facilities and equipment used in the operation of the aforementioned BMX facility and any events conducted by BMX at such facility in a reasonable, clean, sanitary,and safe condition. 3. Within thirty(30)days of the execution of this agreement and prior to BMX conducting any activity at the facility BMX shall at its cost provide to the City an insurance policy in a form acceptable to the City naming the City as a primary,non-contributory co-insured with limits of not less than $1,000,000 per occurrence and excess coverage of not less than $5,000,000 covering general liability including personal injury,death and property damage. Such insurance policy shall be written in occurrence form and shall provide that the insurance shall not be terminated or not renewed for any reason without thirty(30)days advanced written notice to the City.Such insurance shall apply as primary insurance with respect to any other insurance or self-insurance program afforded to the City. There shall be no endorsement or modification of this insurance to make it excess over other available insurance, and alternatively, if the insurance states that it is excess or prorata, it shall be endorsed to be primary with respect to the City. 4. BMX shall be strictly liable for the acts of its agents,volunteers,officers and employees and shall to the fullest extent permitted by law indemnify, defend and hold harmless the City, its officers, employees, agents, boards and commissions from and against any and all claims, suits, judgments,costs,attorney's fees,damages or other relief arising out of or in any way connected with the BMX facilities being located at the Elgin Sports Complex or the operation or use thereof of any action or inaction by BMX or its agents,volunteers,officers and employees. Nothing herein effects BMX's duty to defend the City. In the event of any action against the City, its officers,employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless such action shall be defended by counsel of the City's choosing. The provisions of this paragraph shall survive any termination and/or expiration of this agreement. 5. BMX shall hold a series of beginner clinics, not less than two, each season (April- September) during the term of this agreement. These clinics shall be available to first time and existing American Bicycle Association (ABA) members of all ages who are able to ride a bicycle without assistance. These clinics shall be held periodically throughout the season, April through September. 6. BMX shall schedule a series of not less than 24 sanctioned BMX races each season (April-October)during the term of this agreement. 7. BMX shall hold one benefit race annually for the Parks and Recreation Youth Scholarship Fund with a guaranteed minimum of$2,500 in proceeds,which proceeds shall be paid to City within thirty(30)days of said race. 8. BMX shall reasonably promote the facility through area bike shops, local park districts and area media. 9. BMX shall advertise with all printed material recognizing the "The Hill BMX Elgin Association"as the coordinating entity, list the track as the"The Hill"at the"City of Elgin Sports Complex," and the address as 815 Sports Way, at the corner of McLean Boulevard and Spartan Drive. (The facility address shall be included if space permits). 10. BMX shall contact the City's Sports Complex Recreation and Maintenance Supervisor when making grounds maintenance requests. 11. BMX shall obtain written approval from the Director of the City's Department of Parks and Recreation prior to taking any action which may have any effect upon the facility. 12. BMX shall provide a written report and fiscal accounting of the operation of the facility at the end of the year to the City's Director of Parks and Recreation. 13. BMX shall be entitled to sell prepackaged food snacks at the track on race days only. Snacks shall be limited to canned or plastic bottled beverages, candy, chips, energy snacks, and snack cakes. No other foods or beverages shall be permitted. Snacks shall be sold at the same price as set for similar snacks and beverages at the Complex concession stands. BMX shall comply with all applicable local, state and federal laws, including, but not limited to Elgin Municipal Code Section 9.12.010,et seq. 14. City shall promote the aforementioned facility,races and clinics through the Parks and Recreation Department seasonal brochure if space permits,and shall display posters and fliers in the Parks and Recreation Department Office. 15. City shall provide weekly lawn maintenance in areas accessible by riding equipment at the facility. 16. City shall repair and maintain the stone path leading from the concession stand to the track. 17. City shall provide a source for watering of the site and shall pay the costs of reasonable water usage to the site. 18. City shall provide for electric service to the site and pay for the cost of reasonable electric usage. 19. The City agrees to provide for the removal of refuse. BMX will provide for continuous general cleanup of the area on the day of events. 20. BMX has provided certain building structures on City owned lands for use as starting tower,finish tower and deck,and storage facilities. It is agreed that these structures are attached to the real estate and have thereby become the property of the City. The parties agree that the ownership of these structures rests entirely with the City. It is agreed that the towers and storage facilities shall be for the exclusive occupancy and use of BMX during the term of this agreement. Maintenance and repair of facilities and these structures shall be the exclusive responsibility and at the sole cost of BMX. Any and all liability arising out of the negligent or reckless maintenance or repair of such facilities and structures,or failure to maintain or repair such facilities and structures shall rest entirely with the BMX. 22. BMX shall conduct all of its operations and maintain the facility in compliance with all requirements of law including but not limited to the requirements of the Elgin Municipal Code,as amended. • 23. This agreement shall be in full force and effect from April 15,2009,through December 31, 2013 24. This agreement may be terminated by either party upon sixty(60)days advance written notice. • 25. This agreement shall not be deemed or construed to create an employment,joint venture, partnership or other agency relationship between the parties hereto. 26. It is agreed and understood that the City owns and shall continue to own all right,title and interest in the Elgin Sports Complex property including any improvements located thereon,and nothing herein nor any of the services to be provided by BMX or any actions by BMX taken pursuant to the agreement is intended or shall be construed to provide BMX with any rights thereto,with any and all such ownership and rights remaining with the City. 27. The City shall be recognized as a sponsor of BMX and shall receive the benefits of a sponsorship consistent with the level of support provided. At a minimum,the City's support shall be acknowledged in BMX's Annual Report,and"web"page information and any advertising promoting any event held by BMX.Samples of this acknowledgement shall be provided to the City in advance of usage,and shall be subject to City's sole approval. 28. In all hiring or employment made possible or resulting from this agreement, there shall be no discrimination against any employee or applicant for employment because of sex,age, race,color,creed,national origin,marital status,or the presence of any sensory,mental or physical handicap,unless based upon a bona fide occupational qualification,and this requirement shall apply to,but not be limited to,the following: employment advertising,layoff or termination,rates of pay or other forms of compensation and selection for training, including apprenticeship. 29. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this agreement on the grounds of sex, race,color,creed,national origin,age except minimum age and retirement provisions,marital status or the presence of any sensory,mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this agreement and shall be grounds for cancellation, termination or suspension, in whole or in part,of the agreement by the City. 30. The parties intend and agree that if any paragraph, subparagraph, phrase, clause or other provision of this agreement, or any portion thereof, shall be held to be void or otherwise unenforceable,all other portions of this agreement shall remain in full force and effect. 31. This agreement constitutes the entire agreement of the parties on the subject matter hereof and may not be changed,modified,discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof. 32. This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois. • 33. BMX certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq.or any similar state or federal statute regarding bid rigging. 34. As a condition of this contract, BMX shall have written sexual harassment policies that include, at a minimum,the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E. the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights,and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G. protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request 775 ILCS 5/2-105. 35. All notices,reports and documents required under this agreement shall be in writing and shall be mailed by First Class Mail,postage prepaid, addressed as follows: As to the City: As to BMX: City of Elgin Chuck Groh 150 Dexter Court Track Operator Elgin, IL 60120-5555 214 E. Main Street Attn: Sports Complex Supervisor Carpentersville, IL 60110 36. This agreement is and shall be deemed and construed to be a joint and collective work product of the City and BMX and,as such,this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 37. Notwithstanding any other provision of this Agreement it is expressly agreed and understood that in connection with the performance of this Agreement that the BMX 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,BMX hereby certifies,represents and warrants to the City that all BMX'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. BMX 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 BMX to determine BMX's compliance with the provisions of this section. In the event the City proceeds with such an audit the BMX shall make available to the City the BMX's relevant records at no cost to the City. 38. This agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This agreement and the obligations herein may not be assigned by the BMX without the express written consent of the City which consent may be withheld at the sole discretion of the City. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal THE HILL BMX, Corpor tion a Illinois corporation, By By VAX.X./.4— City Manage - President Attest: Attest: City Clerk Secretary ffrG.k"& •# f. April 2, 2009 ..f TO: Mayor and Members of the City Council FROM: Olufemi Folarin, City Manager ��,,,, ,;�,:,,,,d Randy Reopelle,Parks and Recreation Director ca{at��r<arovporttimtfecfc.r qur:rf,.er,$ SUBJECT: The Hill Elgin BMX Agreement PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider approval of an agreement with The Hill Elgin BMX. RECOMMENDATION It is recommended that the City Council approve an agreement with The Hill Elgin BMX. BACKGROUND The Hill, Elgin's BMX track, has operated at the Elgin Sports Complex since 1991. The current agreement with The Hill Elgin BMX expired on December 31, 2008. The Hill is a volunteer organization that performs track construction, maintenance, and race day operations on the BMX track, which is located at the Elgin Sports Complex. Races are held on Saturday and Tuesday nights during the summer. This track attracts racers from around the area and beyond, as it is the only American Bicycle Association track between Rockford and Northwest Indiana. The track is available from dusk to dawn for riders from the community for free when not being used for races. This group's expertise and man power are required for track maintenance and race day operations. Without this organization's assistance, the City would not be able to provide and operate the track. The highlights of the agreement are as follows: • The City maintains ownership of the property and structures. • BMX operates the track and is responsible for operational costs. • Maintenance of the structures and facilities is at the sole cost to BMX. • All improvements or alterations to the properties or facilities must be approved by the City. • The City agrees to assume the cost of water, electric,mowing, and refuse removal. BMX is responsible for general cleanup of the area on the day of events. • BMX donates to the Parks and Recreation Youth Scholarship fund the amount of$2,500 annually. The Hill Elgin BMX Agreement April 2, 2009 Page 2 • BMX provides general liability insurance naming the City as primary, non-contributory co-insured with limits of not less than one million dollars for bodily injury, personal injury and property damage with a general aggregate limit of not less than five million dollars. • The facility is open for free use when not in use for races, clinics and track maintenance. • BMX hosts beginner clinics for new riders. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED The Hill Elgin BMX FINANCIAL IMPACT The agreement states that the City will provide reasonable electric, water, weekly mowing, and refuse removal. The yearly expense for mowing is approximately $4,475 and refuse removal is approximately $350. Due to the fact that the utilities for this facility are not on separate meters, it is not possible to accurately estimate the cost of electric and water. These expenses have been included in the operational budget of the Elgin Sports Complex for the last 17 years. The Hill BMX provides an annual donation of $2,500 to the Parks and Recreation Youth Scholarship fund, as well as free clinics. LEGAL IMPACT None ALTERNATIVES 1. The City Council may choose to approve an agreement with the Hill BMX. 2. The City Council may choose to amend the agreement with the Hill BMX. 3. The City Council may choose not to approve an agreement with the Hill BMX. Respectfully submitted for Council consideration. mm attachment • O ti Memorandum City of Elgin .too Date: May 1, 2009 To: Maria Cumpata, Recreation an ilities Superintendent From: Jennifer Quinton, Deputy Cityrk Subject: Resolution No. 09-105, Adopted at the April 29, 2009, Council Meeting Enclosed you will find the agreement listed below. Please distribute to the appropriate parties and if needed, retain a copy for your records. 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. • Purchase of Service Agreement with The Hill BMX Elgin Association for the Operation of the BMX Track at the Elgin Sports Complex