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HomeMy WebLinkAbout11-0801 ERC and ECC ��— O$O� • EASTSIDE RECREATION CENTER USE AGREEMENT THIS AGREEMENT is hereby made and entered into this 1S`day of August,2011,by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as the "City") and the BOARD OF TRUSTEES of COMMUNITY COLLFGE DISTRICT NO. 509, COUN TIES OF DUPAGE, COOK, MCHENRY, DEKALB AND KANE AND STATE OF ILLINOIS,a public community college,commonly known as ELGIN COMMUNITY COLLEGE (hereinafter referred to as"ECC"). WHEREAS,the City is the owner of certain property used for community and recreational uses, commonly know as the Eastside Recreation Center; and, WHEREAS,ECC desires to hold and conduct classes at the Eastside Recreation Center,as described in Exhibit A to this Agreement; and, WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with ECC to permit ECC to hold and conduct classes at the Eastside Recreation Center; and, WHEREAS, it is to the mutual advantage of both parties hereto that there be a clear understanding of the privileges and responsibilities of each party. 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. The City agrees that ECC shall have the use of four(4) classrooms at the Eastside Recreation Center (the "Premises" herein) for the purpose of holding and conducting classes, as described in Exhibit A to this Agreement. ECC agrees to use and occupy the Premises solely for the uses set forth in this Agreement and Exhibit A thereto. 2. This Agreement shall be in full force and effect from August 1,2011 through July 31,2012,unless sooner terminated as provided herein. ECC agrees and acknowledges that it shall have no right to use or occupy the Premises after the expiration of the Agreement term, or upon termination of the Agreement as provided herein. 3. ECC agrees to pay the City the sum of Ten dollars($10)in rent for the term of this Agreement. 4. This Agreement may be terminated by either party for any or no reason upon ninety (90) days written notice to the other party at the address provided in Paragraph 23 herein. In addition,in the event of an uncured material breach of this Agreement,the nonbreaching party may terminate this agreement upon five (5) days written notice to the breaching party at the address provided n Paragraph 23 herein. 5. ECC shall adhere to and comply with all ordinances,laws,rules and regulations that may pertain to or apply to the Premises and ECC's use thereof. ECC agrees and warrants that it has procured any licenses,permits or like permission required by law,if any,to conduct or engage in use of the Premises described herein,and that ECC will procure all additional licenses,permits or like permission hereinafter required by law during the term of this Agreement,and that ECC will keep the same in full force and effect during the term of this Agreement. ECC shall perform in accordance with all applicable legal requirements. 6. ECC shall not make any modifications or alterations to the Premises without the prior written consent of the City. 7. The enrollment of students or participants for ECC's use of the Premises under this Agreement shall be the sole responsibility and right of ECC. The parties hereto are prohibited from the use of the other party's name and/or likeness in a testimonial manner without the prior written consent of said other party. 8. In connection with ECC's use of the Premises,ECC agrees and warrants to use,and to cause persons participating in ECC's use of the Premises 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's Recreation and Facilities Superintendent ECC shall be strictly responsible for,and agrees and covenants to repair or pay for any damage or loss to the Premises or the property thereon caused by the negligence,carelessness or waste of ECC or its officers,employees,agents,members,independent contractors,volunteers,guests,patrons or invitees. • 9. ECC shall complete, maintain and submit to the Recreation and Facilities Superintendent of the City,or her designee,any and all records,reports and forms relating to ECC's use of the Premises and this Agreement as requested by the City to the extent permitted by applicable law. 10. To the fullest extent permitted by law,ECC agrees to indemnify, defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any and all claims,suits,judgments,costs,damages or other relief„but not including attorneys'fees,in any way resulting from or arising out of,or alleged to be resulting from or arising out of,ECC's or its officers',employees',agents',members',independent contractors',volunteers',guests',patrons'or invitees'acts or omissions in their/its use of the Premises. 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 legal counsel of the City's choosing. This indemnity shall not apply to premises liability actions against the City and/or ECC arising from defects or alleged defects in the condition of the premises or the acts or omissions of City employees. As to such Premises Liability claims,the City agrees to indemnify,defend and hold harmless ECC, its officers, employees, and agents from and against any and all claims, suits,judgments, costs, damages or other relief,but not including attorneys'fees in any way resulting from or arising out of or alleged to be resulting from or arising out of such Premises Liability claims. The provisions of this paragraph shall survive any expiration and/or termination of this agreement. -2- 11. ECC shall be liable for the acts or omissions of ECC,and its officers,employees,and agents, and ECC shall pay for any and all damage to the Premises, or theft of property from the Premises, done or caused by any such person or persons. Except for acts or omissions of City employees or agents,the City shall not be responsible for any loss or damage to any property of ECC or its officers,employees,agents,members,independent contractors,volunteers,guests,patrons and invitees,and ECC shall be solely responsible for any such property. 12. Nothing herein shall be construed as an express or implied waiver,relinquishment or release of any common law or statutory privileges and/or immunities of ECC or any of its Trustees,officers, employees,attorneys,volunteers or agents, or of the City or any of its officers, employees, attorneys, volunteers,agents,boards or commissions,including without limitation those privileges and immunities existing under the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq. 13. ECC shall provide,at no cost to the City,a certificate of general liability insurance naming the City as an additional insured with limits of not less than One Million Dollars ($1,000,000)combined single limit per occurrence for bodily injury, personal injury and property damage with a general aggregate limit of not less than One Million Dollars ($1,000,000). Such certificate shall provide that the insurance shall not be terminated or renewed for any reason without thirty(30)days advance written notice to the City. Such insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the City as to acts or omissions of ECC,and its employees and/or agents. There shall be no endorsement or modification of such insurance to make it excess over other available insurance; alternatively, if such insurance states that it is excess or pro rata,it shall be endorsed to be primary with respect to the City. 14. 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. Notwithstanding the foregoing,or anything else in this Agreement to the contrary,no action shall be commenced by ECC against the City for monetary damages arising from an alleged breach of this Agreement. In the event any legal action is brought by either party for the enforcement of any of the obligations of the other in this Agreement,each party shall be responsible for and bear its respective attorneys' fees. 15. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. 16. No official,director,officer,agent or employee of the City or ECC 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. 17. 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,of the presence of any sensory,mental or physical -3- • 1 II 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. 18. 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. 19. The parties intend and agreed that,if any paragraph,sub-paragraph,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. 20. This Agreement and its exhibits 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. 21. 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. 22. ECC 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. 23. As a condition of this contract, both parties 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. -4- A copy of the policies must be provided to the Department of Human Rights upon request (775 ILLS 5/2-105). 24. 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 ECC: City of Elgin Elgin Community College 150 Dexter Court 1700 Spartan Drive Elgin,IL 60120-5555 Elgin,IL 60123 Attention: Recreation and Attention: President Facilities Superintendent With a copy to: William A. Cogley, Corporation Counsel John F. Farly,Esq. City of Elgin Early,Tousey,Regan,& Wlodek 150 Dexter Court 2400 Big Timber Road Elgin,lL 60120-5555 Elgin,IL. 60124 25. This agreement is and shall be deemed to construe to be a joint and collective work product of the City and ECC 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. 26. 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 ECC without the express written consent of the City which consent may be withheld at the sole discretion of the City. SIGNATURE PAGE FOLLOWS -5- IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date. and year first written above. CITY OF ELGIN, a municipal ELGIN COMMUNITY COLLEGE corporation DISTRICT NO. 509, COUN I'thS OF DUPAGE, COOK,MCHENRY,DEKALB AND KANE,AND STATE OF ILLINOIS, A public community college commonly known as Elgin Community College • By: By: Assistant City Manager Attest: Title: (�Y edJr— a City Clerk q//S( // (1=74:11Z-, Z��\ Date Date -6- EXHIBIT "A" DESCRIPTION OF SERVICES TO BE PROVIDED BYECC The proposed classes to be held by Elgin Community College's Adult Basic Education Center between August 1, 2011 and July 31, 2012: ESL Low Beginning 3 Mondays and Wednesdays 6:00-9:00 pm ESL High Beginning 1 Mondays and Wednesdays 6:00-9:00 pm ESL High Beginning 2 Mondays and Wednesdays 6:00-9:00 pm Spanish GED Mondays and Wednesdays 6:00-9:00 pm ESL Low Beginning 4 Tuesdays and Thursdays 6:00-9:00 pm ESL High Beginning 1 Tuesdays and Thursdays 6:00-9:00 pm ESL Low Beginning 2 Tuesdays and Thursdays 6:00-9:00 pm Spanish GED Tuesdays and Thursdays 6:00-9:00 pm -7- OP ID: AW ACoRL CERTIFICATE OF LIABILITY INSURANCE DATE( 09/01 01/1YYYY) /11 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER 847-741-1000 CONTACT NAME: Lundstrom Insurance 847-428-8857 PHON o,Ext): FAX No): 2205 Point Blvd., Ste 200 E-MAIL In IL 60123 ADDRESS: Elgin, PRODUCER ELGC0-1 Brett Lundstrom CUSTOMER ID#: INSURER(S)AFFORDING COVERAGE NAIC# _ INSURED Elgin Community College INSURER A:Travelers Insurance 19046 District 509 INSURER B: 1700 Spartan Drive INSURERC: Elgin, IL 60123 INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUER POLICY EFF POLICY EXP LTR INSR WVD POLICY NUMBER (MM/DD/YYYY) (MM/DD/YYYY) LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 A X COMMERCIAL GENERAL LIABILITY X 630-5A321 560 09/01/11 09/01/12 DAMMISAGEESS((EaRENTEDoccurrence) $ 300,000 PRE CLAIMS-MADE X OCCUR MED EXP(Any one person) $ 5,000 PERSONAL&ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS-COMP/OP AGG $ 2,000,000 POLICY PE° LOC Emp Ben. $ 1,000,000 AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 1,000,000 A X ANY AUTO 810-5A321560 09/01/11 09/01/12 (Ea accident) BODILY INJURY(Per person) $ ALL OWNED AUTOS BODILY INJURY(Per accident) $ SCHEDULED AUTOS PROPERTY DAMAGE HIRED AUTOS (Per accident) NON-OWNED AUTOS $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION X A TWRYATU- OETRND EMPLOYERS'LIABILITY Y/N - B ANY PROPRIETOR/PARTNER/EXECUTIVE UB1467X887 12/15/10 12/15/11 E.L.EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (Attach ACORD 101,Additional Remarks Schedule,If more space is required) The City of Elgin included as additional insured for general liability if required by written contract.RE:Eastside Recreation Center for ESL and Spanish GED classes CERTIFICATE HOLDER CANCELLATION ELGCITY SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Elgin ACCORDANCE WITH THE POLICY PROVISIONS. attn: Maria Cumpata 150 Dexter Court AUTHORIZED REPRESENTATIVE Elgin, IL 60120 ©1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25(2009/09) The ACORD name and logo are registered marks of ACORD