HomeMy WebLinkAbout14-0401 Haunted Imcorporated LICENSE AGREEMENT
THIS AGREEMENT is hereby made and enterer\into this 1st day of April
2014, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to
as the "City") and Haunted Incorporated, an Illinois municipal corporation (hereinafter referred
to as the "Licensee").
WHEREAS, the City owns, operates and maintains the following public parks, open
spaces or other real property within the City of Elgin:
• Elgin Sports Complex, 709 Sports Way,Elgin,Illinois;
• Bluff City Cemetery, 945 Bluff City Boulevard, Elgin, Illinois;
• Channing Park, 35 Rugby Place, Elgin, Illinois;
said properties collectively referred to as the "City Properties"herein; and,
WHEREAS, the Licensee has proposed to conduct an enterprise at the City Properties
whereby the Licensee would be permitted to conduct guided historical "ghost hunt" tours at the
City Properties, in some cases after the regular closing time for such City Properties (hereinafter
referred to as the "Subject Services"); and,
WHEREAS, the City has determined that the Subject Services will attract additional
interest in the City, 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 City Properties and promoting the further
interest in the redevelopment of the City 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 the City Properties for the operation and
conducting of historical guided bus and/or van tours of the City Properties, and for no
other purposes (hereinafter referred to as the "License"). The portion of the City
Properties from which Licensee shall be permitted to offer the Subject Services is limited
to those areas depicted on Exhibit A, which is attached hereto and incorporated into this
Agreement by this reference. The respective dates and times during which Licensee shall
be permitted to offer the Subject Services at the City Properties is set forth on Exhibit B,
attached hereto and incorporated herein by this reference. 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.
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, 2014, 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 the City Properties. The City
retains legal possession of the full boundaries of its properties and this Agreement merely
grants to Licensee the personal privilege to use the City Properties in accordance with the
License 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 City Properties, 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 City Properties 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 City Properties, 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 areas subject to the License as set forth in Exhibit A, to alter or
change the dates and times at which the Subject Services will be provided as set forth on
Exhibit B, or to otherwise alter or change the Subject Services without the City's prior
written consent.
In addition to the foregoing, Licensee's operation of the Subject Services shall be
conducted pursuant to and in accordance with the following terms, conditions and
limitations:
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A. Licensee shall be authorized to provide only one (1) guided tour per night, except
that the Licensee shall be authorized to provide two (2) guided tours per night in
the month of October.
B. The maximum number of persons per tour shall be forty-five (45).
C. The provision of the Subject Services in areas other than those areas set forth in
Exhibit A without the prior written approval of the City shall be and is prohibited.
D. The provision of the Subject Services on dates or at times other than those dates
and times areas set forth in Exhibit B without the prior written approval of the
City shall be and is prohibited.
E. At least one (1) employee of the Licensee shall accompany any persons taking
part in Licensee's Subject Services at all times during which the Subject Services
are being provided.
F. Licensee, its employees or agents, and any persons taking part in Licensee's
Subject Services, shall not unreasonably disturb members of the public utilizing
the City Properties or interfere with any 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 the City Properties,
and Licensee shall not make any alterations in or additions to the City Properties. No
equipment, supplies, materials or appurtenances relating to the provision of the Subject
Services shall be permitted at the City Properties other than the bus and/or van used to
transport persons taking part in the Licensee's Subject Services during the times at which
the Subject Services are being provided.
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
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insurance with limits of at least $3,000,000 aggregate for bodily injury and
$3,000,000 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
$3,000,000 per occurrence subject to a$3,000,000 aggregate.
D. 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.
12. Maintenance. Licensee agrees that the City Properties 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 City
Properties.
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 City Properties 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 City Properties 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 officials, officers, agents, servants, employees, attorneys,
boards and commissions harmless from and against:
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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 City Properties. 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. Any waiver, indemnity or other document limiting or purporting to limit the liability
of Licensee that Licensee requires from persons taking part in the Subject Services
shall also name the City, such that the City's liability shall be limited to the same
extent as that of the Licensee; provided, however, that this provision shall not in any
way limit Licensee's obligation to indemnify the City under this Paragraph 14.
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 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 the City Properties in a clean, sanitary and safe
condition and free from defects of every kind whatsoever during its conducting of the
Subject Services. In connection with the provision of the Subject Services on the City
Properties, 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.
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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 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 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 or receipts 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:
To the City: To the Owner:
City Manager Diane A. Ladley
City of Elgin 392 Springlake Lane,Apt. D
150 Dexter Court Aurora, IL 60504
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.
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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
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.
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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
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CITY OF ELGIN HAUNTED INCORPORATED
Diane A.Ladley
I agree to the terms defined by the
6 placement of my signature on this
BYdocument
Aurora,IL 60504
By 2011.04.06 15:02:23-05'0
City Manager
Its:
Attest: Attest:
%44 L16421 By:
City Clerk
Its:
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EXHIBIT A
Depiction of the areas of the City Properties at which Licensee shall be permitted to conduct the
Subject Services, to be inserted.
IMAGES ATTACHED: 3 PAGES
EXHIBIT A:1 SITE #1 SPORTS COMPLEX HOSPITAL BACK GATE TOUR BOUNDARIES 2014
EXHIBIT A:2 SITE #2 SPORTS COMPLEX PAUPERS CEMETERY TOUR BOUNDARIES 2014
EXHIBIT A:3 CHANNING PARK TOUR BOUNDARIES 2014
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EXHIBIT A:1 SITE #1 SPORTS COMPLEX HOSPITAL BACK GATE TOUR BOUNDRARIES 2014
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SPORTS COMPLEX TOUR SITE #1 s
- i Ghost tour access boundaries within City of
Elgin Sports Complex, i.e. the Elgin St. Mental
,Hospital back access gate area, roads and
parking areas.
EXHIBIT A:2 SITE #2 SPORTS COMPLEX PAUPERS CEMETERY TOUR BOUNDRARIES 2014
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EXHIBIT A:3 CHANNING PARK TOUR BOUNDARIES 2014
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Ghost tour access boundaries within Channing
Park. Red oal indicates tour bus parking.
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EXHIBIT B
Schedule of dates and times at which Licensee shall be permitted to conduct the Subject Services
at the City Properties, to be inserted.
TYPES OF TOURS TO BE OFFERED IN 2014
1. Standard 4 hr. Friday & Saturday nights tour-4 hrs., visiting Channing Park, Bluff City,
Sports Complex (site #2 cemetery), and Sports Complex (site #1 near elementary school).
2. Intensive 3 hr. weeknight and Sun. nights tour-3 hrs. at Bluff City Cemetery, 7 to 10 pm.
3. Serious Amateur Tour—offered 1-2x per month during summer and fall, and only on Saturdays
or Sunday-before-holiday-Mondays. Will spend 8-10 hrs. visiting Channing Park, Bluff City,
and Sports Complex (site #1 and site #2), followed by evidence review and overnight stay
at an Elgin hotel TBD.
PROPOSED TIMES
Fridays & Saturdays: typically 7 to 11, 8 to 12 midnight, and/or 9 to 1:00 AM
Sundays & weeknights: typically 3 hour tours at Bluff City Cemetery only, 7:00 to 10:00.
PROPOSED DATES (Weather and ticket sales permitting)
Every Fri., Sat. & Sun. in March
Every Fri., Sat & Sun in April EXCEPT 18th-20th (Easter)
Every Fri, Sat & Sun in May PLUS Mon. 26th (Memorial Day)
Every Fri, Sat & Sun in June
Every Thurs., Fri, Sat. and Sun. in July
Every Thurs., Fri, Sat. and Sun. in August
Every Wed., Thurs., Fri, Sat. and Sun. in Sept. PLUS Mon. Sept. 1 (Labor Day)
Every Tues. through Sun. in Oct. PLUS Mon. Oct. 13 (Columbus Day), with multiple single-
night tours on weekends.
Every Fri., Sat. & Sun. in November
Every Fri., Sat. & Sun. in December
Every Fri., Sat. & Sun. in January 2015
Every Fri., Sat. & Sun. in February 2015
Every Fri., Sat. & Sun. in March 2015
CONTRACT UP FOR RENEWAL MARCH 31, 2015
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