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HomeMy WebLinkAbout20-63 Resolution No. 20-63 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH ELGIN MEN'S BASEBALL LEAGUE, INC. FOR FIELD USAGE AT ELGIN SHORES PARK (601 South State Street) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Agreement on behalf of the City of Elgin with Elgin Men's Baseball League, Inc., for field usage at Elgin Shores Park located at 601 South State Street, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: May 13, 2020 Adopted: May 13, 2020 Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT THIS AGREEMENT is hereby made and entered into this 13th day of May , 2020 between the CITY OF ELGIN,Illinois,a municipal corporation(hereinafter referred to as"City"),and Elgin Men's Baseball League, Inc. an Illinois not-for-profit corporation (hereinafter referred to as "League"). WHEREAS, the City has the authority to enter into this agreement pursuant to an Intergovernmental License Agreement between the City and the Forest Preserve District of Kane County dated September 13,2016,for the property commonly known as Elgin Shores Park located at 601 South State Street,Elgin,Illinois on which are located playing fields hereinafter referred to as"Fields" suitable for activities of League,as described and depicted on the map attached hereto and made a part hereof as Exhibit A;and, WHEREAS,League desires to continue the use of said playing Fields for its various activities of organized recreation;and WHEREAS,it is to the mutual advantage of both parties 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 mutually acknowledged,the parties hereto hereby agree as follows: Section 1.Nothing in this agreement shall divest the City of its absolute right of control in and of the various parcels of real estate which may be affected by this agreement. While certain functions and duties with regard to maintenance of grounds and operation of activities on the property may be delegated to League by this agreement no alterations to buildings or grounds shall be made without the express written consent of the City. Notwithstanding any other provision of this agreement or any other actions of the parties hereto the City shall at all times continue to maintain sole control of the Fields and any and all buildings,structures or improvements existing or to be constructed thereon. Section 2. League shall have the use of the Fields for its scheduled games and practices,with the exception of when the City wishes them to be utilized for tournaments. Tournament dates shall be identified by the City in the City's sole discretion.League shall have exclusive use of the Fields for and during such scheduled games and practices as approved by the City, but that said Fields shall be considered open to the public at all other times in accordance with general City park regulations. Section 3. League may be permitted to rent the Fields to other entities for such entities' use only upon prior written consent of the City in the City's sole discretion not less than thirty(30)days in advance of such rental. Any other such entities that are renting the Fields must provide a certificate of insurance naming the City of Elgin as an additionally insured. 1 Section 4. Maintenance of the turf,fences,infields,lights,backstops and structures shall be the exclusive responsibility of, and at the sole cost of League. League shall erect and maintainthe Fields. and all improvements thereon in a safe and good physical condition, and in conformance with all requirements of the Elgin Municipal Code, 1976, as amended. The City shall have sole discretion regarding the quality of the construction and direction of maintenance of the Fields and the improvements thereon. Upon written notice by the City,through its Parks and Recreation Department, stating in general terms how and in what manner maintenance is required,League shall be required to perform such maintenance. If League fails to do so,then the City shall have the right to perform such maintenance,the entire cost of which shall be borne solely by League. League shall reimburse the City for the full amount of any such maintenance and/or restoration costs. League shall, at its own responsibility and expense, obtain and keep in effect all licenses, bonds, permits and approvals necessary for the installation,maintenance and use of the Fields and the improvements thereon. Section 5. League has provided certain building structures on City owned lands for use as concession stands,washrooms,meeting and storage facilities. Such structures are attached and affixed to the real estate and are and shall be construed as being the property of the City. Ownership of such structures shall rest entirely and exclusively with the City. Concession and storage facilities shall be for the exclusive occupancy and use of League during the term of this agreement.Maintenance and repair of washroom facilities and all such aforementioned structures shall bethe exclusive responsibility of and at the sole cost of the League. 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 League and League shall hold harmless and indemnify City from and against any and all liability arising out of or in connection with League's use of Fields. Section 6. League has caused to be erected certain light poles and fixtures for the purpose of lighting the Fields. Such lights and poles are attached to the real estate and have thereby become and are the property of the City. League agrees that it is bound by the general rules and ordinances governing the closing times of City Parks,and that any use of the Fields for night games which may extend beyond the normal closing time of the park may only be for games previously scheduled,pursuant to Section 2 of this Agreement. City may grant permission to other groups or organizations to use the light poles and fixtures for evening and night activities during times which League is not using the Fields in cooperation with League.The League shall replace and otherwise maintainthe light poles and fixtures. In the event that the City, in cooperation with the League, permits other groups or organizations to utilize the Fields,the League shall be solely liable for any damages and/or repairs resulting from said other groups' or organizations' use thereof. Section 7. City shall pay the costs of water service for the structures and fixtures related to maintenance of the Fields and costs related to providing and maintaining gas and electrical service,if charged,to the structures referred to in said Section 5 above. Section 8. League shall undertake and be responsible for repairs to buildings and grounds in order to keep them suitable for League activities. City shall review all repair work before and after its execution to ensure the need, quality and cost of said repairs. All repairs must conform to the requirements of all applicable codes as determined by the City in the City's sole discretion. League shall bear any and all liability for any failure to maintain such buildings and grounds or for any 2 negligent or reckless maintenance of such buildings and grounds. Section 9. League agrees that no alterations shall be made to any buildings or structures without the prior express written consent of City. Section 10. All costs related to the maintenance and repair of fences on the premise shall be borne exclusively by League in accordance with the provisions of Section 4. League agrees that no new fence shall be installed, nor any existing fence modified or relocated, without the express written consent of City. Section 11.The parties agree that no alterations to above ground plumbing within the buildings nor alterations to water or sewer lines underground shall be undertaken without first having complete plans for such work reviewed and approved by the City in writing. League agrees that no such work shall be undertaken without appropriate permits from the City. The cost of repairs to plumbing within the buildings shall be borne exclusively by League. The cost of repairs to underground water and sewer lines shall be the responsibility ofCity. Section 12. All communications to the City from the League shall be made exclusively to the Director of the City's Parks and Recreation Department or the Director's designee. This provision is a material term of this agreement. Section 13. It is the intention of the parties to encourage the use of the park facilities to host post-season League tournament and All-Star tournament play. League agrees to provide City with notice of the intended use of the park facilities to host such tournaments as soon as practicable after the determination is_made. League further agrees to provide City with complete schedules of the tournament play as soon as they are reasonably available. Use of the park facilities is subject to any prior scheduled use in the sole discretion of the City.The schedules referenced in this section 13 shall be subject to the City's review and approval, in its sole discretion. Section 14. League shall provide a seasonal report, in person, to the Parks and Recreation Advisory Board in the fall of each year. Said date of presentation shall be determined by the Parks and Recreation Advisory Board and communicated to League no less than two months in advance. Section 15. Outside vendors shall not be allowed on the park premises during scheduled League games or practices except by the express written consent of League and City, and in accordance with all applicable ordinances and statutes. City shall have the exclusive right to authorize outside vendors during any period in which League is not scheduled to use the facilities pursuant to this agreement or other written agreement with City. Section 16. League shall be responsible for any League property that is stored or utilized in the structures or facilities or on site. 3 Section 17. League shall provide a certificate of insurance evidencing general liability insurance with limits not less than $1,000,000 per occurrence for bodily injury, personal injury and property damage. The certificate of insurance shall name the City ofElgin as additional insured and state the coverage is primary and non-contributory to any insurance carried by the City of Elgin. Section 18. League shall obtain signed waivers, which have been approved by City's Legal Department, from all participants and players releasing Cityof all liabilities prior to the use of the facilities, on an annual basis. Section 19. League shall have all coaches and managers submit to and pass a criminal history background investigation prior to volunteering with League. Section 20. This Agreement constitutes the sole agreement between the parties hereto. There are no other agreements,either written,oral,or implied between the parties hereto. Section 21. This Agreement shall be binding upon and inure to the benefit of League and its successors, but this Agreement cannot be assigned. Section 22. This Agreement shall terminate on December 31, 2024, unless otherwise terminated as provided for herein. Either party hereto may terminate this agreement for any or no reason upon thirty(30)days written notice to the other party,or upon an uncured material breach of this Agreement upon five(5)days written notice. Section 23. 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. Section 24.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 agreement shall be in the Circuit Court of Kane County, Illinois. League hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter thereof;and the League agrees that service by first class U.S.mail to the entity and address provided for herein shall constitute effective service. League hereby waives any and all rights to a jury. Section 25. This Agreement shall not be construed as constituting a joint venture,partnership, employment or other agency relationship of any kind between the parties hereto. Section 26. League shall comply with all applicable federal, state and local laws. Failure to comply with this Section shall constitute a material breach of this agreement,and shall entitle City to terminate this agreement as provided for herein without penalty to City. 4 i Section 27. League shall be solely and strictly liable for the acts or omissions of League, its volunteers, officers, members, agents, employees, independent contractors, guests, patrons and invitees. To the fullest extent permitted by law,League shall indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions,from and against any and all suits,claims, causes of action,judgments, costs, attorney's fees, damages, expenses or other relief on account of injury or damages to persons or property, sustained or claimed to have been sustained by anyone whosoever, by reason of or arising from the performance of this Agreement or the operation, use, possession or occupation of the Field or the improvements thereon, whether such use is authorized or not,or by reason of or arising from any act or omission of League,its volunteers,officers,members, Agents,employees,guests,patrons,or invitees. League shall pay for any and all damage to the property of the City, or theft of such property, done or caused by any such person. In the event of any action against the City,its officials,officers,employees,attorneys,agents,boards and commissions covered by the foregoing duty to indemnify,defend and hold harmless,such action shall be defended by legal counsel of City's choosing, the costs of which shall be paid by League. The provisions of this paragraph shall survive any expiration or termination of this Agreement. Section 28. Any grants or other monies provided by the City to the League shall be expended by the League only and solely for the purposes as prescribed by the City and pursuant to any further additional rules, restrictions or regulations as may be imposed by the City with respect to any such grant or monies. Nothing herein shall require the City to provide the League any amount of a grant or monies,whether specified or not. Section 29. The League covenants and agrees that it will not permit or suffer any lien to be put upon or arise or accrue against the Fields or any City property in favor of any person or persons, individual or corporate, furnishings either labor or material in any work herein proposed, and the League further covenants and agrees to hold the City and said Fields free from any and all liens or rights or claims of lien which may or might arise or accrue under or be based upon any mechanic's lien law, so called, of the State of Illinois, now in force or hereafter to be enacted. All contracts and agreements that may be made by the League relating to any work herein proposed,shall expressly state that the interest of the City in and to said Fields shall be wholly free from and not subject to any lien or claims of any contractor,subcontractor,mechanic,material man or laborer,whether based upon any law or regulation of the State of Illinois,or any other authority,now in force or hereafter to be enacted, and the League also hereby covenants and agrees that it will not enter into any contract for such work which shall not in express terms contain the aforesaid provision. Section 30. It is agreed and understood by the parties hereto that no special duties or obligations to any third party are intended nor shall be deemed or construed to be created by this agreement. It is further agreed and understood 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 League and/or the City and/or its officials, officers, employees and/or agents pursuant to the Local Governmental and Governmental Employees Tort Immunity Act at 745 ILCS 10/1-101 et seq., as amended,and/or otherwise provided by law,it being agreed that all of the civil immunities set forth in such Act, as amended, and/or as otherwise provided by law shall fully apply to any claims asserted or which might asserted against the League and/or the City and/or its respective officials, officers, employees and/or agents as a result of this agreement,the League's use,operation and/or maintenance 5 of the Premises 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. The provisions of this section shall survive any expiration and/or termination of this agreement. Section 31. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes 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. Any such faxed or e- mailed copy of this Agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this Agreement shall be re- executed by the parties in an original form. No party to this Agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive suchdefense. IN WITNESS WHEREOF,the City of Elgin, Illinois has caused this Agreement to be signed and executed in its behalf by its City Manager and duly attested by its CityClerk, and League has caused this Agreement to be signed and executed in its behalf by its President and its Vice President both in duplicate,the day and year first above written. ELGIN MEN'S BASEBALL LEAGUE, INC. CITY OF ELGIN, a municipal corporation By: a f on.,. -m.4 /// BY� Richard G.Kozal, City Manage Its:President Attest: Attest: By. BY: City Clerk 6 EXHIBIT A DEPICTION OF PREMISES LOCATED AT ELGIN SHORES FOREST PRESERVE ELGIN,ILLINOIS 7