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HomeMy WebLinkAbout20-68 Resolution No. 20-68 RESOLUTION AUTHORIZING EXECUTION OF A LAND USE AGREEMENT WITH ELGIN BMX RIDERS ASSOCIATION, INC. FOR THE OPERATION OF THE BMX TRACK AT THE ELGIN SPORTS COMPLEX (709.Sports Way) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Koza1, City Manager, and. Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Land Use Agreement on behalf of the.City of Elgin.with Elgin BMX Riders Association, Inc.,-for the operation of the BMX track.at the Elgin Sports Complex located at 709 Sports Way, 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 i LAND USE AGREEMENT THIS AGREEMENT is made and entered into on this 13th-day of May , 2020, by and between Elgin BMX Riders Association,INC.,an Illinois not-for-profit corporation,organized 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 are hereby mutually acknowledged, the parties hereto agree as follows: 1. BMX shall maintain and operate, and City shall permit BMX to maintain and operate, a BMX official size track, starting tower, deck, storage facilities, light and starting gate at the Elgin Sports Complex in Elgin, Illinois, at BMX's sole cost and expense during the term of this Agreement. 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. BTMX 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. BMX shall be responsible for any BMX property that is stored or utilized in the structures or facilities or on site. 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 a certificate of insurance evidencing general liability insurance with limits not less than $5,000,000 per occurrence for bodily injury, personal injury and property damage. The certificate of insurance shall name the City of Elgin as additional insured and state the coverage is primary and non- contributory to any insurance carried by the City of Elgin. 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 affects 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 the law firm of DeAno& Scary, LLC, 1 i counsel of the City's choice. The provisions of this paragraph shall survive any termination and/or expiration of this Agreement. 5. BMX shall contact the City's Superintendent of Parks and Facilities when making grounds maintenance requests. 6. BMX shall obtain written approval from the City's Superintendent of Parks and Facilities prior to taking any action which may have any effect upon the facility. 7. BMX shall.provide a written report and fiscal accounting of the operation of the facility no later than December 31 each year, or as requested by the City's Parks and Recreation Director. 8. BMX shall be entitled to sell food at the track on race days only. A temporary food handling permit must be obtained from the City of Elgin Health Department prior to selling any potentially hazardous food such as hamburgers, hotdogs, nachos, etc. Snack foods may be sold without a temporary food permit but shall be limited to canned or plastic bottled beverages,candy, chips, energy snacks, and snack cakes. Food shall be sold at the same price as set for similar food and beverages at the Sports Complex concession stands. BMX shall comply with all applicable local, state and federal laws, including, but..not limited to-Chapter 9.08 of the Elgin Municipal Code. 9. BMX shall provide for a port-o-let near the track and pay the cost of and regular service to the unit. 10. City shall repair and maintain the stone path leading from the concession stand to the track. 11. City shall provide a source for watering of the site and shall pay the costs of reasonable water usage to the site. 12. City shall provide for electric service to the site and pay for the cost of reasonable electric usage. 13. City agrees to provide for the removal of refuse. BMX will provide for continuous general cleanup of the area on the day of events. 14. The BMX Board of Directors shall be the key holders for the BMX facilities. All new key holders must submit to and pass a criminal history background investigation initiated by City. 15. City shall assist with mowing areas of BMX as staffing levels allow. 2 16. City shall provide assistance in-exploring means to make BMX facilities more secure. 17. BMX has provided certain building structures on City owned lands for use as a BMX official size track, starting tower,deck, storage facilities, light and starting gate. 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. 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. 18. 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. 19. This Agreement shall terminate on December 31, 2024. 20. This Agreement may be terminated by either party upon sixty (60) days advance written notice. 21. This Agreement shall not be deemed or construed to create an employment,joint venture, partnership or.other agency relationship between the parties hereto. 22. 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. 23. 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. 24. 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. 3 1 25. 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. 26. 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. 27. 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. 28. 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 29. 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. 4 i 30. 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 Martin B. Michalski 150 Dexter Court Attorney at Law Elgin, IL 60120-5555 636 S. Des Plaines River Road, Ste. 100 Attn: Recreation and Facilities Supt Des Plaines, 1L 60016 31. 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. 32. 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. 33. 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. 34. BMX 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. 35. BMX covenants and agrees that it will not permit or suffer any lien to be put 5 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 BMX further covenants and agneas to hold the City and said Fields fere 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 lllinois,now in force or hereafter to be enacted. All contracts and agreements that may be made by BMX relating to any work herein proposed, sW 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 Winois,or any other authority, now in fome or hereafter to be enacted,and BMX also hereby covenants and agrees that it will not enter into.any contract for such work which gall not in express terms contain the aforesaid provision. 36. 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 stated 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 BMX and/or the City and/or its officials, officers, employees and/or agents pursuant to the Local Governmental and Governmental Employees Tort brunu nity 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 BMX and/or the City and/or its respective officials,officers,employees and/or agents as a result of this Agreement,BMX'e use,operation and/or maintenance 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 Agreem t.The provisions of this section shall survive any expiration and/or termination of this Agreement 37. 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 sball be re-executed by the parties in an original form.No party to this Agmvnent shall raise the use of fax machine or e-mail as a defense to this Agreement and shall forever waive such defense. IN WITNESS WHEREOF,the undersigned have entered into executed this Agreement on the date and year fust written above. CITY OF ELGIN,a municipal Elgin BMX Riders Association, Co n an Winois not-for-profit Corporation, / City Manager P tt � ttest: City Clerk Secretary