86-0531 Grand Slam USA ��- ds3)
CONCESSION LICENSE AGREEMENT
AGREEMENT made as of this J1 day of rna'A , 1986 by and between
the City of Elgin ("Elgin"), an Illinois municipal corporation, and Grand Slam U.S.A.
Chicago, Inc. (the "Concessionaire"), an Illinois corporation. Elgin and Concessionaire
are sometimes hereinafter jointly referred to as the "Parties".
RECITALS
WHEREAS, Elgin maintains certain property commonly known as the Elgin
Softball Association and Elgin Parks and Reclamation Ballfield, Elgin, Illinois, depicted
on the attached Exhibit "A" (the "Property"); and
WHEREAS, Concessionaire desires to obtain a concession license from Elgin
to enter upon and use a portion of the Property for the purpose of installing and operat-
ing in conjunction with Elgin baseball and softball pitching modules and baseball and
softball camps, clinics and lessons and to conduct certain ancillary activities on the
Property; and
WHEREAS, the City Council of the City of Elgin has determined that it is in
the best interests of Elgin to grant such license to Concessionaire.
NOW, THEREFORE, in view of the foregoing premises and in consideration of
the mutual promises hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
I. Pursuant to the terms and conditions contained herein, Concessionaire is
granted a license to conduct the following activities (hereinafter referred to as Licensed
Activities): Only those Licensed Activities listed herein shall be permitted and
authorized by this agreement. Any additional activities, such as sale of merchandise,
shall require the express written consent of Elgin
a. Concessionaire is hereby granted a license for the sole purpose of
installing and operating in conjunction with Elgin not less than four and not more than six
pitching modules (either baseball or softball) on the property at the location prepared for
that purpose and designated as batting cages on Exhibit A (hereinafter referred to as the
Site). Elgin shall cause the site to be prepared for use of Concessionaire which prepara-
tion shall include levelling of the ground and placement of inorganic base material as
determined by Elgin. Site preparation by Elgin shall be completed within twenty-one
days of the execution of this agreement. Concessionaire shall cause the construction of
a security fence around the site. Said fence shall be a chain link fence, not less than 8
feet in height around the perimeter of the site and shall be installed prior to commence-
ment of Concessionaire's activities provided for herein. Concessionaire shall be
responsible for all lighting necessary at the site including the installation, maintenance
and replacement. The fences and lighting described herein shall be subject to review and
approval of Elgin to ensure that said items do not interfere and are consistent with other
uses and development of the property. Concessionaire shall provide electrical installa-
tions and connections as may be necessary to operate the pitching modules at the site.
b. Subject to the prior approval of Elgin regarding scheduling, manner
of operation, location and other matters deemed necessary by Elgin, Concessionaire may
conduct the additional activities such as baseball clinics, summer baseball camps and
lesson programs. Concessionaire shall obtain permission of Elgin prior to each such use
by Concessionaire unless a general schedule of use for a longer period is agreed upon by
Concessionaire and Elgin. Approval of such additional activities shall be within the sole
discretion of Elgin which may reject Concessionaire's request for any reason or for no
reason at all.
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2. The license granted to Concessionaire under this Agreement shall be in
effect for five (5) license periods during the following time period:
License Period Time Period
1 Contract Date - October 31, 1986
2 March 15 - October 31, 1987
3 March 15 - October 31, 1988
4 March 15 - October 31, 1989
5 March 15 - October 31, 1990
3. a. Concessionaire will provide at its own cost and expense, in addition to
the pitching modules, all equipment and accessories necessary for the safe and proper
conduct of the Licensed Activities including without limitation helmets, bats and balls.
Concessionaire will service at its own cost and expense and maintain at all times in
clean, safe and good working condition and repair, the pitching modules and all other
machinery and equipment used by Concessionaire on the Property and will operate same
and otherwise conduct its activities on the Property in a safe and proper manner. Con-
cessionaire shall maintain the site in a clean and attractive condition and shall cause the
removal of all debris and garbage from the property generated by users of the Licensed
Activity.
b. Concessionaire shall pay all electrical costs, including monthly usage
charges, to provide electricity for the Licensed Activities including but not limited to
electrical charges for operating the pitching modules and lights. It is acknowledged by
the parties that separate metering of the Licensed Activity is impractical and that the
electrical charges shall be determined by the parties once estimated usage is established.
4. a. During each of the License Periods, Concessionaire shall pay to Elgin
a fee based upon a percentage, as designated below, of the gross revenue received by
Concessionaire from all Licensed Activities conducted by Concessionaire on the Property
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(the "License Fee") including without limitation revenues generated from the Pitching
modules and lease of any equipment or accessories, and revenues generated from the
conduct of summer camps, clinics or private lessons. The license fee payable by Con-
cessionaire shall be as follows:
License Period License Fee
(In Percent of Gross Revenue)
1 8%
2 9%
3 II%
4 13%
5 14%
b. The License Fee shall be payable monthly within fifteen (I5) days
after the end of each month during the License Term. The payment shall be
accompanied by a report of gross revenues in the form provided by Elgin's Finance
Director and certified as to its accuracy by an executive officer of Concessionaire.
Payment shall be made by check, payable to City of Elgin and personally delivered, or
mailed in sufficient time to be received within the fifteen days specified above, to the
address for Elgin indicated in Paragraph 18, below.
5. Concessionaire shall be open and appropriately staffed to conduct the
Licensed Activities and meet the demands of the public seven (7) days a week, from
9:00 a.m. until 9:00 p.m.; provided, however, that Concessionaire may reduce said hours
on a reasonably limited number of days during each License Period if reasonably deemed
appropriate by Concessionaire because of adverse weather conditions or lack of
sufficient users of the Licensed Activities. All Licensed Activities shall be staffed by an
employee of Concessionaire at all times they are open or conducted.
6. All promotions and printed materials utilized in conjunction with the
Licensed Activities shall identify both of the Parties. The Parties will cooperate in
marketing and promoting the Licensed Activities in the community and elsewhere as
deemed appropriate.
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7. a. Concessionaire shall staff the Licensed Activities with its own
employees, subject to approval of Elgin as provided in subparagraph 7b, below. It is
understood, acknowledged and agreed by the Parties that the relationship of Conces-
sionaire to Elgin arising out of the Agreement shall be that of an independent
contractor/licensee. Neither Concessionaire nor any employee or agent of Conces-
sionaire is an employee or agent of Elgin and therefore is not entitled to any benefits
provided employees of Elgin. Concessionaire has no authority to employ/retain any
person as an employee or agent for or on behalf of Elgin for any purpose. Neither
Concessionaire nor any person engaging in any work or services related to the license
granted hereunder at the request or with actual or implied consent of Concessionaire,
may represent himself to others as an employee of Elgin. Should any person indicate to
Concessionaire or any employee or agents of Concessionaire, by written or oral
communication, course of dealing or otherwise, that such person believes Concessionaire
to be an employee or agent of Elgin, Concessionaire shall use its best efforts to correct
such belief.
b. Concessionaire shall, upon advice of Elgin, establish strict criteria for
Concessionaire's personnel in the areas of general appearance, presentation to and
conduct in dealing with the public and professional qualifications. Concessionaire shall
not use any employee in connection with the Licensed Activities who is not reasonably
acceptable to Elgin. Concessionaire agrees that all services provided by it to the public
shall be provided in a courteous and efficient manner, that its employees and agents shall
at all times be clean and neat in appearance and shall be properly trained for and super-
vised in the conduct of the Licensed Activities provided by them. Nothing herein shall be
construed to require Elgin to determine the qualifications or fitness of any agent or
employee of Concessionaire. Elgin shall not be liable to Concessionaire nor any third
party due to Concessionaire's employing any person.
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8. a. Throughout the term of this agreement, Concessionaire shall maintain
in full force and effect insurance with those coverages and in amounts not less than as
specified in subparagraph (b) below, and in companies licensed to conduct business in
Illinois which possess an "A" policyholders rating or better and a minimum class "XII"
financial size category, as listed in the most recent A.M. Best Insurance Reports. Each
insurance policy must include Elgin as an additional insured and must be endorsed as
primary/noncontributory to any insurance which the owner may have.
b. A certificate of insurance on an approved form must be delivered to
Elgin prior to the commencement of any Licensed Activity. Such certificates must state
that coverage applies to Concessionaire's activities on the Property and will not be
cancelled, non-renewed or reduced without thirty days advance written notice by
registered mail to the owner and shall contain not less than the limits and coverage
indicated below:
Primary Liability Insurance
Form of Coverage Minimum Limits of Liability
I. Workers' Compensation, Statutory
incl. occupational disease
2. Employers' Liability $500,000 per accident
3. Comprehensive General Liability $500,000 per occurrence
for bodily injury, personal $500,000 annual aggregate
injury and property damage
Excess Liability Insurance
An unbrella policy or combination of umbrella and excess policies is
required with minimum limits of $1,000,000 for bodily injury, personal
injury and property damage per occurrence and in the aggregate (applicable
to employers' liability, comprehensive general liability, including extensions
noted.)
if the operator has an umbrella policy or combination of umbrella and
excess policies with a combined limit equal to or in excess of the combina-
tion of the required primary and excess insurance limits, it shall be
permissible to reduce the primary limits for such insurance to whatever
limits are required by the umbrella.
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The umbrella policy, or combination of umbrella and excess policies, must
be as broad as the primary policies and must be free of any restrictions
which do not appear in the underlying primary policies.
9. Elgin is not responsible or liable for any injury, damages, loss or cost
sustained or incurred by any person or property directly or indirectly related to the
Licensed Activities, except such injury, damages, loss or cost resulting from a tortious
act or gross negligence of an employee or agent of Elgin. Elgin is not liable for acts or
omissions of Concessionaire or any of its employees, agents, or other persons purporting
to act at the direction or request, on behalf, or with the implied or actual consent of
Concessionaire. Concessionaire shall indemnify and hold harmless Elgin, its officers,
agents and employees, from any claim, suit, action or liability whatsoever including court
costs and reasonable attorney fees arising out of any act or omission of Concessionaire,
its agents or employees, or out of the execution or existence of this Agreement or
connected in any way with the Licensed Activities.
10. a. Concessionaire shall comply with all applicable federal, state and
local (including those of Elgin) laws, rules and regulationns, and shall obtain at Conces-
sionaire's own cost and expense all permits and licenses which may be required in order
for Concessionaire to conduct its business operation.
b. Concessionaire agrees to comply and to cause its employees and
agents to comply fully with the Federal Equal Employment Opportunities Act, the State
Human Rights Act and the City of Elgin Human Relations Ordinance (EMC 6.12) and with
all applicable rules and regulations promulgated thereunder and all amendments sub-
sequently made thereto, and Concessionaire represents, certifies and agrees that no
person shall be denied or refused service or other full use of Concessionaire's services,
nor denied employment opportunities by Concessionaire on the basis of race, creed,
color, religion, sex, national origin or ancestry, age, physical or mental handicap, marital
status, or an unfavorable discharge from military service.
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c. Concessionaire agrees to abide by and comply with such reasonable
rules and regulations governing activities on the property which now or may hereafter be
adopted by Elgin; provided such rules and regulations shall not be inconsistent with the
provisions contained herein.
II. Neither the site nor any other portion of the Property is leased to Con-
cessionaire; it is a licensee and not a lessee thereof. Its right to use the Site and the
Property and to conduct the Licensed Activities shall continue only so long as each and
all of the provisions, stipulations and conditions contained herein are strictly and
promptly comlied with.
12. The license granted Concessionaire under this Agreement may be
terminated prior to its expiration under any of the following circumstances (individually,
an "Event of Default"):
a. In the event Concessionaire shall breach or be in default, under any of
the provisions of this Agreement, Elgin may terminate the license if Concessionaire shall
not have cured such default within (15) days after Elgin shall have notified Conces-
sionaire thereof in writing; provided, however, that if Concessionaire shall have breached
or been in default under the same provision on a previous occasion, or the breach or
default involves an unsafe practice or the existence of any unsafe condition which Con-
cessionaire fails to remedy immediately, Elgin may terminate the license immediately.
b. In the event Concessionaire shall have (I) filed a voluntary petition in
bankruptcy or made an assignment for benefit of creditors; (ii) consented to the appoint-
ment of a receiver or trustee of all or part of its property; or (iii) an involuntary petition
in bankruptcy shall have been filed in regard to Concessionaire and the same shall not
have been dismissed within ten (10) days of such filing, the license shall automatically
terminate.
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c. In the event the Property is condemned or taken in whole or in part
by any governmental authority having jurisdiction, or an order is entered by any court of
law or administrative agency requiring the termination of the license, the license shall
automatically terminate upon notice to Concesionaire of that fact.
13. The waiver by Elgin of any breach or default under any provision in this
Agreement shall not be deemed to constitute a waiver of such provision for any subse-
quent breach or default of the same or any other provision. The acceptance of any
payment by Elgin shall not be deemed to constitute a waiver of any prior occurring
breach or default by Concessionaire of any provision of this Agreement regardless of the
knowledge of Elgin of such breach or default at the time of its acceptance of such pay-
ment.
14. This Agreement contains all of the terms and conditions agreed on by the
Parties with respect to the subject matter hereof, and no other alleged communications
or agreements between the Parties written or otherwise, shall vary the terms hereof.
Any modifications of this Agreement and the license granted hereunder must be in
writing, signed by both Parties and dated on or subsequent to the date hereof.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of Illinois.
16. Each of the Parties represents and warrants that it has authority and has
been duly authorized to enter into this Agreement. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement.
17. Concessionaire shall have no authority or power to sell, transfer or assign
this Agreement or license or any interest therein, nor any power or authority to permit
any other person or party to have any interest in or use any part of the Site or Property
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for any purpose whatsoever without the prior written consent of Elgin, it being the
intention of this Agreement to grant the concession license and privilege solely to Con-
cessionaire and neither directly nor indirectly to any other party.
18. All notices required or permitted to be given under this Agreement shall
be deemed given when such notice is deposited in the United States mail, with postage
thereon prepaid, addressed to the other party at the following address:
If to Elgin:
Philip Bennett
City of Elgin
150 Dexter Court
Elgin, Illinois 60120-5555
If to Concessionaire:
Leland M. Fisher, President
Grand Slam U.S.A. Chicago, Inc.
673 S. Consumers Avenue
Palatine, Illinois 60067
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
CITY OF ELGIN
Air
By
/ James J. Cook, ' ity Manager
Attest:
Vict_h J
City Clerk
GRAND SLAM U.S.A.4161,6
1NC .
Ca Y�
By
President
L_\and V\C\ stip F
Attest:
Secretary
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SOFTBALL COMPLEX