09-67 1 s
Resolution No. 09-67
RESOLUTION
AUTHORIZING EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT
WITH THE BOARD OF EDUCATION OF CENTRAL COMMUNITY UNIT
SCHOOL DISTRICT 301
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that
Ed Schock, Mayor, and Diane Robertson, City Clerk,be and are hereby authorized and directed to
execute an Intergovernmental Agreement with the Board of Education of Central Community Unit
School District 301 on behalf of the City of Elgin in connection with the new middle school on
Nesler Road, adjacent city park property and joint use agreements for various school district
facilities, a copy of which is attached hereto and made a part hereof by reference.
s/Ed Schock
Ed Schock, Mayor
Presented: March 18, 2009
Adopted: March 18, 2009
Omnibus Vote: Yeas: 6 Nays: 0
Attest:
s/Diane Robertson
Diane Robertson, City Clerk
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11/4/08
INTERGOVERNMENTAL AGREEMENT
THIS AGREEMENT made and entered into this /�'� day of
Jtt,,M&er , 200J, by and between the CITY OF ELGIN, an Illinois unit
of local government and municipal corporation, (hereinafter
referred to as the "City" ) , and THE BOARD OF EDUCATION OF CENTRAL
COMMUNITY UNIT SCHOOL DISTRICT 301 , Kane County, Illinois, an
Illinois unit of local government and public school district
(hereinafter referred to as the "School District" ) .
W I T N E S S E T H:
WHEREAS, Article VII , Section 10 , of the Constitution of the
State of Illinois of 1970 authorizes units of local government to
contract or otherwise associate among themselves, and to exercise,
combine or transfer any power or function in any manner not
prohibited by law or by ordinance; and
WHEREAS, the Illinois Intergovernmental Cooperation Act, 5
ILCS 220/1, et . Seq. provides, inter alia, that " . . . (A) ny power or
powers, privileges or authority exercised or which may be exercised
by a public agency of this State may be exercised and enjoyed
jointly with any other public agency of this State . . . " ; and
WHEREAS, the Local Government Property Transfer Act, 50 ILCS
605/0 . 01 et seq. , provides that municipalities, including school
districts, may transfer real property to each other upon such terms
as to which their corporate authorities may agree; and
WHEREAS, as part of the Remington at Providence Subdivision
Parcel 5 in such subdivision consisting of approximately 11 acres
has been conveyed by the owner of such property to the School
District, such property being legally described in Exhibit A
attached hereto (the "School District Parcel" ) ; and
WHEREAS, as part of the Remington at Providence Subdivision
Parcel 6 in such subdivision consisting of approximately 15 . 87
acres has been conveyed by the owner of such property to the City,
such property being legally described in Exhibit B attached hereto
(the "City Parcel 611 ) ; and
WHEREAS, as part of the Shadow Hill Subdivision a parcel of
property in such subdivision adjacent to City Parcel 6 to the south
consisting of approximately 7 . 59 acres has been conveyed by the
owner of such property to the City, such property being legally
described in Exhibit C attached hereto; and
WHEREAS, the School District has requested that the City cause
the transfer of the City Parcel 6 and a portion of the City Shadow
Hill Parcel to the School District , such City Parcel 6 and a
portion of the City Shadow Hill Parcel being legally described in
Exhibit D attached hereto (such City Parcel 6 and a portion of the
City Shadow Hill Parcel are hereinafter collectively referred to as
the " Park Parcel" ) ; and
WHEREAS, the School District is proposing the conveyance by
the City to the School District of the Park Parcel so as to allow
the School District to construct on the School Parcel and the Park
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to the Park Parcel by quit claim deed to the School District
subject to the terms of this intergovernmental agreement and also
subject to all matters of record or otherwise (the "Closing" ) .
B. Any title or survey desired by the School District
for the Park Parcel shall be obtained by the School District . Any
and all costs of any title or survey desired by the School District
shall be paid by the School District . All costs of recording shall
be paid by the School District .
C. There shall be no prorations . The City shall convey
its interest in the Park Parcel to the School District subject to,
among other matters, any and all general taxes, special assessments
and any other similar items .
D. The City shall deliver possession to the School
District of the Park Parcel as of the Closing.
E. The parties hereto understand and agree that the
City is conveying the Park Parcel (the "Real Estate" ) to the School
District "as is" and "where is" without any representations or
warranties whatsoever, including but not limited to representations
or warranties relating to the condition, merchantability or
suitability of the Real Estate for any particular purpose or as to
any Environmental Condition, (as hereinafter defined) which may or
may not exist on such Real Estate .
F. The parties hereto further understand and agree that
the City shall have no responsibility for any response or
corrective actions or remediation of any Environmental Condition
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(as hereinafter defined) at, on, under or about the Real Estate and
that the School District hereby waives and releases any claim for
contribution against, and covenants not to sue the City, or City' s
officials, officers, employees, agents, attorneys, personal
representatives, successors or assigns, whether asserted directly
or indirectly, or whether in the nature of an action for
contribution, third party proceeding or other action or proceeding
whatsoever, for all damages including, without limitation, punitive
damages, liabilities, costs, losses, diminutions in value, fines,
penalties, demands, claims, cost recovery actions, lawsuits,
administrative proceedings, orders, response action costs,
compliance cost, investigation expenses, consultants fees,
attorneys fees, paralegal fees and litigation expenses
(collectively "Claims" ) arising out of or in connection with any
Environmental Condition (as hereinafter defined) on the Real Estate
or its migration to any other site or location or arising out of or
in connection with any Environmental Law (as hereinafter defined) .
G. The School District hereby acknowledges and agrees
that it is acquiring the Real Estate being the Park Parcel in its
"as is" and "where in" condition and that , as of the Closing, the
School District will be acquiring such Real Estate with no direct
recourse or direct rights of action against the City or the City' s
officials, officers, employees, agents, attorneys, personal
representatives, successors or assigns .
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H. The School District for itself and its successors,
assigns and grantees, hereby covenants and agrees that in
consideration of this Agreement, neither the School District nor
its successors or assigns shall directly or indirectly sue the City
or City' s officials, officers, employees, agents, attorneys,
personal representatives, successors or assigns for any claims with
respect to, or arising out of any Environmental Condition (as
hereinafter defined) or any other condition of, or situation
existing with respect to the Real Estate or any Environmental Law
(as hereinafter defined) . The covenant and agreement of the School
District as set forth in the preceding sentence shall hereinafter
be called the "Covenant Not to Sue" . The parties hereto understand
and agree that School District' s Covenant Not to Sue the City as
stated herein does not apply to any action taken by the School
District to enforce any contractual obligations of the City as may
be specifically set forth in this Agreement and does not constitute
an indemnity agreement between the parties and that the City
retains any liability it may have for claims brought by third
parties including but not limited to any governmental agencies,
provided, however, that the School District agrees not to assign
any claims against the City or City' s officials, officers,
employees, agents, attorneys, personal representatives, successors
and assigns to any third parties .
I . "Environmental Condition" shall mean any condition
or situations existing on, under, at or about the Real Estate, the
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groundwater, subsurface water, and/or the underground soil and
geologic conditions thereunder, as of the date of the execution of
this Agreement which (i) constitutes a violation of any State of
Illinois or federal environmental law, regulation or ordinance
and/or (ii) which does or might form the basis of any public or
private claim or cause of action for the cleanup or remediation as
a result of the release, threatened release, migration or the
existence of any contaminants, pollutants, petroleum and petroleum
byproducts, crude oil or any fraction thereof, chemicals, wastes or
substance (including, without limitation, regulated substances and
hazardous wastes and hazardous substances as such terms are
commonly used and understood within the framework of existing
federal and Illinois environmental laws and regulations) and/or
(iii) are a release or a threat of release of hazardous substances
or hazardous waste, and/or (iv) are described or included in any
report of the Real Estate .
J. "Real Estate" shall mean the Park Parcel described
in this Agreement, any and all improvements thereon, and the soils,
subsoils, geologic formations and groundwater on and under such
property.
K. "Environmental Law" shall mean any federal or state
law, statute, regulation, rule, order, decree, judgment or
direction concerning environmental protection or health and safety
including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 , as amended, the
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Resource, Conservation and Recovery Act , as amended, the Toxic
Substances Control Act, as amended, and the Illinois Environmental
Protection Act, as amended.
L. The provisions of Subparagraphs 2E through L shall
be deemed remade as of the Closing and shall survive the Closing
and shall not be merged into the closing documents .
3 . MIDDLE SCHOOL FACILITY. It is understood and agreed that
the City is conveying the Park Parcel to the School District for
the purpose of the School District constructing the Prairie Knolls
Middle School Facility on the Park Parcel and the School District' s
adjacent School District Parcel . In the event the School District
discontinues the use of the School District Parcel as a school as
evidenced by the sale of such School District Parcel to a third
party for a non-school use, the School District shall within thirty
(30) days of the written request of the City reconvey back to the
City title to the Park Parcel . Such reconveyance shall be made by
recordable quit claim deed subject to the same matters relating to
title as existed in the conveyance of such Park Parcel from the
City to the School District . The provisions of this Section 3
shall be deemed remade as of the Closing and shall survive the
Closing and shall not be merged into the closing documents .
4 . ATHLETIC FIELDS . The School District agrees to allow for
public use of the athletic fields constructed or to be constructed
by the School District on the Park Parcel . Such public use of such
athletic fields shall be as reasonably determined by the School
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District under similar terms and conditions as the School District
requires and provides for in conjunction with public use of other
School District athletic fields and facilities .
5 . JOINT USE AGREEMENT FOR PARK IMPROVEMENTS AND GYMNASIUM
FACILITIES AT THE PRAIRIE KNOLLS MIDDLE SCHOOL, THE PRAIRIE VIEW
ELEMENTARY SCHOOL AND THE COUNTRY TRAILS ELEMENTARY SCHOOL. At
Closing, the School District and the City shall further enter into
the joint use agreements for the facilities at the Prairie Knolls
Middle School , the Prairie View Elementary School and the Country
Trails Elementary School providing for the City' s use of such
facilities . The form of such joint use agreement shall be in the
form set forth in Exhibits F, G and H hereto.
6 . CONVEYANCE OF THE PINGREE CREEK PARCEL. The School
District hereby assigns to the City any and all rights it may have
to receive the conveyance of the Pingree Creek Parcel it being
agreed and understood that the Pingree Creek Parcel shall not be
conveyed to the School District but instead shall be conveyed to
the City.
7 . MISCELLANEOUS .
A. The parties agree to do all things necessary and
appropriate to carry out the terms and provisions of this Agreement
and to aid and assist each other in furthering the objectives of
this Agreement and the intent of the parties as reflected by the
terms of this Agreement, including, without limitation, the giving
of such notices, the holdings of such hearings, the enactment by
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the parties of such resolutions and ordinances, the execution of
such permits, applications and agreements and the taking of such
other actions as may be necessary to enable the parties compliance
with the terms and provisions of this Agreement , and as may be
necessary to give effect to the objectives of this Agreement and
the intentions of the parties as reflected by the terms of this
Agreement .
B . This Agreement , including the exhibits attached
hereto, contains the entire agreement and understanding of the
parties hereto with respect to the subject matters as set forth
herein, all prior agreements and understanding having been merged
herein and extinguished hereby, and no other agreement shall be
valid unless in writing and signed by each of the parties hereto.
C. The covenants, agreements, representations and
undertakings of the parties shall not merge into the quit claim
deed delivered by the City to the School District, but shall
expressly survive the recording of deed, grants of easements and
other related documents for an unlimited duration.
D. This Agreement may be executed in counterparts, each
of which shall be considered an original and together shall be one
and the same agreement .
E . The failure by a party to enforce any provision of
this Agreement against the other party shall not be deemed a waiver
of the right to do so thereafter.
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F. This Agreement may be modified or amended only in
writing signed by both parties hereto or their permitted successors
or assigns as the case may be .
G. This Agreement shall be deemed and construed to be a
joint and collective work product of the City and the School
District 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, in the
terms or provisions contained herein.
H. This Agreement is subject to and shall be governed
by 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 .
I . This Agreement shall not be deemed or construed to
create an employment, joint venture, partnership, or other agency
relationship between the parties hereto.
J. All notices or other communications hereunder shall
be made in writing and shall be deemed given if personally
delivered or mailed by registered or certified mail, return receipt
requested, to the parties at the following addresses, or at such
other addresses for a party as shall be specified by like notice,
and shall be deemed received on the date which said notice is hand
delivered or the second business date following the date on which
so mailed:
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TO THE CITY OF ELGIN: TO THE SCHOOL DISTRICT
City of Elgin Central Community Unit
150 Dexter Court School District 301
Elgin, IL 60120-5555 P .O. Box 396
275 South Street
Attention: City Manager Burlington, IL 60109
Attention: Superintendent
With a Copy to : With a Copy to :
Corporation Counsel Anthony Ficarelli
City of Elgin Attorney at Law
150 Dexter Court Hinshaw and Culbertson LLP
Elgin, IL 60120-5555 4343 Commerce Court, Suite 415
Lisle, IL 60532-1099
K. This Agreement shall be binding on the parties
hereto and the respective successors and permitted assigns . This
Agreement and the obligations herein may not be assigned without
the express written consent of each of the parties hereto.
IN WITNESS WHEREOF, the parties have entered into and
executed this Agreement on the date and year first written above .
THE BOARD OF EDUCATION OF
CITY OF ELGIN, an Illinois CENTRAL COMMUNITY UNIT
municipal corporation SCHOOL DISTRICT 301
By By L bw �,
Mayor P
Attest : Attes
City Clerk ecre ry
F:\LegalDept\Agreement\Intergovernmental Agreement-School Dist 301-clean-11-4-08.doc
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EXHIBITS
EXHIBIT A: Legal Description of the School District Parcel
EXHIBIT B : Legal Description of the City Parcel 6
EXHIBIT C : Legal Description of City Shadow Hill Parcel
EXHIBIT D: Legal Description - Park Parcel
EXHIBIT E : Preliminary Plat of Subdivision for Pingree Creek
prepared by Donahue and Thornhill , Inc . dated
January 13 , 2004
EXHIBIT F : Joint Use Agreement for Facilities in the Prairie
Knolls Middle School
EXHIBIT G: Joint Use Agreement for Facilities in the Prairie
View Elementary School
EXHIBIT H: Joint Use Agreement for Facilities in the Country
Trails Elementary School
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EXHIBIT B
Legal Description of the City Parcel 6
Parcel 6 in Remington at Providence, being a subdivision of
part of the South 1/2 of Section 18 and part of the North 1/2 of
Section 19, Township 41 North, Range 8 East of the Third Principal
Meridian, according to the plat thereof recorded November 16, 2004
as Document 2004K148557 , in the City of Elgin, Kane County,
Illinois .
15
EXHIBIT C
Legal Description of the City Shadow Hill Parcel
Parcel 12 in the Shadow Hill Subdivision Unit 3 , being a
subdivision recorded on August 22 , 2005 as Document No.
2005K097818, being a part of the East half of Section 24, Township
41 North, Range 7 East and part of Section 19, Township 41 North,
Range 8 East of the Third Principal Meridian, in the City of
Elgin, Kane County, Illinois .
16
EXHIBIT D
Legal Description of Park Parcel
Parcel 6 in Remington at Providence, being a subdivision of part of
the South 1/2 of Section 18 and part of the North 1/2 of Section
19, Township 41 North, Range 8 East of the Third Principal
Meridian, according to the plat thereof recorded November 16, 2004
as Document 2004K148557 , in the City of Elgin, Kane County,
Illinois .
AND
Parcel 12 in the Shadow Hill Subdivision Unit 3 , being a
subdivision recorded on August 22 , 2005 as Document No.
2005K097818 , being a part of the East half of Section 24 , Township
41 North, Range 7 East and part of Section 19, Township 41 North,
Range 8 East of the Third Principal Meridian, in the City of Elgin,
Kane County, Illinois, excepting therefrom the following described
portion thereof : That part of parcel 12 in Shadow Hill Estates
Unit 3 Subdivision, being a subdivision of part of the East half of
Section 24 , Township 41 North, Range 7 East and part of Section 19,
Township 41 North, Range 8 East of the Third Principal Meridian,
said part of Parcel 12 described as follows : Commencing at the
Northeast corner of Lot 277 in said Subdivision; Thence North 00
Degrees 00 Minutes 10 Seconds East , 66 . 00 feet to the North Right
of Way line of Range Road, said Right of Way line also being the
South line of said Parcel 12 ; Thence South 89 Degrees 59 Minutes 50
Seconds East along said South line of Parcel 12 , a distance of
38 . 70 feet to the Point of Beginning; Thence North 09 Degrees 33
Minutes 07 seconds West, 82 . 30 feet ; Thence North 38 Degrees 01
Minutes 32 Seconds West , 61 . 44 feet ; Thence South 47 Degrees 02
Minutes 35 Seconds West , 82 . 78 feet ; Thence North 42 Degrees 57
Minutes 25 Seconds West, 120 . 00 feet; Thence North 47 degrees 02
Minutes 35 seconds East, 125 . 00 feet ; Thence South 42 Degrees 57
Minutes 25 Seconds East , 91 . 21 feet ; Thence South 29 Degrees 34
Minutes 57 Seconds East, 144 . 80 feet ; Thence South 09 Degrees 11
Minutes 31 seconds East, 54 . 17 feet to the South line of Parcel 12
aforesaid; Thence North 89 degrees 59 Minutes 50 Seconds West,
along the South line of said Parcel 12 and also the North Right of
Way line of said Range Road, a distance of 39 . 91 feet to the point
of beginning, all that part of Parcel 12 aforesaid being in the
city of Elgin and county of Kane, Illinois (said excepted portion
of Parcel 12 containing 20 , 147 square feet or 0 . 462 acres more or
less) .
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EXHIBIT E
Preliminary Plat of Subdivision for Pingree Creek prepared by
Donahue and Thornhill , Inc . dated January 13 , 2004
18
Pingre e Creek
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11-4-08
EXHIBIT F
JOINT USE AGREEMENT
INTERGOVERNMENTAL AGREEMENT FOR THE USE OF CERTAIN SCHOOL
DISTRICT FACILITIES
BY AND BETWEEN THE CITY OF ELGIN AND
THE BOARD OF EDUCATION OF CENTRAL COMMUNITY UNIT
SCHOOL DISTRICT 301
(PRAIRIE KNOLLS MIDDLE SCHOOL)
THIS AGREEMENT made and entered into this ,-tkday of , 2008, by
and between the CITY OF ELGIN, an Illinois municipal corporation, (hereinafter referred to as the
"City"), and THE BOARD OF EDUCATION OF CENTRAL COMMUNITY UNIT SCHOOL
DISTRICT 301,Kane County,Illinois,an Illinois unit of local government and public school district,
(hereinafter referred to as the "School District"),
WITNESSETH
WHEREAS, Article VII, Section 10 of the Constitution of the State of Illinois of 1970
authorizes units of local government to contract or otherwise associate among themselves, and to
exercise, combine or transfer any power or function in a manner not prohibited by law or by
ordinance; and
WHEREAS,the Illinois Intergovernmental Cooperation Act,5 ILCS 220/1,et seq.,provides
inter alia,that"... Any power or powers,privileges or authority exercised or which maybe exercised
by a public agency of this state maybe exercised and enj oyed j ointly with any other public agency of
the state ..."; and
WHEREAS, the City and the School District have concurrently with the entry into this
agreement entered into an intergovernmental agreement dated -t& -� /5 , 2008,providing in
part for the conveyance from the City to the School District of certain City-owned property; and
WHEREAS,the City and the School District have determined that it would be in their
mutual best interests and in the best interests of their respective residents to provide for the City's use
of certain and School District Facilities as herein described; and
WHEREAS, the Subject Intergovernmental Agreement between the City and the School
District provides for the City and School District to enter into this Joint Use Agreement providing
the shared use of the City Property and the School District Property as hereinafter described.
NOW,THEREFORE, for an in consideration of the foregoing and the mutual covenants and
agreements as hereinafter set forth, and for the mutual covenants and agreements as set forth in the
Subject Intergovernmental Agreement between the City and the School District, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City
and the School District agree as follows:
1. Incorporation of Recitals. The foregoing recitals are incorporated herein by reference.
2. School District Facility.
A. Use of School District Facility. The School District Facility being referred to in
this Agreement is the School District gymnasium, the adjacent restroom areas and other areas
necessary for access to such gymnasium and restroom areas at the School District's Prairie Knolls
Middle School located at the property commonly known as 225 Nesler Road, Elgin, Illinois 60124
(such gymnasium, adjacent restrooms and the areas necessary for access to such gymnasium and
restrooms at by the School District is Prairie Knolls Middle School are hereinafter collectively
referred to as the "School District Facility"). Except for the City use of the School District Facility
expressly provided for in this Agreement, it is agreed and understood that the School District Facility
may be used by the School District as School District property. The parties agree that, as except as
otherwise set forth herein, the City shall have exclusive use of the School District Facility during
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non-school hours and at no cost to the City. For the purpose of this section,non-school hours shall
mean:
(1) Mondays through Fridays during the regular school year from 5:00 p.m.to 10:30 p.m.
(ii) Saturdays and Sundays during the regular school year from 9:00 a.m. to 10:30 p.m.
(iii) Holidays when school is not in session during the regular school year from 9:00 a.m.
to 10:30 p.m., including, but not necessarily limited to Thanksgiving, winter and
spring vacations.
(iv) Summer, meaning that period of time during the months of June, July and August,
outside the regular school year, each day from 9:00 a.m. to 10:30 p.m., excepting
time periods for scheduled maintenance and cleaning. Scheduled maintenance and
cleaning shall be designated by the School District in writing. Notice of such
designation shall be delivered to the City at least thirty(30) days prior to the end of
each school term.
It is understood and agreed that the needs of the School District may require the use of the
School District Facility during non-school hours on certain days throughout the calendar year for
special events, such as parent teacher conferences, holiday programs and PTA fund raising events.
Prior to the start of each school year, not later than June 30 of each year, the City and the School
District shall designate in writing one week day evening per week and one full weekend per school
quarter, during the school year, for school programs or activities.
It is further understood and agreed that there may be occasions when the School District may
require uses of the School District Facility during non-school hours assigned to the City in order to
accommodate special events as the need arises. Therefore, upon a minimum of fourteen (14) days
written notice, the School District may request a modification of the City's use schedule set forth
above. The City agrees not to unreasonably withhold consent for such a request to the modification
of the City's use schedule provided that the School District's use of the School District Facility will
not conflict with or disrupt City activities as reasonably determined by the City.
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It is further understood and agreed that there may be occasions when the City may require
uses of the School District Facility during non-school hours assigned to the School District in order
to accommodate special events as the need arises. Therefore,upon a minimum of fourteen(14)days
notice, the City may request a modification of the City use schedule set forth above. The School
District agrees not to unreasonably withhold consent to such a request for a modification of the use
City's use schedule provided that the City use of the School District Facility will not conflict with or
disrupt School District activities as reasonably determined by the School District.
The City agrees that it shall use the School District Facility solely for recreational activities
which it is properly and lawfully authorized to sponsor. Such recreational activities shall not include
baseball. The City agrees to require users of the School District Facility to abide by the School
District's no smoking and no alcohol policies.
In all instances where all of the School District's facilities are closed for emergency reasons
(e.g. snow or extreme cold), the School District Facility shall not be used by the City on that day.
B. City Supervision of Activities in School District Facility. The City shall be solely
responsible for providing adequate and qualified supervision for all its activities occurring in the
School District Facility consistent with all state laws. This provision shall be construed solely for the
benefit of the contracting parties and shall not impose any duty or supervision or constitute a waiver
of any tort defense available to the City under law.
C. Maintenance of School District Facility. School District shall be responsible at its
cost for providing maintenance of the School District Facility. However, the City shall keep the
School District Facility free of debris and litter associated with the City's use of the School District
Facility. Further, the City shall be responsible for extraordinary maintenance costs for the School
District Facility that are directly attributable to City's use of the School District Facility and
4
extraordinary maintenance costs associated with special activities of the City, such as publicly
attended athletic events or tournaments.
D. Use of equipment in School District Facility. The School District agrees that the
items of recreation equipment owned by the School District including such items as volleyball
equipment and basketball equipment and located in the School District Facility may be utilized by
the City. If damage occurs to any such equipment and said damage arises as a direct result of the
City's use,then the City shall reimburse the School District for its costs to make necessary repairs or
replacement to such equipment, normal wear and tear excepted. Any request for reimbursement by
the School District in this regard shall include a complete itemization of all damages sustained and
costs incurred to repair or replace the equipment,including statements and/or bills for materials and
services and should be sent within thirty(30) days after the discovery of the damage or loss. The
School District makes no warranty or representation about the condition of any equipment located in
the School District facility now or at any time during the term of this Agreement. Each party further
covenants and agrees to indemnify and hold the other party harmless from any injury or loss
emanating from the use of such equipment by the other party or any individual using such equipment
in connection with a program or activity of such party.
E. Utility and Custodial Costs. The School District agrees to provide at its cost
reasonably required heating,cooling and electrical services during those times that the City uses the
School District Facility. The School District agrees to provide at its cost to the City reasonably
required custodial and/or night cleaning services with the quality of maintenance equal to ongoing
school custodial and/or night cleaning services during the timeframe that the City uses the facility.
The City shall pay any additional cost including regular and overtime compensation for custodial
and/or night cleaning during weekends, holidays and summer uses when a custodian and/or night
cleaner is required solely due to a City sponsored activity and is not assigned to regular duty.
5
F. Insurance and Indemnification.
i. School District Liability and Insurance. The School District shall, at its sole cost
and expense,purchase and maintain liability insurance covering its ownership,maintenance and use
of the School District Facility including,without limitation, its required maintenance of the School
District Facility and any equipment located thereon,in the amount of$3,000,000.00 and shall list the
City as an additional insured. For this purpose, it shall be acceptable for the School District to
provide the necessary coverage through the School District's self-insurance program, an
intergovernmental risk management pool or other methods. The School District shall protect,
defend, indemnify and hold harmless the City, its City Council members, officers and employees,
from and against any and all claims, actions, damages, liability and expenses, including attorney's
fees, in connection with or occasioned by any act or omission arising from or out of any School
District ownership, maintenance, use or occupancy of the School District Facility; provided,
however,that the School District shall not be liable for any loss,damage or injury of any kind to any
person or property which: (1)arises primarily from City's own use of the School District Facility;(ii)
is caused by or arises from any act or omission of the City or any of its agents, officers,
representatives, contractors, employees, licensees or invitees; (iii) is brought by or on behalf of the
City's agents,officers,representatives,contractors, employees,licensees or invitees.If the City shall
remain a party to any litigation,for which the School District is obligated to indemnify the City,then
the School District shall protect and hold the City harmless and shall pay all costs, expenses and
reasonable attorneys' fees incurred or paid by the City in connection with the defense of such
litigation. The City may,at its option,require the School District to assume the City's defense in any
action covered by this Section,through counsel reasonably approved by the City. At least annually,
on or before April 30th of each year, the School District shall provide the City with evidence
6
satisfactory to the City that it has in effect all policies of insurance or coverage required to be
purchased or provided hereunder, including satisfactory evidence that all premiums thereon have
been paid.
ii. City Liability and Insurance. The City shall,at its sole cost and expense,purchase
liability insurance covering its activities on the School District Facility, in the amount of
$3,000,000.00 and shall list the School District as an additional insured.For this purpose,it shall be
acceptable for the City to provide the necessary coverage through the City's self-insurance program,
an intergovernmental risk management pool or other methods. The City shall protect, defend,
indemnify and hold harmless the School District, its Board members, officers and employees, from
and against any and all claims,actions,damages,liability and expenses,including attorneys' fees,in
connection with or occasioned by any act or omission arising from or out of any City use,
maintenance or occupancy of the School District Facility;provided,however,that the City shall not
be liable for any loss, damage or injury of any kind to any person or property which (i) arises
primarily from School District's use of any portion of the School District Facility;(ii)is caused by or
arises from any act or omission of the School District, or any of its agents, officers,representatives,
contractors, employees, licensees or invitees; (iii)is brought by or on behalf of the School District's
agents, officers, representative, contractors, employees, licensees or invitees. If the School District
shall remain a party to any litigation for which the City is obligated to indemnify the School District,
then the City shall protect and hold the School District harmless and shall pay all costs,expenses and
reasonable attorneys' fees incurred or paid by the School District in connection with the defense of
such litigation. The School District may, at its option, require the City to assume the School
District's defense in any action covered by this Section,through counsel reasonably approved by the
School District. At least annually, on or before June 30th of each year, the City shall supply the
7
School District with evidence satisfactory to the School District that it has in effect all policies of
insurance or coverage required to be purchased or provided hereunder, including satisfactory
evidence that all premiums thereon have been paid.
3. Local Governmental and Governmental Employees Tort Immunity Act. The parties
agree that nothing herein is intended or shall be construed as altering, limiting or waiving the
provisions of the Local Governmental And Governmental Employees Tort Immunity Act(745 IILCS
10/1-101, et seq., as amended), or such other immunities provided by law, it being agreed that the
provisions thereof or such other immunities provided by law, shall apply to the fullest extent
permitted by law to the School District Facility,including,without limitation,the use,maintenance
and/or repair of the School District Facility and/or the improvements thereon and/or the supervision
of any activities on the School District Facility.
4. Notices. Any and all notices required hereunder to be sent to the School District shall
be served in writing to the Superintendent of Schools at the following address:
TO THE SCHOOL DISTRICT:
Central Community Unit
P.O. Box 396
275 South Street
Burlington, IL 60109
Attention: Superintendent
With a Copy to:
Anthony Ficarelli
Attorney at Law
Hinshaw and Culbertson LLP
4343 Commerce Court, Suite 415
Lisle, IL 60532-1099
or by personal delivery of any such notice to the Administrative Offices of the City during its regular
business hours.
Any and all notices required hereunder to be sent to the City shall be served in writing to the
8
City Clerk at the following address:
TO THE CITY AT:
Office of the City Manager
City of Elgin
150 Dexter Court
Elgin, IL 60120
Phone: 847-931-5590
Fax: 847-9331-5610
And a copy to:
Corporation Counsel
City of Elgin
150 Dexter Court
Elgin, IL 60120
Phone: 847-931-5655
Fax: 847-931-5665
All mailed notices shall be deemed effective four (4) days following their deposit in the United
States mail, by certified mail postage prepaid, to the addressee. Service may also be made by
facsimile with a copy being mailed by regular mail or by a nationally recognized overnight courier
service(e.g.,FedEx),where receipt shall be deemed to be the next business day after placement with
the overnight courier.
5. Savings Clause. It is mutually understood and agreed that all agreements and
covenants herein are severable and that in the event any of them shall be held to be invalid by any
court of competent jurisdiction, this Agreement shall be interpreted as if such invalid agreement or
covenant was not contained herein.
6. Default. In the event that either the School District or the City defaults in faithfully
performing its obligations hereunder,the non-defaulting party must give notice to the other party of
such default in writing. In the event that such default continues for a period of twenty-one(2 1)days
following service of the notice, without correction, the non-defaulting party may take such legal or
equitable action as may be available to remedy the default.
9
7. Term. This Agreement shall commence on the date this Agreement is executed and
shall end on the twenty-fifth(25th) anniversary thereof During the twenty-fifth(25th)year, if one
party serves notice upon the other, the parties shall engage in good faith discussions concerning
whether or not this Agreement should be extended,and upon what additional terms or conditions,if
any. The parties may elect to renew this Agreement in its current or a modified form on such terms
as they shall find agreeable. In the event that the parties fail to enter into negotiations for an
extension of this Agreement, it will renew on a year-to-year basis thereafter unless either party
provides written notice of termination no less than 180 days prior to the end of the term of the
Agreement or any renewal thereof. Notwithstanding the foregoing or anything to the contrary in this
Agreement, in the event the School District, in the School District's sole and exclusive discretion,
discontinues the use of the School District's Prairie Knolls Middle School as a school as evidenced
by the sale of such middle School District property to a third party for a non-school use, this Joint
Use Agreement shall automatically terminate and be null and void without further action of the
parties hereto. However,the parties agree that all obligations, commitments, expenses and/or costs
will be due and owing under the Joint Use Agreement up to the date of termination.
8. Benefits Solely to the Parties. This Agreement is intended solely for the benefit of the
parties hereto, and nothing herein shall be construed, either expressly or impliedly,to extend rights
or obligations in favor of any other person.
9. Modification. The agreement,covenants,terms and conditions contained herein may
be modified only through the written mutual consent of the parties hereto after approval by their
respective governing boards.
10. Assignment. Neither party may assign, transfer or otherwise convey its rights or
obligations under this Agreement without the prior written consent of the other party,which may be
10
withheld in the consenting party's sole discretion.
11. Counterparts. This Agreement may be executed in separate counterparts. It shall be
fully executed when each party whose signature is required has signed at least one counterpart,even
though no one counterpart contains the signature of all parties.
12. Construction. This Agreement is and shall be deemed to be construed as a joint and
collective work product of the City and the School District 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.
13. Miscellaneous. This Agreement is not intended and shall not be construed so as to
create a partnership,joint venture, employment or other agency relationship between the parties
hereto. 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.
SIGNATURE PAGE FOLLOWS
11
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and
year first above written.
CITY OF ELGIN, a municipal THE BOARD OF EDUCATION OF CENTRAL
corporation COMMUNITY UNIT SCHOOL DISTRICT 301
an Illinois unit of local government and public
school district
By By l_U_Lkj_j.
Mayor Its President
Attest: Attest:
City Clerk S cretary
FALegal Dept\Agreement\School District 301-Exhibit F-JointUse-lntgovAgr-Prairie Knolls-clean-11-4-08.doc
12
11-4-08
EXHIBIT G
JOINT USE AGREEMENT
INTERGOVERNMENTAL AGREEMENT FOR THE USE OF CERTAIN SCHOOL
DISTRICT FACILITIES BY AND BETWEEN THE CITY OF ELGIN AND
THE BOARD OF EDUCATION OF CENTRAL COMMUNITY UNIT
SCHOOL DISTRICT 301
(PRAIRIE VIEW ELEMENTARY SCHOOL)
THIS AGREEMENT made and entered into this day of .�� , 2008, by
and between the CITY OF ELGIN, an Illinois municipal corporation, (hereinafter referred to as the
"City"), and THE BOARD OF EDUCATION OF CENTRAL COMMUNITY UNIT SCHOOL
DISTRICT 301,Kane County,Illinois,an Illinois unit of local government and public school district,
(hereinafter referred to as the "School District").
WITNESSETH
WHEREAS, Article VII, Section 10 of the Constitution of the State of Illinois of 1970
authorizes units of local government to contract or otherwise associate among themselves, and to
exercise, combine or transfer any power or function in a manner not prohibited by law or by
ordinance; and
WHEREAS,the Illinois Intergovernmental Cooperation Act,5 ILCS 220/1,et seq.,provides
inter alia,that"... Any power or powers,privileges or authority exercised or which may be exercised
by a public agency of this state may be exercised and enjoyed jointly with any other public agency of
the state ..."; and
WHEREAS, the City and the School District have concurrently with the entry into this
agreement entered into an intergovernmental agreement dated _D-1,Q_kyv\L4d 6,2008,providing in
part for the conveyance from the City to the School District of certain City-owned property; and
WHEREAS,the City and the School District have determined that it would be in their mutual
best interests and in the best interests of their respective residents to provide for the City's use of
certain School District facilities as herein described; and
WHEREAS, the Subject Intergovernmental Agreement between the City and the School
District provides for the City and School District to enter into this Joint Use Agreement providing
the City's use of the School District Facilities as hereinafter described.
NOW,THEREFORE, for an in consideration of the foregoing and the mutual covenants and
agreements as hereinafter set forth, and for the mutual covenants and agreements as set forth in the
Subject Intergovernmental Agreement between the City and the School District, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City
and the School District agree as follows:
1. Incorporation of Recitals. The foregoing recitals are incorporated herein by reference.
2. School District Facility.
A. Use of School District Facility. The School District Facility being referred to in
this Agreement is the multi-use room,gymnasium,kitchen,storage area,the adjacent restroom areas
and the playground at the School District's Prairie View Elementary School located at the property
commonly known as ION630 Nesler Road, Elgin, Illinois (such multi-use room, gymnasium,
kitchen, storage area, adjacent restrooms, playground and the areas necessary for access to such
multi-use room,gymnasium,kitchen, storage area,restrooms and playground at the School District's
Prairie View Elementary School are hereinafter collectively referred to as the "School District
Facility"). Except for the City use of the School District Facility expressly provided for in this
Agreement, it is agreed and understood that the School District Facility may be used by the School
District as School District property. The parties agree that, as except as otherwise set forth herein,
2
the City shall have exclusive use of the School District Facility during non-school hours as defined
herein and at no cost to the City. For the purpose of this section, non-school hours shall mean:
(i) During the regular school year,Mondays through Fridays from 7:00 a.m.to 9:00 a.m.
and 3:00 p.m. to 6:00 p.m. (but not including the kitchen).
(ii) Summer, meaning that period of time during the months of June, July and August,
outside the regular school year, Mondays through Fridays from 7:00 a.m. to 6:00
p.m., excepting time periods for scheduled maintenance and cleaning. Scheduled
maintenance and cleaning shall be designated by the School District in writing.
Notice of such designation shall be delivered to the City at least thirty(30)days prior
to the end of each school term.
It is understood and agreed that the needs of the School District may require the use of the
School District Facility during non-school hours on certain days throughout the calendar year for
special events, such as parent teacher conferences, holiday programs and PTA fund raising events.
Prior to the start of each school year, not later than June 30 of each year, the City and the School
District shall designate in writing one week day evening per week and one full weekend per school
quarter, during the school year, for school programs or activities.
It is further understood and agreed that there may be occasions when the School District may
require uses of the School District Facility during non-school hours assigned to the City in order to
accommodate special events as the need arises. Therefore, upon a minimum of fourteen(14) days
written notice, the School District may request a modification of the City's use schedule set forth
above. The City agrees not to unreasonably withhold consent for such a request to the modification
of the City's use schedule provided that the School District's use of the School District Property will
not conflict with or disrupt City activities as reasonably determined by the City.
It is further understood and agreed that there may be occasions when the City may require
uses of the School District Facility during non-school hours assigned to the School District in order
to accommodate special events as the need arises. Therefore,upon a minimum of fourteen(14)days
notice, the City may request a modification of the City use schedule set forth above. The School
3
District agrees not to unreasonably withhold consent to such a request for a modification of the use
City's use schedule provided that the City use of the School District Property will not conflict with or
disrupt School District activities as reasonably determined by the School District.
The City agrees that it shall use the School District Facility solely for recreational activities
which it is properly and lawfully authorized to sponsor. Such recreational activities shall not include
indoor baseball. The City agrees to require users of the School District Facility to abide by the
School District's no smoking and no alcohol policies.
In all instances where all of the School District's facilities are closed for emergency reasons
(e.g. snow or extreme cold), the School District Facility shall not be used by the City on that day.
B. City Supervision of Activities in School District Facility. The City shall be solely
responsible for providing adequate and qualified supervision for all its activities occurring in the
School District Facility consistent with all state laws. This provision shall be construed solely for the
benefit of the contracting parties and shall not impose any duty or supervision or constitute a waiver
of any tort defense available to the City under law.
C. Maintenance of School District Facility. School District shall be responsible at its
cost for providing maintenance of the School District Facility. However, the City shall keep the
School District Facility free of debris and litter associated with the City's use of the School District
Facility. Further, the City shall be responsible for extraordinary maintenance costs for the School
District Facility that are directly attributable to City's use of the School District Facility and
extraordinary maintenance costs associated with special activities of the City, such as publicly
attended athletic events or tournaments.
D. Use of equipment in School District facility. The School District agrees that the
items of recreation equipment owned by the School District including such items as volleyball
equipment and basketball equipment and located in the School District Facility may be utilized by
4
the City. If damage occurs to any such equipment and said damage arises as a direct result of the
City's use,then the City shall reimburse the School District for its costs to make necessary repairs or
replacement to such equipment,normal wear and tear excepted. Any request for reimbursement by
the School District in this regard shall include a complete itemization of all damages sustained and
costs incurred to repair or replace the equipment,including statements and/or bills for materials and
services and should be sent within thirty (30) days after the discovery of the damage or loss. The
School District makes no warranty or representation about the condition of any equipment located in
the School District facility now or at any time during the term of this Agreement. Each party further
covenants and agrees to indemnify and hold the other party harmless from any injury or loss
emanating from the use of such equipment by the other party or any individual using such equipment
in connection with a program or activity of such party.
E. Utility and Custodial Costs. The School District agrees to provide at its cost
reasonably required heating,cooling and electrical services during those times that the City uses the
School District Facility. The School District agrees to provide at its cost to the City reasonably
required custodial and/or night cleaning services with the quality of maintenance equal to ongoing
school custodial and/or night cleaning services during the timeframe that the City uses the facility.
The City shall pay any additional cost including regular and overtime compensation for custodial
and/or night cleaning during weekends, holidays and summer uses when a custodian and/or night
cleaner is required solely due to a City sponsored activity and is not assigned to regular duty.
F. Insurance and Indemnification.
i. School District Liability and Insurance. The School District shall, at its sole cost
and expense,purchase and maintain liability insurance covering its ownership,maintenance and use
of the School District Facility including,without limitation, its required maintenance of the School
5
District Facility and any equipment located thereon,in the amount of$3,000,000.00 and shall list the
City as an additional insured. For this purpose, it shall be acceptable for the School District to
provide the necessary coverage through the School District's self-insurance program, an
intergovernmental risk management pool or other methods. The School District shall protect,
defend, indemnify and hold harmless the City, its City Council members, officers and employees,
from and against any and all claims, actions, damages, liability and expenses, including attorney's
fees, in connection with or occasioned by any act or omission arising from or out of any School
District ownership, maintenance, use or occupancy of the School District Facility; provided,
however,that the School District shall not be liable for any loss,damage or injury of any kind to any
person or property which: (i)arises primarily from City's own use of the School District Facility;(ii)
is caused by or arises from any act or omission of the City or any of its agents, officers,
representatives, contractors, employees, licensees or invitees; (iii) is brought by or on behalf of the
City's agents,officers,representatives,contractors,employees,licensees or invitees.If the City shall
remain a party to any litigation, for which the School District is obligated to indemnify the City,then
the School District shall protect and hold the City harmless and shall pay all costs, expenses and
reasonable attorneys' fees incurred or paid by the City in connection with the defense of such
litigation. The City may,at its option,require the School District to assume the City's defense in any
action covered by this Section,through counsel reasonably approved by the City. At least annually,
on or before April 30th of each year, the School District shall provide the City with evidence
satisfactory to the City that it has in effect all policies of insurance or coverage required to be
purchased or provided hereunder, including satisfactory evidence that all premiums thereon have
been paid.
ii. City Liability and Insurance. The City shall,at its sole cost and expense,purchase
6
liability insurance covering its activities on the School District Facility, in the amount of
$3,000,000.00 and shall list the School District as an additional insured.For this purpose,it shall be
acceptable for the City to provide the necessary coverage through the City's self-insurance program,
an intergovernmental risk management pool or other methods. The City shall protect, defend,
indemnify and hold harmless the School District, its Board members, officers and employees, from
and against any and all claims, actions,damages,liability and expenses,including attorneys' fees,in
connection with or occasioned by any act or omission arising from or out of any City use,
maintenance or occupancy of the School District Facility;provided,however,that the City shall not
be liable for any loss, damage or injury of any kind to any person or property which (i) arises
primarily from School District's use of any portion of the School District Facility;(ii)is caused by or
arises from any act or omission of the School District, or any of its agents, officers,representatives,
contractors, employees, licensees or invitees; (iii)is brought by or on behalf of the School District's
agents, officers, representative, contractors, employees, licensees or invitees. If the School District
shall remain a party to any litigation for which the City is obligated to indemnify the School District,
then the City shall protect and hold the School District harmless and shall pay all costs,expenses and
reasonable attorneys' fees incurred or paid by the School District in connection with the defense of
such litigation. The School District may, at its option, require the City to assume the School
District's defense in any action covered by this Section,through counsel reasonably approved by the
School District. At least annually, on or before June 30th of each year, the City shall supply the
School District with evidence satisfactory to the School District that it has in effect all policies of
insurance or coverage required to be purchased or provided hereunder, including satisfactory
evidence that all premiums thereon have been paid.
3. Local Governmental and Governmental Employees Tort Immunity Act. The parties
7
agree that nothing herein is intended or shall be construed as altering, limiting or waiving the
provisions of the Local Governmental And Governmental Employees Tort Immunity Act(745 ILCS
10/1-101, et seq., as amended), or such other immunities provided by law, it being agreed that the
provisions thereof or such other immunities provided by law, shall apply to the fullest extent
permitted by law to the School District Facility,including,without limitation,the use,maintenance
and/or repair of the School District Facility and/or the improvements thereon and/or the supervision
of any activities on the School District Facility.
4. Notices. Any and all notices required hereunder to be sent to the School District shall
be served in writing to the Superintendent of Schools at the following address:
TO THE SCHOOL DISTRICT:
Central Community Unit
P.O. Box 396
275 South Street
Burlington, IL 60109
Attention: Superintendent
With a copy to:
Anthony Ficarelli
Attorney at Law
Hinshaw and Culbertson LLP
4343 Commerce Court, Suite 415
Lisle, IL 60532-1099
or by personal delivery of any such notice to the Administrative Offices of the City during its regular
business hours.
Any and all notices required hereunder to be sent to the City shall be served in writing to the
City Clerk at the following address:
TO THE CITY AT:
Office of the City Manager
City of Elgin
150 Dexter Court
Elgin, IL 60120
8
Phone: 847-931-5590
Fax: 847-931-5610
And a copy to:
Corporation Counsel
City of Elgin
150 Dexter Court
Elgin, IL 60120
Phone: 847-931-5655
Fax: 847-931-5665
All mailed notices shall be deemed effective four (4) days following their deposit in the United
States mail, by certified mail postage prepaid, to the addressee. Service may also be made by
facsimile with a copy being mailed by regular mail or by a nationally recognized overnight courier
service(e.g.,FedEx),where receipt shall be deemed to be the next business day after placement with
the overnight courier.
5. Savings Clause. It is mutually understood and agreed that all agreements and
covenants herein are severable and that in the event any of them shall be held to be invalid by any
court of competent jurisdiction,this Agreement shall be interpreted as if such invalid agreement or
covenant was not contained herein.
6. Default. In the event that either the School District or the City defaults in faithfully
performing its obligations hereunder,the non-defaulting party must give notice to the other party of
such default in writing. In the event that such default continues for a period of twenty-one(2 1)days
following service of the notice,without correction, the non-defaulting party may take such legal or
equitable action as may be available to remedy the default.
7. Term. This Agreement shall commence on the date this Agreement is executed and
shall end on the twenty-fifth(25th) anniversary thereof. During the twenty-fifth(25th)year,if one
party serves notice upon the other, the parties shall engage in good faith discussions concerning
whether or not this Agreement should be extended, and upon what additional terms or conditions,if
9
any. The parties may elect to renew this Agreement in its current or a modified form on such terms
as they shall find agreeable. In the event that the parties fail to enter into negotiations for an
extension of this Agreement, it will renew on a year-to-year basis thereafter unless either party
provides written notice of termination no less than 180 days prior to the end of the term of the
Agreement or any renewal thereof. Notwithstanding the foregoing or anything to the contrary in this
Agreement, in the event the School District, in the School District's sole and exclusive discretion,
discontinues the use of the School District's school facility as a school as evidenced by the sale of
such middle School District property to a third party for a non-school use,this Joint Use Agreement
shall automatically terminate and be null and void without further action of the parties hereto.
However,the parties agree that all obligations,commitments,expenses and/or costs will be due and
owing under the Joint Use Agreement up to the date of termination.
8. Benefits Solely to the Parties. This Agreement is intended solely for the benefit of the
parties hereto, and nothing herein shall be construed, either expressly or impliedly,to extend rights
or obligations in favor of any other person.
9. Modification. The agreement,covenants,terms and conditions contained herein may
be modified only through the written mutual consent of the parties hereto after approval by their
respective governing boards.
10. Assi_nment. Neither party may assign, transfer or otherwise convey its rights or
obligations under this Agreement without the prior written consent of the other party,which may be
withheld in the consenting party's sole discretion.
11. Counterparts. This Agreement may be executed in separate counterparts. It shall be
fully executed when each party whose signature is required has signed at least one counterpart,even
though no one counterpart contains the signature of all parties.
10
12. Construction. This Agreement is and shall be deemed to be construed as a joint and
collective work product of the City and the School District 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.
13. Miscellaneous. This Agreement is not intended and shall not be construed so as to
create a partnership, joint venture, employment or other agency relationship between the parties
hereto. 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.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and
year first above written.
CITY OF ELGIN, a municipal THE BOARD OF EDUCATION OF CENTRAL
corporation COMMUNITY UNIT SCHOOL DISTRICT 301
an Illinois unit of local government and public
school district
By By
Mayor Its President
Attest: Attest:
City Clerk ec tary
FALegal Dept\Agreement\School District 301-Exhibit G-JointUse-IntgovAgr-Prairie View School-clean-I 1-4-08.doc
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11-4-08
EXHIBIT H
JOINT USE AGREEMENT
INTERGOVERNMENTAL AGREEMENT FOR THE USE OF CERTAIN SCHOOL
DISTRICT FACILITIES BY AND BETWEEN THE CITY OF ELGIN AND THE BOARD OF
EDUCATION OF CENTRAL COMMUNITY UNIT SCHOOL DISTRICT 301
(COUNTRY TRAILS ELEMENTARY SCHOOL)
THIS AGREEMENT made and entered into this /5'"day of , 2008, by
and between the CITY OF ELGIN, an Illinois municipal corporation, (hereinafter referred to as the
"City"), and THE BOARD OF EDUCATION OF CENTRAL COMMUNITY UNIT SCHOOL
DISTRICT 301,Kane County,Illinois,an Illinois unit of local government and public school district,
(hereinafter referred to as the "School District").
WITNESSETH
WHEREAS, Article VII, Section 10 of the Constitution of the State of Illinois of 1970
authorizes units of local government to contract or otherwise associate among themselves, and to
exercise, combine or transfer any power or function in a manner not prohibited by law or by
ordinance; and
WHEREAS,the Illinois Intergovernmental Cooperation Act,5 ILCS 220/1,et seq.,provides
inter alia,that"... Any power or powers,privileges or authority exercised or which may be exercised
by a public agency of this state may be exercised and enjoyed jointly with any other public agency of
the state ..."; and
WHEREAS, the City and the School District have concurrently with the entry into this
agreement entered into an intergovernmental agreement dated 1j'�, 2008,providing in
part for the conveyance from the City to the School District of certain City-owned property; and
WHEREAS,the City and the School District have determined that it would be in their mutual
best interests and in the best interests of their respective residents to provide for the City's use of
certain School District facilities as herein described; and
WHEREAS, the Subject Intergovernmental Agreement between the City and the School
District provides for the City and School District to enter into this Joint Use Agreement providing
the City's use of the School District facilities as hereinafter described.
NOW,THEREFORE,for an in consideration of the foregoing and the mutual covenants and
agreements as hereinafter set forth, and for the mutual covenants and agreements as set forth in the
Subject Intergovernmental Agreement between the City and the School District,and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City
and the School District agree as follows:
1. Incorporation of Recitals. The foregoing recitals are incorporated herein by reference.
2. School District Facility.
A. Use of School District Facility. The School District Facility being referred to in
this Agreement is the multi-use room,gymnasium,classroom,storage area and the adjacent restroom
areas at the School District's Country Trails Elementary School located at the property commonly
known as 3701 Highland Woods Boulevard,Elgin,Illinois 60124(such multi-use room,gymnasium,
classroom,storage area,and adjacent restrooms,and the areas necessary for access to such multi-use
room, gymnasium, classroom, storage area and restrooms at the School District's Country Trails
Elementary School are hereinafter collectively referred to as the"School District Facility"). Except
for the City use of the School District Facility expressly provided for in this Agreement,it is agreed
and understood that the School District Facility may be used by the School District as School District
property. The parties agree that, as except as otherwise set forth herein,the City shall have exclusive
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use of the School District Facility during non-school hours as defined herein and at no cost to the
City. For the purpose of this section, non-school hours shall mean:
(i) During the school year for the classroom or multiuse room along with associated
storage area and restrooms Monday through Friday 3:00 p.m. to 6:00 p.m.
(ii) During the school year for the gymnasium and classroom along with associated
storage area and restrooms Monday through Friday 6:00 p.m. to 10:00 p.m.
It is understood and agreed that the needs of the School District may require the use of the
School District Facility during non-school hours on certain days throughout the calendar year for
special events, such as parent teacher conferences,holiday programs and PTA fund raising events.
Prior to the start of each school year, not later than June 30 of each year, the City and the School
District shall designate in writing one week day evening per week and one full weekend per school
quarter, during the school year, for school programs or activities.
It is further understood and agreed that there maybe occasions when the School District may
require uses of the School District Facility during non-school hours assigned to the City in order to
accommodate special events as the need arises. Therefore, upon a minimum of fourteen(14) days
written notice, the School District may request a modification of the City's use schedule set forth
above. The City agrees not to unreasonably withhold consent for such a request to the modification
of the City's use schedule provided that the School District's use of the School District Property will
not conflict with or disrupt City activities as reasonably determined by the City.
It is further understood and agreed that there may be occasions when the City may require
uses of the School District Facility during non-school hours assigned to the School District in order
to accommodate special events as the need arises. Therefore,upon a minimum of fourteen(14)days
notice, the City may request a modification of the City use schedule set forth above. The School
District agrees not to unreasonably withhold consent to such a request for a modification of the use
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City's use schedule provided that the City use of the School District Property will not conflict with or
disrupt School District activities as reasonably determined by the School District.
The City agrees that it shall use the School District Facility solely for recreational activities
which it is properly and lawfully authorized to sponsor. Such recreational activities shall not include
indoor baseball. The City agrees to require users of the School District Facility to abide by the
School District's no smoking and no alcohol policies.
In all instances where all of the School District's facilities are closed for emergency reasons
(e.g. snow or extreme cold), the School District Facility shall not be used by the City on that day.
B. City Supervision of Activities in School District Facility. The City shall be solely
responsible for providing adequate and qualified supervision for all its activities occurring in the
School District Facility consistent with all state laws. This provision shall be construed solely for the
benefit of the contracting parties and shall not impose any duty or supervision or constitute a waiver
of any tort defense available to the City under law.
C. Maintenance of School District Facility. School District shall be responsible at its
cost for providing maintenance of the School District Facility. However, the City shall keep the
School District Facility free of debris and litter associated with the City's use of the School District
Facility. Further, the City shall be responsible for extraordinary maintenance costs for the School
District Facility that are directly attributable to City's use of the School District Facility and
extraordinary maintenance costs associated with special activities of the City, such as publicly
attended athletic events or tournaments.
D. Use of equipment in School District facility. The School District agrees that the
items of recreation equipment owned by the School District including such items as volleyball
equipment and basketball equipment and located in the School District Facility may be utilized by
the City. If damage occurs to any such equipment and said damage arises as a direct result of the
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City's use,then the City shall reimburse the School District for its costs to make necessary repairs or
replacement to such equipment,normal wear and tear excepted. Any request for reimbursement by
the School District in this regard shall include a complete itemization of all damages sustained and
costs incurred to repair or replace the equipment,including statements and/or bills for materials and
services and should be sent within thirty (30) days after the discovery of the damage or loss. The
School District makes no warranty or representation about the condition of any equipment located in
the School District facility now or at any time during the term of this Agreement. Each party further
covenants and agrees to indemnify and hold the other party harmless from any injury or loss
emanating from the use of such equipment by the other party or any individual using such equipment
in connection with a program or activity of such party.
E. Utility and Custodial Costs. The School District agrees to provide at its cost
reasonably required heating,cooling and electrical services during those times that the City uses the
School District Facility. The School District agrees to provide at its cost to the City reasonably
required custodial and/or night cleaning services with the quality of maintenance equal to ongoing
school custodial and/or night cleaning services during the timeframe that the City uses the facility.
The City shall pay any additional cost including regular and overtime compensation for custodial
and/or night cleaning during weekends, holidays and summer uses when a custodian and/or night
cleaner is required solely due to a City sponsored activity and is not assigned to regular duty.
F. Insurance and Indemnification.
i. School District Liability and Insurance. The School District shall, at its sole cost
and expense,purchase and maintain liability insurance covering its ownership,maintenance and use
of the School District Facility including,without limitation, its required maintenance of the School
District Facility and any equipment located thereon,in the amount of$3,000,000.00 and shall list the
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City as an additional insured. For this purpose, it shall be acceptable for the School District to
provide the necessary coverage through the School District's self-insurance program, an
intergovernmental risk management pool or other methods. The School District shall protect,
defend, indemnify and hold harmless the City, its City Council members, officers and employees,
from and against any and all claims, actions, damages, liability and expenses, including attorney's
fees, in connection with or occasioned by any act or omission arising from or out of any School
District ownership, maintenance, use or occupancy of the School District Facility; provided,
however,that the School District shall not be liable for any loss,damage or injury of any kind to any
person or property which: (i)arises primarily from City's own use of the School District Facility;(ii)
is caused by or arises from any act or omission of the City or any of its agents, officers,
representatives, contractors, employees, licensees or invitees; (iii) is brought by or on behalf of the
City's agents,officers,representatives,contractors,employees,licensees or invitees.If the City shall
remain a party to any litigation, for which the School District is obligated to indemnify the City,then
the School District shall protect and hold the City harmless and shall pay all costs, expenses and
reasonable attorneys' fees incurred or paid by the City in connection with the defense of such
litigation.The City may,at its option,require the School District to assume the City's defense in any
action covered by this Section,through counsel reasonably approved by the City. At least annually,
on or before April 30th of each year, the School District shall provide the City with evidence
satisfactory to the City that it has in effect all policies of insurance or coverage required to be
purchased or provided hereunder, including satisfactory evidence that all premiums thereon have
been paid.
ii. City Liability and Insurance. The City shall, at its sole cost and expense,purchase
liability insurance covering its activities on the School District Facility, in the amount of
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$3,000,000.00 and shall list the School District as an additional insured.For this purpose,it shall be
acceptable for the City to provide the necessary coverage through the City's self-insurance program,
an intergovernmental risk management pool or other methods. The City shall protect, defend,
indemnify and hold harmless the School District,its Board members, officers and employees, from
and against any and all claims,actions,damages,liability and expenses,including attorneys' fees,in
connection with or occasioned by any act or omission arising from or out of any City use,
maintenance or occupancy of the School District Facility;provided,however,that the City shall not
be liable for any loss, damage or injury of any kind to any person or property which (i) arises
primarily from School District's use of any portion of the School District Facility;(ii)is caused by or
arises from any act or omission of the School District, or any of its agents,officers,representatives,
contractors,employees, licensees or invitees; (iii)is brought by or on behalf of the School District's
agents, officers, representative, contractors, employees, licensees or invitees. If the School District
shall remain a party to any litigation for which the City is obligated to indemnify the School District,
then the City shall protect and hold the School District harmless and shall pay all costs,expenses and
reasonable attorneys' fees incurred or paid by the School District in connection with the defense of
such litigation. The School District may, at its option, require the City to assume the School
District's defense in any action covered by this Section,through counsel reasonably approved by the
School District. At least annually, on or before June 30th of each year, the City shall supply the
School District with evidence satisfactory to the School District that it has in effect all policies of
insurance or coverage required to be purchased or provided hereunder, including satisfactory
evidence that all premiums thereon have been paid.
3. Local Governmental and Governmental Employees Tort Immunity Act. The parties
agree that nothing herein is intended or shall be construed as altering, limiting or waiving the
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provisions of the Local Governmental And Governmental Employees Tort Immunity Act(745 ILCS
10/1-101, et seq., as amended), or such other immunities provided by law, it being agreed that the
provisions thereof or such other immunities provided by law, shall apply to the fullest extent
permitted by law to the School District Facility,including,without limitation,the use,maintenance
and/or repair of the School District Facility and/or the improvements thereon and/or the supervision
of any activities on the School District Facility.
4. Notices. Any and all notices required hereunder to be sent to the School District shall
be served in writing to the Superintendent of Schools at the following address:
TO THE SCHOOL DISTRICT:
Central Community Unit
P.O. Box 396
275 South Street
Burlington, IL 60109
Attention: Superintendent
With a copy to:
Anthony Ficarelli
Attorney at Law
Hinshaw and Culbertson LLP
4343 Commerce Court, Suite 415
Lisle, IL 60532-1099
or by personal delivery of any such notice to the Administrative Offices of the City during its regular
business hours.
Any and all notices required hereunder to be sent to the City shall be served in writing to the
City Clerk at the following address:
TO THE CITY AT:
Office of the City Manager
City of Elgin
150 Dexter Court
Elgin, IL 60120
Phone: 847-931-5590
Fax: 847-931-5610
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And a copy to:
Corporation Counsel
City of Elgin
150 Dexter Court
Elgin, IL 60120
Phone: 847-931-5655
Fax: 847-931-5665
All mailed notices shall be deemed effective four (4) days following their deposit in the United
States mail, by certified mail postage prepaid, to the addressee. Service may also be made by
facsimile with a copy being mailed by regular mail or by a nationally recognized overnight courier
service(e.g.,FedEx),where receipt shall be deemed to be the next business day after placement with
the overnight courier.
5. Savings Clause. It is mutually understood and agreed that all agreements and
covenants herein are severable and that in the event any of them shall be held to be invalid by any
court of competent jurisdiction, this Agreement shall be interpreted as if such invalid agreement or
covenant was not contained herein.
6. Default. In the event that either the School District or the City defaults in faithfully
performing its obligations hereunder,the non-defaulting party must give notice to the other party of
such default in writing. In the event that such default continues for a period of twenty-one(2 1)days
following service of the notice, without correction, the non-defaulting party may take such legal or
equitable action as may be available to remedy the default.
7. Term. This Agreement shall commence on the date this Agreement is executed and
shall end on the twenty-fifth (25th) anniversary thereof. During the twenty-fifth(25th)year, if one
party serves notice upon the other, the parties shall engage in good faith discussions concerning
whether or not this Agreement should be extended,and upon what additional terms or conditions,if
any. The parties may elect to renew this Agreement in its current or a modified form on such terms
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as they shall find agreeable. In the event that the parties fail to enter into negotiations for an
extension of this Agreement, it will renew on a year-to-year basis thereafter unless either party
provides written notice of termination no less than 180 days prior to the end of the term of the
Agreement or any renewal thereof. Notwithstanding the foregoing or anything to the contrary in this
Agreement, in the event the School District, in the School District's sole and exclusive discretion,
discontinues the use of the School District's school facility as a school as evidenced by the sale of
such middle School District property to a third party for a non-school use,this Joint Use Agreement
shall automatically terminate and be null and void without further action of the parties hereto.
However,the parties agree that all obligations,commitments,expenses and/or costs will be due and
owing under the Joint Use Agreement up to the date of termination.
8. Benefits Solely to the Parties. This Agreement is intended solely for the benefit of the
parties hereto, and nothing herein shall be construed, either expressly or impliedly,to extend rights
or obligations in favor of any other person.
9. Modification. The agreement,covenants,terms and conditions contained herein may
be modified only through the written mutual consent of the parties hereto after approval by their
respective governing boards.
10. Assignment. Neither party may assign, transfer or otherwise convey its rights or
obligations under this Agreement without the prior written consent of the other party,which maybe
withheld in the consenting party's sole discretion.
11. Counterparts. This Agreement may be executed in separate counterparts. It shall be
fully executed when each party whose signature is required has signed at least one counterpart,even
though no one counterpart contains the signature of all parties.
12. Construction. This Agreement is and shall be deemed to be construed as a joint and
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collective work product of the City and the School District 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.
13. Miscellaneous. This Agreement is not intended and shall not be construed so as to
create a partnership, joint venture, employment or other agency relationship between the parties
hereto. 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.
SIGNATURE PAGE FOLLOWS
1I
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and
year first above written.
CITY OF ELGIN, a municipal THE BOARD OF EDUCATION OF CENTRAL
corporation COMMUNITY UNIT SCHOOL DISTRICT 301
an Illinois unit of local government and public
school district
By By
Mayor Its President
Attest: Attest: `
City Clerk ecr ary
FA\Legal DeptWgreement\School District 301-Exhibit H-JointUse-IntgovAgr-Country Trails School-clean-11-4-08.doc
12