18-18 Resolution No. 18-18
RESOLUTION
AUTHORIZING EXECUTION OF AN AGREEMENT WITH ELGIN MEN'S BASEBALL
LEAGUE, INC. FOR FIELD USAGE AT ELGIN SHORES BASEBALL FIELDS
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,
that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby
authorized and directed to execute an agreement on behalf of the City of Elgin with Elgin Men's
Baseball League, Inc. for field usage at Elgin Shores Baseball Fields located at 601 South State
Street, a copy of which is attached hereto and made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: February 28, 2018
Adopted: February 28, 2018
Omnibus Vote: Yeas: 9 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
AGREEMENT
THIS AGREEMENT is hereby made and entered into this 28 day of February,2018
between the CITY OF ELGIN,Illinois, a municipal corporation(hereinafter referred to as"City"),
and Elgin Men's Baseball League, Inc. an Illinois not-for-profit corporation(hereinafter referred to
as"League").
WHEREAS, the City has the authority to enter into this agreement pursuant to an
Intergovernmental License Agreement between the City and the Forest Preserve District of Kane
County dated September 13,2016,for the property commonly known as Elgin Shores Park located at
601 South State Street,Elgin, Illinois on which are located playing fields hereinafter referred to as
"Fields" suitable for activities of League,as described and depicted on the map attached hereto and
made a part hereof as Exhibit A; and,
WHEREAS, League desires to continue the use of said playing Fields for its various
activities of organized recreation; and
WHEREAS,it is to the mutual advantage of both parties that there be a clear understanding
of the privileges and responsibilities of each party;
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein,the sufficiency of which is hereby mutually acknowledged,the parties hereto hereby agree as
follows:
Section 1. Nothing in this agreement shall divest the City of its absolute right of control in
and of the various parcels of real estate which may be affected by this agreement. While certain
functions and duties with regard to maintenance of grounds and operation of activities on the
property may be delegated to League by this agreement no alterations to buildings or grounds shall
be made without the express written consent of the City. Notwithstanding any other provision of this
agreement or any other actions of the parties hereto the City shall at all times continue to maintain
sole control of the Fields and any and all buildings, structures or improvements existing or to be
constructed thereon.
Section 2. League shall have the use of the Fields for its scheduled games,with the exception
of when the City wishes them to be utilized for tournaments. Tournament dates shall be identified by
the City in the City's sole discretion.League shall have exclusive use of the Fields at all other times,
but that said Fields shall be considered open to the public in accordance with general City park
regulations.
Section 3. League may be permitted to rent the Fields to other entities for such entities'use
only upon prior written consent of the City in the City's sole discretion not less than thirty(30)days
in advance of such rental. Any other such entities that are renting the Fields must provide a
certificate of insurance naming the City of Elgin as an additionally insured.
Section 4. Maintenance of the turf,fences,infields,lights,backstops and structures shall be
the exclusive responsibility of, and at the sole cost of League. League shall erect and maintain the
Fields and all improvements thereon in a safe and good physical condition,and in conformance with
all requirements of the Elgin Municipal Code, 1976,as amended. The City shall have sole discretion
regarding the quality of the construction and direction of maintenance of the Fields and the
improvements thereon. Upon written notice by the City, through its Parks and Recreation
Department,stating in general terms how and in what manner maintenance is required,League shall
be required to perform such maintenance. If League fails to do so,then the City shall have the right
to perform such maintenance,the entire cost of which shall be borne solely by League. League shall
reimburse the City for any such maintenance and/or restoration costs. League shall, at its own
responsibility and expense, obtain and keep in effect all licenses, bonds, permits and approvals
necessary for the installation, maintenance and use of the Fields and the improvements thereon.
Section 5. League has provided certain building structures on City owned lands for use as
concession stands, washrooms, meeting and storage facilities. Such structures are attached and
affixed to the real estate and are and shall be construed as being the property of the City. Ownership
of such structures shall rest entirely and exclusively with the City. Concession and storage facilities
shall be for the exclusive occupancy and use of League during the term of this agreement.
Maintenance and repair of washroom facilities and all such aforementioned structures shall be the
exclusive responsibility of and at the sole cost of the League. Any and all liability arising out of the
negligent or reckless maintenance or repair of such facilities and structures,or failure to maintain or
repair such facilities and structures shall rest entirely with the League and League shall hold harmless
and indemnify City from and against any and all liability arising out of or in connection with
League's use of Fields.
Section 6. League has caused to be erected certain light poles and fixtures for the purpose of
lighting the Fields. Such lights and poles are attached to the real estate and have thereby become and
are the property of the City. League agrees that it is bound by the general rules and ordinances
governing the closing times of City Parks,and that any use of the Fields for night games which may
extend beyond the normal closing time of the park may only be for games previously scheduled,
pursuant to Section 3 of this Agreement. City may grant permission to other groups or organizations
to use the light poles and fixtures for evening and night activities during times which League is not
using the Fields in cooperation with League. The League shall replace and otherwise maintain the
light poles and fixtures. In the event that the City, in cooperation with the League, permits other
groups or organizations to utilize the Fields,the League shall be solely liable for any damages and/or
repairs resulting from said other groups' or organizations' use thereof.
Section 7. City shall pay the costs of water service for the structures and fixtures related to
maintenance of the Fields and costs related to providing and maintaining gas and electrical service,if
charged,to the structures referred to in said Section 5 above.
Section 8. League shall undertake and be responsible for repairs to buildings and grounds in
order to keep them suitable for League activities. City shall review all repair work before and after
its execution to ensure the need, quality and cost of said repairs. All repairs must conform to the
requirements of all applicable codes as determined by the City in the City's sole discretion. League
shall bear any and all liability for any failure to maintain such buildings and grounds or for any
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negligent or reckless maintenance of such buildings and grounds.
Section 9. League agrees that no alterations shall be made to any buildings or structures
without the prior express written consent of City.
Section 10. All costs related to the maintenance and repair of fences on the premise shall be
borne exclusively by League in accordance with the provisions of Section 4. League agrees that no
new fence shall be installed, nor any existing fence modified or relocated, without the express
written consent of City.
Section 11. The parties agree that no alterations to above ground plumbing within the
buildings nor alterations to water or sewer lines underground shall be undertaken without first having
complete plans for such work reviewed and approved by the City in writing. League agrees that no
such work shall be undertaken without appropriate permits from the City. The cost of repairs to
plumbing within the buildings shall be borne exclusively by League. The cost of repairs to
underground water and sewer lines shall be the responsibility of City.
Section 12. All communications to the City from the League shall be made exclusively to the
Director of the City's Parks and Recreation Department or the Director's designee. This provision is
a material term of this agreement.
Section 13. It is the intention of the parties to encourage the use of the park facilities to host
post-season League tournament and All-Star tournament play. League agrees to provide City with
notice of the intended use of the park facilities to host such tournaments as soon as practicable after
the determination is made. League further agrees to provide City with complete schedules of the
tournament play as soon as they are reasonably available. Use of the park facilities is subject to any
prior scheduled use in the sole discretion of the City. The schedules referenced in this section 13
shall be subject to the City's review and approval.
Section 14. Annually the League will provide the City with a season ending report to
include the number of teams, the number of participants, percentage of residents, rentals to other
organizations, and a year ending financial report.
Section 15. Outside vendors shall not be allowed on the park premises during scheduled
League games or practices except by the express written consent of League and City, and in
accordance with all applicable ordinances and statutes. City shall have the exclusive right to
authorize outside vendors during any period in which League is not scheduled to use the facilities
pursuant to this agreement or other written agreement with City.
Section 16. League shall be responsible for any League property that is stored or utilized in
the structures or facilities or on site.
Section 17. League shall provide a certificate of insurance evidencing general liability
insurance with limits not less than$1,000,000 per occurrence for bodily injury,personal injury and
property damage. The certificate of insurance shall name the City of Elgin as additional insured and
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state the coverage is primary and non-contributory to any insurance carried by the City of Elgin.
Section 18. League shall obtain signed waivers,which have been approved by City's Legal
Department, from all participants and players releasing City of all liabilities prior to the use of the
facilities, on an annual basis.
Section 20. This agreement constitutes the sole agreement between the parties hereto. There
are no other agreements, either written, oral or implied between the parties hereto.
Section 21. This agreement shall be binding upon and inure to the benefit of League and its
successors, but this Agreement cannot be assigned.
Section 22. This agreement shall terminate on December 31, 2019, unless otherwise
terminated as provided for herein. Either party hereto may terminate this agreement for any or no
reason upon thirty(30)days written notice to the other party,or upon an uncured material breach of
this Agreement upon five(5) days written notice.
Section 23. The terms of this agreement shall be severable. In the event any of the terms or
provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the
remainder of this agreement shall remain in full force and effect.
Section 24. This agreement shall be subject to and governed by the laws of the State of
Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in
connection with this agreement shall be in the Circuit Court of Kane County,Illinois.League hereby
irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the
enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit
brought pursuant to this agreement or the subject matter thereof; and the League agrees that service
by first class U.S.mail to the entity and address provided for herein shall constitute effective service.
League hereby waives any and all rights to a jury.
Section 25. This agreement shall not be construed as constituting a joint venture,partnership,
employment or other agency relationship of any kind between the parties hereto.
Section 26. League shall comply with all applicable federal, state and local laws. Failure to
comply with this Section shall constitute a material breach of this agreement,and shall entitle City to
terminate this agreement as provided for herein without penalty to City.
Section 27. League shall be solely and strictly liable for the acts or omissions of League,its
volunteers, officers, members, agents, employees, independent contractors, guests, patrons and
invitees. To the fullest extent permitted by law, League shall indemnify,defend and hold harmless
the City,its officers,employees,agents,boards and commissions,from and against any and all suits,
claims, causes of action,judgments, costs, attorney's fees, damages, expenses or other relief on
account of injury or damages to persons or property,sustained or claimed to have been sustained by
anyone whosoever,by reason of or arising from the performance of this Agreement or the operation,
use, possession or occupation of the Field or the improvements thereon, whether such use is
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authorized or not, or by reason of or arising from any act or omission of League, its volunteers,
officers,members,agents, employees,guests,patrons,or invitees. League shall pay for any and all
damage to the property of the City,or theft of such property,done or caused by any such person. In
the event of any action against the City, its officials, officers, employees, attorneys, agents, boards
and commissions covered by the foregoing duty to indemnify,defend and hold harmless,such action
shall be defended by legal counsel of City's choosing, the costs of which shall be paid by League.
The provisions of this paragraph shall survive any expiration or termination of this Agreement.
Section 28. Any grants or other monies provided by the City to the League shall be expended
by the League only and solely for the purposes as prescribed by the City and pursuant to any further
additional rules,restrictions or regulations as may be imposed by the City with respect to any such
grant or monies. Nothing herein shall require the City to provide the League any amount of a grant
or monies, whether specified or not.
Section 29. This agreement shall terminate on December 31, 2018.
Section 30. The League covenants and agrees that it will not permit or suffer any lien to be
put upon or arise or accrue against said Premises in favor of any person or persons, individual or
corporate, furnishings either labor or material in any work herein proposed, and the League further
covenants and agrees to hold the City and said Premises free from any and all liens or rights or
claims of lien which may or might arise or accrue under or be based upon any mechanic's lien law,so
called,of the State of Illinois,now in force or hereafter to be enacted. All contracts and agreements
that may be made by the League relating to any work herein proposed, shall expressly state that the
interest of the City in and to said Premises shall be wholly free from and not subject to any lien or
claims of any contractor,subcontractor,mechanic,material man or laborer,whether based upon any
law or regulation of the State of Illinois, or any other authority, now in force or hereafter to be
enacted, and the League also hereby covenants and agrees that it will not enter into any contract for
such work which shall not in express terms contain the aforesaid provision.
Section 31. It is agreed and understood by the parties hereto that no special duties or
obligations to any third party are intended nor shall be deemed or construed to be created by this
agreement. It is further agreed and understood that this agreement is not intended nor shall be
construed to alter, limit, or constitute a waiver of any of the civil immunities afforded the League
and/or the City and/or its officials, officers, employees and/or agents pursuant to the Local
Governmental and Governmental Employees Tort Immunity Act at 745 ILCS 10/1-101 et seq., as
amended,and/or otherwise provided by law,it being agreed that all of the civil immunities set forth
in such Act,as amended,and/or as otherwise provided by law shall fully apply to any claims asserted
or which might asserted against the League and/or the City and/or its respective officials, officers,
employees and/or agents as a result of this agreement, the League's use, operation and/or
maintenance of the Premises or any actions of the parties pursuant to this agreement.
Notwithstanding anything to the contrary in this agreement,it is agreed and understood that no third
party beneficiaries are intended or shall be construed to be created by the provisions of this
agreement. The provisions of this section shall survive any expiration and/or termination of this
agreement.
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Section 32. This agreement may be executed in counterparts, each of which shall be an
original and all of which shall constitute one and the same agreement. For the purposes of executing
this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be
treated in all manners and respects as an original document. The signature of any party on a copy of
this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an
original signature and shall have the same legal effect as an original signature. Any such faxed or e-
mailed copy of this agreement shall be considered to have the same binding legal effect as an original
document. At the request of either party any fax or e-mail copy of this agreement shall be re-
executed by the parties in an original form. No party to this agreement shall raise the use of fax
machine or e-mail as a defense to this agreement and shall forever waive such defense.
IN WITNESS WHEREOF,the City of Elgin,Illinois has caused this Agreement to be signed
and executed in its behalf by its City Manager and duly attested by its City Clerk, and League has
caused this Agreement to be signed and executed in its behalf by its President and its Vice President
both in duplicate,the day and year first above written.
ELGIN MEN'S BASEBALL LEAGUE, INC. CITY OF ELGIN, a municipal corporation
By: By:
Richard G. Kozal, City Manager
Its: President
Attest: Attest:
By: Foi;g4 kezA 4,54 r- •
_ -
Vice President City Clerk
F:\Legal Dept\Agreement\Elgin Men's League Agreement-clean 2-5-I 8.docx
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