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HomeMy Public PortalAbout049-2011 - Parks - FACILITIES USAGE AGREEMENTFACILITY USAGE AGREEMENT THIS AGREEMENT made and entered into this 18th day of _April___, 2011 and referred to as Contract No. 49-2011 by and between the City of Richmond, Indiana, a municipal corporation acting by and through its Board of Parks and Recreation (hereinafter referred to as the "DEPARTMENT") and OPTIMIST CLUB OF RICHMOND, INDIANA (hereinafter referred to as the "CLUB"). In consideration of the mutual promises exchanged herein, it is agreed as follows: I. GENERAL TERMS 1. CLUB will have use of certain facilities and real property owned by the City of Richmond Department of Parks and Recreation, situated and located in located in Clear Creek Park, Richmond, Indiana, bounded by the Armory on the south side, by the Girl's Softball Diamond on the north side, by the Clear Creek on the west side, and by Northwest 1Ith Street on the east side. 2. The term of this Agreement shall be deemed to have commenced on March 1, 2011, and shall continue for three (3) years terminating March 1, 2014. This term may be extended by mutual written agreement of the parties for an additional three (3) year term. 11. RESPONSIBILITIES OF THE CLUB CLUB understands and agrees that the facilities and land herein that is the subject matter of this Agreement is to be used only for the purpose of carrying out a program of youth baseball and other properly supervised youth activities and for no other purpose without the written consent of the DEPARTMENT. 2. Any proposed improvements to the land are to be submitted in writing sixty (60) days prior to the project start date and approved in writing by the DEPARTMENT prior to undertaking any such improvement. All improvements will become the property of the DEPARTMENT. Any improvements on the premises shall be maintained in a neat and attractive manner by CLUB. The electric utility bill for the devised premises shall remain in the name of the DEPARTMENT. On a monthly basis, the electric utility bill will be divided in order that CLUB shall pay seventy (70%) percent of the bill and DEPARTMENT shall pay the remaining thirty (30%) percent of the bill. A statement will be supplied to the Club by the Park Department Business Manager each month and payment will be made payable by the Club to the Richmond Park Department within fifteen (15) days of receipt of the statement. Costs for other utilities, including but not limited to phone and cable, will be the sole responsibility of the CLUB. 4. CLUB will be responsible for any customary preparation of the facility prior to CLUB's scheduled activities and shall restore or repair the facility after each use so that the facility will be ready for the next scheduled activity. CLUB will be responsible for the day-to-day maintenance, mowing, and upkeep of the field. Contract No. 49-2011 Page 1 of 4 5. CLUB shall remove all trash and debris after each CLUB event and place any such trash and debris into the provided trash receptacles or dumpsters at the property and shall obey all rules and regulations set forth by the Richmond Parks and Recreation Department and any applicable laws of the City of Richmond, Indiana. 6. CLUB will purchase all products that are field related, including but not limited to chalk and field dry products. 7. CLUB will provide the Department with a facility schedule as those schedules are completed by CLUB. CLUB will make the facility available to Richmond High School and Seton High School when possible. The DEPARTMENT may use the property that is the subject of this Agreement at any time when not in use by the CLUB. 8. The DEPARTMENT reserves the right to institute a requirement for coaches participating in a league using this field to complete a nationally recognized coaches training program. The DEPARTMENT will work with the CLUB to explore the implementation of this proposed requirement. 9. CLUB and its spectators must abide by all rules and regulations of the Department, including but not limited to, any applicable posted hours. 10. The CLUB agrees to indemnify, release, and hold harmless the City of Richmond, the DEPARTMENT, and all employees, officers, or agents of the same from any and all claims, liability, damages, actions, suits, proceedings, and judgments, and expenses connected therewith including court costs and attorneys' fees, for damage to any property of the City of Richmond, City of Richmond Parks Department, CLUB, and/or of any third person as well as for injury to any person, including death, in any way arising out of or connected with or caused by the demised premises, CLUB' S facilities, or by any person utilizing such facilities. 11. As an incident to the aforesaid indemnity CLUB shall, during the term of this Lease, at its sole cost and expense, maintain public liability insurance, on forms and in companies reasonably satisfactory to DEPARTMENT, against for personal injury, death, or property damage occurring upon, in, or about the demised premises, such insurance to afford protection to the limit of not less than Five Million Dollars ($5,000,000.00) per occurrence in respect to injury or death and property damage, the aggregate amount being not less than Five Million Dollars ($5,000,000.00). Policies for such insurance shall be for the mutual benefit of the DEPARTMENT and the CLUB, as their interest may appear, and certificates of insurance coverage shall be furnished to DEPARTMENT. CLUB shall procure renewals of all insurance policies at least ten (10) days before the expiration thereof and all policies shall contain an agreement by the insurer that such policies shall not be cancelled without at least ten (10) days' prior written notice to DEPARTMENT. 12. DEPARTMENT shall have the right to terminate this Agreement if CLUB fails to satisfy any condition or perform any obligation hereunder. If CLUB fails to maintain the premises as mandated by this Agreement, it shall be liable for any cost incurred by the DEPARTMENT to perform such maintenance. Page 2 of 4 III. RESPONSIBILITIES OF THE CITY PARKS DEPARTMENT City will provide the maintenance and repair of any roadway, traffic lanes, and parking facilities. IV. ADDITIONAL RESPONSIBILITIES Pursuant to Indiana Code 22-9-1-10, the Richmond Evening Optimist Club, any sub- contractor, or any person acting on behalf of the Richmond Evening Optimist Club or any sub -contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this AGREEMENT, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. 2. In the event of any breach of this Agreement, and in addition to any damages or remedies, the breaching party shall be liable for all costs incurred due to the enforcement of this Agreement, including but not limited to reasonable attorney's fees. A breach of this Agreement shall include, but not be limited to, failure of CLUB to comply with any of the terms of this Agreement, failure to procure and maintain appropriate levels of general liability insurance as set forth in the terms of this Agreement, or failure to adhere to all federal laws, state laws, and local ordinances. In the event CLUB is able to cure or resolve any action or situation that caused the breach, City will not hold CLUB in default if such cure is able to be performed within thirty (30) days of the date breach is deemed by the City to have occurred. City shall provide CLUB with written notice of the breach by first-class mail, and CLUB shall have thirty (30) days from the receipt of notice of breach or default to perform said cure. 4. In the event CLUB is unable to cure or resolve the breach, City may declare CLUB in default and breach of this Agreement, and shall proceed with any action necessary to take possession of the facility. In the event of an emergency, City shall immediately proceed with any action necessary to take possession of the facility. City may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and the reasons for termination. 5. Department may order CLUB to cease or relocate its activities at any time should it be necessary for the proper use, safety or enjoyment of the facility. Reasons for such an order could include, but are not limited to, damages to the facility due to natural disasters ("Acts of God") or extreme weather events, damages to facility by parties outside this Agreement which affect the safety of the facility, or breach of this Agreement by CLUB. This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. It shall be controlled by Indiana law and shall be binding upon the parties, their successors and assigns. It constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing the Agreement a written instrument setting forth such changes by both parties. Page 3 of 4 7. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which constitute but one and the same instrument. Any person executing this Agreement in a representative capacity hereby warrants that he or she has been duly authorized by his or her principal to execute this Agreement. 8. The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and suit arising under this Agreement, if any, must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said court 9. In the event that an ambiguity or question of intent or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day and year first written above, although signatures may be affixed on different dates. "DEPARTMENT" THE CITY OF RICHMOND, INDIANA by and through its Board of Parks and Recreation By:_S/S Karen Montgomery Karen Montgomery, President By:_S/S Mike Foley Mike Foley, Vice President By:_S/S Gary Turner Gary Turner, Secretary ma Avis Stewart, Member Date: APPROVED: S/S Sarah L. Hutton Sarah L. Hutton, Mayor Date: April 28, 2011 "CLUB" OPTIMIST CLUB OF RICHMOND By:_S/S Jerry Stevens Printed: _Jerry Stevens Title: Club President Date: April 18. 2011 Page 4 of 4