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HomeMy Public PortalAbout088-2016 - Parks - IU East - Facility Use AgreementFACILITY USAGE AGREEMENT A" THIS AGREEMENT (the "Agreement") is made and entered into this 1, day of NN-XckuQS� 2016, and referred to as Contract No. 88�-2016 by and between the City of Richmond, 16diana, a municipal corporation acting by and through its Board of Parks and Recreation (hereinafter referred to as the "DEPARTMENT") and THE TRUSTEES OF INDIANA UNIVERSITY, on behalf of its Indiana University East campus in Richmond, Indiana (hereinafter referred to as "W"). In consideration of the mutual promises exchanged herein, it is agreed as follows: I. GENERAL TERMS I. IU will have use of certain facilities owned by the City of Richmond Department of Parks and Recreation, situated and located at 2200 E Main Street, in Richmond, Indiana, known as the Park Department Tennis Court facility at Glen Miller Park (hereinafter referred to as "Facility") which is outlined on Exhibit "A", attached hereto and rnade a part hereof by this reference. IU will have exclusive use of the Facility on the days and times set forth on the written schedules submitted to the Parks Superintendent and which approved schedules shall be merged into this Agreement and made a part hereof. 2. The term of this Agreement (the "Tenn") shall commence upon DEPARTMENT's completion of the Stipulated Improvements as defined herein below (the "Commencement Date"), and shall continue for five (5) years. The parties shall agree upon the Commencement Date in a document signed by the parties, which Agreement shall be in writing and attached hereto and merged into this Agreement. 3. IU shall have the right to terminate this Agreement at any time, for or without cause, by providing the DEPARTMENT with not less than thirty (30) days' advance written notice. II. RESPONSIBILITIES OF IU 1. ItJ understands and agrees that the Facility is to be used only for the purpose of conducting IU tennis matches, tournaments, and practices and for no other purpose without the written consent of the DEPARTMENT. 2, The proposed improvements to the Facility are to be submitted by IU to DEPARTMENT in writing at least sixty (60) days prior to the prQject start date and approved in writing by the DEPARTMENT prior to undertaking any such improvement. All improvements that are installed by IU and that are unable to be removed will become the property of the DEPARTMENT upon the coinpletion of such improvements' installation. IU shall pay the sum of Thirty Thousand Dollars and Zero Cents ($30,000.00) to the Richmond Parks Department upon the execution of this Agreement, which money shall be used by the DEPARTMENT to pay for the Stipulated Improvements as hereinafter defined. Richmond Parks Department shall complete the work listed on Exhibit "B", attached hereto and made a pail hereof by this reference (the "Stipulated Improvements"). The Stipulated Improvements shall be completed in a condition and appearance that is satisfactory to W, in its sole discretion, but which approval shall not be unreasonably withheld by IU. If the Stipulated Improvements are not completed to IU's sole satisfaction, and approval has not been unreasonably withheld by IU, then the DEPARTMENT shall redo or have redone the Stipulated Improvements, at the DEPARTMENT's sole cost and expense, so that they are completed to IU's sole satisfaction. 3. IU shall instruct its employees and participating Students to abide by the Department's non-smoking policy. 4. IU will be responsible for any necessary or Customary preparation of the Facility prior to scheduled ILJ uses ofthe Facility, and shall restore or repair any damage Caused by ILJ to the Facility after each lU use so that the I'acility is kept in a neat and clean condition, ordinary wear and tear excepted. 5. Participating IU students shall be supervised by lU employees at all times. 6. ItJ shall remove a] I trash and debris after each IU use and place any such trash and debt -is into the provided trash receptacles or dumpsters at the Facility. 7. JU shall obey all rules and regulations regarding the Facility set -forth in writing and delivered to IU by the Richmond Parks and Recreation Department and any applicable laws of the City of Richmond, Indiana. 8. The DEPARTMENT will not be responsible for Purchasing or supplying tennis balls, rackets, or other athletic equipment to be used by ItJ. IU will provide the DEPARTMENT with a schedule of IU's matches, tournaments, and practices prior to those events. In permitting IU's use of the Facility, the DEPARTMENT does not relinquish custody or control thereof. ILL shall allow the DEPARTMENT access to the Facility at all times. The DEPARTMENT agrees that ltJ shall have sole use of the Facility during the times agreed to by the parties hereto for ILIs use of the Facility as previously described in this Agreement and on the days and times set forth on the written schedules subil-iitted to the Parks Superintendent and which schedules shall be merged into this Agreement and made a part hereof. IU shall have scheduling priority over all other persons and entities, including if another event is scheduled at a time IU wishes to use the Facility. Notwithstanding the foregoing sentence, fU shall be guaranteed a minimum of fifteen (15) hours of exclusive use of tile Facility each week at times to be determined by ILJ in ILJs sole discretion. 10. IU must abide by all written rules and regulations of tile DEPARTMENT, provided to IU at least thirty (30) days in advance, including but not limited to, any applicable posted hours. 11, lU and the DEPAR'I'M,l.,.1'N'_1'eacb agree to indemnify, release, and hold harmless the other party, including the other party's employees, officers, trustees, or agents of [tie same, from any and all claims, liability, damages, actions, suits, proceedings, judgments, and expenses connected therewith including court costs and reasonable attorneys' fes, f*c)r damage to any property ofthe other party and/or ofany third person, as well as for injury to any person, including death, in any way arising Out ofor connected with or caused by the indemnifying party's use ofthe Facility. It is expressly agreed that DEPARTMENT has 110 duty to provide any security or safekeeping for IU's equipment., instruments, or property and that in no way shall the City of Richmond, Indiana or the DEPARTMENT be liable for any act of theft or vandalism. Notwithstanding the Ibregoing, the parties agree and acknowledge that the Facility is located in a public park, and as Such tile general public shall have access around the Facility during normal park. hours. TU shall not be liable for any disturbance, darnage, or destruction of, at, or near the Facility, to any person, property, entity, or the environment, that Occurs during a time when IU is not scheduled to use the Facility. IUshall have no responsibility or liability to police, patrol, or protect the public park at an), time. HYs obligations to indemnify, release, and bold harmless the DEPARTMENT Under this Agreement shall be limited in substance by statutes and constitutional provisions designed to protect tile exposure and liability of It.) as an instrumentality of the State of Indiana [e.g., actions and conditions as to which IU is immunized by the Indiana Tort Claims Act (the "Act"), dollar limits stated in the Act, exemption from punitive damages, and the continued ability to defeat a claim by reason of contributory negligence or fault of claimant], so that its liability to indemnify, release, and hold harmless shall not exceed what rrught [lave been its liability to a claimant if sued directly in Indiana by the claimant and all appropriate defenses had been raised by IU 12. IU shall, during the Term of this Agreement, at its sole cost and expense, maintain public liability insurance, on forms and in companies reasonably satisfactory to DEPARTMENT, for personal injury, death, or property damage occurring upon, in, or about the Facility, such insurance to afford protection to the limit of not less than Two Million Dollars ($2,000,000.00) per occurrence in respect to injury or death and property damage, the aggregate arnount being not less than 'Two Million Dollars ($2,000,000.00), Policiesforsuch insurance shall be for the mutual benefit of the DEPARTMENT and tile IU, as their interests may appear, and certificates of insurance coverage shall be furnished to DEPARTMENT annually. IU shall procure renewals of all insurance policies at least thirty (30) 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 thirty (3,0) days' prior written notice to DEPARTMENT, 13, DEPARTMENT shall have the right to terminate this Agreement by delivering written notice to IL) if lU fails to satisfy or cure any condition or perform any obligation hereunder within thirty (30) days after receiving written notice of default from DEPARTMFNT. 14. lU shall have the right to instal] at its expense branded wind screens on and around any fencing at the Facility with IU's logo, narne, and associated branding images and language during the Terra of this Agreement. All such wind screens shall be removed by ILJ upon the expiration or earlier termination of this Agreement, 15. Ill shall ]lave the right to name the tennis courts at the Facility, and the Facility as a whole, and to install signage at its expense signifying the name or names, during the Terni of this Agreement, provided that installation shall corilply with all signage requirements set forth in the Richmond Unified Development Ordinance. ll J shall also have tile right to install at its expense other signage at the Facility, subject to the sarrie signage requirements of the Richmond Unified Development Ordinance. All Such signage shall be removed by IU upon tile expiration or earlier termination of this Agreement, 3 III. RESPONSIBILITIES OFTIIE CITY PARKS DEPARTMENT DEPARTMENT will provide the necessary maintenance and repair of any roadways and parking lots located at and leading into the Facility as determined by the DEPARTMENT. DEPARTMENT will conduct snow removal services to said roadways and parking lots when necessary and as soon as practical. DEPARTMENTwill make any repairs to the Facility to allow IU to use the Facility as anticipated that DEPARTmENT determines to be necessary in its reasonable discretion. DEPARTMENT will clear the brush located at the premises and will fix any Surrounding fencing. DEPARTMENT will demolish the white building located adjacent to the tennis Courts and may install additional parking if funds permit. 2. DEPARTMENT will conduct the removal of trash and debris located in the provided trash receptacles and dUmpsters located at the Facility as customary or necessary. DEPARTMENT will pay the costs associated with the electricity usage at the Facility, including the lighting of the parking lot as is usual and customary with the Understanding that the parking lot is normally lit during evening hours. 4. The DEPARTMENT shall make the Stipulated Improvements to the Facility by or before September 10, 2016 or as soon as practicable upon Ill PARTMENT's receipt of the funds pursuant to this Agreement. If the Stipulated Improvements to the Facility are not completed by September 10, 2016, no, penalty shall be imposed by IU so long as the facility's Stipulated Improvements are completed by October 31, 2016. IU shall have the right to observe the installation and construction of the Stipulated Improvements, which shall not be considered complete until they are approved and accepted as complete by IU, which approval shall not be unreasonably withheld, 5. The DEPARTMENT shall promptly repair any damage or destruction to the Facility that occurs or is caused during a time that IU is not scheduled to use the Facility, or that occurs at any time due to weather, natural disaster, or actions of parties outside of ILJ's control, If the Facility is darnaged or destroyed due to reasons stated in this paragraph such that IIJ cannot use the Facility, the DEPARTMENT shall repair or cause to be repaired the Facility immediately after such darnage or destruction, or as soon as practical as determined by the nature and severity of such damage or destruction. If Department does not repair the Facility to a playing condition within the time req,uired in this paragraph, then the DEPARTMENT shall reimburse JU on a per them basis for every day beyond the tirriefrarrie required herein that IU is unable to use the Iacility, to be calculated as follows: Six Thousand Dollars and Zero Cents ($C,00I 0.00) per year divided by the number of days in the year that ILJ is scheduled to use the Facility, and then multiply that number by the number of days that ILJ is scheduled to use the Facility but unable due to the DEPAR'I'MENT's possession. 6. The DEPARTMENT shall keep the Facility clear of'brush and weeds, and shall illaintain the fencing and tennis nets at the Facility at the DE'PARTMENT's sole cost and expense. It' the fencing or tennis nets are darnaged or destroyed during a tirne that ILJ is not scheduled to Use the Facility, then the DFPARTMF. NT shall repair or cause to be repair the nets within seven (7) days of such damage or destruction, and (lie fencing within ten (10) days Of such damage or destruction, or as soon as practical as determined by the nature and severity of such damage or destruction, IV. ADDITIONAL RESPONSIBILITIES I. Pursuant to Indiana Code 22-9-1-10, IU, my sub -contractor, or any person acting oil behalf of It) 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 all), matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. 2. In the event of any legal proceeding brought by either party due to a breach of this Agreement, each party shall pay its own legal fees and costs, including attorneys' fees. 3. A breach of this Agreement shall include, but not be limited to, failure of either party 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 applicable federal laws, state laws, and local ordinances. In the event that the breaching party is able to cure or resolve any action or situation that caused the breach, the non -breaching party will not hold the breaching party in default if such cure is performed within thirty (30) days after the breaching party receives written notice of the breach, The non -breaching party shall provide the breaching party with written notice of a breach pursuant to the Notice section herein, and the breaching party shall have thirty (30) days frorn the receipt of notice of breach or default to perform said cure. 4. In the event of an emergency, the DEPARTMENT may immediately proceed with any action necessary to Lake possession of' the Facility. In such an event, DEPARTMENT shall reimburse IU for the time that IU is unable to use the facility on a per diern basis, calculated as follows: Six Thousand Dollars and Zero Cents ($6,000.00) per year divided by the number of days in the year that IU is scheduled to use the Facility, and then multiply that number by the number of days that IU is scheduled to use the Facility but Unable due to the Department's possession. 5. Department may order JU to cease or relocate its activities at any time should it be necessary for the proper safety of the Facility, Reasons for such an order could include, but are not limited to, damages to the I'acility due to natural disasters ("Acts of God"') or extreme weather events, damages to the Facility by parties outside this Agreement which affect the safety ofthe facility, or breach of this Agreement by ItJ that is not cured within [lie firriefrarne allowed herein. 6. 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 a written instrull-lent selling forth such changes signed by both parties. By executing this Agreement the parties agree that this document supersedes any previous discussion, negotiation, or conversation relating to the subject matter contained herein. 7. '['his Agreernent may be simultaneously executed in several Counterparts, each of which 5 shall be an original and all of which constitute but one and the same instrument. Ally person executing this Agreement in a representative capacity hereby warrants that lie or she has been duly authorized by his or her principal to execute: this Agreement. 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 4jointly 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. 9. NOTICES: All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly and properly given on the date of service if delivered personally, or if 111ailed, registered or certified mail, first class postage prepaid, return receipt requested on the day indicated on the receipt, or on the -first business day following deposit with a nationally recognized overnight courier service (e.g. FedEx), postage prepaid, addressed appropriately as follows: If to DEPARTMENT: The City of Richmond, Indiana Board of Parks and Recreation 2200 E. Main St. Richmond, IN 47374 If to IU: The Trustees of Indiana University c/o Indiana University Real Estate Administration 1800 N. Range Rd. Bloomington, IN 47408 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: Tiauna Washington,, Vice -President APPROVED Date: lu" THE TRUSTEES OF INDIANA UNIVERSITY 1-j By: , 'o'! Donald S. Lukes University Treasurer Date: 7 / ( i ,file. I The Facility is outlined below. IWNIIIIIBIII� The Stipulated Improvements The DEPARTMENT shall: -Clean. the entire playing surfiace of the tennis courts using air brooms and pressure washers -Clear structural cracks of vegetation and debris and rill with Plexipave Court Patch Binder -Level all tow surface areas ofthe tennis courts using Ptexipave Court Patch Binder -Apply three () coats of Fortified Plexi.pave to each tennis court -Stripe all tennis courts with two, inch wide lines as per U.S.T.A. standards and tolerances -Repair, and where needed replace, the fence surrounding the Facility -install new tennis court nets on each tennis court at the Facility When the Stipulated Improvements are finished, the tennis courts shall be dark green and light green. COMMENCEMENT DATE AGREEMENT The Trustees of Indiana University ("I"U") and the City of Richmond, Indiana, a rnunicipal corporation acting by and through its Board of Parks and Recreation ("City"), entered into that certain Facility Use Agreement, also known as Contract No. 88-2016 (the "Agreement"), on August 13, 2016, which provides for IU's use of the City's tennis courts (the "'Courts") located at Glen Miller Park, 220O E, Main St., Richmond,, Indiana, PLITS11ant to tile terms and conditions of the Agreernent. By signing below, the parties agree that the City has made the Stiprilated Improvements required by the Agreement and that IU has inspected and approves the completed Stipulated Improvements, including the change in color to red, and that the Commencement Date of the Agreement is therefore Novernber 1, 2016. The Agreement shall therefore expire on October 31, 20�21 Tile Trustees of hidiana University M Donald , Lukes University Treasurer The City of Richmond, Indiana, by and through its Board of Parks and Recreation By, Tianna Washington Vice President Approved: '103"aV11C u S Mayor CO NNI INIENCHM HNI'DA'FE' AGRE ENIBINT The Trustees of Indiana University ("M") and the City of Richmond, hid iana, a n.lulticipa) corporation acting by and through its Board of Paiks and Remation ("City"), entered into that certain Nicility t Jse Agreement, also known is Contnict No, 88-2016 (the "Agmement'), an August 13, 2016, which provides for TIPS rise of the City's totinis courts (tile "Covirts") located at Glen Miller Park, 2200 E Nfain St., Richmond, Itidiana, pursuant to the terms and conditions of the Agrecinent. By sitpting bclovv, the pat -ties agrec that the City has made the Stipulated Irnprovements requii,ed by the Agrecilterit and that RJ has inspected and approves the completed Stipulated including the change in color to rcd, and that the Commencenicw Date orthe Agreement is therefore November 1, 20M The Agcecmeritshull 11tevolbre expire on October 3 1, 2021, The 'I'llistecs of Indialia University B Donald S. Lukn University 'Freasurer The City of R-ichillorld, hidiana, by and through its Board ofhour' ks and Rccrca(ion By" Ti,,ujw Vice President --------- - Approve(]: T)"IvW IIINL Sit N'Tayor