HomeMy Public PortalAbout088-2016 - Parks - IU East - Facility Use AgreementFACILITY USAGE AGREEMENT
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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,
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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
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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