HomeMy Public PortalAbout090-2018 - Parks - Hitters Hangout - Facility use agreement - McBrideFACILITIES USE AGREEMENT
THIS AGREEMENT is entered into as of , 201 and referred to
as Contract No. 90-2018 by and between City of Richmond, Indiana, a municipal corporation
acting by and through its Board of Parks and Recreation (hereinafter referred to as the "City" or
the "Department") and Hitters Hangout Sports Foundation, Inc., P.O. Box 194, Richmond,
Indiana, 47375 (hereinafter referred to as the 'Team").
RECITALS:
A. The City is a political subdivision, with the Department having responsibilities
relative to parks within the corporate limits of the City, one of which is McBride Stadium
(hereinafter the, "Team").
B. Hitters Handout Sports Foundation, Inc. is an active Indiana non-profit corporation
that exists for valid reasons as contemplated by Indiana law.
C. Team owns and operates the Richmond Jazz, a minor league baseball organization
which desires to utilize the Stadium for purposes of carrying on the normal and customary
components of operating such a team, which includes, but is not limited to, practices and games.
D. City agrees to make available the Stadium to the Team pursuant to the terms and
conditions set forth below, and Team agrees to abide by such terms and conditions in consideration
for the use of the Stadium as specifically described herein.
NOW, THEREFORE, in consideration of the following terms and conditions, including
the above stated recitals, and for other good and valuable consideration, the parties hereby agree
as follows:
TERM.
(a) This agreement becomes effective, and Team shall have limited tenant use
of the Stadium beginning March 26, 2018 to and including August 11, 2018.
Team's limited tenant use of Stadium, described above, shall continue for a
three (3) year period, ending subsequent to the 2020 baseball season.
Should the parties fail to tender notice of cancellation subsequent to the
2020 season, this Agreement will continue in full force and effect on a
season to season basis until such time that notice of cancellation is provided,
or a new Agreement executed with the same formalities of the instant
Agreement is executed.
Notwithstanding the term of this Agreement, City may terminate this
Agreement in whole or in part, for cause, at any time, by specifying the
reasons for termination which shall include but not be limited to the
following: failure, for any reason, of the Team to fulfill in a timely manner
its obligations under this Agreement.
2. COMPENSATION.
(a) Fee per Game:
(i) Team shall pay as a facility usage fee the sum of $175 per game and
$100 cleaning fee per game. In the event that a game must be
cancelled due to inclement weather, the $175 fee shall still apply,
and it will be Team's responsibility to coordinate the scheduling of
a make-up game. An additional fee will not apply to any such make-
up game. The fee specified herein shall be due on or before the tenth
(101h) of each month.
(ii) In addition to the obligations set forth herein, Team agrees to abide
by the list of bullet -point items attached hereto and incorporated by
reference herein as Exhibit "A". Any violation of the obligations
set forth on Exhibit "A" shall be subject to the fine structure in
Paragraph 3(a), below. Further, Team shall acknowledge, abide by,
and carry out the terms and provisions of the Operating Plan, which
is attached hereto and incorporated by reference herein as Exhibit
«B
(b) Concessions:
(i) Team shall open and operate the concessions at the Stadium from
March through August for all games, tournaments or other events
for which the Department directs. The foregoing games,
tournaments, and events include any and all organizations, teams,
clubs, or otherwise which might utilize the Stadium; and as such, the
Team's obligation to open and operate the concessions at the
Stadium is not limited to the Team's use of the Stadium. Fifteen
percent (15%) of all gross sales, including those associated with the
sale of beer and wine, shall be remitted to management on a monthly
basis, with the submission of such sales being due on or before the
fifteenth (151h) of each month. Team will provide a "Square Report"
for credit payments, and a Z Tape for each day of concession
operation, dated appropriately and accompanied by a matching
summary report, to the Department so as to provide a documentary
accounting of all gross sales.
(ii) The team shall timely report to Department as soon as is discovered,
or should have been discovered, any problems with the operation or
malfunction of any equipment or item in the concession stands,
including, but not limited to, the ice machine, the freezer and the
walk-in cooler. Team shall not be responsible to any damage
associated with the above -described equipment but for negligent
operation of the same.
(c) Utilities:
(i) Team shall pay thirty percent (30%) of all utilities (electric, natural
gas, water, wireless services, and sewer) in connection with the
McBride facility from June 1, 2018 to July 31, 2018, unless Team
participates in the Great Lakes League Collegiate Playoffs, which
shall extend this period through August 11, 2018. The foregoing
represents the Team's primary usage period of Stadium. Team shall
pay ten percent (10%) of all utilities associated with the Stadium in
April in May.
(ii) Team shall reimburse the City for the above -described utilities on a
monthly basis, and shall remit payment within thirty (30) days from
receipt of notice of the prior month's utilities associated with the
Stadium.
(iii) Any and all other utilities not specifically referenced herein will not
be provided by the City, and any additional utilities, that Team
desires be provided to the Stadium, shall be the sole expense of
Team.
3. RESPONSIBILITIES OF TEAM.
(a) This Section provides for the responsibilities of Team pursuant to this
Agreement, and is in addition to any other responsibilities specifically set
forth herein as well as any exhibits attached hereto. Team shall be
responsible for any customary preparation of the facilities and field prior to
Team's scheduled activity. Team shall restore or repair the facilities and
field after each use by the Team or after each coordinated event, so that the
facilities will be ready for the next scheduled activity. Team shall provide
seasonal volunteers or hire seasonal workers to perform minor
improvements and restore the facilities and field as set forth above. Team
will provide all equipment and all product needed to comply with Team's
responsibilities as set forth within this Agreement. In the event Team does
not maintain or utilize the Stadium, as agreed upon, the Department may
issue a penalty fee of up to $100 per occurrence.
(b) Team will ensure that any media invitees or permittees conduct any
reporting activities in a safe and reasonable manner such that they uphold
the spirit and intent of this Agreement.
(c) Any equipment and/or products necessary to maintain the field, and/or
Stadium, so as to ensure compliance with Section 3(a), above, shall be
purchased by Team, at Team's expense. This includes, but is not limited
to, surface chalk, clay and field dry products.
(d) Team agrees to ensure that it will take proper care of the facilities and field
associated with the Stadium during any inclement weather.
(e) Team shall ensure that the Stadium is properly secured and locked after each
game or event. This includes, but is not limited to, all doors, gates, windows,
or other entry points to the Stadium.
(f) Team will be responsible for the removal of all firework debris and firework
trash inside the stadium, as well as in those areas connected to the stadium
which would constitute the curtilage of the same. Team will ensure that all
concession buildings, locker rooms, ticket offices and press box are
appropriate for use.
(g) Team will stock and clean restrooms prior to each game or event with which
Team is affiliated. Special attention in the regard will be provided by the
Team during double-headers for restroom and facility. Extra stocking
materials will be provided by the Department.
(h) Team will be cooperative with the Park Department and give priority
scheduling to Park Department events, provided that such events do not
conflict with previously scheduled events approved by the Department. The
Secondary scheduling priority shall consist of the following events:
Richmond Jazz teams, Richmond High School (Varsity and Jr. Varsity)
baseball teams, Seton High School teams, the American Legion baseball
teams, and other travel teams scheduled through the Richmond Parks and
Recreation Department. Department shall provide the Team with
information within a reasonable time.
(i) Team acknowledges and agrees that both parties to this agreement should
adhere to generally accepted principles relative to respect and decorum.
This includes appropriate treatment of all users, management, field workers,
and volunteers.
(j) Team will be required to secure any and all necessary permits or other
approvals for any game or event -based needs. This includes, but is not
limited to, fireworks displays, and sale of alcohol (should the same be
permitted under this Agreement or subsequently permitted by amendment
to this Agreement). Team shall further comply with any Wayne County,
Indiana Health Department Inspections and any directives issued as a result
thereof.
(k) Team will report any concerns, problems, or issues to management of the
City and/or Department in a timely manner so that the City and/or
Department may address the same within a reasonable amount of time.
(1) Team is responsible for all products (including field and concessions),
equipment (including field and concessions). Any personal belongings are
not the responsibility of the Department.
(m) Team will ensure that all trashcans are emptied after each game or event.
Team will also be responsible for day-to-day cleaning and checking of the
offices, terrace, grandstand, dugouts, and restroom.
(n) Any and all improvements to the Stadium, in any capacity whatsoever, must
first be approved by the City and/or Department. City agrees to consider
and respond to a request for such improvements within a reasonable period
of time. Team agrees to make Department aware of and intent to facilitate
any camps, clinics, or other trainings within the stadium and shall seek pre -
approval from the Department prior to such an event.
4. RESPONSIBILITIES OF CITY
(a) In addition to any other responsibilities specifically set forth herein, City
will maintain and provide the following responsibilities:
(i) Day-to-day maintenance, mowing, and upkeep of the field, the
entrance to the facilities, and areas surrounding the field
(ii) Maintenance and repair of structures, and permanent concession
equipment, including hood, grill, walk in refrigerator, and ice
machine;
(iii) Maintenance and repair of all mechanical systems including, but
not limited to, electrical, plumbing, HVAC, sewers, watering
system, sound system, and any City owned concession equipment;
(iv) Maintenance, repair, and/or replacement of stadium lighting,
including field bulbs;
(v) Maintenance and repair of roadways, traffic lanes, parking facilities,
and parking lot lighting;
(vi) Mowing of the parking lot on a weekly basis, or as needed, and
landscaping the facilities with City having discretion as to the extent
and aesthetics of such landscaping;
(vii) Tree trimming; and
(viii) Patrol services, as determined by the City, by the Richmond Police
Department.
5. IRAN INVESTMENT ACTIVITIES.
(a) Pursuant to Indiana Code (IC) 5-22-16.5, Team certifies that Team is not
engaged in investment activities in Iran. In the event City determines during
the course of this Agreement that this certification is no longer valid, City
shall notify Team in writing of said determination and shall give Team
ninety (90) days within which to respond to the written notice. In the event
Team fails to demonstrate to the City that the Team has ceased investment
activities in Iran within ninety (90) days after the written notice is given to
the Team, the City may proceed with any remedies it may have pursuant to
IC 5-22-16.5. In the event the City determines during the course of this
Agreement that this certification is no longer valid and said determination
is not refuted by Team in the manner set forth in IC 5-22-16.5, the City
reserves the right to consider the Team to be in breach of this Agreement
and terminate the agreement.
6. PROHIBITION AGAINST DISCRIMINATION
(a) Pursuant to Indiana Code 22-9-1-10, Team, any sub -contractor, or any
person acting on behalf of Team 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.
7. RELEASE OF LIABILITY.
(a) Team hereby agrees to release and hold harmless the City any of its
respective licensees, assigns, parents, subsidiaries, divisions, business units,
departments, or affiliated entities of the same from all liability which may
arise in the course of Team's use of the Stadium or any of its rights and
obligations pursuant to this Agreement.
(b) Team further covenants to indemnify and save harmless the City from
and against all liens, claims, encumbrances, subrogation interests, and
demands whatsoever of or in any way growing out of any damages that
any of Team's invitees, agents, players, licenses, assigns, parents,
subsidiaries, divisions, business units, departments, or affiliated entities
may experience as a result, in any manner, of any of their presence and/or
participation at the Stadium, for any reason.
MISCELLANEOUS.
(a) 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. Any such delegation or assignment,
without the prior written consent of the other party, shall be null and void.
This Agreement shall be controlled by and interpreted according to Indiana
law and shall be binding upon the parties, their successors and assigns. This
document constitutes the entire Agreement between the parties, although it
may be altered or amended in whole or in part at any time by filing with the
Agreement a written instrument setting forth such changes signed by both
parties. By executing this Agreement the parties agree that this document
supersedes any previous discussion, operating plan, negotiation, or
conversation relating to the subject matter contained herein.
(b) This Agreement may be simultaneously executed in several counterparts,
each of which shall be an original and all of which shall constitute but one
and the same instrument.
(c) The parties hereto submit to jurisdiction of the courts of Wayne County,
Indiana, and any suit arising out of this Agreement 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 Courts.
By executing this Agreement, Team is estopped from bringing suit or any
other action in any alternative forum, venue, or in front of any other tribunal,
court, or administrative body other than the Circuit or Superior Courts of
Wayne County, Indiana, regardless of any right Team may have to bring
such suit in front of other tribunals or in other venues.
(d) Any person executing this Contract in a representative capacity hereby
warrants that he/she has been duly authorized by his or her principal to
execute this Contract.
(e) In the event of any breach of this Agreement by Team, and in addition to
any other damages or remedies, Team shall be liable for all costs incurred
by City in its efforts to enforce this Agreement, including but not limited to,
City's reasonable attorney's fees.
9. SEVERABILITY.
(a) If any provision of this Agreement or any application thereof to any person
or circumstances shall to any extent be determined to be invalid,
inoperative, or unenforceable, the remainder of this Agreement and the
application of that provision to any other persons or circumstances shall not
be affected thereby and the remainder of this Agreement shall be given
effect as if the invalid, inoperative, or unenforceable provision had not been
included and each other provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
10. GOVERNING LAW.
(a) The laws of the State of Indiana shall govern the interpretation, validity,
performance, and enforcement of this Agreement.
IN WITNESS WHEREOF, the City and Team have executed this AGREEMENT as of the
Effective Date.
[Signatures to Follow on Page 9]
CITY
By:
Denise Retz
Title: Parks Department Superintendent
APPROVED:
By: f
Snow, M
TEAM
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