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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 Title:MCC's tfalfv&51IkI;-JnCL-(-hW 'P(e51clQc�t-