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HomeMy Public PortalAboutResolution 1828 RESOLUTION NO. 1828 A RESOLUTION AUTHORIZING A RIVER TUBING AGREEMENT WITH PLAINFIELD RIVER TUBING LLC WHEREAS, the Village has been requested to grant permission to Plainfield River Tubing LLC to conduct a tube rental concession business from certain Village property located at 24300 W. Lockport Street known as Electric Park West; and WHEREAS, the Village is amenable to granting the requested permission subject to and in accordance with the provisions of a river tubing agreement in substantially the form attached hereto and incorporated herein by reference as Exhibit A. NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF PLAINFIELD, WILL AND KENDALL COUNTIES, ILLINOIS AS FOLLOWS: Section 1: Recitals - The foregoing recitals are hereby incorporated into this Resolution as if fully set forth herein. Section 2: Execution — The Village President be and is hereby authorized and directed to execute the River Tubing Agreement with Plainfield River Tubing LLC in substantially the form attached hereto and incorporated herein as Exhibit A, and the Village Clerk is hereby authorized and directed to attest thereto. Section 3: Severability -The various portions of this Resolution are hereby expressly declared to be severable, and the invalidity of any such portion of this Resolution shall not affect the validity of any other portions of this Resolution, which shall be enforced to the fullest extent possible. Section 4: Repealer - All ordinances or portions of resolutions previously passed or adopted by the Village of Plainfield that conflict with or are inconsistent with the provisions of this Resolution are hereby repealed. Section 5: Effective Date — This Resolution shall be in full force and effect from and after its passage and approval. PASSED THIS 17" DAY OF APRIL, 2023. AYES: Ruane, Benton NAYS: Calkins ABSTAIN: Larson, Wojowski ABSENT: Kalkanis APPROVED THIS 17' DAY OF APRIL, 2023. A y� / VILLAGE CLERK VILLAGE PRESI ENT 1 RIVER TUBING AGREEMENT THIS PERMIT("Permit"),dated for reference purposes only as of April 17,2023 is made by and between the Village of Plainfield, IL("Village") and Plainfield River Tubing, LLC ("Permittee"). Village and Permittee agree as follows: 1) License Village confers to Permittee a revocable, personal, non-exclusive and non-possessory privilege to enter upon and use portions of that certain real property owned or under the control of the Village more particularly described in Exhibit A attached hereto (the "Permit Area"), for the limited purpose and subject to the terms, conditions and restrictions set forth below. This Permit gives Permittee a license only and notwithstanding anything to the contrary herein, this Permit does not constitute a grant by Village of any ownership, leasehold, easement or other property interest or estate whatsoever in the Permit Area(s),or any portion thereof.Nothing in this Permit shall be construed as granting or creating any franchise rights pursuant to any federal, state or local laws. The Village reserves the right to use or permit others,including the general public enjoying access to the Permit Area generally,to use any part of the Permit Area for any purpose. On the limited occasions that part or all of a site location in the Permit Area is permitted out for special events, Permittee may still be allowed to continue to operate the tubing floats as described herein unless otherwise directed in writing by the Village. 2) Use of Permit Area a) Permitted Acts. Permittee and Permittee's customers may enter and use the Permit Area for the purpose to enter and exit the adjoining river for purposes of tubing rentals in strict accordance with all terms hereof. b) Operating Schedule. Permittee may operate on Sunday through Saturday during regular hours when the parks are open to the public, unless the Permit Area is otherwise closed by direction of the Village. c) Operating Regulation. c.1) Permittee is required to provide a river monitor when the Permittee's tubing activity is present. The river monitor does not need to be part of each tubing party; however the monitor shall be in a navigable watercraft such as a kayak or canoe. c.2) Permittee shall make all reasonable efforts including providing written and verbal instructions to its customers with regard to the rules established in the PRT Waiver(Exhibit B). Permittee shall not be construed to have police powers. 3) Execution of Permitted Activity. Permittee may perform the Permitted Activity on the Permit Area on the following conditions, which are for the sole benefit of the Village: a) Modification of the Permitted Activity. The nature and scope of the Permitted Activity, including but not limited to location of Permit Area, may not be revised or amended except upon the prior written approval of the Village Administrator, or his/her designee. Upon request of the Permittee,the Village may,in its sole and absolute discretion,add to the "Permit Area."The Permit Area is designated in Exhibit A. b) Permits and Approvals. Before beginning any Activity in the Permit Area, Permittee shall obtain any and all permits, licenses and approvals (collectively, "approvals") of all regulatory agencies and other third parties that are required to commence and complete the Permitted Activity. Promptly upon receipt of such approvals, Permittee shall deliver copies of them to the Village. Permittee recognizes and agrees that no approval by the Village for purposes of Permittee's Activity hereunder shall be deemed to constitute the approval of any federal, state or local regulatory authority with jurisdiction, and nothing herein shall limit Permittee's obligation to obtain all such regulatory approvals, at Permittee's sole cost. 4) Restrictions on Use. Permittee agrees that, by way of example only and without limitation, the following uses of the Permit Area by Permittee, or any other person claiming by or through Permittee, are inconsistent with the limited purpose of this Permit and are strictly prohibited as provided below: a) Improvements. Permittee shall not construct permanent structures or improvements in, on, under or about the Permit Area, nor shall Permittee make any alterations or additions to any of existing structures or improvements on the Permit Area,unless Permittee first obtains Districts prior written consent, which Village may give or withhold in its sole and absolute discretion. Permittee may set up 1 OX 10 tent for tubing accessory sales and to provide shelter,tent will be removed at the end of each day. b) Dumping. Permittee shall caution its patrons not to dump on, under or about the Permit Area any waste, refuse, or any other materials that are a nuisance, unsightly, constitute litter, or that could pose a hazard to human health or safety, native vegetation or wildlife, or the environment except in approved containers for such waste. Permittee shall make arrangements for the collection of litter from its employees, tour guides,and customers. c) Hazardous Material. Permittee shall caution its:Invitees not to cause any Hazardous Material (as defined below) to be brought upon, kept, used, stored, generated or disposed of in, on or about the Permit Area, or transported to or from the Permit Area. Permittee shall immediately notify the Village when Permittee learns of or has reason to believe that a release of Hazardous Material has occurred in, on or about the Permit Area. Permittee shall further comply with all laws requiring notice of such releases or threatened releases to governmental agencies and shall take all action necessary to mitigate the release or minimize the spread of contamination. In the event that Permittee or its Agents or Invitees cause a release of Hazardous Material, Permittee shall, without cost to Village and in accordance with all laws and regulations, return the Permit Area to the condition immediately prior to the release. In connection therewith,Permittee shall afford Village a full opportunity to participate in any discuss ion with governmental agencies regarding any settlement agreement, cleanup or abatement agreement, consent decree or other compromise proceeding involving Hazardous Material. For purposes hereof, "Hazardous Material" means material that, because of its quantity,concentration or physical or chemical characteristics,is at any time now or hereafter deemed by any federal,state or local governmental authority to pose a present or potential hazard to public health, welfare or the environment. Hazardous Material includes, without limitation, any material or substance defined as a "hazardous substance, pollutant or contaminant",any asbestos and asbestos containing materials whether or not such materials are part of the Permit Area or are naturally occurring substances in the Permit Area, and any petroleum, including, without limitation, crude oil or any fraction thereof, natural gas or natural gas liquids. The term "release" or "threatened release" when used with respect to Hazardous Material shall include any actual or imminent spilling,leaking,pumping,pouring,emitting,emptying,discharging, injecting, escaping,leaching, dumping, or disposing in, on, under or about the Permit Area. d) Nuisances. Permittee shall not conduct any activities on or about the Permit Area that constitute waste, nuisance or unreasonable annoyance (including, without limitation, emission of objectionable odors, noises or lights) to Village or to the owners or occupants of neighboring property or to the public. e) Damage. Permittee shall use, and shall cause its Agents(as defined below)to use,due care at all times to avoid any damage to property of the Village or the Permit Area and Permittee shall not do anything about the Permit Area that could cause damage to the Permit Area or any Village property located thereon. Permittee shall, at its sole expense and in accordance with the direction of the Village,restore and repair all damage to Village property caused by Permittee or its invitees. t) Use of Adjoining Land. Permittee acknowledges that the privilege given under this Permit shall be limited strictly to the Permit Area. Permittee shall not use any adjoining lands without securing written prior approval. Permittee shall further be responsible to take all reasonable steps to ensure that its customers and patrons refrain from trespassing or violating the property rights of third parties. Without limitation, Permittee shall advise its customers and patrons of the Illinois Supreme Court decision in Holm v. Kodat, and that pursuant to that decision, there is no right in Illinois to traverse a nonnavigable river over the lands of a riparian owner without the consent of that riparian owner. g) Merchandise. Permittee may sell merchandise related to tubing not to include food or beverage. h) Signs. Permittee shall only display such signs as are approved by the Village Administrator, or his/her designee, to designate appropriately the concession during working hours. At Permittee's own expense, Permittee shall remove any sign installed by Permittee when directed in writing by the Village Administrator, or his/her designee, if said sign was installed without permission as provided above, or on termination of this Permit. 5) Term of Permit. a) The privilege conferred to Permittee pursuant to this Permit shall commence on the date on which all of the following have occurred: (1) this Permit is fully executed by the Parties and delivered to Permittee by Village following Village approval;(2)payment of the Annual Fee by Permittee; 3)Permittee has provided the certificates of insurance and endorsements (or evidence thereof)and the Village has approved the coverage provided therein; and (4)Permittee has obtained all required regulatory permits from local municipalities (if any)necessary for operation. b) Failure of the Permittee or its participants to properly share the Permit Area with other users,or failure to operate safely, or the creation of an adverse impact upon the general public from the operations of Permittee shall be grounds for the Village to terminate this Permit immediately. Grantor may also cancel this Permit due to breach of the terms of this Agreement by Permittee upon 7 days'notice and opportunity to cure. c) The term of this Permit shall begin upon the date all of the items under section S(a)have occurred and shall terminate on December 31,2023. 6) Fees. For the privileges granted herein,Permittee shall pay a$250.00 Annual License Fee at the time of execution of this permit. 7) Quality of Products and Services Provided. Permittee hereby agrees that all tubes services offered hereunder shall be of excellent quality and that. the service shall be prompt, courteous, efficient and professional. Village shall have the right to raise reasonable objections to the quality of services provided and Permittee shall have the obligation to address those objections by modifying the causes of those objections until corrected to the satisfaction of the Village. it 8) Concession Rights. The Permittee shall have the non-exclusive right,during the term of the Permit,to operate tube services as described herein,at the location(s)indicated herein. On the limited occasions that part or all a site location in the Permit Area is permitted out for a special event,Permittee shall still be allowed to continue to operate, as described herein, unless otherwise directed by the Village in writing. The schedule and routes shall be subject to written approval by the Village Administrator, or his/her designee, prior to being effective, and the Village Administrator, or his/her designee, shall reserve the right to review and adjust the schedule and routes as he/she shall determine in his/her sole and absolute discretion exercised reasonably. However,nothing set forth herein shall relieve Permittee of the responsibility for the safety of all routes,operations,and persons involved in or related to Permittee's operations and actions. 9) Other Permits and Fees as Required. Any other permits and their fees as may he required by other Federal,State, or Local Authorities will be the responsibility of the Permittee. 10)Insurance. a) Permittee shall always procure and keep in effect during the term of this Permit, at Permittee's expense,insurance as follows: a.i) Commercial General Liability Insurance with limits not less than $1,000,000 per occurrence, with annual aggregate of$2,000,000. b) All liability policies required hereunder shall provide for the following: b.i)Name as additional insureds the Village of Plainfield,IL and the Riverfront Foundation. c) All policies shall be endorsed to provide thirty (30) days prior written notice of cancellation, to Village. d) Prior to the commencement date of this Permit, Permittee shall deliver to Village certificates of insurance and endorsements.In the event Permittee shall fail to procure such insurance,or to deliver such policies, endorsements or certificates, Village may immediately terminate this Permit and all rights granted to Permittee herein. e) Permittee's compliance with the provisions of this Section shall in no way relieve or decrease Permittee's indemnification obligations under this Permit or any of Permittee' s other obligations hereunder. Notwithstanding anything to the contrary in this Permit, this Permit shall terminate immediately,upon the lap se of any required insurance coverage. Permittee shall he responsible, at its expense, for separately insuring Permittee's personal property. 11)Compliance with Laws. Permittee shall, at its expense, conduct and cause to be conducted all activities on the Permit Area allowed hereunder in a safe and reasonable manner and in compliance with all laws, regulations, ordinances and orders of any governmental or other regulatory entity(including, without limitation, the Americans with Disabilities Act and any and all District of Social Services community care licensing regulations)whether presently in effect or subsequently adopted and whether or not in the contemplation of the parties. Permittee shall, at its sole expense, always procure and maintain in force during its use of the Permit Area any and all business and other licenses or approvals necessary to conduct the activities allowed hereunder. Permittee shall submit copies of its required permits or licenses to the Village immediately upon receipt.Permittee understands and agrees that Village is entering this Permit in its capacity as a property owner with a proprietary interest in the Permit Area and not as a regulatory agency with police powers. Permittee further understands and agrees that no approval by Village for purpose s of this Permit shall be deemed to constitute approval of any federal, state, Village or other local regulatory authority with jurisdiction, and nothing herein shall limit Permittee's obligation to obtain all such regulatory approvals at Permittee's sole cost or limit in any way District's exercise of its police powers. If Counsel for the Village opines that the Permittee has allegedly violated its duties under this Agreement, or any laws associated with river usage or trespassing laws (in accord with the rule of law enunciated in the Illinois Supreme Court decision in Holm v. Kodat),the following actions may he addressed by the Village Administrator and/or his/her designee. For purposes of this Agreement, a "violation" by the Permittee shall mean failure by the Permittee to advise its Invitees of the rules attached on Exhibit B; failure by Permittee to provide a river monitor; failure by the Permittee to keep its tubes in appropriate operating condition; and so forth. Permittee shall not be vicariously liable for the actions of the public while tubing, whether Permittee's Invitees or other members of the public who may be tubing on the river. a) A detailed description of the alleged first violation and all associated matters will be presented at a due process hearing before the Village Administrator which may be attended by Permittee and Permittee's counsel. If a violation is found after said hearing, it will result in a verbal warning to the Permittee. The reason for the imposition of the warning shall be explicitly found to be a violation of one of Permittee's duties set out hereinabove. Permittee will have the opportunity to remediate conditions which led to the violation. b) Should a second fully detailed description of an alleged violation of Permittee's duties occur, a full hearing regarding the same, providing for due process for Permittee will be held. If a finding of a violation is upheld after such hearing, then Permittee will receive a written warning and have the opportunity to remediate conditions which led to the violation. e) Should a third fully detailed description of an alleged violation of Permittee's duties occur, a full hearing regarding the same,providing for due process for Permittee will be held. If a finding of a violation is upheld after such hearing,then such matter will,prior to any fine or other sanction,be referred to the Village Board for full review at its next regularly scheduled meeting or special meeting called for that purpose. The Village Board will review all details of the alleged violation and the finding of the Village Administrator. The Village Board in such review will decide whether Permittee violated its duties under this Agreement as referenced hereinabove giving due and appropriate regard as to who actually committed the violation i.e. Permittee or its Invitees and other members of the public. At any such hearings, the Permittee shall have full opportunity to present its case and defense against any alleged violation of its duties hereunder via its legal counsel. Permittee has agreed to have representatives of the company monitor the area in order to prevent. any violations of trespassing laws, and at all times, Permittee shall conduct its business using best efforts to advise its customers as to the proper tubing routes, appropriate conduct on the river and observance of third-party property rights. 12)Surrender. Upon the expiration or termination of this Permit, Permittee shall surrender the Permit Area in the same condition as received, reasonable wear and tear excepted, free from hazards and clear of all debris. At such time, Permittee shall remove all its property from the Permit Area permitted hereunder, and all debris associated therewith and shall repair, at its cost, any damage to the Permit Area caused by such removal or Permittee's use hereunder. 13)Repair of Damage. If any portion of the Permit Area or any propel ty of Village located on or about the Permit Area is damaged by any of the activities conducted by Permittee hereunder, Permittee shall immediately, at its sole cost,repair any and all such damage and restore the Permit Area or property to its previous condition.Village has no responsibility or liability of any kind with respect to any utilities that may be on, in or under the Permit Area. Permittee has the sole responsible for arranging and paying directly for any utilities or services necessary for its activities hereunder. 14)Indemnity and Hold Harmless. Permittee shall indemnify, defend and hold harmless Village, its officers, agents, employees and contractors,and each of them,from and against any and all demands,claims,legal or administrative proceedings, losses, costs, penalties, fines, liens, judgments, damages and liabilities of any kind ("Claims"), arising in any manner out of: a) Any injury to or death of any person or damage to or destruction of any property occurring in, on or about the Permit Area, or any part thereof, whether the person or property of Permittee, its officers, employees,agents,contractors or subcontractors(collectively, "Agents"), its invitees,guests or business visitors(collectively, "Invitees"),or third persons, relating to any use or activity under this Permit. b) Any failure by Permittee to faithfully observe or perform any of the terms,covenants or conditions of this Permit, c) The use of the Permit Area(s) or any activities conducted thereon by Permittee, its Agents or In vi tees, d) Any release or discharge or threatened release or discharge, of any Hazardous s Material caused or allowed by Permittee, its Agents or Invitees, on, in, under or about the Permit Area, any improvements or into the environment,or e) Any failure by Permittee to faithfully observe or perforni any terms,covenants or conditions of the Permit to the extent that such terms,covenants or conditions relate to or are triggered by the Activity to be performed or the facilities to be installed pursuant to this Permit; except solely to the extent of Claims resulting directly from the willful misconduct of District' s authorized representatives. In addition to Permittee's obligation to indemnify Village, Permittee specifically acknowledges and agrees that it has an immediate and independent obligation to defend the Village from any claim that actually or potentially falls within this indemnity provision even if such allegation is or may be groundless, fraudulent, or false, which obligation arises at the time such claim is tendered to Permittee by Village and continues at all times thereafter. The foregoing indemnity shall include, without limitation, reasonable attorneys' and consultants' fees, investigation and remediation costs and all other reasonable costs and expenses incurred by the indemnified parties, including, without limitation,damages for decrease in the value of the Permit Area and claims for damages or decreases in the value of adjoining property, relating to any use or activity by Permittee under this permit. Permittee's obligations under this Section shall survive the expiration or other termination of this Permit. 15)Waiver of Claims. a) Neither Village nor any of its departments,hoards,officers, agents or employees shall be liable for any damage to the property of Permittee, its officers, Agents, Invitees employees, contractors or subcontractors, or their employees, or for any bodily injury or death to such persons,resulting or arising from the condition of the Permit Area or its use by Permittee. b) Permittee acknowledges that this Permit is freely revocable by Village and in view of such fact, Permittee expressly assumes the risk of making any expenditures in connection with this Permit, even if such expenditures are substantial. Without limiting any indemnification obligations of Permittee or other waivers contained in this Permit and as a material part of the consideration for this Permit,Permittee fully RELEASES,WAIVES AND DISCHARGES forever any and all claims, demands, rights , and causes of action against, and covenants not to sue, Village, its departments, officers, director s and employees, and all persons acting by, through or under each of them, under any present or future laws, statutes, or regulations, including, but not limited to, any claim for inverse condemnation or the payment of just compensation under the law of eminent domain, or otherwise at equity, in the event that Village exercises its right to revoke or terminate this permit. c) Permittee acknowledges that it will not be a displaced person at the time this Permit is terminated or revoked or expires by its own terms, and Permittee fully RELEASES, WAIVES AND DISCHARGES forever any and all claims, demands, rights , and causes of action against, and covenants not to sue, Village, its departments, officers, directors and employees, and all persons acting by, through or under each of them, under any present or future laws, statutes, or regulations, including without limitation, any and all claims for relocation benefits or assistance from Village under federal and state relocation assistance laws. 16) As is Condition of Permit Area(s); Disclaimer of Representations. Permittee accepts the Permit Area in its "AS IS" condition, without representation or warranty of any kind by Village,its officers,agents or employees, and subject to all applicable laws,rules and ordinances governing the use of the Permit Area. Without limiting the foregoing,this Permit is made subject to any and all covenant s, conditions, restrictions,easements, encumbrances and other title matters affecting the Permit Area, whether foreseen or unforeseen, and whether such matters are of record or would be disclosed by an accurate inspection or survey. Permittee acknowledges that trails, paths, streets and other areas intended to be used by Permittee can be dangerous, and that Village will not be performing maintenance or repairs of any Permit areas specifically for the use by Permittee. 17)No Assignment. This Permit is personal to Permittee and shall not he assigned, conveyed or otherwise transferred by Permittee under any circumstances. Any attempt to assign, convey or otherwise transfer this Permit shall be null and void and cause the immediate termination and revocation of this Permit. 18)Cessation of Use. Permittee will not terminate its activities on the Permit Area pursuant hereto without 30 days' prior written notice to the Village. 19)No Joint Ventures or Partnership; No Authorization. This Permit does not create a partnership or joint venture between Village and Permittee as to any activity conducted by Permittee on, in or relating to the Permit Area. Permittee is not a state actor with respect to any activity conducted by Permittee on,in, or under the Permit Area.The giving of this Permit by Village does not constitute authorization or approval by Village of any activity conducted by Permittee on, in or relating to the Permit Area. 20)Non-Discrimination. a) Covenant Not to Discriminate. In the performance of this Permit, Permittee agrees not to discriminate on the basis of the fact or perception of a person's race, color, creed, religion, national origin,ancestry,height,weight,age,sex,sexual orientation,gender identity,domestic partner status, marital status, disability or Acquired Immune Deficiency Syndrome or HIV status (AIDS[I-IN status) against any employee of, any Village employee working with, or applicant for employment with Permittee, in any of Permittee's operations within the United States, or against any person seeking accommodations,advantages,facilities,privileges,services,or membership in all business, social, or other establishments or organizations operated by Permittee. b) Non-Discrimination in Benefits. Permittee does not as of the date of this Permit and will not during the term of this Agreement,in any of its operations within the United States,discriminate in the provision of benefits between employees with domestic partners and employees with spouses, and/or between domestic partners and spouses of such employees, where the domestic partnership has been registered with a governmental entity pursuant to state or local law authorizing. 21)No Tobacco Sale or Advertising. Permittee acknowledges and agrees that no sale or advertising of cigarettes or tobacco products is allowed on any real property owned by or under the control of the Village, which is the subject of this Permit. This prohibition includes the placement of the name of a company producing, selling or distributing cigarettes or tobacco products or the name of any cigarette or tobacco product in any promotion of any event or product.This prohibition does not apply to any advertisement sponsored by a state, local or nonprofit entity designed to communicate the health hazards of cigarettes and tobacco products or to encourage people not to smoke or to stop smoking. 22)American with Disabilities Act. Permittee acknowledges that, pursuant to the Americans with Disabilities Act (ADA), programs, services and other activities provided by a public entity to the public,whether directly or through a contractor, must be accessible to the disabled public. Permittee shall provide the services specified in this Permit in a manner that complies with the ADA and any and all other applicable federal,state and local disability rights legislation. Permittee agrees not to discriminate against disabled persons in the provision of services,bene fits or activities provided under this Permit and further agrees that any violation of this prohibition on the part of Permittee, its employees, agents or assigns shall constitute a material breach of this Permit. 23)Drug-Free Workplace. Permittee acknowledges that pursuant to the Federal Drug-Free Workplace Act of 1989, the unlawful manufacture , distribution, possess ion or use of a controlled substance is prohibited on Village premises, Permittee agrees that any violation of this prohibition by Permittee, its Agents or assigns shall be deemed a material breach of this Agreement. 24)Force Majeure. Should any matter or condition beyond the control of either party hereto, such as war, public emergency or calamity, fire, earthquake, flood, Act of God, strike, or other labor disturbance , or any governmental restriction,prevent performance of this Permit in accordance with the provisions hereof, or should the condition of the Premises render continuation of the Permitted Activity unsafe or in violation of any law , statute or ordinance ,this Permit, together with the rights and privileges granted herein, shall be immediately terminated and Village shall be under no legal obligation to Permittee by reason of said termination. 25)Destruction of Premises. In the event of the destruction of the Premises,or any part thereof, in which the operation is situated so as to make the service untenable, the rights and privileges granted hereunder may be terminated by Village and Village shall be under no legal obligation to Permittee by reason of said termination. 26)Conflict of Interest. Permittee certifies that it has made a complete disclosure to the Village of all facts bearing on any possible interest, direct or indirect, which Permittee believes any officer or employee of the Village presently has or will have in this Permit or in the performance thereof or in any portion of the profits thereof.Willful failure by Permittee to make such disclosure,if any, shall constitute grounds for the District' s termination and cancellation of this Permit. 27)No Obligation to Prevent Criminal Activity. Village shall have no liability to Permittee or Invitees for any criminal activity in, on or about the Premises, or the Park. 28)General Provisions. a) This Permit may be amended or modified only by a writing signed by the Village and Permittee. b) No waiver by any party of any of the provisions of this Permit shall be effective unless in writing and signed by an officer or other authorized representative,and only to the extent expressly provided in such written waiver. c) All approvals and determinations of Village requested, required or permitted hereunder may be made in the sole and absolute reasonable discretion of the Village Administrator or other authorized Village Official. d) This instrument, including the exhibit(s) hereto, contains the entire agreement between the parties and all prior written or oral negotiations, discussions, understandings and agreements are merged herein. e) The section and other heading s of this Permit are for convenience of reference only and shall be disregarded in the interpretation of this Permit. f) If either party commences an action against the other or a dispute arises under this Permit, the prevailing party shall be entitled to recover from the other reasonable attorneys'fees and costs. For purposes hereof, reasonable attorneys' fees of the parties shall be based on the fees regularly charged by private attorneys in Illinois with comparable experience. g) If Permittee consists of more than one person, then the obligations of each person shall be joint and several. h) Permittee may not record this Permit or any memorandum hereof. i) Subject to the prohibition against assignments or other transfers by Permittee hereunder, this Permit shall be binding upon and inure to the benefit of the parties and their respective. heirs, representatives, successors and assigns. j) Any sale or conveyance of the property burdened by this Permit by Village shall automatically revoke this Permit. 30) Specific Provisions. a) Parking and Shuttle Operations. Permittee acknowledges that parking is limited at the Permit Areas and therefore shall assemble, stage their business vehicles and trailers safely and so as not to unreasonably interfere with adjacent public parking. b) Prohibition of Advertising. Permittee's tubes and equipment are not to be used for advertising of any kind, except for the name, logo and contact information of the Permittee's company. c) Standards of Conduct, Customer Service and Customer Contact Number. Permittee will provide 'on-river' staff to help ensure customers follow the prescribed route. Permittee and its employees shall conduct themselves in a professional, courteous and respectful manner always. The Permittee, not the Village, shall be responsible for handling, addressing and responding to any customer or general public concerns regarding any service matters pertaining to the concession including refund requests, product complaints, safety complaints or other service matters. Permittee shall have visible on each tube, the Permittee's company name. d) Prohibition of Alcohol. Sales,distribution,promotion,advertising and use of any type of alcohol by Permittee is strictly prohibited. e) Accident Reporting.Permittee shall report in writing all accidents or other incidents to the Village within 24 hours of occurrence, including the names and contact information of all persons involved or witnessing the occurrence. f) Customer Standards of Conduct. All customer s shall be required to sign a participant release form, as shown in Exhibit 13, and shall follow the rules and regulations established in the form,and the perrnittee is required to enforce these regulations to the best of its ability. 9 PERMITTEE REPRESENTS AND WARRANTS TO VILLAGE THAT IT HAS READ AND UNDERSTANDS THE CONTENTS OF THIS PERMIT, HAS HAD AN OPPORTUNITY TO REVIEW AND DISCUSS IT WITH COUNSEL OF ITS CHOOSING, AND AGREES TO COMPLY WITH AND BE BOUND BY ALL OF ITS PROVISIONS. Permit Approved by Permittee Village of Plainfield Plainfield River Tubing,LLC TL-ZJ' Nir- &(-- By:_ By: Name (Signature) Name(Signature) By: S 01)51 B\ :31, un AnOtide,( Name(Print) Name(Print) Title V i P(e.cide -I- Title Date 43 /at)-a-3 Date Exhibit A Maps of each park location included in this permit are attached. Permit Areas include: Electric Park West/Village Rivet-front 24300 W.Lockport Street • Parking Lot • Trails and Pathways linking Parking Lot to River Tubing Launch • Canoe/Tube Launch Areas 5/18/2020 Eaton Preserve Park-Google Maps Google Maps Eaton Preserve Park Plainfield River Tubing Stc t Point 5/18/2020 Google Maps Go gle Maps Plainfield River Tubing Parking/ End Point/Tent r • 44.0 r , z.ft - ibit PLAINFIELD RIVER1 E AGREEMENT OF RELEASE AND WAIVER OF LIABILITY I represent and warrant that I am in good physical health and do not suffer from any medical condition which would limit my participation in the water recreational activities offered by Plainfield River Tubing LLC ("the Company"). I understand that it is my responsibility to consult with a physician regarding my participation. I willingly agree to comply with all the written and verbal terms, conditions, warnings, restrictions, and directions given by the Company for the use of the equipment and participation in water recreational activities, including, but not limited to, the prohibition of alcoholic beverages and drugs prior to and while participating in such activities. I understand that my participation in water recreational activities are inherently hazardous. The hazards include but are not limited to: wet or uneven surfaces, slips, trips, falls, collisions with or entrapment in rocks or trees both above or below the water, equipment failure, vehicle accidents, encounters with wildlife, and weather conditions. The risk of injury from these hazards, both known and unknown, as well as from the use of equipment, the river, and its surrounding areas is significant. These injuries include, but are not limited to: cuts, lacerations, bruises, sprains, strains, dislocations,broken bones, head injuries, drowning, permanent paralysis, or death. I knowingly and freely assume all risks, both known and unknown, relating to my participation in water recreation activities provided by the Company; even if arising from the negligence of the Company and its employees, and assume full responsibility for myself while using the equipment and while participating in activities on the DuPage River. I, my heirs, and/or legal representatives hereby WAIVE AND RELEASE the Company, its owners, officers, directors, managers, agents, employees, or other representatives from any claim, demand, cause of action of any kind resulting from or related to my participation in the water recreational activities offered by the Company.Although every attempt will be made by the Company to ensure the safety of all participants, I recognize that water recreational activities require physical exertion that may be strenuous and may cause physical injury, and I am fully aware of the inherent risks and hazards involved. My participation is purely voluntary, and I understand and acknowledge that I am fully responsible for any and all risks, injuries, or damages, known or unknown, which might occur as a result of my participation in water recreational activities provided by the Company. This agreement shall be governed by the laws of Illinois. I have read the above release and waiver of liability and fully understand its content. I am legally competent to sign and voluntarily agree to the terms and conditions stated above. Waiver of Liability Relating to Coronavirus/COVID-19 The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is reported to be extremely contagious. The state of medical knowledge is evolving,but the virus is believed to spread from person-person contact and/or by contact with contaminated surfaces and objects, and even possibly in the air. People reportedly can be infected and show no symptoms and therefore spread the disease. The exact methods of spread and contraction are unknown, and there is no known treatment, cure, or vaccine for COVID-19. Evidence has shown that COVID-19 can cause serious and potentially lifethreatening illness and even death. Plainfield River Tubing LLC (the Company) is taking required safety precautions but cannot prevent you [or your child(ren)] from becoming exposed to, contracting, or spreading COVID-19 while utilizing the Company's services or activities. It is not possible to totally prevent the presence of the disease. Therefore, if you choose to utilize the Company's services and/or undertake its activities you may be exposing yourself to and/or increasing your risk of contracting or spreading COVID-19. ASSUMPTION OF RISK: I have read and understood the above warning concerning COVID-19. I hereby knowingly and voluntarily accept the risk of contracting COVID-19 for myself and/or my children in order to utilize the Company's services. I accept the risk of exposure to, contracting, and/or spreading COVID-19 in order to participate in this activity. WAIVER OF LAWSUIT/LIABILITY: I hereby forever release and waive my right to bring suit against the Company and its owners, officers, directors, managers, agents, employees, or other representatives in connection with exposure, infection, and/or spread of COVID-19 related to utilizing the Company's services. I understand that this waiver means I give up my right to bring any claims including for personal injuries, death, disease or any other loss, including but not limited to claims of negligence and give up any claim I may have to seek damages, whether known or unknown, foreseen or unforeseen. CHOICE OF LAW: I understand and agree that the law of Illinois will apply to this Waiver. I HAVE CAREFULLY READ AND FULLY UNDERSTAND ALL PROVISIONS OF THIS RELEASE,AND FREELY AND KNOWINGLY ASSUME THE RISK AND WAIVE MY RIGHTS CONCERNING LIABILITY AS DESCRIBED ABOVE: