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Signed Contract_2020 Usage Agreement Revision with Clarke University for Veterans' Memorial Park Copyrighted September 21, 2020 City of Dubuque Consent Items # 21. City Council Meeting ITEM TITLE: Signed Contract(s) SUM MARY: 2020 Usage Agreement Revision with Clarke University for Veterans Memorial Park. SUGGESTED Suggested Disposition: Receive and File DISPOSITION: ATTACHMENTS: Description Type Clarke University Usage Agreeement- Veterans Supporting Documentation Memorial Park USAGE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND CLARKE UNIVERSITY THIS USAGE AGREEMENT (the Agreement), dated for reference purposes the 4th day of September, 2020, is made and entered into by and between the City of Dubuque, lowa, a municipal corporation (City) and Clarke University (University). SECTION 1. PREMISES AND TERM. 1.1. In consideration of the terms, covenants, conditions and agreements set forth in this Agreement, City hereby permits University to use the Veterans' Memorial Park, Softball Field #2, shown on Exhibit A, together with any and all easements and appurtenances thereto and subject to any easements and restrictions of record (the Premises), for a term of three (3) years commencing on January 1, 2020 and terminating at 11:59 p.m. on December 31, 2022 subject to all of the terms, covenants, conditions and agreements contained herein. 1.2. Termination. Either party may terminate this Agreement for any reason with or without cause upon thirty (30) days written notice delivered to the other party. Upon termination, City shall have the right to enter the Premises and to assume exclusive use and control of the Premises. Upon termination of this Agreement, University agrees to surrender possession of the Premises in its condition as when first permitted use, or to restore the Premises to substantially the same condition, ordinary wear and tear excepted. 1.3. Condition of Premises. City shall deliver and University accepts the Premises in its "as is" condition. SECTION 2. FEE; UTILITIES AND OTHER COSTS. University shall not be required to pay City a fee for the use of the Premises but shall pay all costs of supplies, utilities, fuel and any other costs and expenses associated with University's use of the Premises. SECTION 3. IMPROVEMENTS. 3.1 University Improvements. University shall not construct any improvements on the Premises without the prior written approval of City. City at its option and upon written notice may require University to remove any improvements constructed by University from the Premises at University's sole expense and University shall have ninety (90) days after such notice or the termination of this Agreement to complete such removal. If University fails to remove the improvements within such ninety-day period, City may cause the improvements to be removed and University shall pay the costs of such removal within thirty (30) days of receipt of a statement therefore from City. Any improvement requested by University shall be at University's sole expense. 3.2. Signaqe. University shall not place any signage on the Premises without the prior written 081920ba1 approval of the City Manager which approval shall be in the City Manager's sole discretion. Signage shall only be displayed during times when University is using the Premises. SECTION 4. STORAGE. Storage is an issue at Veteran's Memorial Park, Softball Field #2 acknowledged by both parties and will be addressed during the term of this Agreement as follows: 4.1. During the softball season as outlined in Section 8.1, City will rent and provide access to University to a bay in the Storage Facility shown on Exhibit B. 4.2. University agrees to pay City $600.00 on the first day of March, 2020, and on the first day of March of each year of the Term as rent for the use of the Storage Facility. City shall invoice University and provide supporting documentation for the reimbursement request. 4.3. University agrees to insure the Storage Facility and the contents of the Storage Facility as described in Section 9 and acknowledges City will not carry insurance on the contents and that City will have no liability of any kind for damage to the contents. 4.4. University shall have the right to enter onto and travel across Veteran's Memorial Park for purposes of accessing the Storage Facility. Material and equipment shall be limited to items necessary and pertinent to operations and maintenance of a college softball facility. 4.5. University agrees that it shall not store or process any hazardous material on the Premises and in the Storage Facility. SECTION 5. UTILITIES. University shall pay all utilities for the use of the Premises. SECTION 6. REPAIRS / MAINTENANCE. University shall at all times during the term of this Agreement, at University's own cost and expense, keep the Premises free of litter, in good order, condition and repair, and shall repair any damage done as a result of University's use of the Premises. SECTION 7. COMPLIANCE WITH LAW. During the term of this Agreement, University shall comply with all applicable laws applicable to University's use of the Premises, the breach of which might result in any penalty on City or forfeiture of City's title to the Premises. SECTION 8. USE OF LICENSED PREMISES. 8.1. University agrees that during the term of this Agreement, the use of the Premises shall be exclusively for University softball games and practices. University shall observe the following conditions: 1) All games and practices shall be scheduled through City's Leisure Services Department. 2) Use will be from March 1st through May 15th in the spring, and September 1st 2 through October 15th in the fall. 3) University's usage may not be exclusive. SECTION 9. INSURANCE. 9.1. University shall at all times during the term of this Agreement maintain insurance as set forth in the City's standard Insurance Schedule for Lessees of City Property, as such uniform, standardized schedule may from time to time be amended. The current Insurance Schedule is attached to this Agreement. 9.2 University shall insure its personal property in the Storage Facility for the full replacement value of such property. 9.2. University shall deliver to City promptly after the execution and delivery of this Agreement the original or duplicate policies or certificates of insurers satisfactory to City evidencing all the insurance which is then required to be maintained by University hereunder, and University shall, within thirty (30) days prior to the expiration of any such insurance, deliver other original or duplicate policies or other certificates of the insurers evidencing the renewal of such insurance. SECTION 10. INDEMNIFICATION. 10.1. Indemnification of City. Except as otherwise provided herein, University shall protect, indemnify, and save harmless City, its officers, and employees (the "Indemnified Parties"), from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against the Indemnified Parties by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Premises during the term of this Agreement and resulting from any act or omission of University or anyone claiming by, through, or under University during the term of the Agreement; and (b) any failure on the part of University to perform or comply with any of the terms of this Agreement. In case any action, suit, or proceeding is brought against the Indemnified Parties by reason of such occurrence, University will, at University's expense, resist and defend such action, suit, or proceeding. 10.2. Indemnification of Universitv. Except as otherwise provided herein, City shall protect, indemnify, and save harmless University from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against the Indemnified Parties by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Premises during the term of this Agreement and resulting from any act or omission of City or anyone claiming by, through, or under City during the term of the Agreement; and (b) any failure on the part of City to perform or comply with any of the terms of this Agreement. In case any action, suit, or proceeding is brought against the University by reason of such occurrence, City will, at City's expense, resist and defend such action, suit, or proceeding. 3 � i� � � il SECTION 11. ASSIGNMENT AND SUBLETTING. University shall not assign or transfer this � Agreement without the prior written consent of City. � � SECTION 12. NOTICES. �� f 12.1. All notices, demands, or other writings in this Agreement provided to be given or made � or sent, or which may be given or made or sent, by either party to the other, shall be deemed to ;� have been fully given or made or sent when made in writing and deposited in the United States � mail, registered and postage prepaid, and addressed as follows ,I TO CITY: City Manager �i City of Dubuque, lowa �� 50 West 13th Street ;i Dubuque, lowa 52001 + � TO UNIVERSITY: CLARKE UNIVERSITY Fi 1550 Clarke Drive I! Dubuque, IA 52001 � ,; 12.2, The address to which any notice, demand, or other writing may be given or made or �� sent to any party as above provided may be changed by written notice given by the party as �'i above provided. � � CITY OF DUBUQUE, IOWA CLARKE UNIVERSITY I� la � /��,�� fl �� , � '' � ,, By: By: �� Michael C. Van Milligen, City Manager '�� Elizabeth McGrath, VP for Business & Finance Ii Printed Name and Title �� Attest: i r � � Ke in S. Firnstah`I, City Clerk F:\Users\tsteckle\LindahlWgreements\Clarke Agreement 2020_081920bal.docx � 4 9 � � � � ��$a� F :. ,4 � 9 �,�, � ��- �-�F ' �z ... A ' �� ' _ -- — — — — -- - 3 ►+ � oa^.9@�� r • �, . • i •r. , �I -i U�,.� PiGKLE BALLIEx1571N6 . tit i-•• ' . .,;�, , - ---- .-. —r+�� ' �-- - - � � � � �°rn�� TENiJlS- f31'OTHER�J ��. '� � '�{�a. II h� � �'dnd�� . ;. �` r . i �� i . . .'� .. �� rruir u }.•?+ . 'i � '•:k~ _ . . .. �- - 0!.� FUTlJk�PATH - ��- -- _�� -- � ----- - - -- - -.. _ � � 1�� ti, - . 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NU momo � �a�� 0�6a�� 7 U�mm N,,, m�� I � I III � 6V�N9m � � � � � � N�moa� � �� I..i.l �rc��tects � � � V.l �a�D �___� � � �, �, �, �, '�, _=_ - __ � �� , �, �, �, �, ___ __ , � � � � � _, � '_ .... . � _ � � ..... . . , � : , _o � � o � � � � � � � � � � o � � � � � � � � ' ' ' � Clarke ' ' ' ' - � ; �, �, � �, �, �, �, -__ `�� o g=u !j� i I I I I I I - " Q� ', ..` -' oec a - Y i i i i ;e:ae e_- � _'. i i � � i i -.. n p� ;a `--- `----------' `---- `------- --- --------- � � � � o 0 0 0 � . � � � � � � - ''�' � � A� � � � � � A� � o .ERs,� "° � � � rP � �,�W � N � �, �> � UQ� Q I� R A� � � � � � �� g o Po�a UQ � � � A� � ��°o o ��P� F��s�,A��`TMP_ �D `C `C � Q�� ; � .... , - J �� Qo �6 . . �Wo _ � Z�o ; . >:....,. _..: : _: . ,:.., llJ ��m � � Foo W6 � � �N � ... . ' .: . ':. ..'... .. . . ....: ..','... :: . . . .�: —c • . . .. . .. . . .. . i . L 1 � � � I/S/20I9 DJ5 �16048� ul OrsNvirv�5 n LOWER LEVEL ELEGTRIGAL POWER PLAN �`";10��`�"�,"��NO �2.I xuE=v4.,,_o ��A.��,ry��6��H F�a��.w, �,n, �,�.w��Fa«„�,As�� n a s City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way Licensees or Permittees INSURANCE SCHEDULE A 1. Clarke University shall furnish a signed certificate of insurance to the City of Dubuque, lowa for the coverage required in Exhibit I prior to the lease, license, or permit commencement. All lessees of City property and right of way licensees or permittees shall submit an updated certificate annually. Each certificate shall be prepared on the most current ACORD form approved by the lowa Insurance Division or an equivalent. Each certificate shall include a statement under Description of Operations as to why the certificate was issued. Eg: Usage Agreement dated 2. All policies of insurance required hereunder shall be with an insurer authorized to do business in lowa and all insurers shall have a rating of A or better in the current A.M. Best's Rating Guide. 3. Each certificate shall be furnished to the Finance Department of the City of Dubuque. 4. The lessee, licensee, or permittee shall be required to carry the minimum coverage/limits, or greater if required by law or other legal agreement, in Exhibit I. Failure to provide the required minimum coverage shall not be deemed a waiver of such requirements by the City of Dubuque. 5. Failure to obtain or maintain the required insurance shall be considered a material breach of the lease, license, or permit. 6. All required endorsements shall be attached to certificate. 7. Whenever a specific ISO form is referenced the current edition of the form must be used unless an equivalent form is approved by the Director of Finance and Budget. The lessee, licensee, or permittee must identify and list in writing all deviations and exclusions from the ISO form. 8. If lessee's, licensee's, or permittee's limits of liability are higher than the required minimum limits then the lessee's, licensee's, or permittee's limits shall be this agreement's required limits. 9. Lessee, licensee, or permittee shall require all subcontractors and sub-subcontractors to obtain and maintain during the performance of work insurance for the coverages described in this Insurance Schedule and shall obtain certificates of insurance from all such subcontractors and sub-subcontractors. Lessee, licensee, or permittee agrees that it shall be liable for the failure of a subcontractor and sub-subcontractor to obtain and maintain such coverage. The City may request a copy of such certificates from the lessee, licensee, or permittee. 10. Lessee, license&permittees shall be responsible for deductibles and self-insured retention. Page 1 of 4 Schedule A Lessees Of City Property; Right Of Way Licensees or Permittees May 2019 7 City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way Licensees or Permittees INSURANCE SCHEDULE A (Continued) EXHIBIT I A� COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products-Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence $1,000,000 Fire Damage Limit (any one occurrence) $50,�00 Medical Payments $5,000 1) Coverage shall be written on an occurrence, not claims made,form. The general liability coverage shall be written in accord with ISO form CG 00 01 or business owners form BP 00 02. All deviations from the standard ISO commercial general liability form CG 0001, or Business owners form BP 00 02, shall be clearly identified. 2) Include ISO endorsement form CG 25 04"Designated Location(s) General Aggregate Limit." 3) Include endorsement indicating that coverage is primary and non-contributory. 4) Include Preservation of Governmental Immunities Endorsement (Sample attached). 5) Include additional insured endorsement for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Use ISO form CG 20 10 (Ongoing operations)or its equivalent. 6) If lessee, licensee, or permittee utilizes Trikkes or Segways in the conduct of business, include an endorsement reflecting that these vehicles are not excluded from Commercial General Liability coverage. 7) Policy shall include Waiver of Right to Recover from Others Endorsement. B� WORKERS'COMPENSATION& EMPLOYERS LIABILITY Statutory Benefits covering all employees injured on the job by accident or disease as prescribed by lowa Code Chapter 85. Coverage A Statutory—State of lowa Coverage B Employers Liability Each Accident $100,000 Each Employee-Disease $100,�0� Policy Limit-Disease $500,000 Policy shall include Waiver of Right to Recover from Others endorsement. Coverage B limits shall be greater if required by the umbrella/excess insurer. OR Nonelection of Workers'Compensation or Employers' Liability Coverage under lowa Code sec. 87.22. Completed form must be attached. Page 2 of 4 Schedule A Lessees Of City Property; Right Of Way Licensees or Permittees May 2019 $ City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way Licensees or Permittees INSURANCE SCHEDULE A [Continued) C� POLLUTION LIABILITY Coverage required: _yes X no Pollution liability coverage shall be required if the lessee, contracting party, or permittee has any pollution exposure for abatement of hazardous or contaminated materials including, but not limited to, petroleum products,the removal of lead, asbestos, or PCBs. Pollution product and completed operations coverage shall also be covered. Each occurrence $2,000,000 Policy Aggregate $4,000,�0� 1) Policy to include job site and transportation coverage. 2) Include additional insured for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Use ISO form CG 2010. (Ongoing operations)or its equivalent and CG2037(completed operations) or its equivalent. 3) Include Preservation of Governmental Immunities Endorsement. 4) Provide evidence of coverage for 5 years after completion of project. D� PROPERTY INSURANCE REQUIRED BY LEASE, LICENSE,OR PERMIT X yes _no Evidence of property coverage provided: _yes Include the City of Dubuque as Lender Loss Payable. E) RIGHT-OF-WAY WORK ONLY: UMBRELLAIEXCESS $1,000,�0� X yes _no Umbrella/excess liability coverage must be at least following form with the underlying policies included herein. F� FLOOD INSURANCE _yes X no If Required Coverage $ Page 3 of 4 Schedule A Lessees Of City Property; Right Of Way Licensees or Permittees May 2019 9 City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way Licensees or Permittees PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunitv. The insurer expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, lowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, lowa under Code of lowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coveraqe. The insurer further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of lowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of lowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunitv.The City of Dubuque, lowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurer. 4. Non-Denial of Coverape.The insurer shall not deny coverage under this policy and the insurer shall not deny any of the rights and benefits accruing to the City of Dubuque, lowa under this policy for reasons of governmental immunity unless and until a court of competentjurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, lowa. No Other Chanqe in Policv. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN (DEPARTMENT MANAGER: FILL IN ALL BLANKS AND CHECK BOXES) Page 4 of 4 Schedule A Lessees Of City Property; Right Of Way Licensees or Permittees May 2019 10