Usage Agreement with Clarke University for Veteran's Memorail Park Softball Field #2City of Dubuque
ITEM TITLE:
SUMMARY:
SUGGESTED DISPOSITION:
Copyrighted
March 2, 2020
Consent Items # 7.
Usage Agreement with Clarke University for Veteran's
Memorial Park Softball Field #2
City Manager recommending approval of a three-year
extension of the current Usage Agreement with Clarke
University for Field 2 in Veterans' Memorial Park.
Suggested Disposition: Receive and File; Approve
ATTACHMENTS:
Description
Clarke University Usage Agreement for Veterans'
Memorial Park Field 2-MVM Memo
Staff memo
Clarke Agreement
Type
City Manager Memo
Staff Memo
Staff Memo
Masterpiece on the Mississippi
Dubuque
bitil
All-A.aia City
111111
2007.2012.2013
2017*2019
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Usage Agreement with Clarke University for Veterans' Memorial Park
Field 2
DATE: February 26, 2020
Leisure Services Manager Marie Ware recommends City Council approval of the Usage
Agreement with Clarke University for Field 2 in Veterans' Memorial Park. This is a three
year extension of the current agreement.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Teri Goodmann, Assistant City Manager
Cori Burbach, Assistant City Manager
Marie L. Ware, Leisure Services Manager
Masterpiece on the Mississippi
Dubuque
AII•America City
NA11AL OW. IJIt A/I
2007*2012*2013
2017*2019
TO: Michael C. Van Milligen, City Manager
FROM: Marie L. Ware, Leisure Services Manager
SUBJECT: Usage Agreement with Clarke University for Veterans' Memorial Park
Field 2
DATE: February 24, 2020
INTRODUCTION
The purpose of this memorandum is to request approval of the Usage Agreement with
Clarke University for Veterans' Memorial Park (Vets) Field 2 for a term of three years.
BACKGROUND
Clarke University has had a formal usage agreement with the City for their softball
teams' use of Field 2 in Veterans' Memorial Park. Clarke has used this field for years
and has been a valued partner with Leisure Services. The current term of the
agreement expired December 31, 2019. Extension of the term is requested by Curt
Long, Director of Athletics.
Both the City and non -Clarke users have benefitted from the improvements made to the
field. Those improvements were made with Clarke sharing, or paying all, the costs of
those improvements. In the past, over $8,000 was been spent by Clarke on dugout
improvements. Future improvements include the relocation of the old scoreboard from
Petrakis to field 2 at Vets. The cost for the rehab, installation and electric will be funded
by Clarke.
Some history on our department's relationship with the local colleges may be helpful.
• COLLEGES: Loras College, Clarke University, and the University of Dubuque all
use some of our facilities and we use some of their facilities for our programs. We
do not charge each other any rental fees for this use. The following facilities are (or
have been) used by the colleges:
• Loras College: Petrakis Field (baseball field), Veterans' Memorial Park
softball fields for intramurals, and the practice area at the golf course for their
All Sports Camp.
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■ University of Dubuque: Bunker Hill Golf Course for a practice course for the
golf team, Flora Park volleyball and pickleball courts, and Veterans' Memorial
Park softball fields for intramurals.
■ Clarke University: Bunker Hill Golf Course for a practice course for the golf
team, Veterans' Memorial Park softball field as their home field (per a use
agreement).
The City in turn uses Loras and Clarke for our alumni basketball tournament, the
Loras pool for guard training, and the Loras Field House for our post -season
basketball tournament.
DISCUSSION
Clarke uses the field as a practice and game site. Their main season is in the spring,
ending mid -May before the University dismisses. They practice in the fall from early
September to late October. These dates do not conflict with other users. In 2019, there
were 59 days of scheduled use on field 2 by other programs.
Priority scheduling of the field usage is given to Clarke until mid -May when their season
is completely over. All other users are scheduled as the field is available. Program
Supervisor Brian Feldott works directly with Clarke to meet their needs in scheduling. In
addition to the 18 games that Clarke plays on field 2, they practice on the field around
thirty times per year.
The current agreement includes:
• Three-year agreement, no fee
• Clarke will pay all costs of supplies, utilities, fuel and any other cost associated with
their use of the field.
• Any improvements they would like to the field will be done at their sole expense.
• Signage shall not be placed without approval of the City Manager and will be
displayed only during times when the University is using the field.
• Clarke will prepare the field for their play and maintain the area around the field.
• Clarke will not have exclusive use but will be given scheduling priority. Their use will
not conflict with our use.
RECOMMENDATION
I respectfully request City Council approval of the Usage Agreement with Clarke
University for Veterans' Memorial Park Field 2 for a term of three years.
Prepared By: Recreation Division Manager Dan Kroger
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USAGE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
CLARKE UNIVERSITY
THIS USAGE AG EMENT (the Agreement) dated for reference purposes the
day of i ° , 2020, is made and entered into between the City of
Dubuque, Iowa, 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, 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 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. University
shall consider sharing the cost of improvements made to the Premises to benefit all users.
012320ba1
3.2. Signage. University shall not place any signage on the Premises without the prior
written 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 storage pod on the Premises.
4.2. University agrees to reimburse City for the cost of rental for the term of this
Agreement for use of the storage pod. City shall invoice University and provide supporting
documentation for the reimbursement request.
4.3. University agrees to insure the contents of the storage pod as outlined in Section
9 and acknowledges City will not carry insurance on the contents.
4.4. University shall have the right to enter onto and travel across the Property for
purposes of storing material. 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 is shall not store or process any hazardous material on the
Property.
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.
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2) Use will be from March 1st through May 15th in the spring, and September
1st 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 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 Toss 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 University. 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.
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SECTION 11. ASSIGNMENT AND SUBLETTING. University shall not assign or
transfer this Agreement without the prior written consent of City.
SECTION 12. NOTICES.
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:
TO CITY:
City Manager
City of Dubuque, Iowa
50 West 13th Street
Dubuque, Iowa 52001
TO UNIVERSITY: CLARKE UNIVERSITY
1550 Clarke Drive
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 above provided.
CITY OF DUBUQUE, IOWA
Attest:
CLARKE UNIVERSITY
By: ah
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Printed Name and Title a/vt‘ta,
F:\Users\tsteckle\Lindahl\Agreements\Clarke Agreement 17 with Pod language_012320.docx
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City of Dubuque Insurance Requirements for Lessees of City Property and Right �f Way
Licensees or Permittees
INSURANCE SCHEDULE A
1. Clarke University shall furnish a signed certificate of insurance to the City of Dubuque, Iowa 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 Iowa 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.
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.
5
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
5
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) $50,000
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 at 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 Iowa Code Chapter 85.
Coverage A Statutory —State of Iowa
Coverage B Employers Liability
Each Accident $100,000
Each Employee -Disease $100,000
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 Iowa
Code sec. 87.22. Completed form must be attached.
Page 2 of 4 Schedule A Lessees Of City Property; Right OfWay Licensees or Permittees May 2019
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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
Policy Aggregate
$2,000,000
$4,000,000
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 Presentation of Governmental lrnmunities 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:
UMBRELLA/EXCESS $1,000,000
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
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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 Immunity. The insurer expressly agrees and states that the purchase
of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any
of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa
Section 670.4 as it is now exists and as it may be amended from time to time.
2. Claims Coverage. 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 Iowa
Section 670.4 shall be covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity. 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 Coverage. The insurer shall not deny coverage under this policy and the insurer
shall ngt 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 competent jurisdiction has ruled in favor of
the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa.
No Other Change in Policy. The above preservation of governrnental 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 Perrnittees May 2019
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