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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. 1 ■ 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 2 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. 2 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. 3 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 Z�'f AA ? V PFr l� ivL�e 5 Printed Name and Title a/vt‘ta, F:\Users\tsteckle\Lindahl\Agreements\Clarke Agreement 17 with Pod language_012320.docx 4 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 6 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 7 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 8