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Clarke University Usage Agreement for Veterans' Memorial Park Copyright 2014 City of Dubuque Consent Items # 21. ITEM TITLE: Clarke University Usage Agreement for Veterans' Memorial Field 2 SUMMARY: City Manager recommending approval of the Usage Agreement with Clarke University for softball field 2 in Veterans' Memorial Park. SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve ATTACHMENTS: Description Type Clarke Uniersity Usage Agreement for Veterans' Field- City Manager Memo MVM Memo Memo - Usage Agrmt w Clarke for Vet's 2 Staff Memo Clarke Uniersity Agreement Supporting Documentation THE CITY OF Dubuque DUB E i" Masterpiece on the Mississippi 2007.2012.2013 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: December 13, 2016 Leisure Services Manager Marie Ware recommends City Council Approval of the Usage Agreement with Clarke University for softball 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. v Mic ael C. Van Milligen MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Marie L. Ware, Leisure Services Manager THE CITY ODubuque II-A U Bi E ;111 I.mericaCi i Masterpiece on the Mississippi 2007-2012-2013 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: December 12, 2016 INTRODUCTION The purpose of this memorandum is to request approval of the Usage Agreement with Clarke University for softball field 2 in Veterans' Memorial Park (Vets). BACKGROUND Clarke University has a formal usage agreement for their softball teams' use of Field 2 in Veterans' Memorial Park. Clarke has used this field for years and has been a great partner with Leisure Services. We, over the past three years worked with them on dugout improvements. Clarke has invested over $8,000 to construct new dugouts. The current term of the agreement expires December 31, 2016. Extension of the term is requested by Curt Long, Director of Athletics. This arrangement has benefitted the city because of past improvements Clarke University has made to the field. 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. Clarke uses the field as a practice and game site. Their main season is in the spring, ending mid-May. They come back in the fall for practice from early September to late October. These dates do not conflict with other users. In 2016 there were 53 games played on the field: games revenue • Clarke University 10 n/c • Dubuque Pony League 43 $41500 TOTAL 53 1 Rental rates for the Fields at Vets are $10 per hour plus $12 per hour with lights. Priority scheduling of the field usage is given to Clarke and the Dubuque Pony League. All other users are scheduled as the field is available. Program Supervisor Brian Feldott works with the two organizations to meet both of their needs in scheduling. In addition to the ten games shown above that Clarke plays, they practice on the field around thirty times per year. Some history on our department's relationship with the local colleges and school system may be helpful. • COLLEGES: Loras College, Clarke College, 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. • 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). We in turn use 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. • DUBUQUE COMMUNITY SCHOOL DISTRICT: We have had a long relationship with the school district where we use school facilities and they use our facilities at no charge to the other. Without use of school gyms for our adult volleyball, basketball, and open gym programs, those programs would not exist. The same is true for our youth after school and after school sports programs. We also use different areas of the schools for programs like cooking classes, dances, and after school programs. Hempstead Pool has been made available for our use for a number of years, providing an excellent lesson location and indoor open swimming during the winter months. We also use the Hempstead tennis courts for youth lessons in the summer and several school sites for our summer playground program. In turn, the public schools use the Bunker Hill Golf Course for their golf teams, Senior uses the Flora tennis courts, and the school system uses Petrakis Field to host IHSAA baseball tournament games. 2 • HOLY FAMILY CATHOLIC SCHOOLS: Wahlert uses the Bunker Hill Golf Course Tor their golf teams, Petrakis Field as their home field for games and a few practices. We use Wahlert gym for two days for our alumni basketball tournament. DISCUSSION Clarke's use is mostly early spring as their season is completed before the University dismisses in early May. 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 recommend extension of the term of the agreement for three years to December 31 , 2019. This partnership has been beneficial for both Clarke and the City. ACTION STEP The action requested is for the City Council to approve the Usage Agreement with Clarke University for Veterans' Memorial Park Field 2. M LW: attachments 3 USAGE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND CLARKE UNIVERSITY THIS USAGE AGREEMENT (the Agreement) dated for reference purposes the /9 `/j/day of 2016, 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, 2017 and terminating at 11:59 p.m. on December 31 , 2019 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. 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 issued 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 a storage pod on the premises of Veterans' Memorial Park, Softball Field #2 to University. 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 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. -2- 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 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 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 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 -3- 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. 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: TO UNIVERSITY: City Manager City of Dubuque, Iowa 50 West 13th Street Dubuque, Iowa 52001 CLARKE UNIVERSITY 1550 Clarke Drive Dubuque, IA 52001 11.2. 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 CLARKE UNIVERSITY By: 47 Roy D. Byg, Mayor Attest: Keliin S. tghl,Clerk By: -4- 116.727_9_1A ACC) RO® CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 1/23/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Cottingham & Butler Jane A. Mueller 800 Main St. Dubuque IA 52001 INSURED Clarke University 1550 Clarke Drive Dubuque IA 52001-3117 CONTACT NAME: PI AHONN Fxt,• 563-587-5000 E-MAIL _ADDRESS' INSURER(S) AFFORDING COVERAGE Fa c. Nn,: 563-583-7339 INSURER A :The Charter Oak Fire Insurance Comp CLACOL1 INSURER B INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: 267184640 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. NAIC 0_ 25615 INSR LTR A X TYPE OF INSURANCE COMMERCIAL GENERAL LIABILITY CLAIMS -MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: PRO- JECT POLICY OTHER: AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS HIRED AUTOS UMBRELLA LIAB EXCESS LIAB DED RETENTION $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below LOC SCHEDULED AUTOS NON -OWNED AUTOS OCCUR CLAIMS -MADE YIN IADDL SUBR INSD WVD N/A POLICY NUMBER 6308369P 108COF UB8351 P535COF A Professional 6308369P108COF POLICY EFF POLICY EXP (MM/DD/YYYY) (MM/DD/YYYY) 6/1/2016 6/1/2017 EACH OCCURRENCE DAMAGE TO RENTED PREMISES (Ea occurrence) MED EXP (Any one person) PERSONAL & ADV INJURY GENERAL AGGREGATE 6/1/2016 6/1/2017 6/1/2016 6/1/2017 LIMITS PRODUCTS - COMP/OP AGG Emp Benefits COMBINED SINGLE LIMIT (Ea accident) BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE (Per accident) EACH OCCURRENCE AGGREGATE XPER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT Each Occurrence Aggregate DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) CERTIFICATE HOLDER City of Dubuque Leisure Services 2200 Bunker Hill Road Dubuque IA 52001-3010 CANCELLATION $1,000,000 $100,000 $5,000 $1,000,000 $3,000,000 $2,000,000 $1MIL/2MIL $ $ $500,000 $500,000 $500,000 $1,000,000 $3,000,000 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHSRIZED REPRESENTATIVE © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors (Suppliers, Service Providers), or Right of Way Permit Holders 1. Insurance Schedule A shall furnish a signed Certificate of Insurance (COI) to the City of Dubuque, Iowa for the coverage required in Exhibit I prior to contract or lease commencement. All lessees of City property and Right of Way Permit Holders shall submit an updated COI annually. Each Certificate shall be prepared on the most current ACORD form approved by the Department of Insurance or an equivalent. Each certificate shall include a statement under Description of Operations as to why issued. Eg: Project or Lease of premises at or construction of or right of way permitted location and description 2. All policies of insurance required hereunder shall be with a carrier authorized to do business in Iowa and all carriers 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 contracting department of the City of Dubuque. 4. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 5. All required endorsements to various policies shall be attached to Certificate of insurance. 6. Whenever a specific ISO form is listed, an equivalent form may be substituted subject to the provider identifying and listing in writing all deviations and exclusions that differ from the ISO form. 7. Provider shall be required to carry the minimum coverage/limits, or greater if required by law or other legal agreement, in Exhibit I. 8. Whenever an ISO form is referenced the current edition of the form must be used. If provider's limits of liability are higher than the required minimum limits then the provider's limits shall be this agreement's required limits. Page 1 of 3 Schedule A Property Or Vendors May 2016 City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors (Suppliers, Service Providers), or Right of Way Permit Holders Insurance Schedule A (continued) Exhibit 1 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 a) Coverage shall be written on an occurrence, not claims made, form. The general liability coverage shall be written in accord with ISO form CG0001 or business owners form BP0002. All deviations from the standard ISO commercial general liability form CG 0001, or Business owners form BP 0002, shall be clearly identified. b) Include ISO endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit." c) Include endorsement indicating that coverage is primary and non-contributory. d) Include endorsement to preserve Governmental Immunity. (Sample attached). e) Include an endorsement that deletes any fellow employee exclusion. f) 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. g) If vendor utilizes Trikkes or Segways in the conduct of business, include an endorsement reflecting that these vehicles are not excluded from Commercial General Liability coverage. 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 as amended. Coverage A Coverage B Statutory—State of lowa Employers Liability Each Accident $100,000 Each Employee -Disease $100,000 Policy Limit -Disease $500,000 Policy shall include an endorsement providing a waiver of subrogation to the City of Dubuque. C) Pollution Liability Coverage required: yes no Pollution Liability coverage shall be required if lessee has any pollution exposures including abatement of hazardous or contaminated materials including, but not limited to, petroleum products, the removal of lead, asbestos, or PCB's. Pollution product and complete operations coverage shall also be covered. $2,000,000 each occurrence $4,000,000 policy aggregate a) Policy to include premises and transportation coverage. b) Include additional insured as stated in Af above. c) Include preservation of governmental immunity as stated in Ad above. d) Provide evidence of coverage for 5 years after completion of project. Page 2 of 3 Schedule A Property Or Vendors May 2016 City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors (Suppliers, Service Providers), or Right of Way Permit Holders Preservation of Governmental Immunities Endorsement 1. Nonwaiver of Governmental Immunity. The insurance carrier 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 insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa 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, Iowa 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 insurance carrier. 4. Non -Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa 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 Chanee in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN Page 3 of 3 Schedule A Property Or Vendors May 2016