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R-1169 - 03/27/2012 - SPORTS CORE - Resolutions Supporting Documents IT13M 6.F.3) OF Oq X90 1 Q S AGENDA ITEM Regular Board of Trustees Meeting of March 27, 2012 SUBJECT: Sports Core Building Usage-Eclipse Select Soccer Club FROM: Trey VanDyke, Sports Core Director BUDGET SOURCE/BUDGET IMPACT: 816 - Open Fields ($12,400.00) RECOMMENDED MOTION: I move that the Village Board approve Resolution 2012- SC-AG-EXI-R-1169 approving and authorizing the execution of an agreement by and between the Village of Oak Brook and the Eclipse Select Soccer Club, Inc. to allow the use of a soccer field and part of the Sports Core Administration Building for a period ending November 15,2012. Background/History: In the spring of 2011, The Chicago Red Stars informed us they would no longer need use of the former Sports Core Administration. Since the Eclipse Select Soccer Club has previously expressed interest in the building, staff approached them about using the building during the 2011 season. While we gave the Eclipse very short notice for the 2011 season,they agreed to take over the building rental agreement under the same terms as the Red Stars. The Eclipse Select Soccer Club paid the Sports Core in excess of$65,000.00 in soccer related rental fees in 2011. They are expected to be our largest field user by several folds in 2012. Our relationship is rather unique in allowing us to have a soccer business. They along with the American Youth Soccer Organization actually own all of the soccer goals on our property. The rental of the Sports Core Administration to our largest field user is viewed by staff as an opportunity to strengthen our relationship with our best customer. Unlike the previous agreement, the proposed term of this agreement is 8 months. This term will allow the Eclipse to operate their soccer business in a manner that will enable them to pay us the rental fees we have budgeted for 2012. The term will also allow staff to seek alternative uses and � r�l Last saved by tvandyke V:\O1 LegislativeGenMan\Agendas\AGENDA MEMOS\2012 Agenda Memos\032712\Eclipse Select Soccer Club- Building Rental Memo 2012 revised Ldoc.doc Last printed 3/23/2012 12:39 PM users throughout the 2012 season. Staff expects to revisit this issue after the long range planning process has occurred and an RFP has been completed. Recommendation: I recommend the approval of Resolution 2012-SC-AG-EXI-R-1169. Last saved by tvandyke V:\O1 LegislativeGenMan\Agendas\AGENDA MEMOS\2012 Agenda Memos\032712\Eclipse Select Soccer Clib- Building Rental Memo 2012 revised Ldoc.doc Last printed 3/23/2012 12:39 PM Resolution 2012-SC-AG-EX1-R-1169 Sports Core Agreement w/Eclipse Soccer Club Allowing Use of Fields and Administration Building Page 1 of 3 RESOLUTION 2012-SC-AG-EX1-R-1 169 A RESOLUTION APPROVING AND AUTHORIZING THE EXECUTION OF AN AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND ECLIPSE SELECT SOCCER CLUB, INC. TO ALLOW THE USE OF A SPORTS CORE SOCCER FIELD AND PART OF THE ADMINISTRATION BUILDING WHEREAS, Section 11-76-1 of the Illinois Municipal Code, 65 ILCS 11-76-1, provides the Village the authority to lease Village property; and WHEREAS, Eclipse Select Soccer Club, Inc. ("Eclipse") has requested to use Field B located within the Village's Sports Core and office space in the Sports Core Administration Building ("Sports Core Property') to administer and provide soccer programs in return for paying the Village a license fee; and WHEREAS, Eclipse has used the Sports Core Property in the past without incident; and WHEREAS, the Village and Eclipse desire to enter into and execute an agreement allowing Eclipse to use the Sports Core Property("Agreement'); and WHEREAS, the Village supports youth participation in safe and supervised athletic activities within the Village; and WHEREAS, the President and Board of Trustees have determined that it is in the best interests of the Village to enter into the Agreement in a final form as approved by the Village Attorney; NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook. Section 2: Approval of the Agreement. The President and Board of Trustees hereby approve the Agreement by and between the Village and Eclipse in substantially the same form as attached as Exhibit A and in a final form approved by the Village Attorney. Section 3: Authorization and Execution of the Agreement. The Village Manager and Village Clerk shall be, and hereby are, authorized to execute the final Agreement on behalf of the Village. Section 4: Effective Date. This Resolution shall be in full force and effect upon passage and approval in the manner provided by law. [SIGNATURE PAGE FOLLOWS] Resolution 2012-SC-AG-EX1-R-1 169 Sports Core Agreement w/Eclipse Soccer Club Allowing Use of Fields and Administration Building Page 2 of 3 APPROVED THIS 27th day of March, 2012 Gopal G. Lalmalani Village President PASSED THIS 27th day of March, 2012 Ayes: Nays: Absent: ATTEST: Charlotte K. Pruss Village Clerk Resolution 2012-SC-AG-EX1-R-1169 Sports Core Agreement w/Eclipse Soccer Club Allowing Use of Fields and Administration Building Page 3 of 3 EXHIBIT A #11092512 vt TEMPORARY USE AGREEMENT This Temporary Use Agreement ("Agreement'l is made and entered into as of the 16 day of March, 2012 ("Effective Date's by and between the VILLAGE OF OAK BROOK, an Illinois municipal corporation ("Village'), and the ECLIPSE SELECT SOCCER CLUB, INC., an Illinois corporation ("User'J. SECTION 1. RECITALS. A. The Village owns soccer fields located in the Village's Sports Core in Oak Brook, Illinois, which includes a field known as Field B ("Soccer Field', and the parcel of real property located at 800 Oak Brook Road, Oak Brook, Illinois, which is improved with a building commonly known as the Sports Core Administration Building ("Administration Building'). B. User desires to have the right of first refusal to use and occupy the Soccer Field on specified days and times for use for soccer games and other soccer and athletic-related actives ("Soccer Programs'l pursuant a separate field rental, scheduling and billing agreement ("Field Billing Agreement') between User and the Village. C. User further desires to use the office and meeting space located on the First Floor of the Administration Building for the administration of its Soccer Programs. D. The Village desires to permit the User to use the Soccer Field and the Administration Building for the provision and administration of Soccer Programs, and User desires to use the Soccer Field and the Administration Building for the provision and administration of Soccer Programs, in accordance with and pursuant to the terms, conditions, and restrictions of this Agreement. SECTION 2. GRANT OF LICENSES. A. Grant of License. 1. Subject to the terms and conditions set forth in this Agreement, the Village hereby grants User, and User hereby accepts, a non-exclusive license to use the Soccer Field to provide Soccer Programs pursuant to and in strict accordance with the terms and provisions of this Agreement and the Billing Agreement ("Field License'). User acknowledges and agrees that nothing in this Agreement shall be interpreted to provide a license to User to use or alter the Soccer Field in any way other than as specified in this Agreement. 2. Subject to the terms and conditions set forth in this Agreement, the Village hereby grants User, and User hereby accepts, a license to: (i) exclusively use the 1,860 square feet of office space, meeting space, and any existing furniture and fixtures therein, on the first floor of the Administration Building to administer Soccer Programs; (ii) the non-exclusive use of 500 square feet of storage space located in the basement of the Administration Building; (iii) and the non-exclusive use of a golf-cart that is stored in the basement of the Administration Building (collectively, the "Administration Building License'. User acknowledges and agrees that nothing in this Agreement shall be interpreted to provide a license to User to use or alter the Administration Building in any way other than as specified in this Agreement. (The Field License and Administration Building License shall be herein be referred to collectively as "Licenses".) B. Limitation of Interest. Except for the Licenses granted pursuant to this Agreement, User shall have no legal, beneficial, or equitable interest, whether by adverse possession or prescription or otherwise, in the Soccer Field or the Administration Building. C. As Is. User shall accept the Soccer Field and the Administration Building in its condition at the time of the execution of this Agreement, WHERE-IS and AS-IS, and subject to applicable requirements of law. User acknowledges and agrees that: (1) the Village has made no representation or warranty as to the suitability of the Soccer Field or the Administration Building, or any personal property or equipment therein, for User's Soccer Programs; and (2) the Village shall have no responsibility to maintain the Soccer Field or Administration Building in any particular condition or manner. User waives any implied warranty that the Soccer Field or Administration Building are or will be suitable for User's intended purposes. SECTION 3. TERM OF LICENSE AND TERMINATION. A. Term. The Licenses shall be for a term commencing on the Effective Date of this Agreement and ending on November 15, 2012 ("Term"). B. Early Termination. 1. Unilateral Termination - Breach. In the event that either party violates any material provision of this Agreement, the non-breaching party shall have the option and the right to terminate the Licenses and this Agreement prior to the expiration of the Term or, as the case may be, by providing the breaching party with 30 days advance written notice that the non- breaching party is exercising its termination rights under this Section 3.13.1 ("Termination Notice"); provided, however, that prior to serving a Termination Notice, the non-breaching party shall provide the breaching party with 30 days written notice and an opportunity to cure the violation; and provided further that if the nature of the violation is such that more than 30 days are reasonably required to cure, the violation shall be deemed to have been cured if the breaching party commences efforts to cure the violation within 30 days after receipt of the written notice and thereafter diligently cures the violation within a reasonable time. 2. Immediate Termination. Notwithstanding Section 3.13.1 to the contrary, the Village shall have the right to immediately terminate the Licenses and this Agreement if: (a) it delivers to User a Termination Notice that advises User of a breach that constitutes an immediate and significant risk to the well-being and safety of the Soccer Field, Administration Building, or any of the Soccer Field or Administration Building users or employees; and (b) User fails to immediately cure the breach in a manner satisfactory to the Village Manager. 3. Recovery of Fees and Costs. In the event that this Agreement is terminated by the Village in accordance with Sections 3.13.1 or 3.13.2 of this Agreement, the Village shall have the right to recover from User the following costs and expenses: a. All fees and installments due the Village pursuant to Section 4 of this Agreement at the time of termination; and b. Any costs or expenses incurred by the Village in connection with any required repairs and property modifications, attorneys'fees, and court costs. -2- C. Surrender of the Premises. Upon the expiration or termination of this Agreement, User shall, at its sole cost and expense, remove from the Soccer Field and Administration Building all of its materials and equipment and restore the Soccer Field and Administration Building to the condition existing at the commencement of this Agreement, notwithstanding any ordinary wear and tear and agreed-to alterations. SECTION 4. FEES FOR LICENSES. A. Fee for Administration Building License. In consideration for the Administration Building License and other good and valuable consideration, User agrees to pay to the Village a fee for use of the Administration Building in the amount of $12,400 during the Term ("Building Fee"). The Building Fee shall be paid in equal installments of $1,550.00 per month on the first day of each month during the Term. B. Late Payment Penalty. For any installments of the Building Fee not paid within 10 calendar days after the date on which the Installment is due, User shall pay to the Village a late payment charge equal to five percent of the total amount of the Installments then due. C. Fees for Soccer Field License. In consideration for the Soccer Field License and other good and valuable consideration, User agrees to pay to the Village fees for use of the Soccer Field in an amount, and pursuant to the terms, specified in the Field Billing Agreement. SECTION 5. CONDITIONS. User and the Village agree that use the Soccer Field and the Administration Building are conditioned on the following: A. Use of Soccer Field. The Village shall give User the right of first refusal before scheduling any use or events on the Soccer Field or agreeing to allow another person or entity the right to use the Soccer Field. B. Promotion. User shall be allowed to promote the Soccer Field, the Sports Core, and the Administration Building as the practice home to the Eclipse Select Soccer Club subject to the Village's prior approval of all such promotional materials. C. Permitted Activities and Uses; Compliance with Laws. 1. User shall use and occupy the Soccer Field and Administration Building solely for the administration and provision of Soccer Programs. 2. User shall not do or permit anything to be done upon the Soccer Field, within the Administration Building, or on any Village property which in any way may create a nuisance, or injure the reputation of the Sports Core or the Village. 3. User's use and occupancy of the Soccer Field and Administration Building shall at all times comply with all applicable federal, state of Illinois, and Village codes, ordinances, statutes, and regulations. D. Alterations. User shall not make any decorative or structural changes or interior or exterior modifications to the Soccer Field or Administration Building without prior written -3- approval from the Sports Core Director. Notwithstanding the foregoing, User shall have the right to install and maintain an ice machine, washer, and dryer in the portions of the Administration Building licensed to User pursuant to Section 2.A.2 of this Agreement. E. Maintenance; Clean Up and Repair. During the Term, User shall keep, or cause to be kept, all areas of the Soccer Field and Administration Building it uses in a neat and safe condition. So as to leave the Soccer Field and Administration Building and any personal property or equipment therein in the same condition as it existed at the beginning of each calendar day within the Term of this Agreement, User shall, at its sole cost and expense: (1) clean the portions of the Administration Building licensed to User pursuant to Section 2.A.2 of this Agreement and any personal property and equipment therein at the conclusion of each calendar day within the Term of this Agreement; and (2) repair any damage caused during the use or occupancy of the Soccer Field and Administration Building by User, its agents, employees, contractors, and participants in its programs, at the conclusion of each calendar day within the Term of this Agreement, or, if not reasonably practicable, within 48 hours thereafter. F. Utilities. During the Term, User shall be responsible for providing and paying for its phone and internet usage within the Administration Building. The Village shall be responsible for providing and paying for the water, sewer, electricity, heat, cooling, and normal building maintenance of the Administration Building. G. Supervision. User shall be solely responsible for supervising and monitoring the use and occupancy of the Soccer Field and the portions of the Administration Building licensed to User pursuant to Section 2.A.2 of the Agreement by User and its agents, employees, contractors, invitees, guests, and participants. User acknowledges and agrees that the Village and its employees, officers, members, officials, agents, attorneys, and representatives shall have no responsibilities, duties, or obligations whatsoever to supervise or monitor the Soccer Field during User's, or any person permitted by User, use of the Soccer Field and the portions of the Administration Building licensed to User pursuant to Section 2.A.2 of the Agreement H. Insurance. User, at its sole cost and expense, shall provide, and maintain at all times under this Agreement: (i) general liability insurance for bodily injury, personal injury, death and property damage, which insurance shall include, without limitation, protection for the occupancy, use, and maintenance of the Soccer Field and Administration Building by User; and (ii) umbrella insurance. The minimum amount of insurance coverage shall be set by the Village Manager. User shall cause the Village to be named as an additional insured on the insurance policies required by this Section 3.H. Prior to the start of the Term of this Agreement, User shall provide the Village with either (a) a copy of the entire insurance policies, or (b) a Certificate of Insurance along with a copy of the actual additional insured endorsement and a letter from the broker issuing the insurance policies to the effect that the Certificate of Insurance accurately reflects the contents of the insurance policies. The Certificate and policies shall also provide that the policy shall not expire without 30 days advance written notice to the Village. I. Indemnification. User shall, without regard to the availability or unavailability of any insurance of the Village, indemnify the Village, and its respective officers, members, officials, employees, agents, attorneys, and representatives against, and hold the Village, and its respective officers, members, officials, employees, agents, attorneys, and representatives, harmless from, any and all lawsuits, claims, demands, damages, liabilities, losses, and expenses (including attorneys' fees and administrative expenses), that may be sustained or -4- incurred as a result of or in connection with User's use or occupancy of the Soccer Field and Administration Building, or with the performance of, or failure to perform, its obligations under this Agreement, whether or not due or claimed to be due in whole or in part to the active, passive, or concurrent negligence of the Village, but not including lawsuits, claims, demands, damages, liabilities, losses, and expenses (including attorneys' fees and administrative expenses) sustained or incurred solely as a result of the negligence or due to the willful misconduct of the Village. User's obligations required pursuant to this Section 3.1 shall survive the termination of this Agreement. J. Assumption of Risk. User agrees to assume the full risk of any injuries, including death, and all costs, damages, and losses that User or its members, employees, agents, contractors, officers, representatives, and participants in its programs may sustain while on the Soccer Field, within the Administration Building or while participating in any program sponsored or administered by User, or as a result of the reasonable condition, reasonable maintenance, and use of the Soccer Field and the Administration Building. K. Waiver of Liability. User shall, and does hereby, waive, release, and relinquish all claims of every kind, known and unknown, present and future, that User may have against the Village and its officers, agents, servants, employees, and attorneys arising out of, connected with or in any way related to the use of the Soccer Field and Administration Building, or as a result of the condition, maintenance, and use of the Soccer Field and Administration Building. SECTION 6. ENFORCEMENT. A. General. The Parties may, in law or in equity, by suit, action, mandamus, or any other proceeding, enforce this Agreement. User agrees that it will not seek, and does not have the right to seek, to recover a judgment for monetary damages against the Village or any elected or appointed officials, officers, employees, agents, representatives, engineers, or attorneys of the Village, on account of the negotiation, execution or breach of any of the terms and conditions of this Agreement. B. Prevailing Party. In the event of a judicial proceeding brought by one Party against the other Party, the prevailing Party in such judicial proceeding shall be entitled to reimbursement from the unsuccessful Party of all costs and expenses, including reasonable attorneys'fees, incurred in connection with such judicial proceeding. C. Force Majeure. If the Village is delayed or hindered in or prevented from the performance of any act required hereunder because of strikes, lockouts, inability to procure labor or materials, failure of power, restrictive laws, riots, insurrection, war, fire, inclement weather or other casualty or other reason of a similar or dissimilar nature beyond the reasonable control of the Village, financial inability excepted (each, a "Force Majeure Event"), performance of such act shall be excused for the period of delay caused by the Force Majeure Event. SECTION 7. USER WARRANTIES. User hereby represents and warrants to the Village, to the best of its knowledge and information as of the date of this Agreement, as follows: -5- A. User has the authority and the legal right to make, deliver, and perform this Agreement, and has taken or will take all necessary actions and obtain all required consents and approvals to authorize the execution, delivery, and performance of this Agreement. B. This Agreement constitutes the legal, valid, and binding obligation of User and is enforceable against User in accordance with its terms. C. The parties executing this Agreement on behalf of User have full authority to bind User to those obligations and to act on behalf of User. SECTION 8. GENERAL PROVISIONS. A. Notices. All notices and payments required or permitted to be given under this Agreement shall be given by the Parties by (i) personal delivery, (ii) deposit in the United States mail, enclosed in a sealed envelope with first class postage thereon, or (iii) deposit with a nationally recognized overnight delivery service, addressed as stated in this Section 8.A. The address of either Party may be changed by written notice to the other Party. Any mailed notice shall be deemed to have been given and received within three days after the same has been mailed and any notice given by overnight courier shall be deemed to have been given and received within 24 hours after deposit. Notices and communications to the Village shall be addressed to, and delivered at, the following address: If to the Vilage: Village of Oak Brook 1200 Oak Brook Road Oak Brook, IL 60523 Attention: Village Manager If to User: Eclipse Select Soccer Club, Inc. Attention: B. Amendments and Modifications. No amendment or modification to this Agreement shall be effective unless and until it is reduced to writing and approved and executed by the parties to this Agreement in accordance with all applicable statutory procedures. C. Assignment. User shall not assign its rights or responsibilities under this Agreement except upon the express prior written consent of the Village. D. No Joint Venture. It is hereby understood and agreed that nothing contained in this Agreement shall be deemed or construed as creating the relationship of principal and agent, partnership or joint venture between the parties to this Agreement, it being agreed that no provision of this Agreement and no acts of the parties to this Agreement shall be deemed to create any relationship between the parties other than the relationship set forth specifically by the terms of this Agreement. E. No Property Interest. It is specifically agreed and understood that this Agreement is for permissive, temporary use only and that the exercise of the rights and -6- privileges granted in this Agreement shall not operate to create or vest any property right in and to the Property or any part thereof in User. F. No Third-Party Beneficiaries. This Agreement is for the sole benefit of User and the Village, and no other party shall be deemed a third-party beneficiary hereof, and accordingly, no third-party shall have the right to enforce the provisions of this Agreement. No claim as a third-party beneficiary under this Agreement by any person, firm, or corporation shall be made or be valid against the Village and its employees, officers, members, officials, agents, attorneys, and representatives. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first above written. ATTEST: VILLAGE OF OAK BROOK, an Illinois municipal corporation By: By: Village Clerk Village Manager ATTEST: ECLIPSE SELECT SOCCER CLUB, INC. an Illinois corporation By: By: Title: Its: -7- #11090833_vl