HomeMy WebLinkAboutHoward Park Use Agreement - GeneralHOWARD PARK
219 South St. Louis Blvd; South Bend, Indiana 46617
TEMPORARY USE AGREEMENT
THIS AGREEMENT is made and entered into on ____________, ___ 20__ (“Effective Date’), by and between the Venues, Parks & Arts Department of the City of South Bend, Indiana, by and through
its Board of Park Commissioners (hereinafter the “VPA”), and __________ with a business address at ______________, _________, ________ (hereinafter “Licensee”) (each a “Party” and collectively
the “Parties”).
The Parties acknowledge that this is a Temporary USE Agreement (the “Agreement”) for use of one or more of the spaces or rooms at the Howard Park Facility; and that that no landlord-tenant
relationship is created hereby.
VPA agrees to furnish the use of Howard Park room(s) ______________ for the purposes hereinafter named, commencing at ________ AM/PM on _________ and terminating at _______ AM/PM on
________________ __, 20__.
It is understood and agreed that the Licensee will present in said space TYPE OF EVENT(S) and agrees to pay VPA, for the rental of said space, the sum of _________, along with all other
applicable fees for labor, catering service, and/or equipment (See, Exhibit A, incorporated herein by reference and attachment).
TERMS AND CONDITIONS:
This Agreement is made and entered into upon the following expressed covenants and conditions, all and every one of which the parties hereby covenant and agree to keep and perform.
INSURANCE. Licensee agrees to carry insurance in the following coverage and amounts:
Commercial General Liability; premises - completed operations or products. Bodily injury and Property Damage limits; $1,000,000 combined single limit with the City of South Bend listed
as additional insured. Workers Compensation per statutes of the State of Indiana. Employees liability $100,000. Licensee shall furnish VPA with a certificate of insurance showing
VPA and the City of South Bend as an additional insured as respects the liabilities assumed herein by Licensee at least ten (10) business days prior to the event. The liability insurance
afforded is limited to the indemnification obligations set forth herein.
SALES/USE TAX. Licensee must pay Indiana Sales/Use Tax (currently 7%) on agreed upon facility and equipment use charges unless Licensee has a valid tax-exempt status. Licensee must
provide evidence of valid tax-exempt status at least ten (10) business days prior to scheduled event.
VENUE CAPACITY. In no situation shall tickets or invitations to any event be sold or disposed of in excess of the seating capacity of the venue.
LAW OBSERVANCE. Licensee agrees that every member connected with Licensee’s use of the Venue shall abide by, conform to and comply with all the laws of the United States and the State
of Indiana, and all of the ordinances of the City of South Bend, Indiana, and the rules and regulations of VPA for the government and management of said building, together with all
rules and requirements of the Police and Fire Department of the City of South Bend,
Indiana and will not do, or suffer to be done, anything on said premises, during the term of this Agreement, in violation of any such rules, laws or ordinances, and if the attention
of said Licensee is called to such violation on the part of Licensee or any person employed by or admitted to said premises by said Licensee, said Licensee will immediately desist from
and correct or use reasonable efforts to cause those not with Licensee’s direct control to correct such violations. Licensee shall be responsible to make deductions for Federal Tax,
F.I.C.A. and Indiana Gross Income and Employment Tax for all of its employees and pay same to the proper governmental agency. No lewd or indecent actions, conduct, language, pictures,
or portrayals shall be included in the activities or events presented by Licensee on the premises, unless pertinent to event subject matter.
CONTROL OF BUILDING. VPA shall have the sole right to control the management of the facility and to enforce all necessary and proper rules for the management and operation of the same.
The executive management of VPA shall retain the right to enter all areas of the facility at any time and on any occasion for business purposes only.
MERCHANDISING. VPA retains the sole right to permit event merchandising within the facility. All merchandisers are to be instructed to contact the VPA’s Event Operations Manager directly
regarding the sale of merchandise within the facility. VPA reserves all rights not specifically granted to Licensee under terms thereof, including but not limited to the sale of all
merchandise items and programs.
AMERICANS WITH DISABILITIES ACT. Howard Park is a place of public accommodation and is accessible to disabled persons in accordance with the American With Disabilities Act (ADA).
The Licensee agrees that its program will comply with the requirements of the ADA and will not allow any of its employees, performers, contractors, or other persons under its control
to render Howard Park inaccessible to disabled persons or otherwise cause Howard Park to be out of compliance with the ADA. In the event that the Licensee violates the ADA and is so
notified by VPA, the Licensee shall immediately remove or correct the cause and return the Howard Park to compliance. Licensee is responsible for all non-permanent accessibility requirements,
such as, but not limited to, auxiliary aids for the visually impaired such as large print programs.
DEFACEMENT OF BUILDING. That said Licensee shall not injure or mar, or in any manner deface, said premises, and shall not cause or permit anything to be done whereby the said premises
shall be in any manner injured, marred or defaced nor shall Licensee drive, or permit to be driven, any nails, hooks, tacks or screws in any part of said building, nor shall Licensee
allow any type of glue, tape or other adhesive substance to be used to make, or allow to be made, any alteration of any kind therein. That if said premises, or any portion of said
building, during the term of this lease, shall be damaged by the act, default or negligence of Licensee, or if the Licensee’s agent, employee or employees, patrons or any person or
persons admitted to said premises by said Licensee, the Licensee will pay to VPA upon demand, such actual and documented sum as shall be necessary to restore said premises to their
present condition in which they were delivered to Licensee at the beginning of the term. Licensee’s liability for damages shall be subject to VPA providing Licensee with notice of and
or opportunity to inspect such damage within 48 hours of the event. Licensee shall not be responsible for pre-existing conditions, damages, or damages caused by other events at the
facility. Physical changes to the premises required by the event’s technical production are subject to approval by VPA. Approval by VPA will not be unreasonably withheld. Approved
physical changes are at the sole cost of the Licensee and Licensee is required to restore said premises to their present condition unless otherwise agreed to in writing prior to the
scheduled
event, normal wear and tear accepted.
SIGNS AND POSTERS. Licensee will not post or allow to be posted any signs, cards or posters except within display areas as VPA may provide. Use of such areas is a non-exclusive right.
All display materials are subject to approval by VPA. Licensee may display sponsors’ banners and its own promotional materials, assuming said materials do not constitute a safety
issue, as approved and under the supervision of VPA.
OBSTRUCTION TO SIDEWALK AND OTHER PASSAGEWAYS. No portion of the sidewalks, entries, passages, vestibules, halls, elevators, and all ways of access to public utilities of said building,
shall be obstructed by Licensee or used for any purpose other than for ingress to and for egress from the doorways, stairways, or openings that reflect or admit light into any place
in the building, including hallways, passageways and corridors. Venue toilets, sinks, and water apparatus will not be used for any purpose other than that for which they were constructed,
and no sweepings, rubbish, rags, paper or other substances shall be thrown therein. Any damage resulting to them on account of misuse of any nature or character whatever by Licensee
or its agents, shall be paid by Licensee subject to the provisions of section 10.
REMOVAL OF ERECTIONS. In the event the Licensee or exhibitors erect platforms or staging or any other structures connected with Licensee in any portion of the building, the expense
of such erection and removal shall be paid by Licensee. All damage to said building or furnishings, caused by the erection or removal of such platforms, staging or other construction,
shall be paid by said Licensee subject to the provisions of section 10.
RESPONSIBILITY FOR PROPERTY IN BUILDING. VPA assumes no responsibility for any property placed in said building, and VPA is hereby expressly relieved and discharged from any and all
liability for any loss, injury or damages to persons or property that may be sustained by reason of the occupancy of said building or any part thereof under this lease, unless due to
VPA or its employees, agents, or contractors negligence, recklessness or willful misconduct. All watchmen or other security service desired by Licensee must be arranged for by special
Agreement with VPA.
UNAVOIDABLEEVENT/FORCE MAJEURE. If for any reason, an event occurs which is beyond the reasonable control, prevention or avoidance of a party, including but not limited to fire, casualty,
war, civil unrest, or labor strike; an act of nature such as an explosion, earthquake, tornado flood, contamination or environmental hazard or any other commonly understood force majeure,
which renders impossible the fulfillment of any term of this contract, the Licensee shall have no right to nor claim for damages against VPA, and VPA shall have no right nor claim for
damages against the Licensee.
PUBLIC SAFETY. Licensee agrees that at all time it will conduct its activities with full regard to public safety and will observe and abide by all applicable regulations and requests
by duly authorized government agencies responsible for public safety and with the Morris to assure such safety. VPA shall retain the right to cause the interruption of any performance
in the interests of public safety, and to likewise cause the termination of such performance when in the sole judgment of VPA such act is necessary in the interest of public safety.
EVACUATION OF FACILITY. Should it become necessary in the judgment of VPA to evacuate the premises because of reasons of public safety, the Licensee will retain possession of the premises
for sufficient time to complete presentation of its activity without additional
use charge providing such time does not interfere with another building Licensee. If it is not possible to complete presentation of the activity, use shall be forfeited, prorated, or
adjusted at the discretion of the management of Howard Park based on the situation and unless these happenings were caused by VPA, and the Licensee hereby waives any right and all claims
for damages against VPA, or any of its agents.
OBJECTIONABLE PERSONS. Licensee assumes full responsibility for the character, acts and conduct of its employees, agents, or contractors, and said Licensee agrees to have on hand at
all times or, if same is arranged by VPA, reimburse VPA for the cost of sufficient security, the number of which to be determined by VPA, to maintain order and protect persons or property.
VPA reserves the right through its manager and representatives, to eject any loud, aggressive, offensive, predatory or similarly objectionable person or persons from said building,
and upon the reasonable exercise of this authority, through its manager, agents, or security. Licensee hereby waives any right and all claims for damages against VPA, or any of its
agents except for reckless or willful misconduct of VPA, or its manager, agents, or security.
ASSIGNMENTS. Licensee shall not assign this lease or suffer any use of said premises other than herein specified, nor sublet the premises or any part thereof, without the written consent
of VPA.
CATERING. All food and beverage service to contract performers, public or private receptions, meetings, and/or stage crew shall be provided by Howard Park caterer at the expense of
Licensee. The Howard Park caterer shall have first right of refusal of said services. The catering contract MUST be completed and signed seven (7) days prior to the event date. If
Licensee fails to approve the catering contract by the time constraint, additional labor charges will be incurred in order to fulfill required catering. No free samples of food, beverage
or product may be given away or otherwise distributed without prior consent in writing of VPA. VPA shall have the right to confiscate any food, beverage or product not served in accordance
with the catering contract.
ADVERTISING. If applicable, Licensee agrees that all television, Internet and print media advertising, including but not limited to billboards, fliers, lobby posters, display case posters,
newspaper advertising, etc., will identify the event(s) as taking place at Howard Park. VPA has final approval of all text to be placed on the Howard Park monitors. VPA has the right
to edit message requested. Multiple events will be listed on the Howard Park monitors. Please note that sponsors of events will not be included in event messaging unless the VPA is
compensated by sponsor for said advertising. VPA will not issue event information for general publication without approval of Licensee.
PROMOTIONAL MATERIALS. VPA shall have the sole right to display posters and to distribute flyers, brochures, and other promotional materials throughout the facility at all times.
LOST ARTICLES. VPA shall have the sole right to collect and have the custody of articles left in the premises by persons attending an event given or held in the demised premises, and
the Licensee or any person in Licensee’s employ shall not collect nor interfere with the collection or custody of such articles.
HALLWAYS CLEAR. That Licensee will permit no chairs or removable seats to be or remain in the passageways and will keep all passageways clear at all times.
ELECTRICITY and WATER. That in the event extra lights or water other than the regular house lights or electrical power or water usage shall be required by Licensee, they shall be paid
for by Licensee at the rates in effect in said building.
CIVIL RIGHTS. The Parties agree not to discriminate against any employee or any applicant for employment because of race, religion or national origin, and further agree likewise not
to discriminate for those same reasons against any persons relative to admission; services or privileges offered to or enjoyed by the general public.
ALCOHOLIC BEVERAGES. VPA retains the sole right to event catering/concession service within the facility. Licensee shall not knowingly permit any alcoholic beverages to be brought
into or consumed on the premises without the express written permission of VPA, except for that provided by the Howard Park in-house contracted catering/concession service. VPA operates
lobby concession services at all public events. Furthermore, VPA reserves the right to request its catering/concession service to refuse to serve anyone who appears to be intoxicated
or under the age of legal consumption. Licensee shall commit no act that could place at risk the VPA’s Indiana beer, wine and liquor permit.
RADIO and T.V. It is further covenanted and agreed that Licensee shall have the exclusive right to negotiate and enter into Agreements for the granting of radio, television broadcast
and recording rights in connection with the staging of any event, under the terms of this lease, subject to the mutually agreed upon origination fee payable to VPA.
DEFAULT. Should the Licensee default in the performance of any of the material terms and conditions of this license, VPA, at its option, may terminate the same. Licensee shall be liable
for the full amount of the rent provided for herein. Any deposit made by Licensee to VPA shall be retained by VPA and considered as liquidated damages. Licensee shall have the right
to remedy any alleged breach of contract, in a timely manner, before being subject to termination of this Agreement. Should VPA default in the performance of any of the material terms
and conditions of this license, Licensee, at its opinion, may terminate the same. VPA shall refund any amounts that have been paid by Licensee in accordance with this Agreement. VPA
shall have the right to remedy any alleged breach of contract, in a timely manner, before being subject to termination of this Agreement.
RETENTION OF PRIVILEGES. That waiver or failure of either party to insist upon strict and prompt performance of the covenants and Agreements hereunder, or any of them, and the acceptance
of such performance hereafter shall not constitute or be construed as a waiver of relinquishment of either parties’ right thereafter to enforce the same strictly according to the tenor
thereof in the event of a continuous or subsequent default on the part of either party.
TERMINATION. VPA reserves the right to terminate the license granted by this Agreement for good cause, including but not limited to police ordered closings, acts of God, emergency public
safety issues, a Red Alert status issued by the United States Department of Homeland Security, terrorist attacks on the U.S., or acts of war. Good cause does not include subsequent
scheduling of a more preferred event. In the event VPA exercises the right retained by it hereunder, it shall refund, or release Licensee from liability for payment of an amount bearing
the same proportion to the total payment provided for in Paragraph Three as the period in which the facilities are not utilized. Should VPA exercise said right to terminate the license
granted by this Agreement, Licensee agrees to forego any and all claims for damages against VPA and further agrees to waive any and all rights which might arise by reason of the terms
of this license; and Licensee shall have no recourse of any kind against VPA.
CANCELLATION. Should Licensee desire to cancel this Agreement, and if notification is given in writing to VPA less than 120 days prior to the first scheduled date of use, VPA shall
be due 100% of the use fee, per Agreement. If notification is given more than 120 days prior to the first scheduled date of use, VPA shall retain 100% of the event deposit fee as liquidated
damages, if applicable. In all cases, the Licensee is responsible for and agrees to pay all out of pocket event expenses and/or any documented reimbursable expenses actually incurred
by VPA in connection with the event covered by this Agreement. VPA agrees that upon receiving Notice of Cancellation, regardless of when said Notice is given, it will attempt to re-rent
the leased space in order to mitigate any liquidated damages resulting from cancellation. If VPA is able to re-rent the leased space, the amount paid for space use of the leased space
by the new client will be credited toward any liquidated damages that may have accrued due to the cancellation. VPA makes no guarantees as to its ability to re-rent the leased space.
VPA shall receive 0% of use fee regardless of notification date if cancellation is due to natural disaster or acts or regulation of public authorities or other cause beyond the reasonable
control of Licensee.
INDEMNIFICATION. Licensee expressly agrees to indemnify and hold harmless VPA and the City of South Bend or any of its officers or employees from any and all claims, damages, liability,
or court awards, including costs and attorney’s fees that are or may be awarded as a result of any loss, injury, or damage sustained or claimed to have been sustained by anyone, including
but not limited to, any person, firm, partnership, or corporation, in connection with or arising out of any negligent omission or act of commission by Licensee or any of its employees
or agents in performing work pursuant to this Agreement. In the event that any such suit or action is brought against VPA or the City of South Bend, notice thereof will be provided
to Licensee. Indemnity shall not extend to any claims arising from the negligence or willful misconduct of VPA, its agents, employees, representatives or contractors including, without
limitation, VPA’S maintenance or use of the building or any structural or premises related defects of the building.
GOVERNING LAW; JURISDICTION; COMPLIANCE WITH LAWS: MEDIATION. This Agreement shall be construed and interpreted according to the laws of the State of Indiana without regard to conflicts
of laws statutes. Any dispute arising under the terms of this Agreement shall be filed in any court of competent jurisdiction in St. Joseph County, Indiana. The Contractor agrees to
comply with all applicable federal, state and local laws, rules, regulations and ordinances, and all provisions required thereby are hereby incorporated herein by reference. Contractor
shall comply with federal, state and local law in its hiring and employment practices and policies for any activity covered by this Agreement. Further, the City shall not be required
to pay for Services that are inconsistent with or in violation of this Agreement nor for any Services performed in violation of federal, state or local statute, ordinance, rule or regulation.
In the event of dispute between the parties, they shall engage in mediation before resorting to any other form of conflict resolution or litigation.
NON-COLLUSION AND ACCEPTANCE. The undersigned attests, subject to the penalties for perjury, that he or she has authority to act for the Contractor, that the Contractor has not, directly
or indirectly, to the best of the undersigned’s knowledge, entered into or offered to enter into any combination, collusion or Agreement to receive or pay, and that the undersigned
has not received or paid, any sum of money or other consideration for the execution of this Agreement other than that which appears upon the fact of this Agreement.
E-VERIFY. The Contractor affirms under the penalties of perjury that he does not knowingly employ an unauthorized alien. The Contractor shall enroll in and verify the work eligibility
status of all his newly hired employees, if any, through the E-Verify program as defined in IC 22-5-1.7-3. The Contractor shall not knowingly employ or contract with an unauthorized
alien. The Contractor shall not retain an employee or contract with a person that the Contractor subsequently learns is an unauthorized alien.
The Contractor is not required to participate in the E-Verify program should the E-Verify program cease to exist. Additionally, the Contractor is not required to participate if the Contractor
is self-employed and does not employ any employees.
The City may terminate for default if the Contractor fails to cure a breach of this provision no later than thirty (30) days after being notified by the City.
MINORITY AND WOMEN’S ENTERPRISE DIVERSITY DEVELOPMENT. Persons, partnerships, corporations, associations, or joint venturers awarded a contract by the City of South Bend through its
agencies, boards, or commissions shall not discriminate against any employee or applicant for employment in the performance of a City contract with respect to hire, tenure, terms, conditions,
or privileges of employment, or any matter directly or indirectly related to employment because of race, sex, religion, color, national origin, ancestry, age, or disability that does
not affect that person's ability to perform the work.
In awarding contracts for the purchase of work, labor, services, supplies, equipment, materials, or any combination of the foregoing including, but not limited to, public works contracts
awarded under public bidding laws or other contracts in which public bids are not required by law, the City, its agencies, boards, or commissions may consider the Contractor’s good
faith efforts to obtain participation by those Contractors certified by the State of Indiana as a Minority Business (“MBE”) or as a Women’s Business Enterprise (“WBE”) as a factor
in determining the lowest, responsible, responsive bidder.
In no event shall persons or entities seeking the award of a City contract be required to award a subcontract to an MBE/WBE; however, it may not unlawfully discriminate against said
WBE/MBE. A finding of a discriminatory practice by the City’s MBE/WBE Utilization Board shall prohibit that person or entity from being awarded a City contract for a period of one (1)
year from the date of such determination, and such determination may also be grounds for terminating the contact for which the discriminatory practice or noncompliance pertains.
Notwithstanding the foregoing, the award and performance of all City contracts shall comply with applicable federal, state, and local laws.
NON-DISCRIMINATION. The City of South Bend is committed to ensuring equality of opportunity and does not exclude, deny the benefit of, or otherwise subject any person to discrimination
in any City program, service or activity on the basis of race, color, national origin, sex, age or disability. The Contractor agrees to comply with and to act consistently with this
policy in the performance of the Contractor’s duties.
DRUG-FREE WORKPLACE. The Contractor hereby agrees to make a good faith effort to provide and maintain a drug-free workplace. The Contractor will give written notice to the City within
ten (10) days after receiving actual notice that the Contractor has been convicted of a criminal drug violation occurring in the workplace.
OTHER CONDITIONS. It is agreed that any matters not expressly provided for in this Agreement will be at the sole discretion of VPA, subject to consultation with Licensee.
ADDENDUM. This Use Agreement and the attached addendums constitute the complete Agreement between Licensee and VPA; and as such, all addendums must be initialed and dated by Licensee.
AUTHORIZED REPRESENTATIVE. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement.
Each Party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder have been duly authorized
and that the Agreement is a valid and legal agreement binding on such Party and enforceable in accordance with its terms.
FIREARMS. Licensee affirms that firearms should not be permitted on the premises during the duration of the event covered by this Agreement and that firearms shall be prohibited from
Howard Park for the duration of such event.
Initial only if Licensee wishes to permit firearms at this event. ___________
(Signatures Appear on the Following Page)
In Witness whereof, the Parties hereto agree and have affixed their signatures as follows:
_________________________________
(LICENSEE PRINTED NAME)
_________________________________
(SIGNATURE)
_________________________________
(ADDRESS)
CITY OF SOUTH BEND, INDIANA
BOARD OF PARK COMMISSIONERS
219 S. St. Louis Blvd.
South Bend, IN 46617
_________________________
Mark Neal, President
_________________________
Consuela Hopkins, Vice President
_________________________
Aimee Buccellato, Member
__________________________
Dan Farrell, Member
For Office Use Only: Deposit Rec’d $____________ Deposit Rec’d on: ____/____/____
by _______________________________________________________Date:________________
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