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___________________, 20___, by and between the BOARD OF PARK COMMISSIONERS, LORAIN COUNTY METROPOLITAN PARK DISTRICT (hereinafter referred to as the "Park District"), having its principal offices at 12882 Diagonal Road, LaGrange, Ohio 44050, and the CITY OF ELYRIA, OHIO (hereinafter referred to as "City"), having its principal offices at 131 Court Street, Elyria, Ohio 44035. W I T N E S S E T H: WHEREAS, Park District has, from time to time, assisted communities to manage
certain lands within Lorain County, Ohio so as to properly and effectively protect, enhance and provide for the enjoyment of the natural resources of those lands for the benefit of all citizens of Lorain County and the general community; and WHEREAS, Park District is willing to allocate resources and expertise toward the
management and protection of certain lands and natural resources within the City of Elyria for the enjoyment of the citizens of Lorain County; and WHEREAS, City is desirous of utilizing the expertise of Park District in the
management and protection of Cascade Park located within the municipal boundaries of the City and its natural resources, and particularly to protect, preserve, enhance such lands, and to provide its citizens with the opportunity of enjoyment of the park; and WHEREAS, Park District and City desire to implement a plan and agreement to accomplish such goals and to define the duties and responsibilities of each party with respect to a comprehensive plan and agreement for the management, operation and
maintenance of Cascade Park so as to accomplish the goals set forth herein and to define the duties and responsibilities of each party; NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, and intending to be legally bound hereby, the parties hereto agree as follows: 1. General Duties and Responsibilities.
Upon the execution of this agreement, Park District shall assume exclusive
management, operation, maintenance, and control of the parkland located in Elyria, Ohio and commonly known as “Cascade Park” and further described on Exhibit A. Park District shall be responsible for the development of a master plan for the capital improvement of Cascade Park as well as its overall operations. Park District shall provide City with copies of its master plan, and shall provide City, or its designee, with an opportunity to participate in and contribute to public meetings for the purpose of the development of the master plan. In this regard, it is understood that City may form a “Cascade Advisory Board” which will provide a forum for citizens and others to contribute to the proposals for the master plan. Park District shall cooperate in providing such board with details of the master plan. Provided further, prior to making any significant improvement to Cascade Park, Park District shall notify City of its intent to commence such improvements so as to provide City with an opportunity to comment on such improvement. Provided however, the parties agree that the final determination and acceptance of the master plan and any significant improvement shall be vested solely with Park District.
The term of this Agreement shall commence on ____________, ______, and continue for
50 years with automatic 50 year renewals unless specifically terminated by either party not later than one (1) year prior to the expiration of the then current 50‐year term. Notwithstanding the term of this agreement or any extensions thereof, either party shall have the right to terminate this agreement in accordance with the provisions provided for in this agreement. 3. A. Specific Duties and Responsibilities. City agrees to assume and perform the following duties and responsibilities: 1. Provide rubbish collection, water, sewage and electricity utility services to Cascade Park at no cost to Park District; provided however, in the event Park District contracts with any third party to provide concession services as part of park operations, then, in that event, City may install at City’s cost, the appropriate utility meter(s) and charge the then existing utility rate to the third party concessionaire; provided further, Park District shall not be liable for any such third party charges or accounts. Provided further, in the event City does not perform these duties and responsibilities in a timely and productive manner, Park District shall, after notice to the City, have the right to complete such tasks and charge to the City the cost of the work performed.
Waive any and all routine fees, connection fees, building fees or permit costs associated with the operation of Cascade Park and all future improvements made by Park District.
Cooperate with all routine operations of Park District. Cooperate and assist in the preparation and submission of grant applications as requested by Park District for funding capital improvement projects at Cascade Park.
Provide routine and customary law enforcement services to Cascade Park at no cost to Park District through the Elyria Police Department; auxiliary police services shall not be included in these services unless requested by Park District, in which case the cost of the same shall be the responsibility and obligation of Park District. Provided further, nothing herein shall be construed as a limitation on Park District to use its park rangers as its primary law enforcement personnel.
Complete the 319 Erosion Control Project from and along the west side bank from Ford Road north.
Complete the Cascade Park Siphon Project to rehabilitate the sanitary sewer to meet the EPA long‐term control plan.
Complete the East Falls sewer repair and deck rehabilitation project next to the Elyria Police Department. City shall also retain full responsibility for the structural integrity of the East Falls decks, walkways and outfalls.
Complete the Two Falls Trail Bridge rehabilitation project.
City shall be responsible for and retain responsibility of all non‐park related improvements adjacent to the Park, including sewer and water transmission lines, service lines, and connection lines and the appurtenances related thereto.
City shall retain responsibility and control over the river “auto” crossing and shall adopt such regulations for its use, if any, that ensures such usage will not interfere or conflict with Park District rules, regulations, and operations.
Park District agrees, subject to the availability and sufficiency of funding, and within reasonable time periods as determined by Park District, to assume and perform the following duties and responsibilities: 1. Develop a master plan for Cascade Park so as to provide for the protection of the site, the management of the flora and fauna, and the integration of active and passive areas, the restoration, replacement, removal or renovation of any structures or buildings located thereon and the restoration, replacement, or renovation of any lands and any other areas within and adjacent to Cascade Park. 2. Renovate the grounds and facilities located in Cascade Park as funds are available and as are consistent with the master plan developed by Park District. 3. Be responsible for all capital improvements, maintenance, operations and repairs of Cascade Park, its facilities and appurtenances, as funds
become available and as are consistent with the master plan developed by Park District. 4. On behalf of the City, write, apply for and administer grants for operating, maintaining or improving Cascade Park, including adjacent areas. 5. Provide staffing and management services for Cascade Park, including the award of concession contracts for any part of the park operations. Such services shall be provided to the entire park area as depicted on Exhibit One, attached hereto and incorporated by reference as if fully restate and set forth herein, and shall be generally known as the Park District Management Area. This area shall include the maintenance yard located at the south end of Cascade Park. 6. Endeavor to continue traditional City programs and events at Cascade Park, as are consistent with the master plan and park operations and the conservation and preservation of Cascade Park’s natural resources. 4. Authorization for Grant Applications, Funding, Donations. City agrees and does hereby authorize Park District, on behalf of City, to apply for and submit applications and requests for grants and other funding for any project or proposed project at Cascade Park. Such authorization shall continue during the term of this agreement or any extension thereof without further approval, ordinance or resolution of City. In this regard, City consents and authorizes Park District to act as agent for City as part of any grant application or funding request, to sign such applications and other
documentation on behalf of City for the grant or funding process as required. Provided however, Park District shall notify City in advance of the submission of any grant or funding application and shall provide copies of such submissions to City for its records. Park District shall keep City informed and up to date regarding the grant processes as those developments occur. Provided further, each party understands and agrees that either party, together or separately, may engage in fundraising efforts for the benefit of Cascade Park. To that purpose, the parties agree to cooperate and coordinate such efforts as is reasonably possible and practical, and to establish a donation fund with such organization or entity as can be mutually agreed upon. The parties further agree that any such donations collected will be used by the Park District in accord with the Master Plan as adopted. 5. Periodic Review. Notwithstanding the term of this agreement, City shall have the right to review the agreement and the performance of Park District at ten year intervals during the term of the agreement or any extensions thereof, beginning with the ten year anniversary of the date of the execution of this agreement. The aforementioned review period shall be for a period of thirty days from the ten year anniversary date of the execution of the agreement. In the event that no action is taken by City within that thirty day period, then the review period shall pass and the agreement remain in full force and effect until the next review period, and so on. In the event that City determines that it is in its best interest to terminate the agreement, then it shall have the right to do so by giving Park District at least six months notice of its intent to terminate. The notice shall be given within the thirty day review period. In that event, Park District shall relinquish all control and operation of Cascade
Park, and the facilities located thereon, to City on a date mutually agreeable to the parties, but not later than the last day of the sixth month period referred to above. Provided further, in the event that City terminates the agreement pursuant to this section, City shall pay to Park District a sum of money equal to the capital improvement costs made at Cascade Park during the term of Park District’s operations and also professional expenses incurred by Park District as part of the Cascade Park master plan developed by Park District. Such sum shall not be reduced by any depreciation or amortization schedules or formulas, but shall be limited to the actual cost of such capital improvements and expenditures, and the costs of all professional expenses incurred by Park District. Said payment shall be made at the time of the transfer of operations from Park District to City. Beginning in the year 20__, and every year thereafter, Park District shall provide City with information in the form of the amount spent by Park District on capital improvements made at Cascade Park for the preceding year. 6. Termination; Default.
Termination of this Agreement may occur at any time with mutual agreement of
both parties and under such terms and conditions as both parties shall mutually agree. Except as provided in Section 8 of this agreement, if Park District fails to perform its obligations pursuant to this Agreement, City shall have the right to terminate the Agreement. Such termination shall be subject to the following conditions: (1) City shall serve written notice to Park District of the specific failure(s) of performance by Park District (hereafter referred to as “notice of default”); and (2) Park District shall have one hundred twenty (120) days after receipt of notice of default to cure the specific failure(s) of
performance (hereafter referred to as the “cure period”). In that event, City’s right to terminate shall cease and the parties shall continue to perform under the terms of the Agreement. If Park District does not remedy the specific failure(s) within the cure period, then the Agreement shall terminate on the last day of the cure period. Notwithstanding anything herein to the contrary, in the event that City gives notice of default but the default is of such a nature that it cannot be completely remedied within the cure period due either to the nature of the remedy or reasons beyond the control of Park District, and provided Park District commences to cure the default as soon as reasonably possible and continues to take all steps necessary to complete the same within a reasonable period of time under prevailing and applicable industry standards, then the cure period shall be extended for such time as the parties can agree. If the parties cannot agree, then the time for Park District to cure a default cannot exceed one year from the date of receipt of the notice of default. Further, if the Agreement is terminated for Park District’s failure to materially perform its obligations and covenants, and such breach is not cured as provided for herein, then City shall not be obligated to reimburse Park District for its costs of capital improvements and expenses incurred. The parties further agree that Park District shall have the unqualified right to
terminate this Agreement, without cause, by giving the City notice of such termination no less than one year prior to the effective date of such termination. Provided further, in the event Park District determines that City is interfering with its operations of the park to the extent that Park District is not able, in its sole discretion and judgment, to continue to effectively operate the park consistent with its master plan and manner of operation, then
Park District shall have the right to terminate this agreement and its duties and responsibilities by giving the City ninety days written notice of such termination. It is further agreed that any funds which are donated to either the City or the Park
District for the use and benefit of Cascade Park, shall not be required to be recovered or reimbursed to either party upon termination of this agreement, regardless of cause or reason for termination. 7. Force Majeure. In the event that City or Park District shall be delayed, hindered in or prevented
from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, riots, insurrection, the act, failure to act or default of the other party, war, terrorism or any other reason beyond the reasonable control of the party who is seeking additional time for the performance of such act, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 8. Environmental Matters.
Except as may be determined to be directly attributable to its operation of Cascade Park, Park District shall have no responsibility or liability for environmental matters affecting Cascade Park, including, but not limited to the water quality or pollution condition of the Black River at Cascade Park, or any other surface or sub‐surface water source. In the event that any local, state, or federal regulatory agency determines that the operations of Cascade Park, or any part thereof be suspended, curtailed, or closed due to water quality, pollution, or health issues, Park District shall not be held to be in default of any provisions
of this agreement, nor shall it be responsible or liable in damages to City or any third party by reason thereof. 9. Insurance.
Park District and City shall each be responsible for obtaining and maintaining both general liability insurance and property insurance coverage with respect to the insurable interests of each to the property located at Cascade Park and the operations conducted therein or related thereto. Such insurance coverage shall be in an amount no less than 1,000,000.00 per person and $3,000,000.00 per occurrence. Further, each party shall name the other as an additional insured under each respective policy 10. Notices.
Every notice, approval, consent or other communication authorized or required by this Agreement shall not be effective unless the same shall be in writing and sent postage prepaid by United States registered or certified mail, return receipt requested, directed to the other party at its address hereinabove first mentioned, or such other address as either party may designate by notice given from time to time in accordance with this Section.10. 11. Hold Harmless Covenant.
To the maximum extent permitted by law, Park District shall defend and save City
harmless from and against any and all claims, actions, demands, damages, liabilities, costs and expenses, including attorneys' and other professional fees, in connection with loss of life, personal or bodily injury and/or damage or injury to property arising from or related to, wholly or in part, directly or indirectly, any improvements made to Cascade Park by Park District or as a result of its actions or operations. To the maximum extent permitted by law, City shall likewise defend and save Park District harmless from and against any and
all claims, actions, demands, damages, liabilities, costs and expenses, including attorneys' and other professional fees, in connection with loss of life, personal or bodily injury and/or damage or injury to property arising from or related to, wholly or in part, directly or indirectly, any improvements made to Cascade Park by City or as a result of its actions or operations. 12. Effect of Agreement.
This Agreement shall bind, and the benefits thereof shall inure to, the respective
parties hereto, their successors and assigns. 13. Governing Law.
This Agreement shall be governed by the laws of the State of Ohio. IN WITNESS WHEREOF, the parties hereto have set their hands the day and year
first above written. By: By: BOARD OF PARK COMMISSIONERS, LORAIN COUNTY METROPOLITAN PARK DISTRICT _____________________________ James Ziemnik, Director/Secretary CITY OF ELYRIA, OHIO _____________________________ Holly C. Brinda, Mayor
G:\10\10000\Cascade park Agr. City of Elyria revision 6.doc
Legal Description and Plat to be added
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