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HomeMy WebLinkAbout001082 Original Contract City of Port Angeles Record # 001082 FACILITY USE AGREEMENT BETWEEN CITY OF PORT ANGELES & Port Angeles BMX Track. The CITY OF PORT ANGELES, a non-charter code city of the State of Washington, located at City Hall, 321 East 5`I'Street,Port Angeles,Washington, 98362(hereinafter the"City"), and Geri Thompson,a single woman doing business as Port Angeles BMX Track located at ADDRESS (hereinafter the"User"), in consideration of the mutual covenants set forth herein, agree as follows (this"Agreement"): I. PURPOSE.This Agreement allows the User the right to conduct certain activities, or reasonably similar activities, on or at facilities owned by the City as follows: Activities City Facilities BMX prescheduled competitions and West End of Lincoln Park boarder on two clinics(or equivalent) and Related sides by Lauridsen Blvd and L Street. (the Concession Operations(the"Activities") "Facilities") IL TERM OF AGREEMENT. This Agreement permits use of the Facilities for a period beginning July 1, 2016 and ending on July 1, 2017(the"Primary Term"). III. SERVICES AND UTILITIES. A. The City agrees to provide the following services and utilities, or reasonably similar substitutes: Utilities—User agrees to use reasonable amount of the utilities provided. If, in the sole opinion of the City, User's utility usage is excessive,User and City will discuss the additional utility usage in an effort to reach an equitable resolution. - Electric power - Water service - Garbage removal B. As a condition of use of the Facilities,User agrees to furnish and be responsible for the following services and items, and will be wholly responsible for paying for the same: - User will provide equipment and supplies needed for operation of the BMX track and User will be responsible for installation of any special equipment, - Maintenance and cleaning of the Facilities within 24 hours of each event, - Maintenance and cleaning of the concession area to required health and safety standards, - If contract is terminated, removal all equipment, including the tower, gate house, office, and concession buildings unless otherwise agreed to in writing by the both parties from the Facilities within thirty(30) days after the termination. IV. TAXES,FEES,AND REGULATIONS. A. User is liable for all taxes, license fees, and similar costs that are imposed by the City or other units of government, which may be applicable to User's Activities, and fees administered by the City that may be applicable. B. User is referred to the City's Parks & Recreation Department for information, forms, and applications for City-administered fees. C. User will comply with all applicable statues, ordinances and regulations, and will obtain and pay for any applicable permits. I Page 1 of 5 V. ACCEPTANCE AND SURRENDER OF FACILITIES. A. User agrees to maintain the Facility to meet all requirements set forth by the USA BMX Association, the national sanctioning body. B. To pay all expenses directly incurred by BMX in a timely manner and maintain a satisfactory relation with the USA BMX Association. C. User agrees to surrender the Facility to the City at the end of its use in the same condition as when accepted, except for any authorized User improvements to the Facilities, and User shall do its best to avoid damages to the Facilities.User shall obtain the City's written review and approval prior to making any improvements to the Facilities. Unless otherwise agreed, any such improvements shall become the property of the City upon completion. User is liable for the costs of repair of any damage precipitated by its use to the Facilities during any Use Period. VI. LIABILITIES AND INSURANCE. A. The User shall defend, indemnify, and hold harmless the City, its officers, employees, principals, and agents from any and all injury or damage to the City or its property, and also from all claims, demands, causes of action, or suits of any kind that arise directly or indirectly out of, incident to, or due to any actual or alleged negligence, intentional act, or breach of duty by the User, its agents, employees, representatives, or subcontractors that arise in connection with the Activities carried on under this Agreement where such liability is incurred in whole or in part as a result of the actions of the User, its employees, assignees, invitees, licensees, or agents. In the event of any claim against the City or against both the City and the User involving an allegation of negligence, intentional act, or breach of duty on the part of the User, the User shall be responsible for promptly providing a defense to the City. In the event of an ultimate finding of sole negligence by the City, its officers, employees, principals, or agents,the City shall reimburse the User for its defense costs and shall satisfy and judgment against it. In the event of an ultimate finding of concurrent negligence by the User and the City, the User's and the City's responsibility for defense costs and for satisfying any judgment shall be proportionate to the percentage of each party's negligence or that of its agents, employees, representative, and subcontractors. In the event of an ultimate finding of no negligence by the City, the User shall have total responsibility for defense costs and for satisfying any judgement. The User shall provide automobile liability insurance(where applicable) and comprehensive general liability insurance covering premises,products-completed operations and contractually liability. The City shall be named as an insured on User's General Liability insurance policy. The General Liability insurance shall be written with limits no less than$1,000,000 each occurrence and$1,000,000 general aggregate.User will provide the City with an insurance certificate evidencing the coverage at least annually. B. When applicable, the User shall provide Workers Compensation coverage for its employees as required by law. The User specifically agrees to defend and indemnify the City from claims or suits brought by User's own employees against the City; and for that purpose,the User specifically agrees not to assert any immunity available to it under the Workers Compensation Act as a defense to a claim by the City for indemnification under this Section VI.B.; provided that this indemnity shall not extend to losses, damages, or injuries that result solely from the willful or negligent acts or omissions of the City or its agents, employees, invitees, or licensees. 1 C. The City and the User agree that, in the event of a loss at the Facilities occasioned by fire and such other perils as are covered in the provisions of the parties' fire or all-risk policies,they will waive all rights of subrogation in favor of their respective insurance carriers for and to the extent that the foregoing waiver does not impair or otherwise adversely affect present or continuing coverage from the carrier. 1 Page 2 of 5 The City represents that it presently maintains fire insurance coverage on the Facility. The User may inquire on an annual basis as to whether the foregoing status has changed. After any such inquiry, if the City's self-retention/deductible amount has increased to a level the User find acceptable,the User may terminate this Agreement upon the expiration of ten(10)days' advance, written notice to the City. D. In addition to the above, the User agrees to indemnify and hold harmless the City and all its officers, agents, and employees as to any claims for losses or damages or injuries to persons, to property, or to agents of the User or as to claims for infringement or deprivation of constitutional rights that arise in connection with the Activities carried on under this Agreement where such liability is incurred in whole or in part as a result of the actions of the User, its employees, assignees,agents, invitees, or licensees. In the event of any such claims or lawsuits,the User shall assume all costs of defense, including any costs and fees incurred by the City or its agents. VII. RESPONSIBILITY FOR CONDUCT OF INVITEES.User shall provide adequate security and crowd control/overflow setup, and further assumes full responsibility for the conduct of persons at the Facilities with the consent of, or at the invitation of, the User. The User assumes the duty of protecting property of the City from the acts of such persons, and for these purposes, the"property of the City"means not only the Facilities herein,but related facilities owned by the City as well. Such responsibility also includes loss of, repair to, or replacement of City property damaged or destroyed by the act or omissions of User, its agents, licensees, or invitees. VIII. DAMAGE OR ALERATIONS TO THE PROPERTY. A. User agrees not to damage, or permit the damaging of the Facilities either by its own act or the acts of third persons. B. Alterations to the Facilities may only be made after obtaining the written permission of the Parks& Recreation Director of the City. User may remove any of its own temporary fixtures from the Facilities on termination of this Agreement if such removal will not cause damage to the Facilities. All other fixtures or alterations become the property of the City upon completion by User and acceptance by the City. IX. ADVERTISING. A. Signs,posters, and leaflets shall be posted or distributed in a manner acceptable to the City. B. There will be no permanent or temporary tobacco or alcoholic beverage advertising allowed anywhere in the Facilities. X. RETAIL SALES AND CONCESSIONS.User is permitted to conduct retail sales of food, drink, and related merchandise at the Facilities during its events, subject to the following rules: A. User shall keep the concession areas clean and shall keep all papers and refuse picked up and removed in the immediate area. User shall comply with all Department of Health regulations for the dale of food and beverages. B. User shall provide appropriate padlocks and will keep its materials, equipment, and supplies locked up. C. Pursuant to applicable laws, smoking is not permitted in public facilities.The sale and/or distribution of all tobacco products, including,but not limited to cigarettes, cigars,pipes, and smokeless tobacco, at Lincoln Park, or anywhere at the Facilities is prohibited. D. User is required to provide counters, fixtures, and equipment necessary to provide proper concession services to the public. Fixtures so provided shall not become property of the City as long as they can be removed without damage to City property. Page 3 of 5 XI. EQUAL EMPLOYMENT OPPORTUNITY RESPONSIBILITIES.User agrees that it will comply with all State and local non-discrimination laws and regulations in effect at the time this Agreement is executed or as subsequently enacted. User will not discriminate in employment,provision of services, or any other activity against any person on the grounds of race, color, creed,mental or physical handicap, age, or gender. XII. REPRESENTATIVES OF THE PARTIES. A. The City's representative with regard to this Agreement is its Department of Parks&Recreation. Corey Delikat, Director of Parks&Recreation, is designated as the person responsible for liaison and compliance with this Agreement. B. Geri Thompson will be the representative responsible to the City for liaison and compliance with this Agreement. XIII. HAZARDOUS MATERIALS.User warrants that it will not produce,dispose of, or keep at the Facilities herein any hazardous substance,toxic waste, or other toxic substance which, if found at the Facilities, would subject the City or User to any damages,penalty, or liability under an applicable local, state, or federal law or regulation. User shall indemnify and hold harmless the City with respect to any and all damages, costs, attorney fees, and penalties arising from such activities regarding such substances at the Facilities. XIV. TERMINATION OF AGREEMENT. The parties shall have the remedies set forth herein in the event of the other parties' default. These remedies are not exclusive; they are cumulative and in addition to any remedies now or late allowed by the law. In the event of any default of any condition or obligation under this Agreement, a breach of law or regulation, or misfeasance or a default in any manner, the non-defaulting party shall notify the defaulting party in writing of said default.The defaulting party may cure such breach or default within thirty(30) days of written notice, except for the payment of any funds due which shall be cured within ten (10)days of receipt of the notice of default.Unless adequate assurances of cure have been received by the City during this period,the City(if it is the non-defaulting party)may in its sole discretion, immediately suspend the User from further activities until the default is cured. If the defaulting party has cured or otherwise remedied the default within the applicable time period,then this Agreement may not be terminated. If the defaulting party has not cured or otherwise remedied the default within such time period then thereafter the non-defaulting party shall have the sole election to terminate this Agreement effective upon delivery of written notice of termination to the defaulting party prior to the cure or remedy of the default. If the default is cured or remedied prior to the delivery of the written notice of termination by the defaulting party, then there shall be no right of termination. Delivery shall be effective upon mailing as evidenced by the postmark or upon personal service. The notice of default and the notice of termination shall specify the grounds for default or termination. XV. ASSIGNMENT.This Agreement may be assigned by the User only after obtaining the written consent of the City which consent may not be withheld unreasonably. If assigned, the User shall ensure that the assignee complies in all respects with the terms of this Agreement. As a material inducement to the City to enter into this Agreement, the User agrees it shall be reasonable under this Agreement for the City to withhold consent to any proposed assignment if the City determines that any one or more of the following applies (without limitation as to other reasonable grounds for withholding consent): a) the City is not reasonably assured that the proposed transferee will fully, completely, and promptly perform all obligations of the User under this Agreement, (b)the current net assets or the tangible net worth of the proposed assignee, as determined in accordance with generally accepted accounting principles, consistently applied by the User's and the proposed assignee's respective Page 4 of 5 independent certified public accountants, meets the City's discretionary approval(c)the assignee proposes to use the Facility for any purpose other than the permitted uses under this Agreement, (d)the proposed assignee fails to deliver to the City a written assumption of all of the obligations to be performed by the User under this Agreement, (e)the current User is not completely current in all its obligations under this Agreement, of(f)if the User and all guarantors will not continue to remain liable on this Agreement. No assignment shall release the User from primary liability under this Agreement without the City express consent to allow for such a novation. Any assignment without the City's prior written consent shall, at the City's discretionary option,be voidable. XVI. RIGHTS OF USER AND USER'S EMPLOYEES.By executing this Agreement,the parties are not establishing any joint venture,joint undertaking, partnership, or the like. No personnel employed or utilized by the User shall acquire any rights or status as employees of the City or in the civil service system, nor shall they be deemed employees or agents of the City for any purpose.The User shall be responsible in full for any payment due its employees, including workers compensation and related costs. No User personal vehicles will be allowed to block gate entrance areas at Lincoln Park. EXECUTED this the_ day of t , 2016, for the User Geri hompson, Owner, P Angeles BMX Track. EXECUTED this the day of S,. l.L L4 , 2016, for the CITY OF PORT ANGELES: Departmental Approval: City Manager, Dan McKeen Attest: Approv d as to Form: ` r r j— City Clerk, Jennifer Vene la en City Attorney, 1344filkoor Page 5 of 5