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HomeMy WebLinkAbout001083 Original Contract City of Port Angeles Record # 001083 FACILITY USE AGREEMENT BETWEEN CITY OF PORT ANGELES & MACK Athletics, Inc. The CITY OF PORT ANGELES, a non-charter code municipality of the State of Washington, located at City Hall, 321 East 5"Street,Port Angeles, Washington, 98362 (hereinafter the"City"), and MACK Athletics, Inc., a Washington corporation, with offices located at 1401 Marvin Road N.E., Suite 307 PMB 264,Lacey, Washington, 98516(hereinafter the"User"), in consideration of the mutual covenants set forth herein, agree as follows(this"Agreement"): L 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 College Summer, Semi-pro, or Professional Civic Field, Including Field and League Baseball training, clinics,and games Concession Areas, Parking Lot, Locker (or equivalent), and Related Concession Rooms, and Storage Area(s)as Operations (the"Activities") Designated by the City(the"Facilities") Except as otherwise noted herein below at section XIX.,the Facilities and all enclosed spaces made a part thereof under this Agreement must be vacated and cleaned by the User within fifteen(15) days of the end of the Use Period(defined below). II. TERM OF AGREEMENT AND HOURS OF ACTIVITIES. A. This Agreement permits use of the Facilities for a period beginning June 1St and ending the first weekend in August(the"Use Period") for the years 2017, 2018, and 2019 (the"Primary Term")with reasonable extensions beyond the first weekend in August if the timeframe allows ample time for the City to remove the homerun fence,perform a turf renovation, and put in the football field before the first Port Angeles High School football game. If the User makes the playoffs,the City will coordinate with other users of the facility to ensure adequate time for playoff games. B. User shall be permitted to conduct the Activities during its baseball season typically running from June 1St through the first weekend in August on days on which it has a scheduled game that has been noticed to the City prior to May 1 st. User shall have use of the Facilities, except the field,during the hours of 8:00 a.m. to 11:00 p.m. for such scheduled games. Per City ordinance, field lights need to be shut off by 11:00 p.m. The Parks&Recreation Director can extend the 11:00 p.m. requirement per Port Angeles Municipal Code Section 12.04.020. C. Non-game use of the Facilities for camps, clinics, or practices during any effective Use Period is permitted subject to the availability of the Facilities and must be scheduled with the City. D. User will be allowed to use the field up to three(3)hours prior to the start of its games,with no charge. City field crews have full use of the field up until 3:30 p.m. Additional practice/preparation time must be requested in writing to, scheduled in advance with,and approved by the Parks& Recreation Department. Such approval will not be unreasonably withheld, and User will be advised in writing at the time of approval of any direct expenses resulting from requested extra use. E. Occupation of the Facilities for longer than the period or times stated will subject the User to additional facility fees depending on events scheduled. 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 amounts 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. Page 1 of 8 Electric power, and subject to the additional provisions set forth at Section IV. below Restrooms and sewer service - Water service - Garbage removal Services/Equipment- - Normal ground maintenance of the playing field to a level that meets ASTM standards F2107-08, maintenance of skinned areas on baseball and softball fields - Special pre-game field preparation including dragging the infield,watering,mowing, and marking playing boundaries - Secure onsite storage for User equipment and material 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: - A College level, semi-pro, or professional baseball team or equivalent for any Use Period in which this Agreement is in effect - User will work with the local Senior Babe Ruth team,Wilder Baseball, on scheduling home games to ensure that Wilder and User both have sufficient dates for scheduled home games. Additionally, the User acknowledges that during the July Fourth weekend,that consists of four days annually, Wilder has scheduling priority to host its long-running annual July 4' Dick Brown Memorial Tournament. User may play home games at Civic Field on the Fourth of July weekend only if the Wilder board and/or coach gives the User written permission - User will provide equipment and supplies needed for operation of the baseball team and User will be responsible for installation of the team equipment - Maintenance and cleaning of visiting and home team locker rooms, and officials' room after each home game - Maintenance and cleaning of Civic Field concession area to required health and safety standards - Maintenance and cleaning of the score booth - Removal and storage of all equipment and supplies from the Facilities within fifteen(15) days after the end of the season, except for items in the concession stand that are owned by the City - Any equipment stored in the north locker room in accordance with the requirements of section XIX. below IV. PAYMENT.As consideration for use of the Facilities,User agrees to compensate the City as follows: A. Base Use Fees.For each Use Period during the Primary Term, User shall pay to the City Base Use Fees of- - Games: $275.00/game - Practices: $15.00/hour, not including the three hours prior to the start of home games as per section II.D., if field space is available at Civic Field or Volunteer Field - Instructional Clinics/Camps/Events: $15.00/hour for the use of any available City-owned athletic field B. The Base Use, shall be increased three percent annually after 2017(3%): for example, 2017- $275.00, 2018 -$283.25, 2019 - $291.75. C. If a game is cancelled due to weather prior to beginning,the use fees will not be charged. However, a $100.00 field preparation fee will be charged if field preparation is initiated and the game is cancelled. D. Payment of Game Fees and any other additional charges shall be due thirty(30)days after submission of a bill by the City based on actual games played, additional practice sessions, additional clinics/camps/academies, or special uses or field preparations. Page 2 of 8 E. Compensation of all amounts set forth in this Agreement is only for use of the Facilities, and does not include any other license fees,taxes, costs, or similar payments which may be applicable. V. 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. Fees administered by the City 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. VI. ACCEPTANCE AND SURRENDER OF FACILITIES. A. User agrees to accept the designated City Facility without modification to them. B. 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 for any damage precipitated by its use of the Facilities during any Use Period. VII. 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. 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 VII.B.; provided that this indemnity shall not extend to losses, Page 3 of 8 damages, or injuries that result solely from the willful or negligent acts or omissions of the City or its agents, employees, invitees, or licensees. 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. 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 finds unacceptable,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. VIII. 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 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. IX. ALCOHOLIC BEVERAGES.User shall be allowed to sell beer(cans or draft)and wine as part of its concession business during games subject to the following additional restrictions: A. Alcohol sales will conform to the Washington State Liquor and Cannabis Board rules. B. Beer sales will only occur at designated concession areas and in the stands. No beer or wine sales will be allowed after the end of the seventh inning of a game. The User will maintain an overall family atmosphere throughout the stadium. C. Customers may only purchase a maximum of two permitted alcoholic beverages at any one time. D. No beer or wine will be sold more than one(1)hour prior to the start of the game except for in approved private group pre-game gatherings within a designated area(s). E. All beer and wine sellers will take an alcohol server training program provided by the Washington Liquor Control Board. Training is included in WSLCB rules F. No beer or other alcohol will be taken in or out of the stadium. G. Any provision herein to the contrary notwithstanding,User shall comply with all City of Port Angeles ordinances and Washington State alcohol laws, including Liquor Control Board laws and license requirements. User shall ensure that all consumers of alcoholic beverages are of the legal age to drink alcoholic beverages. H. In addition to the other insurance requirements contained herein,User shall procure and maintain for the duration of the agreement Liquor Liability insurance in the amount of$1,000,000 each occurrence. The City is to be named as an additional insured on Liquor Liability insurance. Host liquor liability coverage may be substituted when alcohol is consumed and not sold on premises with the prior written approval of the City. Page 4 of 8 X. 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 City Parks &Recreation Director.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. XI. ADVERTISING. All advertising will comply with the Parks &Recreation Department West Coast League Civic Field Advertising Policy PR-0303. XII. RETAIL SALES AND CONCESSIONS.User is permitted to conduct retail sales of food,drink(beer and wine), and related merchandise at the Facilities during its events, subject to the following rules: A. Retail sales by the User are only allowed during scheduled baseball games or in other User sponsored events. B. 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 sales of food and beverages. C. User shall provide appropriate padlocks and will keep its materials, equipment, and supplies locked up in Section XIX location. D. 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 Civic Field, or anywhere at the Facilities is prohibited. E. 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. XIII. EQUAL EMPLOYMENT OPPORTUNITY RESPONSIBILITIES.The 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. XIV. REPRESENTATIVES OF THE PARTIES. A. The City's representative with regard to this Agreement is its Department of Parks &Recreation. Corey Delikat, Parks&Recreation Director, is designated as the person responsible for liaison and compliance with this Agreement. B. Matt Acker, Owner of MACK Athletics, Inc., will be the representative responsible to the City for liaison and compliance with this Agreement. XV. 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. XVI. TERMINATION OF AGREEMENT. Page 5 of 8 A. 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. B. Notwithstanding notice of termination and during the pendency of any termination notice,User shall continue to pay the City amounts due under this Agreement and,unless otherwise requested by the City, shall fully and faithfully continue to perform its obligations under this Agreement. Amounts due the City by User under this Agreement shall be prorated to the date of termination, taking into account any damages suffered by the City arising out of this Agreement. XVII. 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 independent certified public accountants, fails to meet 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, or(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's 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. XVIII. 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 park inside the fenced areas of Civic Field or block gate entrance areas. Page 6 of 8 XIX. OFF-SEASON STORAGE.The User may store equipment and supplies in visitors' locker room on the north of the stadium outside the Use Period subject to the following conditions that are in addition to adherence to all applicable terms and conditions of this Agreement: A. User shall pay to the City a Storage Fee of$75.00 per month for the nine(9)month period not a part of the Use Period. B. Storage Fees shall be due on or before the first of each month or can be paid in full if User plans on using the storage area for the full nine months. C. Late payment of Storage Fees shall subject the User to a five percent(5%) late charge. D. Storage Fees during any Additional Term shall be subject to the same percentage increase as the Base Fees for the Facility as set forth herein. E. User's right to store equipment and supplies in the visitors' locker room be co-terminus with this Agreement. F. User will indemnify and hold the City harmless for any damage, theft,or vandalism of any stored equipment or supplies regardless of fault. G. User will indemnify and hold the City harmless for any damage,theft, vandalism, or destruction of any stored equipment of supplies regardless of fault. XX. PRIORITY RIGHT TO USE THE FACILITIES.User shall have priority use of the Facility for the operation of a baseball club and/or franchise during the Use period,however, such use is non-exclusive and the City may schedule the use of the Facilities by any high school, Cal Ripken, Jr. Babe Ruth, Sr. Babe Ruth, American Legion, Peninsula College, or adult city league baseball team or tournaments for such teams and their leagues at the Facilities so long as such games or tournaments do not conflict with the User's use of the Facilities as provided in this Agreement. The parties agree that the intent of this provision is to effectively bar any third party from locating a professional, amateur, minor league, major league, or any other baseball team other than any high school, Cal Ripken, Jr. Babe Ruth, Sr. Babe Ruth, American Legion, Peninsula College, or adult city league baseball team or tournaments at the Facility during the term of this Agreement, and any extensions hereto. XXI. LIMITATION ON DISRUPTION OF USE OF FACILITY. If any maintenance,upgrades, or improvements of or to the Facility subject to this Agreement are performed during any effective term,the City shall not unreasonably disrupt the User's use of the Facilities, including the field, the stands,and concessions during the User's scheduled use of the Facilities without the written approval of the User, which shall not be unreasonably withheld, conditioned,or delayed. This provision shall not act to bar the upgrade,maintenance, or improvement of the Facilities during the term of this Agreement,but shall limit and prohibit such maintenance or improvements which would unreasonably disrupt the User's use of the Facilities. XXII. MISCELLANEOUS. A. Capital Projects: User hereby is allowed, at its own expense,to invest back into the Facility. Capital projects will be mutually agreed upon by both the City and the User and scheduled to provide minimum disruption on other Facility users. All improvements by the User become City property upon the expiration or termination of this Agreement. B. This agreement would allow the City and the User to venture other partnerships and revenue sharing when it comes to youth sports programs, camps, or clinics, such as assisting with registration for these events. C. This Agreement shall constitute the entire agreement and understanding of the parties hereto with respect to the use of the Facility by User for its baseball team and supersedes all offers,negotiations, and other agreements of any kind with respect thereto. There are no representations or understandings of any kind not set forth herein. Any amendment to this Agreement shall be in writing and executed by authorized representatives of both parties. Page 7 of 8 D. The parties expressly agree that any and all disputes, libels, suits, or actions, whether brought at law, in equity, or through any agreed alternative dispute resolution mechanism, shall be governed by the laws of the State of Washington without recourse to any principles of Conflicts of Laws, with venue located exclusively in Clallam County, Washington. EXECUTED this the 54�� day of ` l-kK , 2016, fl the User, MACK Athletics,Inc. Matt Acker, Owner,MACK Athletics, Inc. EXECUTED this the S day of 1 , 2016, for the CITY OF PORT ANGELES: Drtmental Approval: City Manager,Dan McKeen Parks &Recreation Director, Corey Delikat Attest: Approv as to Form: City Clerk,Jennifer Veneklas City Attorney, Bill AloTr Page 8 of 8