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Home My WebLink About001114 Original ContractCity of Port Angeles Record # 001114 FACILITY USE AGREEMENT BETWEEN CITY OF PORT A}IGELES & LINCOLN PARI( BMX Association The CITY OF PORT AIYGELES, a non-charter code city and municipal corporation of the State of Washington, located at City Hall, 321 East 56 Strea, Port Angeles, Washington, 98362 (hereinafter the "City"), and the Lincoln Park BMX Association, a non-profit organization corporation, doing business as Lincoln Park BMX Track located at 1521 West Lauridsen Boulevard in Port Angeles, Washington (hereinafter the "Uset''), in consideration ofthe mutual covenants set forth herein, agree as follows (this "Agreernent"): I. PIIRPOSE. This Agreernent allows the User the right to conduct certain activities, or reasonably similar activities, on or at facilities oumed by the City as follows: II. III IV TERM OF AGR-EEMf,NT. This Ageement permits use of the Facilities for a period beginning October I , 20 I 7 and ending on October 31, 2020 (he *Primary Term"). If the current track owner decides not fulfill the current agreement or decides not to have a competitive 2017 season., User and the City will negotiation a written amendmelt to this Ageement to modiry the start date of this Agreernent. Activities BMX prescheduled competitions and clinics (or equivalenQ and Related Concession Operations (the "Activities") City Facilities West End of Lincoln Park bordered on two sides by Lauridsen Blvd and L Street. (the "Facilities") SERVICES AIID UTILITIES. A. The City agrees to provide the following services and utilities, or reasonably similar substitutes: Utilities - User agees 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 fumish and be responsible for the follow ing 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 ofthe Facilities within 24 hours of each event, - Maintenance and cleaning ofthe concession area to required health and safety standards, - User will complete a competitive BMX season each calendar year per USA BMX Association rules. TAXES, FEES, AND REGI,JLATIONS. A. User is liable for all taxes, licelse 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. Page I of5 v vI. ACCEPTAIICE A]\iD SURRENDER OF FACILITIES. A, User agrees to rraintain the Facility to meet all requirements set forth by the USA BMX Association, the national sanctioning body. B. User agrees to pay all expenses directly incuned by BMX in a timely manner and rnaintain 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 improvernents shall become the property ofthe City upon complaion. User is liable for the costs of repair ofany damage precipitated by its use to the Facilities during any Use Period. LIABILITIES AIID INSI,'RANCE. A. The User shall defend, indernnifu and hold harrnless the City, its officers, ernployees, 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 that arise diectly 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 ofthe actions ofthe User, its employees, assignees, invitees or agerts during USA BMX sanctioned events. [n the event of any claim against the City or against both the City and the User involving an allegation of negligence, intertional act, or breach of duty on the part of the User, the User shall be responsible for promptly providing a defense to the City. [n the event ofan ultimate finding ofsole negligence by the City, its offrcers, employees, principals, or agents, the City shall reimburse the User for its defense costs and shall satisfo and judgrnent against it. In the event ofan ultimate finding of concurrent negligence by the User and the City, the User's and the City's responsibility for defense costs and for satisffing any judgrnent shall be proportionate to the percentage of each party's negligence or that of its agents, employees, representative, and subcontractors. La the event ofan ultimate finding ofno negligence by the City, the User shall have total responsibility for defense costs and for satisfying any judgernent. The User shall provide automobile liability insurance (where applicable) and comprehensive geleral liability insurance covering premises, products-completed operations and contractually liability. The City shall be named as an additional 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 $ I ,000,000 general aggregate. User will provide the City with an insurance certificate evidencing the coverage at least armually. B. When applicable, the User shall provide Workers Compensation coverage for its ernployees as required by law. The User specifically agrees to defend and indernnifo 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 indernnity shall not extend to losses, damages, or injuries that result solely from the willful or negligent acts or omissions ofthe City or its agents, employees, invitees, or licersees. Page 2 of5 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 ofthe 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. VII. VIII. IX. x. xI. The City represents that it presently maintairs 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-retentior/deductible amount has increased to a level the User find acceptable, the User rnay terminate this Agreement upon the expiration often (10) days' advance, written notice to the City. R-ESPONSIBILITY FOR CONDUCT OF III\rITEES. User shall provide adequate security and crowd controyoverflow setup, and further assumes fi.rll 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 ofprotecting property of the City from the acts of such persons, and for these purposes, the "property ofthe City' means not only the Facilities herein, but related facilities owned by the City as well. Such responsibility also includes loss ol repair to, or replacement of City property damaged or destroyed by the act or omissions of User, its agents, licersees, or invitees. DAMAGE OR ALf,RATIONS TO THE PROPERTY. A. User agrees not to damage, or permit the damaging of the Facilities by its own act. B. Alterations to the Facilities may only be made after obtaining the written permission of the Parks & Recreation Dtector ofthe City. User may remove any of its own temporary fixtures from the Facilities on termination ofthis Agreernent if such rernoval will not cause damage to the Facilities. All other fixtures or alterations become the property ofthe City upon complaion by User and acceptance by the City. RETAIL SALES A]\lD CONCESSIONS. User is permitted to conduct retail sales of food, drinh 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 rernoved in the immediate area. User shall comply with all Department of Health regulations for the sale of food and beverages. B. User shall provide appropriate padlocks and will keep its rnaterials, equipment, and supplies locked up. C. Pursuant to applicable laws, smoking is not permitted in public facilities. The sale and/or distribution ofall tobacco products, including, but not limited to cigarettes, cigars, pipes, and smokeless tobacco, at Lincoln Parh 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 ofthe City as long as they can be rernoved without damage to City property. EQUAL EMPLOYMEI{T OPPORTIJNITY RESPONSIBILITIES. User agrees that it will comply with all State and local non{iscrimination laws and regulations in effect at the time this Agreernent is executed or as subsequeltly enacted. User will not discriminate in employment, provision of sewices, or any other activity against any person on the grounds of race, color, creed, mental or physical handicap, age, or gerder. XII. REPRESENTATIVES OF THE PARTIf,S. AD!'ERTISING. A. Signs, posters, and leaflets shall be posted or distributed in a marurer acceptable to the City. B. There will be no perrnanent or temporary tobacco or alcoholic beverage advertising allowed anywhere in the Facilities. Page 3 of5 XIII, xv A. The City's representative with regard to this Agreement is its Depaftment of Parks & Recreation. Corey Delikat, Director of Parks & Recreation, is designated as the person responsible for liaison and compliance with this Agreement. B. Sean Colernan will be the representative responsible to the City for liaison and compliance with this Agre€ment. IIAZARDOUS 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 &mages, costs, attomey fees, and penalties arising from such activities regarding such substances at the Facilities. TER}IINATION 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 ofany default ofany condition or obligation under this Ageement, a breach of law or regulation, or misfeasance or a default in any manner, the nondefaulting party shall notiry the defaulting party in writing ofthe default. The defaulting party may cure such breach or default within thirty (30) days of written notice, except for the payment ofany funds due which shall be cured within ten (10) days ofreceipt ofthe notice ofdefault. Unless adequate assurances of cure have been received by the City during this period, the City (if it is the nondefaulting party) may in its sole discretion, immediately suspend the User from further activities until the default is cured. Ifthe defaulting party has cured or otherwise remedied the default within the applicable time period" then this Agreernent may not be terminated. Ifthe defaulting party has not cured or otherwise remedied the default within such time period then thereafter the nondefaulting 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 ofthe default. If the default is cured or rernedied prior to the delivery ofthe written notice oftermination 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 ofdefault and the notice of termination shall speci$ the grounds for default or termination. ASSIGNMENT. This Agreement may be assigred by the User only after obtaining the writtear consent of the City which consent may not be withheld unreasonably. If assigrred, the User shall ersure 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 ifthe City determines that any one or more ofthe following applies (without limitation as to other reasonable grounds for withholding consen|: a) the City is not reasonably assured that the proposed trarsferee will fully, completely, and promptly perform all obligations ofthe User under this Agreement, (b) the current net assets or the tangible net worth ofthe proposed assignee, as determined in accordance with generally accepted accounting principles, consistently applied by the User's and the proposed assipee's respective independent certified public accountants, meets the City's discretionary approval (c) the assipee proposes to use the Facility for any purpose other than the permitted uses under this Agreernent, (d) the proposed assignee fails to deliver to the City a wriften assumption ofall ofthe 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(0 ifthe 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 Page 4 of5 xIv. xvI. without the City express consent to allow for such a novation. Any assignment without the City's prior written conserrt shall, at the City's discretionary optiorL be voidable. RIGHTS OF USER AND USER'S EMPLOYEES. By executing this Agreement, the parties are not establishing anyjoint venture, joint undertaking, partnership, or the like. No personnel ernployed or utilized by the User shall acquire any rights or status as ernployees ofthe City or in the civil service systenr, nor shall they be deerned ernployees or agents of the City for any purpose. The User shall be responsible in fu[ for any payment due its ernployees, including workers compensation and related costs. No User personal vehicles will be allowed to block gate entrance areas at Lincoln Park- EXECUTED this the -L4 +t'-of rvlAz,"d 20 I 7, for the Userday Sean Colernan, President, Lincoln Park BMX Track EXECUTED this the ANGELES: Departmental Approval: .p day or [MffYl 2017, for the CITY OF PORT astoF City Manager, Dan McKeen Attest: O,tnitpr uawrwyl City Cter[. tennifer Veneklasen City Attomey, Bill Bloor Page 5 of5