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HomeMy WebLinkAboutFCAA (FORT COLLINS ARCHERY ASSOCIATION) - CONTRACT - AGREEMENT MISC - FORT COLLINS ARCHERY ASSOCIATION FCAAMemorandum To: Jim O'Neill, Director of Purchasing & Risk Management Thru: Ingrid Decker, Assistant City Attorney I From: Bill Whirty, Manager of Parks Date: Tuesday, March 9, 2010 RE: Fort Collins Archery Range Maintenance & Use Agreement Attached are two original copies of the Fort Collins Archery Range Maintenance & Use Agreement signed by Michel Magers, President of the Fort Collins Archery Association (FCAA). This has been an on -going agreement with FCAA, and was updated this year due to the change in collecting revenue at the Archery Range. Please have the document signed, and send one original back to our office so that we can send it to FCAA for their files. Please let me know if you have any questions. Thank you. a FORT COLLINS ARCHERY RANGE MAINTENANCE AND USE AGREEMENT This Agreement is made and entered into this 5th day of March, 2010, by and between the City of Fort Collins, Colorado, a municipal corporation, hereinafter referred to as "City" and the Fort Collins Archery Association, a Colorado non-profit corporation, hereinafter referred to as "FCAA". A. The City is the owner of the real property located at 2875 South West Frontage Road at the Strauss Cabin Trail Head (the "Range"). The City is also the owner of the improvements and personal property located at the Range described on Exhibit "A", attached and incorporated herein by reference. B. FCAA is the owner of the improvements and personal property located at the Range described on Exhibit "B", attached and incorporated herein by reference. C. The City and FCAA each have an interest in ensuring that the Range is properly maintained, improved and operated. Now, therefore, in consideration of the mutual covenants and obligations expressed herein, the parties agree as follows: 1. Contract. This Agreement is effective from January 1, 2010, until December 31, 2011, (a two year term) unless sooner terminated as provided herein. The Agreement shall automatically be extended for successive one-year terms unless either party gives written notice to the other party of its decision not to extend the term, no later than November 1 of the then - current contract year. Each extension shall not exceed one year in length, and will be on the same terms and conditions unless the parties agree in writing to amend this Agreement. 2. Range Maintenance. FCAA will repair and maintain the Range in a clean, safe, and attractive manner that complies with generally recognized "safe ranges" as customarily considered within industry standards for archery ranges. The static range will be mowed by the city, Mowing the paths for the walk through course will be managed by the FCAA In the event the City is dissatisfied with FCAA's maintenance of the Range, it will notify the FCAA, in writing, of its complaints and the FCAA will have a reasonable opportunity to repair or address the issues raised. If the parties cannot agree on a resolution within 30 days after the notice is received, then a mediator will be retained at the mutual expense of the parties to review the written submissions of each party and make a recommendation for resolution. If the matter is still unresolved, then the City may terminate this Agreement as of the end of the then -current contract year, unless the matter poses a material danger to the life, health or safety of any person, in which case, the Agreement may be terminated immediately upon written notice. 3. Building Maintenance and Range Upgrades. (a) FCAA is responsible for maintaining the existing buildings and other improvements and facilities at the Range in a safe, clean and attractive condition and free of litter, debris, and any unsightly or dangerous condition as required by the ordinances, resolutions, statutes and health, sanitary and police regulations of the City of Fort Collins. (b) The City will keep and maintain the permanent structures at the Range, including without limitation, the exterior walls, foundation and roof of any buildings, plumbing, electrical, and any heating or air conditioning system associated with said structures. The City will also, at its sole cost, replace any and all plate, window and other glass (structural or otherwise) in, on or about any Range structures which may be broken or destroyed, with glass of the same or similar quality. Notwithstanding anything to the contrary contained herein, the City will not in any way be liable to the FCAA for failure to make required repairs unless the FCAA has previously notified the City in writing of a need for such repairs and the City has failed to commence and complete said repairs within a reasonable period of time following receipt of the FCAA's written notification. (c) The permanent structures and fixtures at the Range, including their color, cannot be materially altered without the written consent of the City. (d) FCAA will be responsible for and reimburse the City for the cost of any repairs or damage caused by any act or negligence of the FCAA or the FCAA's agents, employees, or invitees. (e) Upon the termination of this Agreement, the property listed on Exhibit A, and any other property or fixtures located at the Range and paid for with City funds will remain the property of the City. FCAA will remove all items listed on Exhibit B and any other property, except permanent fixtures, paid for by FCAA. (0 FCAA will install city -provided target bales as needed to minimize pass through of arrows or other related unsafe condition. FCAA must not make any changes to the Range layout or the shape of the Range without the City's prior consent. FCAA will install burlap target faces as needed due to wear from Range use. The City will supply FCAA with the materials needed to construct and repair Range targets. The FCAA agrees to use these provided materials only on the Range. 4. Range Fees and Reporting. (a) The City charges a fee for use of the Range. As of the date of this Agreement, users may purchase a daily pass for $3 or a 12-month pass for $30. The City is responsible for collection of the fee and monitoring use of the Range to insure that users have paid the fee. FCAA will provide annual passes to all FCAA members and reimburse the City $5 for each member's annual pass while this Agreement is in effect. (b) The FCAA will reimburse the City on a quarterly basis for the annual passes issued to the membership, and shall provide the City with the requisite information to link the passes to the members' vehicle. The City agrees to provide traffic and use data acquired through sale of day and annual passes, and other traffic studies to FCAA on a quarterly basis. 5. FCAA Use of Range. (a) In consideration of FCAA's maintenance work on the Range, the City hereby grants to FCAA a license to use the Range for its own locally organized archery shoots, FCAA fund- raisers, instruction and education at the Range during the year on a schedule pre -approved by the City ("Approved Use"). Approved Use may include FCAA events sponsored by outside sponsors, but does not include FCAA sponsoring events for outside groups or organizations. FCAA must provide to the City a proposed schedule of dates upon which it seeks to use the Range no later than January 2nd of each year and obtain City approval thereof prior to publishing or advertising said schedule to the public. Approved Use of the Range is subject to a maximum of 250 participants at any one time. (b) Additional FCAA Range use beyond the Approved Use, including hosting or sponsoring events for other than the FCAA leagues, chapter or organization, such as national, regional or state shoots or charitable fund-raisers, may be arranged by FCAA on the same basis as the Range is available to the general public. Unless the requested event poses an unusual risk of property damage or involves some expense to the City, the damage deposit will be waived for events sanctioned and supervised or sponsored by the FCAA. (c) FCAA acknowledges that at any times other than the times for which the City has authorized the Approved Use of the Range or other permitted event by FCAA, the City in its sole discretion may allow other interested persons or organizations to schedule organized shoots and events or other activities at the Range. During the times that FCAA has scheduled the Range for an Approved Use or other FCAA permitted event, the City will not allow the general public to make use of the Range. 6. Conduct of FCAA Activities. (a) FCAA must not charge an admission or any other fee to persons wishing to observe any activities it conducts at the Range. However, FCAA may charge Range participants a reasonable fee for participating in events FCAA conducts during Approved Use of the Range and may limit the number of spectators as reasonably necessary to protect the safety of spectators and participants and/or the property. (b) FCAA may post advertising and other promotional material at the established sign near the shelter designed for such purposes. Any advertising or other promotional materials posted by FCAA must be removed immediately after the conclusion of the event. (c) FCAA must manage and conduct all activities during its Approved Use of the Range in a fair, professional, and competent manner and to the reasonable satisfaction of the City. 7. Utilities. The City will supply to the Range water, natural gas, and electricity at the City's expense, provided that FCAA may use only such quantities of water, gas, and electricity as are reasonably necessary for the normal use of the Range and the performance of its duties to maintain the Range. The City will remove trash and debris from the City's supplied trash containers in the area of the Range on an as -needed basis, and will clean the toilet facility, shelter, grills and tables on an as -needed basis, as determined by the City in its sole discretion. 8. No Liens. FCAA agrees to pay or cause to be paid promptly all bills and charges for material, labor or otherwise in connection with or arising out of any work undertaken at the Range on behalf of FCAA; and agrees to hold the City free and harmless against all liens and claims of liens for such labor and materials, or either of them, filed against the Range or any part thereof and from and against any expense and liability in connection therewith, and to discharge (either by payment or by filing the necessary bond or otherwise) any mechanic's, materialman's or other liens against the Range arising out of any payment due or alleged to be due for any work, labor, services, materials or supplies claimed to have been furnished at FCAA's request in, on or about the Range and to indemnify the City against any lien or claim of lien attached to or upon Range or any part thereof by reason of any act or omission on FCAA's part. 9. Insurance. FCAA must maintain at all times during the term of this Agreement a "commercial general liability" insurance policy with a Combined Single Limit of $1,000,000.00 covering its activities hereunder, which policy must name the City as an additional insured. A certificate of insurance for this policy must be submitted to the City within ten (10) days of signing this agreement. 10. Termination. Either party may terminate this agreement at the end of any one-year term by providing the other party the written notice described in Paragraph 1. In addition, the City may terminate this agreement without prior notice at any time in order to protect public health, safety or welfare, or City property. 11. Appropriation Required. The City's obligations under this Agreement are contingent on the annual appropriation by the City Council, in its discretion, of funds sufficient and intended for performance of such obligations. If, in any calendar year, such funds are not appropriated for the next calendar year, this Agreement will automatically terminate as of the last day of the then -current calendar year. 12. Assignment. FCAA may not assign this Agreement or any part thereof without the prior written consent of the City. 13. General Conditions. It is further agreed between the parties as follows: (a) That in entering into this agreement, FCAA and/or its employees, agents or representatives acquire no status, rights or benefits of an employee of the City, it being expressly understood and agreed that FCAA shall perform all undertakings and professional services herein prescribed and contemplated as an independent contractor. (b) That this agreement may not be enlarged, modified, or altered, except in writing, signed by the parties as an amendment hereto. (c) That no waiver of any breach of this agreement shall be held or construed to be a waiver of any subsequent breach thereof. (d) This agreement shall be governed in all respects by the laws of the State of Colorado. (e) Each and every term and condition in this agreement shall be deemed to be a material element of this agreement. 14. Indemnification. Any liability incurred by FCAA in connection with this agreement, its performance hereunder, or the use of the Range, is solely the liability of FCAA, and the City shall incur no liability by reasons thereof. FCAA agrees to indemnify the City, its officers, agents, representatives, successors and assigns and hold them harmless against any and all liability or claim of liability arising from any negligent act or omission of FCAA, its employees, officers, agents or representatives, or any failure by the same to comply with and properly carry out the provisions of this agreement. 15. Default. In the event either party fails or refuses to perform according to the terms of this agreement, such party may be declared in default thereof. In such event, the party declaring the default shall provide written notice of the default to the defaulting party and an opportunity to cure the default within thirty (30) days after such notice. If the defaulting party fails to cure the default in such period, then the non -defaulting party may elect to: (a) terminate the agreement and seek actual damages, if any, arising as a direct and proximate result of the default; or (b) avail itself of any other remedy at law or equity. In the event of default of any of the terms and conditions herein, by either party, which causes the party not in default to commence legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non - defaulting party for the non -defaulting party's reasonable legal fees, including attorneys' fees and costs, incurred as a direct and proximate result of the default. 16. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., FCAA represents and agrees that: (a) As of the date of this Agreement: (1) FCAA does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and (2) FCAA will participate in either the e-Verify program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the "e-Verify Program") or the Department Program (the "Department Program"), an employment verification program established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. (b) FCAA shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. (c) FCAA is prohibited from using the e-Verify Program or Department Program procedures to undertake pre -employment screening of job applicants while this Agreement is being performed. (d) If FCAA obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, FCAA shall: (1) Notify such subcontractor and the City within three days that FCAA has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that FCAA shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (e) FCAA shall comply with any reasonable request by the Colorado Department of Labor and Employment (the "Department") made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (f) If FCAA violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so terminated, FCAA shall be liable for actual and consequential damages to the City arising out of FCAA's violation of Subsection 8-17.5-102, C.R.S. (g) The City will notify the Office of the Secretary of State if FCAA violates this provision of this Agreement and the City terminates the Agreement for such breach. IN WITNESS WHEREOF, this agreement is signed as of the dates set forth below, and effective upon last signing. Date: TTEST: of FOR.. City Clerk APPR �E T FORM: /t Assistant City Attorney CITY OF FORT COLLINS, COLORADO a municipal corporation By: James B. O`Neill, I, CPPO, FNIGP Dtre or of Purchasing and Risk Management FORT COLLINS ARCHERY ASSOCIATION a Colorado non-profit corporation Date: �40 7—'->110 By: r� Michel D Magers, President ATTEST: A It acey Lit Corp ate Secretary EXHIBIT A CITY PROPERTY 1. Pay station 2. Signs, signposts and fencing 3. Outhouse building and all contents, including custodial items, etc. in storage closet 4. Shelter structure and aggregate wall 5. BBQ mounted in concrete 6. Trash cans 7. Picnic tables outside of shelter 8. Clubhouse building less items listed in Exhibit B as FCAA property 9. Folding chairs in Clubhouse 10. Propane storage tank 11. Storage garage, less contents listed in Exhibit B as FCAA property EXHIBIT B FCAA PROPERTY I . All contents stored in the garage including but not limited to: targets, power equipment, tools, hardware, basketball hoop, bales 2. All contents in the Clubhouse including but not limited to: appliances and exhaust fan, excluding folding chairs listed in Exhibit A as City property. 3. Static and field range items, including: numbered posts, target butts and mounts, bow racks, tree and elevated stands, blind structure(s), foot bridges 4. Kiosk 5. Picnic tables in shelter 6. Club donations receptacle 7. Utility trailers on site 8. NOTE: Fixtures and improvements to the Clubhouse obtained and installed by FCAA that will remain part of the Range upon termination of this Agreement include: storm windows, drapes, kitchen and bathroom cabinets, light fixtures and plumbing fixtures and northwest exterior stairwell. Landscaping installed by FCAA, including memorial trees and memorial benches, will also remain part of the Range upon termination of this Agreement.