Loading...
HomeMy WebLinkAboutEPIC BMX - CONTRACT - AGREEMENT MISC - EPIC BMXa BMX TRACK MAINTENANCE AND USE AGREEMENT This Agreement is made and entered into this d U day of MCU-f , 2010, by and between the 0 City of Fort Collins, Colorado, a municipal corporation, hereinafter referred'to as "City" and Epic BMX, a Colorado non-profit corporation ("Epic BMX"). The City is the owner of a bicycle motocross ("BMX") track located in Webster Park, Fort Collins, Colorado (the "Track"). The City has an interest in maintaining and improving the Track, and, Epic BMX, as a user of the Track, has an interest in maintaining, improving and operating the Track. 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. If both parties agree, the Agreement may be extended for additional one (1) year terms by the City providing Epic BMX with written notice of such extension prior to the expiration of the then -current term. Any 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. Track Maintenance. (a) Epic BMX will repair and maintain the Track in a clean, safe, and attractive condition and in a manner that complies with applicable laws, rules, and regulations. Epic BMX will remove all trash and debris left on or near the Track and/or Fossil Ridge High School's west parking lot Track immediately after the conclusion of any race or other event sponsored by Epic BMX and held at the Track. Epic BMX will ensure that the Track is free of any unsafe or dangerous conditions and minimize the presence of any ruts, rocks, loose dirt, potholes, or similar conditions on the Track. (b) The City may supply dirt to the Track on an occasional, "as available" basis. Epic BMX shall distribute and shape the dirt supplied by the City on the Track in a manner that enhances the safety and utility of the Track and in a manner approved by the City. Epic BMX shall not make any changes to the course layout or the shape of the course without the City's prior consent. (c) Epic BMX must repair and maintain the Track to the satisfaction of the City. In the event the City is dissatisfied with Epic BMX's maintenance of the Track, the City will notify Epic BMX in accordance with paragraph14, below. (d) Upon the termination of this Agreement for any reason Epic BMX shall restore the land underlying the Track to its original, natural condition, at Epic BMX's sole cost and expense, if requested by the City. 3. Building Maintenance. Epic BMX will maintain the buildings and other improvements and facilities at the Track in a safe, clean and attractive condition and free of any 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.. Epic BMX may close the track due to weather conditions or maintenance activities. The buildings, including their color, shall not be changed or altered without the written consent of the City. Upon the termination of this Agreement, the buildings at the Track shall remain the property of the City. 4. Epic BMX's Use of the Track. (a) In consideration of Epic BMX's maintenance work on the Track, the City hereby grants to Epic BMX a license to use the Track for its own BMX practices and races during the months of April through November, on a schedule pre -approved by the City ("Approved Use"). Approved Use may include Epic BMX events sponsored by outside sponsors, but does not include Epic BMX sponsoring events for outside groups or organizations. Approved Use is subject to a maximum of 150 participants. Epic BMX must provide to the City a proposed schedule of dates upon which it seeks to use the Track no later than March 31 st of each year and obtain City approval thereof prior to publishing or advertising said schedule to the public or holding events at the Track. (b) Epic BMX's schedule is also subject to approval by Poudre School District (PSD) as owner of the adjacent parking area. PSD's use of its parking area has priority over events at the track. The City will give PSD the opportunity to comment in writing to the City's Parks Department with scheduling conflicts, and the City will work with PSD and Epic BMX to resolve any issues.. During the PSD school year Epic BMX will not be allowed to operate/schedule the Track prior to 5:30 pm on weekdays. Parking for all Epic BMX events shall be at the west parking lot of the Fossil Ridge High School (see map attached hereto as Exhibit "A"). (c) Additional Epic BMX Track use beyond the Approved Use, including hosting or sponsoring events for other groups other than Epic BMX, such as national, regional or state events or charitable fund-raisers, may be arranged by Epic BMX on the same basis as the Track is available to the general public. (d) Epic BMX must perform no less than one hour of maintenance work for each hour of Approved Use. Epic BMX shall not be entitled to any compensation for work performed pursuant to this Agreement other than Approved Use of the Track in accordance with this Paragraph 4. (e) Epic BMX acknowledges that at any times other than the times for which the City has authorized the Approved Use of the Track by Epic BMX, the City in its sole discretion may allow other interested persons or organizations to schedule BMX races and events or other activities at the Track, may allow the general public to make use of the Track on such terms and conditions as the City determines shall apply, or may close the Track to any or all use. 5. Conduct of Epic BMX Activities. (a) Epic BMX must not charge an admission or any other fee to persons wishing to observe any activities it conducts at the Track. However, Epic BMX may charge BMX race participants a reasonable fee for participating in events Epic BMX conducts during Approved Use of the Track, and may limit the number of spectators as reasonably necessary to protect the safety of spectators and participants and/or the property. (b) Epic BMX shall provide at least two Port -a -Johns for all races it conducts. (c) Epic BMX may not post any advertising or any other promotional material on or near the Track except during races it conducts, and may not at any time remove any other materials that have been posted with the permission of the City. Any advertising or other promotional materials posted by Epic BMX must be removed immediately after the conclusion of the race. No advertising or promotional material can be placed on PSD property. (d) Epic BMX must manage and conduct all activities during its Approved Use of the Track in a fair, professional, and competent manner and to the reasonable satisfaction of the City. (e) Epic BMX will be responsible for and reimburse the City for the cost of any repairs or damage caused by any act or negligence of Epic BMX or its members, agents, employees, or invitees. 6. Utilities. The City will supply to the Track non -potable irrigation water and a 30 amp electricity source at the City's expense from April 15 through November 21 of each year, provided that Epic BMX may use only such quantities of water and electricity as are reasonably necessary for the performance of its duties hereunder, or for the normal conduct of races it conducts with the City's approval. 7. No Liens. Epic BMX 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 Track on behalf of Epic BMX; 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 Track 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 Track 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 Epic BMX's request in, on or about Track and to indemnify the City against any lien or claim of lien attached to or upon Track or any part thereof by reason of any act or omission on Epic BMX's part. 8. Insurance. Epic BMX 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 of Fort Collins and Poudre School District as additional insureds. Epic BMX must also maintain at all times during the term of this Agreement a "commercial vehicle liability" insurance policy with a Combined Single Limit of $500,000.00 covering any vehicles used in the provision of services under this Agreement. A certificate of insurance for each of these policies must be submitted to the City within ten (10) days of the signing of this Agreement. 9. Termination. Either party may terminate this Agreement, at any time, at its option, by providing the other party with at least thirty (30) days advance written notice of such termination. The City may terminate this Agreement without prior notice at any time in order to protect public health, safety or welfare, or City property. 10. Assignment. Epic BMX may not assign this Agreement or any part thereof without the prior written consent of the City. 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. General Conditions. It is further agreed between the parties as follows: (a) That in entering into this Agreement, Epic BMX and/or its members, employees, agents or representatives acquire no status, rights or benefits of an employee of the City, it being expressly understood and agreed that Epic BMX 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. 13. Indemnification. Any liability incurred by Epic BMX in connection with this Agreement, its performance hereunder, or the use of the Track, shall be solely the liability of Epic BMX, and the City and PSD shall incur no liability by reasons thereof. Epic BMX agrees to indemnify the City and PSD and their respecitve 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 Epic BMX, its employees, officers, agents or representatives, or any failure by the same to comply with and properly carry out the provisions of this Agreement. 14. 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 damages; 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 shall cause 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 because of the default. 15. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Spring Creek represents and agrees that: (a) As of the date of this Agreement: (1) Epic BMX does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and (2) Epic BMX 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) Epic BMX 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) Epic BMX 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 Epic BMX obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Epic BMX shall: (1) Notify such subcontractor and the City within three days that Epic BMX 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 Epic BMX 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) Epic BMX 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 Epic BMX 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, Epic BMX shall be liable for actual and consequential damages to the City arising out of Epic BMX's violation of Subsection 8-17.5-102, C.R.S. (g) The City will notify the Office of the Secretary of State if Epic BMX 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: (o ST: City Clerk APPROVED AS �f Assistant Citv At CITY OF FORT COLLINS, COLORADO a municipal corporation By: - `� (� ?� kJame B. O' eill, II, CPPO, FNIGP Directo urchasing and Risk Management EPIC BMX A Colorado non-profit corporation Date: By: _�j 6 L it"� ATTEST: Corporate Secretary R M, o0 0 0 a OJ 0 O O Exhibit "A" SCHOOL SITE 9C ACAS RRRW7ffTli ifC�\ 04H,HHIHfHHWKQ GfH) HiH HH1 H41;IH HH-� a. 1lllAllfll Tmanrrn, Ylo�ttED/ Mtl[>3led O West Parking Lof F= G � 14 RUCK CHEEK UHIVL -1-t.�J - r n -r = J- r L �_� J L �_r J L IV BMX 0 Area --;, -- - -- PARK SITE �`CD �. Lu Z LJ Q 0 07 Q U