AGREEMENT FOR USE OF
MANTECA BMX PARK AT SPRECKELS RECREATION PARK
This Agreement is made and entered into this __ day of _____ _, 2022, by and between the CITY OF MANTECA, a public body, corporate and politic ("City") and Anderson's 209 BMX Race Team, Inc., a California domestic nonprofit corporation ("Anderson 209").
RECITALS
Whereas, the philosophy of the City is to offer year-round, diversified, park and recreation programs, facilities, and services design ed to meet the needs of the citizens of Manteca and aid established recreation groups in the community; and Whereas, the City owns the Manteca BMX Park at the Spreckels Recreation Park ("the Facility"); and
Whereas, Anderson 209 promotes youth activities in Manteca through the operation of its BMX race team; and
Whereas, Anderson 209 will provide a recreational activity that is consistent with the City's philosophy and will meet all agreed upon conditions as established in this Agreement; and Whereas, the City and Anderson 209 intend that activities including, but not limited to, events at the Facility be overseen by Anderson 209 and that the City remain responsible for maintenance of the Facility as part of a City-owned park; and Whereas, Anderson 209 and the City wish to enter into this Agreement to memorialize the authority of Anderson 209 to oversee activities at the Facility and resultant duties that arise from this role under the terms and conditions as set forth herein.
Now, therefore, the parties agree as follows:
AGREEMENT
1. Scope of Services. Anderson 209 shall oversee and operate the Facility as set forth in Exhibit A to this Agreement, which is incorporated herein by reference as if set forth in full.
Said services shall be subject to the direction of the City through its staff as may be provided from time to time.
2. Term of Agreement. This Agreement shall commence on June 3, 2022, and continue for a term of three (3) years to June 2, 2025. Either party may terminate this Agreement without cause upon sixty (60) days' notice to the other party.
3. Reservation of Rights. The City reserves all rights to control operations at the Facility unless otherwise specifically set forth in this Agreement. This includes, but is not limited to, the City's right to unilaterally cancel or postpone any activity at the Facility with or ATTACHMENT 1
without notice due to inclement weather, hazardous conditions, emergencies, conflict of use with another City-sponsored event, or lapse of insurance coverage.
4. Compensation. In recognition of the services rendered by Anderson 209 and the savings to the City in having Anderson 209 overseeing events at the Facility and overseeing the Facility to keep it open to the public during non-event times, the City will provide the following compensation to Anderson 209 for performance of services under this Agreement:
a) The City shall pay Anderson 209 the amount of three thousand dollars ($3,000.00) within thirty (30) days of execution of this Agreement and an additional three thousand dollars ($3,000.00) for each additional year Anderson 209 operates and oversees the Facility as agreed to herein.
b) The City waives all event and fundraising fees for Anderson 209 that would or might be applicable to any of its sanctioned events or any other scheduled event put on for the benefit of or by Anderson 209.
5. Insurance Requirements. Anderson 209, at its own cost and expense, shall procure and maintain, for the duration of this Agreement, the following insurance policies and coverage:
a. General Liability. Anderson 209 shall maintain General Liability insurance with an amount not less than $2,000,000.00 per occurrence and a general aggregate amount of not less than $5,000,000.00 for bodily injury, personal injury, and property damage.
b. Automobile Liability. Anderson 209 shall maintain automobile liability with limits no less than $1,000,000.00 per accident for bodily injury and property damage for each vehicle brought into the City's facilities. c. Required Provisions. Each general liability and automobile liability insurance policy shall be with insurers possessing an A.M. Best's rating of no less than A:VII and shall be endorsed with language substantially as follows:
(1) The City, its elected and appointed officers, officials, employees, agents, and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of Anderson 209, including materials, parts, or equipment furnished in connection with such work.
(2) The policy shall be considered primary insurance as respects the City, its elected and appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self-insured retention the City may have, shall be considered excess insurance only and shall not contribute with it. 2 ATTACHMENT 1
(3) The insurance shall apply to each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. ( 4) The insurer waives all rights of subrogation against the City, its elected and appointed officers, officials, employees, and agents. (5) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officers, officials, employees, agents, or volunteers.
(6) The insurance provided by the policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after 30 days written notice has been received by the City.
(7) The City will not accept any endorsements that were issued in 2004. Acceptable endorsement forms are CG 20 10 11 85 or both CG 20 IO 10 01 and CG 20 37 10 01.
d. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the City's option, Anderson 209 shall demonstrate financial capability for payment of those deductibles or self-insured retentions.
e. Certificates of Insurance. Anderson 209 shall provide certificates of insurance with original endorsements to the City as evidence of the required insurance coverage. Certificates of insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement.
6. Concessions. Anderson 209 may sell concession products with the approval of the Director of Recreation & Community Services ("Director") at the Facility or at other City facilities to the extent the City does not have exclusive concession agreements with other parties. Anderson 209 shall be solely responsible for obtaining any and all permits, licenses, or other approvals as needed to operate concessions, including, but not limited to, contacting the San Joaquin County Environmental Health Department if and as needed. Said permits, licenses, or approvals shall be obtained by Anderson 209 at its sole expense.
7. Construction or Modification of Improvements. Anderson 209 shall not make any alterations or changes of any kind to the Facility with notice to and approval by the Director. In the event modifications or additions are desired or needed beyond those Anderson 209 can or are willing to undertake, Anderson 209 shall submit a request to the Director for consideration and determination.
8. Repair of Damages. Anderson 209 shall promptly inform the City of any needed repairs or damages to the Facility or any other City-owned facilities or property in or around the Facility as used or observed by Anderson 209 or about which Anderson 209 receives reports. 3 ATTACHMENT 1
Anderson 209 shall not be responsible for costs of the repair of damages to the Facility or any other City facilities or property unless caused by its own activities or negligent use. If the damage is caused by Anderson 209's activities or negligent use, the City shall charge Anderson 209 the actual replacement cost of items to be replaced or repaired, including any materials and labor.
Examples of include, but are not limited to repairs to locks and keys, fencing, bleacher seating, restroom fixtures, field maintenance equipment, and irrigation systems.
9. Storage. The City will not provide storage space at the Facility. However, the Director may allow Anderson 209 to maintain small, portable, storage containers at the Facility depending on aesthetics, unit size, available facility space, associated city maintenance problems, city access, and other city costs or conditions that may hinder the City's daily operations or liability.
10. Equipment and Supplies. The City does not provide equipment or supplies. All equipment or supplies and any storage for the same shall be provided at Anderson 209's sole expense.
11. Locks and Keys. Anderson 209 shall keep the Facility's keys secure and, if lost, shall be responsible for the cost of replacing the locks and/or keys. Non-City locks and keys are not to be allowed on City facilities. After each Facility usage, Anderson 209 will ensure that all areas have been secured by checking the gates, doors, light and electrical panels, and any other area that might be applicable.
12. Supervision, Certification, Security.
a. The City expects Anderson 209 to provide a safe and secure environment for its participants. To ensure these conditions, Anderson 209 shall provide a designated supervisor, who is at least 18 years or older, at the Facility for the duration of all Anderson 209- sponsored events. Further, Anderson 209 shall address all negative behavior and other problems that may surface by participants or spectators. Anderson 209 must take any and all reasonably necessary action(s) to address the situation appropriately. In the event Anderson 209 seeks to suspend an individual due to his or her behavior, the request for a suspension must be approved by the City prior to its execution to ensure the suspension is in conformance with the City's rules, policies, and ordinances.
b. In addition, Anderson 209 shall ensure that all BMX trainings, clinics, and events, whether facilitated by Anderson 209 or another group or individual, must be held by a certified USA BMX licensed coach and approved by Anderson 209. The individual running the event must further have current CPR/First Aid certification, pass a USA BMX Background check, and be fingerprinted and background checked by the City. User groups shall also provide an approved Park Facility Reservation form from the Recreation & Community Services Department and pay applicable fees and provide insurance that meets the City's requirements and has been approved by the City's Risk Manager. Finally, user groups shall work with Anderson 209 on available dates and any other additional requirements.
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13. Fundraising.
a. Anderson 209 shall submit requests for approval of all fundraising activities within or referencing the Facility, Spreckels Recreation Park, the City of Manteca, or any other City facility to the Director at least two (2) weeks prior to the event. For purposes of this section, "fundraising activities" include, but are not limited to gate fees or charges, as well as the sale of merchandise by Anderson 209 or third-party vendors. Further, fundraising activities include the allowance or sale of private advertisement or other promotional signs or materials, whether paid for or donated. The City waives its right to collect fundraising fees from Anderson 209 in connection with this agreement.
b. The City shall notify Anderson 209 at least two (2) weeks in advance of any request to hold a fundraising event at the Facility or Spreckels Recreation Park.
14. Portable Restrooms. The placement of portable restrooms ("portables") at the Facility must be approved by the Director. Approval will be based on what impact the portables will have on the surrounding areas adjacent to the Facility, impact on other park users, and aesthetics. Anderson 209 shall be solely responsible for the cost and delivery of any portables unless it enters into an agreement with a subcontractor using the Facility to provide these services are part of the cost of using the Facility.
15. Personal Vehicles, Trailers, Maintenance, Equipment. Vehicles and other equipment are not allowed on City facilities without written permission from the Director.
Permission will be explicit as to location(s), time(s), and date(s) where vehicles and equipment will be permitted. Any equipment used or to be used at the Facility must be approved by the City's Public Works/Parks Division and Risk Management prior to use.
16. Portable Lighting and Power Sources. Portable lights and generators or other power sources must be approved in advance by the Director or his/her designee.
17. Subletting. Anderson 209 shall not allow another organization or person to use or access its privileges as set forth under this agreement, except in concert with Anderson 209. It shall not be a violation of this section for Anderson 209 to collaborate, work, or contract with a third-party vendor or user group that meets the City's insurance, indemnification, or any other requirements.
18. Notices. Any notice required to be given under this Agreement shall be in writing and addressed to the other party as set forth below:
If to City: City of Manteca
Recreation & Community Services Department
252 Magnolia Ln.
Manteca, CA 95337
Attn: Recreation Director
Ifto Anderson 209: Anderson's 209 BMX Race Team, Inc.
Jon Anderson, President
PO Box 4343
Manteca, CA 95336
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19. Notification of Medical Incident. Anderson 209 shall notify the Director of any accident or incident that requires medical attention including, but not limited to, the response of emergency medical personnel, within twelve (12) hours of said incident.
20. Other. The Director may apply other conditions to Anderson 209's use of the Facility as needed based on either the needs of the City or Anderson 209.
21. Compliance with Manteca Municipal Code. Anderson 209 shall ensure that all usage of the Facility complies with the Manteca Municipal Code, specifically Chapter 12.12, Parks and Recreation Facility Use, as may be amended.
22. Park and/or Facility Permit required. All special events at the Facility shall require a permit in accordance with the City's Municipal Code. Special events include, but are not limited to, those events that are anticipated to generate enough participants and spectators to result in numbers that exceed the capacity of the on-site parking lot. Anderson 209 shall submit a completed Special Events Permit application to the Director at least ten (10) days prior to any such special event. As set forth, above, in Section 4, the City waives its right to collect event fees from Anderson 209 in connection with this Agreement.
23. Indemnification and Hold Harmless. By entering into this agreement, Anderson 209 understands and agrees that the City shall not be liable for any claims for personal injury or property damage related to Anderson 209's use of the Facility. This shall include, but not be limited to, claims by Anderson 209's agents, employees, or event participants. Anderson 209 hereby agrees to indemnify, hold harmless, and defend the City, its agents, officials, officers, employees, and volunteers against any and all injury, loss, or damage claims or obligations that arise out of or are related to Anderson 209's use of the Facility or any other privilege conferred under this agreement.
24. Compliance with terms. Anderson 209's use of the Facility is contingent upon its compliance with the provisions of this Agreement.
25. Inspection of Books and Records. Anderson 209 shall keep and maintain records of all matters related to the use of the Facility or any other term of this agreement. The City shall have the right, upon reasonable notice and at a reasonable time, to inspect Anderson 209's books and records.
26. Authority to Enter Agreement. Anderson 209 warrants that it has all requisite power and authority to conduct its business and to execute, deliver, and perform this Agreement.
Each party warrants to the other that the signatories to this Agreement have the legal power, right, and authority to enter into this Agreement and to bind each party.
27. Prohibited Interests.
a. Anderson 209 warrants that it has not employed or retained any person, other than a bona fide employee working solely for it to solicit or secure this Agreement. Further, Anderson 209 warrants that it has neither paid nor agreed to pay any person, other than a bona fide employee working solely for Anderson 209, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. 6 ATTACHMENT 1
For any breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.
b. For the term of this Agreement, no member, officer, or employee of City, during the period of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
28. Equal Opportunity Employment. Anderson 209 represents that it is an equal opportunity employer, and it shall not discriminate against any subcontractor, employee, or applicant for employment because ofrace, religion, color, national origin, handicap, ancestry, sex, or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
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TO EFFECTUATE THIS AGREEMENT, each of the parties has caused this Agreement to be executed by its duly authorized representative as of the date set forth in the introductory paragraph on page 1 above.
CITY OF MANTECA:
Benjamin J. Cantu,
Mayor
ATTEST:
Elizabeth Haglund
Acting City Clerk
COUNTERSIGNED:
Bret Harmon,
Director of Finance
COUNTERSIGNED:
Dawn Cortesi,
Acting Director of Human Resources
APPROVED AS TO FORM:
L. David Nefouse, City Attorney
By: --------------
Carrie Woolley, Deputy City Attorney
By:
By:
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8 ATTACHMENT 1
EXHIBIT A
ANDERSON 209 (OPERA TOR) RESPONSIBILITIES
1. Operator shall be responsible for overseeing activities and events at the Facility and ensuring the BMX track is maintained in a safe and functional condition at all times, i.e., holes are filled in, the starting gate is maintained, and the slopes on jumps are maintained.
Maintenance will be provided by the City. Operator may provide maintenance services for minor deficiencies within its own discretion.
2. Operator is responsible for trash pick-up and removal in the BMX track area as related to sanctioned events sponsored or overseen by Anderson 209.
3. Operator shall maintain or ensure the fenced track area is maintained in a weed-free condition.
4. Operator shall keep all debris clear of drains in the BMX track area.
5. Operator shall not modify the track design following the initial approved plan and installation absent written authorization from the City of Manteca.
6. Operator shall close the BMX track area at sunset seven (7) days a week.
7. Operator shall open the Facility for public use at 8:00 a.m. from Friday to Sunday and on City-designated holidays. Prior to opening, Operators shall be responsible for inspecting the site. If any deficiencies are found, Operator shall contact the Recreation and Community Services Department for correction or undertake to correct the deficiencies and return the Facility to a safe and functional condition before opening the Facility to the public. Deficiencies include, but are not limited to potholes, standing water, slope failure, starting gate operation, and debris on the track.
8. Operator shall prohibit spectators from entering the track area during USABMXsanctioned events and activities. Spectators are to stay behind fences for their own safety.
9. Operator shall provide the Recreation and Community Services Department with a master calendar at the beginning of every calendar year. The master calendar shall include, but is not limited to, all clinics and races for the upcoming calendar year.
Operator shall provide updates to the master calendar to the Recreation and Community Services Department as updates become necessary.
10. Operator shall fom1 and maintain a working, amiable, partnership with the Recreation and Services Department to hold clinics and workshops for the community at the Facility. 9 ATTACHMENT 1