AGREEMENT FOR THE OFF-HIGHWAY VEHICLE CONCESSION AT RIVERFRONT PARK This Agreement is made and entered into this 1st day of September 2022, by and between the City of Marysville, a charter city and municipal corporation (the "City"), and Armstrong Racing, LLC, with its primary place of business at 450 Centerville Lane, Gardnerville, NV, 89460 (the "Concessionaire"), individually referred to as a "party" and collectively as the "parties".
RECITALS
WHEREAS, Concessionaire represents that it has the experience to operate and maintain an Off-Highway Vehicle (OHV) Area for both casual use by the general public and for competition purposes for various off- highway vehicles, including but not limited to motorcycles and all-terrain vehicles ("ATV's"); and WHEREAS, the City desires to grant the Concessionaire the right to operate an off-highway vehicle area in the facilities located in Riverfront Park in the City of Marysville subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing facts and circumstances and the mutual promises and covenants herein contained, the parties hereto agree as follows:
AGREEMENT
1. Incorporation of Recitals. The recitals set forth above, and all defined terms set forth in such recitals and in the introductory paragraph preceding the recitals, are hereby incorporated into this Agreement as if set forth herein in full.
2. Concession Granted. The City hereby grants to the Concessionaire the exclusive right to operate the off-highway vehicle facilities ("OHV Facilities") located within the area known as the Eugene Chappie Off-Highway Vehicle Area as shown on the attached Exhibit A, incorporated herein by reference ("Map of OHV Facilities"), located in the Riverfront Park in the City of Marysville, north of the 10th Street Bridge, east of the Feather River, and west of Bizz Johnson Drive.
3. Term and Extension of Agreement.
A. Initial Term. This agreement shall be effective on the 1st day of September 2022, and shall terminate on the 31st day of August 2027, (five (5) years) (the "Initial Term"). The Concessionaire shall have access to the use of the OHV facilities prior to the commencement date subject to all terms and conditions of this agreement.
B. Additional Term. Six (6) months prior to the expiration of the Initial Term (and the first Additional Term), the City shall determine whether the Concessionaire had complied with the terms and conditions of this Agreement. If Concessionaire has not materially breached this Agreement under the terms specified in Section 14 below, the City shall extend, with the Concessionaire's consent, the length of this Agreement for an additional five (5) year term (the "Additional Term"), effective upon the expiration of the Initial Term (or the first Additional Term). During the term of this extension the lease rate will be increased 3% each year starting on the first year of the extension. During the Extended Term all of the provisions of this Agreement remain in full force and effect.
Agreement for OHV Concession
At Riverfront Park - Armstrong Racing LLC
C. The Concessionaire shall have the right of first refusal 6 months prior to the expiration of the initial term.
4. General Public Use.
A. The Concessionaire shall open the OHV Facilities to the general public for casual use ("General Public Use") at a minimum of three (3) days per week and five (5) hours each day, subject to all conditions specified in this Agreement. The Concessionaire shall open the OHV Facilities for use by ATVs and motorcycles and shall establish and maintain appropriate areas for these vehicles. The Concessionaire shall have the right to close the OHV Facilities from public use whenever weather or track conditions warrant such closure. If the Concessionaire cannot satisfy the days and hours requirements for General Public Use because weather or track conditions warrant the OHV Facilities' closure, any deficiencies in the General Public Use shall be made up within a reasonable time period The Concessionaire may charge each member of the public who uses the OHV Facilities a reasonable access fee. I don't know why we would care that the facility be open to the public for general use.
B. The City, at its sole discretion, shall hold a hearing annually to allow public input regarding operation of the facility and the needs of potential users. At the hearing, the Council may also receive a report reviewing the performance of the concessionaire under the terms of the agreement.
5. Practice and Race Days. In addition to the General Public Use described in Section 4, the Concessionaire may schedule and conduct race days and practice days utilizing the OHV Facilities.
The OHV Facilities shall be open to the public on all practice and race day events for spectator purposes only. The Concessionaire shall announce to the public a schedule of practice days and race days, if any, at least fourteen (14) days prior to the actual day of each such event. For each designated practice day, the Concessionaire shall operate the OHV Facilities for at least four (4) hours per day. The City will not sponsor, control, or participate in any speed contest held on a practice or race day at the OHV Facilities.
6. Hours of Operation. All operations at the OHV Facilities shall take place as follows:
A. General Hours: Between 9 a.m. and 9:30 p.m., from March 1st through November 25th and between 9 a.m. and 7 p.m., from November 26t through the last day of February.
B. Race Event Hours: Between 8 a.m. and midnight, Fridays, and Saturdays with no more than fifteen (15) such events each year.
7. City Responsibilities.
A. The City shall provide irrigation water to the OHV Facilities subject to Concessionaire's obligation to pay for a portion thereof as set forth in Section 8 below. Potable water shall be supplied by California Water Service (a private company) and Concessionaire shall pay its portion of the same as set forth in Section 8 below until potable water is separately metered at which time Concessionaire shall pay 100% of the cost thereof. Recology Yuba Sutter supplies a single 3-yard dumpster to the Facilities which may be emptied one (1) time per week. So long as the City can arrange for this service without charge, Agreement for OHV Concession
At Riverfront Park - Armstrong Racing LLC
Concessionaire may utilize the same. Concessionaire shall pay 100% of all garbage services to the extent there is any charge therefore.
Submitting applications to the State Reclamation Board for necessary operating permits and any modification to the OHV Facilities, with information provided by Concessionaire.
8. Concessionaire's Responsibilities.
A. The Concessionaire will be responsible for the following percentages for utility costs a Electrical Meter, light, and power located at the OHV Facilities 100% Electrical. The City at its sole discretion may require the account to be transferred to the concessionaire, whereupon the
Concessionaire shall pay invoices directly to PG&E.
b Electrical Meter for 40HP irrigation well water pump at 10th Street 40% (until flow meters are installed)
C Electrical Meter at Boat Dock (sewer lift station) 33% d Potable Water (California Water Service) 33%
e Garbage Services in excess of the current limited garbage services 100% provided to the city (three-yard dumpsters emptied one time per week) or in the event that the current limited garbage services are cancelled or terminated
The City will provide non-potable irrigation water to the property in the amount not to exceed ** gallons per month. Upon installation of flowmeters, Concessionaire shall pay proportional share of the electric costs for the 40 HP irrigation well water pump at 10th St based on usage to be calculated and billed monthly by the city.
Concessionaire shell also pay a proportional share of maintenance and repair costs associated with water supplied from the well. maintenance and repair costs will be documented and calculated on an annual basis and billed once per year.
The proportional share of electric, maintenance, and repair costs allocated to the Concessionaire shall be determined by dividing the water usage registered at the point of service by the overall amount of water delivered as registered at the pump outlet.
While the city will make all reasonable efforts to ensure water supply is available, it will not guarantee against outages and will not compensate the concessionaire for any temporary system outages or limitations of supply.
Well water shall be used for irrigation and dust control only. Under no circumstances shall the supplied well water be utilized for potable purposes. If the city determines water is being used for potable purposes the provision of water to the site will be immediately terminated until the issue is remedied.
Agreement for OHV Concession
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Any modification to the irrigation and potable systems must be approved by the city prior to work being performed.
B. Notwithstanding Paragraph 8(A), the Concessionaire shall be solely responsible for maintaining the OHV Facilities, including, but not limited to, all dust control, mowing, lighting, lawn maintenance, daily trash pick-up, track preparation, daily track maintenance, and track repairs. The Concessionaire shall always maintain proper crowd control when the OHV Facilities are open to the public. The Concessionaire shall be responsible for placing all trash in the dumpsters provided by the City.
C. Provide all maintenance of existing facilities and structures. Prior to assuming the facility, the Concessionaire and the City shall inspect the facility and note the condition of all improvements. At the termination of this agreement, an inspection will again be conducted to determine that all facilities are in good repair prior to the release of the bond.
D. Provide and maintain all structures, such as starting gates, starting towers, concession stands, announcing towers, and/or sign-up booths.
E. Establish, protect, and maintain the following features as shown on Exhibit A:
a. Riparian buffer zone, 100 feet in width from the east bank of the Feather River as existing in 2010. Within two years after the execution of this Agreement, all tracks will be moved out of the Riparian Buffer Zone. No further grading within the Zone will then take place and it will be allowed to re-vegetate. b. Drainage Swale at the north edge of the premises. This area will not be graded or used as a driving area and will be utilized as a vegetated drainage swale for runoff from the OHV site.
F. Conduct operations in accordance with any operating plan approved by the State Reclamation Board governing the storing of equipment, materials, and storage units in the flood plain during the high-water season. Concessionaire must also comply with the terms and provisions set forth in Exhibit B, attached hereto and incorporated herein by reference ("Winter Operation Policy for Off-Highway Vehicle Complex in Riverfront Park").
G. Provide all necessary studies, related information, and fees necessary for the State Reclamation Board permitting, and comply with such permits.
H. Ensure that each user of the OHV Facilities or legal guardian sign the liability waiver as required by Paragraph 18.
Ensure that each vehicle on the track has a valid registration and green sticker.
J. Have available at the OHV Facilities sufficient communication equipment to summon an emergency medical provider.
K. Provide a map to the City that shows the area and trails.
L. Perform all such other obligations required of Concessionaire pursuant to this Agreement.
M. The Concessionaire has not reimbursed the City for ten (10) years of PG&E Energy charges in the total amount of approximately $400,000. The parties agree to resolve Concessionaire's obligation to pay this amount by way of a compromise as described herein. Reimbursement shall be as follows:
a. Commencing September 1, 2022, and on the first of each and every month thereafter Concessionaire shall pay the City $1,167.00 per month until it has paid a total of $70,000.00.
b. The Concessionaire will install new led lights at the OHV facility pursuant to plans and specifications supplied and agreed to by the City in writing. After Agreement for OHV Concession
At Riverfront Park - Armstrong Racing LLC
these lights are installed and functional, they shall be property of the City and shall be maintained in full working order and shall be in full working order at the end of the term (or Extended Term) of this Agreement. If the lights contemplated by this subparagraph are not installed on or before September 1 2023, Concessionaire, commencing October 1, 2023, and on the first of each stories pare month thereafter shall pay the City the sum of $1,072.00 (in addition to the amounts paid pursuant to subparagraphs 1. and/or 3.) until the total sum of $60,000.00 has been paid.
c. The City will propose in writing certain in-kind work and the conditions for accomplishment of the same. Within 10 days of receipt of the proposed list of items the concessionaire will declare in writing whether or not it will perform the listed tasks. If concessionaire elects to perform the tasks, such work shall be accomplished within six months of the written declaration. If Concessionaire declines to perform the offered in-kind maintenance and repair work, Concessionaire shall pay to the City, commencing the 1s of the month after declining, and on the first of each and every month thereafter the sum of $536.00 per month until the total amount of $30,000.00 has been paid. The payments specified in this subparagraph is in addition to any payments required under subparagraphs "a" and/or "b" above.
d. Should Concessionaire materially breach this Agreement, and should such breach remain 10 days after written notice from the City to cure the same, the entire amount of PG&E Energy charges stated above shall immediately become due and payable, less credit for any amounts previously paid pursuant to subparagraphs "a", "b" and "C" above. Should Concessionaire pay the sums and/or perform the work contemplated in subparagraphs "a" ' "b" and "C" above, and not materially breach this Agreement, Concessionaire's obligation to pay the PG&E Energy costs described in this Paragraph 8A shall be deemed satisfied. This paragraph 8A does not relieve Concessionaire from its obligation to pay PG&E electrical charges or other utilities the subject of paragraph 8A above."
9. Alterations and Improvements. The Concessionaire shall make no alterations of the OHV Facilities, or vegetation on the setbacks from the river (as shown on Exhibit A) (collectively "Improvements"), without the written consent of the City. Upon written consent by the City, alterations shall be made at the sole expense of the Concessionaire, without cost to the City. All improvements shall become the property of the City.
10. Compliance with All Laws: Inspection. The Concessionaire shall operate the OHV Facilities and any related activities, including food and drink sales as provided in Paragraph 11, in compliance with all laws and regulations of the City, the County of Yuba and/or the State of California, including, without limitation, the maintenance of a City business license. In addition, the City retains the power to enter into, and inspect, the OHV Facilities for any health and safety reason at any time without notice to the Concessionaire, and to compel the Concessionaire to remedy any condition of the OHV Facilities deemed by the City, in its sole discretion, to be unreasonably dangerous to any user of the OHV Facilities, participant, or spectator.
11. Food or Drinks. The Concessionaire may sell food, drinks, and/or other merchandise, but not alcohol. The City reserves the right to prohibit the sale of any item. Merchandise other than food or drink shall be related to OHV activities or equipment. The Concessionaire shall maintain the area where food and/or drinks are sold in a clean and sanitary condition and shall remove or place Agreement for OHV Concession
At Riverfront Park - Armstrong Racing LLC
all trash and garbage in the dumpsters as frequently as may be necessary to prevent nuisance or unsightliness. Any event which includes the sale or consumption of alcohol shall not be held without the issuance of a permit under Section 16.20.015 of the Marysville Municipal Code.
12. Indemnification. To the fullest extent allowed by law, Concessionaire specifically agrees to indemnify, defend, and hold harmless the City, its officers, agents, volunteers and employees (hereinafter collectively the "City") from and against any and all actions, claims, demands, losses, expenses (including attorneys' fees and expert witness expenses), damages, and liabilities resulting from injury or death of a person or injury to property or any other claim, arising out of or in any way connected with the performance of this Agreement, however caused regardless of any negligence of the City, whether active or passive, excepting only such claims as may be caused by the sole active negligence or willful misconduct of the City. The Concessionaire shall pay all costs that may be incurred by the City in enforcing this indemnity, including reasonable attorneys' fees. Concessionaire shall provide indemnity to the City pursuant to this paragraph in the event the Claimant and/or the City allege conduct on Concessionaire's part which renders Concessionaire fully or partially responsible for the alleged claim or otherwise obligated to provide a defense and/or indemnity to the City. Concessionaire's obligations of defense and indemnity arise even if the claim is frivolous or lacking in merit. Concessionaire shall defend and indemnify the City pursuant to this section unless and until it is finally established by a court of law that the City's sole active negligence or willful misconduct caused the alleged claim. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall in no way be limited by, the insurance obligations contained in this Agreement. The indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for Concessionaire or its agents under workers' compensation acts, disability benefit acts or other employee benefit acts. The indemnity provisions of this section survive the termination and/or expiration of the Agreement.
Concessionaire's duty to defend is separate and independent of its duty to indemnify. The duty to defend includes claims for which the City may be liable without fault or be strictly liable. The duty to defend applies regardless of whether the issues of negligence, strict liability, fault, default, or other obligation on the part of the City has been determined. The duty to defend applies immediately regardless of whether the City has paid any sums or incurred any detriment arising out of or relating (directly or indirectly) to any claims. Notwithstanding the foregoing, the City on behalf of itself reserves the right to assume the defense of any action, arbitration or proceeding against which Concessionaire may have an obligation to defend pursuant to this Agreement including the right to appoint counsel of its choice, without affecting Concessionaire's obligation to indemnify for the cost of such defense.
Concessionaire shall be liable to the City for any loss of or damage to Authority property arising from or in connection with Concessionaire's performance hereunder. Authority may deduct any costs and expenses incurred pursuant to the above from payments due or which may become due to the Concessionaire.
13. Insurance. The Concessionaire shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the provisions of services hereunder, and the results of that service by the Concessionaire, its agents, representatives, employees, or subcontractors.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
Agreement for OHV Concession
At Riverfront Park - Armstrong Racing LC
a. Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001).
b. Insurance Services Office Form Number CA 0001 covering Automobile Liability, code 1 (any auto).
c. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
B. Minimum Limits of Insurance. The Concessionaire shall maintain limits no less than:
a. General Liability including operations, products and completed operations:
$5,000,000 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be the same as the required occurrence limit.
b. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
c. Workers Compensation: As required by the State of California. d. Employer's Liability: $1,000,000 per accident for bodily injury or disease.
C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Concessionaire shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
D. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
a. The City, its officers, officials, employees, and volunteers are to be covered as insureds with respect to liability arising out of automobiles owned, leased, hired, or borrowed by or on behalf of the Concessionaire; and with respect to liability arising out of work or operations performed by or on behalf of the Concessionaire including materials, parts or equipment furnished in connection with such work or operations. General Liability coverage shall be provided in the form of an Additional Insured Endorsement (CG 20 10 11 85 or equivalent) to the Concessionaire's insurance policy, or as a separate owner's policy. b. For any claims related to the OHV Facilities, the Concessionaire insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Concessionaire's insurance and shall not contribute with it.
C. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
d. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code.
Agreement for OHV Concession
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e. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all services provided by the Concessionaire, its employees, agents, and subcontractors.
E. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VI. Exception may be made for the State Compensation Insurance Fund when not specifically rated.
F. Verification of Coverage. The Concessionaire shall furnish the City with original certificates and endorsements effecting coverage required by this clause. The endorsements should be on forms provided by the City or on other than the City's forms, provided those endorsements or policies conform to the requirements. All certificates and endorsements are to be received and approved by the city before work commences.
The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
14. Bond. The Concessionaire shall provide and maintain throughout the term of the Agreement a bond guaranteeing payment of Fees (paragraph 16) and the cost of any damages, whether through negligence or the failure to maintain the facility as required under this Agreement. The amount of the bond shall be equal to the annual fee specified in paragraph 16.
15. Termination. Concessionaire shall have the right to terminate this Agreement upon one hundred eighty (180) days advance written notice to the City. The City shall have the right to terminate this Agreement at any time if the Concessionaire fails to perform any obligation or covenant herein contained at the time and in the manner provided. The Concessionaire shall have ten (10) days to cure any defect upon being informed by the City.
16. Fee for Use. The Concessionaire shall pay to the City, in addition to all other monetary obligations as set forth in this Agreement, an annual Use Fee of $60,000.00 ("Use Fee"). The Use Fee shall be paid in quarterly installments in advance. The first payment ($15,000.00) shall be made upon execution of this Agreement for the period from September 1, 2022, through November 30, 2022.
The second Payment ($15,000.00) shall be made December 1, 2022, the third installment ($15,000.00) shall be paid March 1, 2023. The fourth installment for the first year of this Agreement ($15,000.00) shall be paid June 1, 2023. Thereafter, for the remaining four years of the Original Term, quarterly payments in like fashion of $15,000.00 shall be paid on September 1, December 1st, March 1st, and June 1st in succession. In the event of an Extended Term, consistent with paragraph 3B above, the Use Fee for the first year of the Extended Term shall be $61,800.00.
The Use Fee for the second year of the Extended Term shall be $63,654.00. The Use Fee for the third year of the Extended Term shall be $65,564.00. The Use Fee for the fourth year of the Extended Term shall be $67,531.00. The Use Fee for the fifth year of the Extended Term shall be $69,557.00. In each year of any Extended Term of this Agreement, the Annual Use Fee shall be paid in advance in quarterly installments in the same fashion as described above for the Original Term. In addition to the foregoing, the monetary obligations described in paragraph BA shall be paid in advance in quarterly installments (September 1st, December 1st, March 1st and June 1st), with the first payment due upon the execution of this Agreement.
17. Accounts and Records. The Concessionaire shall at all times keep and maintain, in a form acceptable to the City, full and complete records and books of account of the operations of the Concessionaire hereunder and shall accurately record and preserve the record of all gross receipts, income received, and expenses from said operations. Said books and records shall be open to examination by the City's Administrative Services Manager or its designee at all reasonable times. The City shall give the Concessionaire reasonable notice, not less than seventy- Agreement for OHV Concession
At Riverfront Park - Armstrong Racing LLC
two (72) hours, of its intention to review such accounts and records. Concessionaire shall provide the City with copies of its annual corporate tax returns for verification of annual revenues within thirty (30) days of receiving such returns from the applicable government agencies.
18. Waivers. The Concessionaire shall require all users of the OHV Facilities, or their legal guardians, to sign liability waiver forms in the form attached hereto and incorporated herein by reference is Exhibit C, "Form of Release and Waiver of Liability and Indemnity Agreement." The signed waivers shall be kept on file at the OHV Facilities, and the City shall have access to them upon request.
Concessionaire shall establish a policy to ensure that the waivers are xecuted before any user of the OHV Facilities engages in any activity at the OHV Facilities.
19. Signage. The Concessionaire shall be required to install and maintain signs, in compliance with all City ordinances and regulations, throughout the OHV Facilities at every entrance stating and/or depicting all of the following:
A. "Off-highway vehicle use may be hazardous. Your use of protective apparel, skill level, vehicle, condition, terrain, weather, common sense, and following park rules all affect your safety."
B. A line drawing of an individual in full protective equipment, including full face helmet with goggles, shoulder guards, chest protector, elbow guards, long sleeve shirt, gloves, hip pads, riding pants, knee guards, shin guards and over the calf boots.
C. "Use of alcohol and/or drugs by drivers or passengers is forbidden." D. "Dogs and other pets are prohibited except in designated areas.
E. "No pit riding allowed."
F. "No use of these OHV Facilities without execution of a Waiver"
20. Assignment or Sublease. The Concessionaire shall not assign or sublease or otherwise transfer this Agreement or any interest therein or any portion thereof without the prior written consent of the City in its sole discretion. Any such attempt at assignment, sublease, or transfer shall be void.
Notwithstanding the foregoing, the Concessionaire may lease all or a portion of the OHV Facilities to a third party or parties when the Concessionaire is not using the same upon such terms and conditions as may be approved by the City Services Director.
21. Possessory Interest and Other Taxes. The Concessionaire agrees and understands that this Agreement may create a possessory interest subject to property taxation and that the Concessionaire may be subject to the payment of property taxes levied on such interest. The Concessionaire shall pay any and all taxes, assessments, and fees levied against the OHV Facilities.
22. Independent Contractor. The Concessionaire is, and shall remain, an independent contractor.
Neither the Concessionaire nor any of its agents or employees shall be deemed an employee of the City. The Concessionaire is solely responsible for the control of, and compensation of, its employees and its agents.
23. Amendments. No amendment or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto. This Agreement constitutes the entire agreement of the parties. There are no other agreements, written or oral which bind the parties save and except for those contained within this Agreement.
24. Nondiscrimination. The Concessionaire shall not discriminate in the conduct of the work under this Agreement against any employee, applicant for employment, or volunteer because of race, color, creed, religion, national origin, sex, age, marital status, sexual orientation, medical condition, or physical or mental disability. The Concessionaire shall comply with all federal and state anti-discrimination and civil rights laws.
25. Severability. In any case any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable, the other provisions shall not be affected, and this Agreement for OHV Concession
At Riverfront Park - Armstrong Racing LLC
Agreement shall be construed as if the invalid, illegal, or unenforceable had never been contained herein.
26. City Representative. The City designates the Community Development Director or its designee as the representative of the City who will administer this agreement for the City. Dale Armstrong is the representative for Armstrong Racing.
27. City's Nonliability for Loss of Business or Otherwise. If for any reason beyond the control of the City, such as earthquake damage, flood water damage, rain, or other calamity or circumstance, it is necessary to close all or part of the OHV Facilities, the City shall not be liable for any loss of business of the Concessionaire, any cost profits, or for any other damages.
28. No Compensation for Goodwill or Loss of Profits. The Concessionaire shall be deemed not to have acquired any goodwill in the operation of the concession granted hereby, and the Concessionaire shall not be entitled to recover for the loss of any goodwill or the loss of any profits upon the expiration of this Agreement, or at any other time, nor shall goodwill be considered a factor in any agreement between the Concessionaire and any subsequent concessionaire respecting the transfer of equipment, fixtures, or stock in trade either during the term of this Agreement or subsequent thereto.
29. Costs and Attorneys' Fees. If either party commences any legal action against the other party arising out of this Agreement or the performance thereof, the prevailing party in such action may recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
30. Notices. All notices and communications authorized or required by this Agreement shall be deemed to have been given and served upon their deposit in the United States Mail, postage prepaid, addressed as follows:
City: City of Marysville Brant Bordsen
Attention: Community Development Director Rich, Fuidge, Bordsen & Galyean P.O. Box 150 Marysville, CA 95901 P.O. Box A, Marysville, CA 95901 Concessionaire: Dale Armstrong
Armstrong Racing, LLC
450 Centerville Lane
Gardnerville, NV 89460
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above written.
CITY OF MARYSVILLE
By.
City Manager
Agreement for OHV Concession
At Riverfront Park - Armstrong Racing LLC
CONCESSTONAIRE
BYX1000
Strang Kreing
Concessionaire Name/Business Name
ATTEST:
By
City Clerk
APPROVED AS TO FORM:
City Attorney
Agreement for OHV Concession
At Riverfront Park - Armstrong Racing LLC
EXHIBI A
City of Marysville Off-Highway Vehicle Facility
Area of Natural Drainage Swale
Riparian Suffere
Limitc
1€20
-Gat
20 ColusE
2001L
Agreement for OHV Concession
At Riverfront Park - Armstrong Racing LLC
EXHIBIT B
WINTER OPERATION POLICY FOR OFF-HIGHWAY VEHICLE (OHV) COMPLEX IN
RIVERFRONT PARK
The OHV complex is open to the public year-round with events and practices at least three (3) days a week. As part of this continuing operation, equipment needs to be left in the complex during the winter months. The complex lies within the flood plain of th.: Feather River and is inundated with water when the river flows outside the main channel.
This policy establishes guidelines for the operation of the OHV complex in Riverfront Park during the winter season (November 1 to April 15) to ensure that prior to a high-water event, the complex is in compliance with the requirements of the Department of Water Resources.
During normal winter operations, the following additional conditions shall also be followed:
1. There shall be no excavation within the complex other than grading of the track surface for normal operations.
2. The on-site equipment shall be kept to the minimum required for operation.
3. The complex operation during the winter months should include a periodic monitoring, of the river level at the Fifth Street Bridge from the DWR website www.water.ca.gov The water release from Lake Oroville sets the flow in the Feather River and is the primary factor in the river level by the complex. The river level that begins to inundate the complex is approximately 55 feet at the Fifth Street (Yuba City) river gauge. To establish an accurate marker for evacuating the complex prior to inundation, a combination of river level and dam releases shall be used.
When the river level reaches 50 feet and the outflow form Oroville Dam is expected to increase, the following precautions shall be taken:
1. All the equipment in the complex shall be removed within 24 hours. All items such as storage containers and tickets/ announcing booths that are not attached to DWR approved anchors shall be removed. All loose items such as garbage cans, plastic picnic tables, and other miscellaneous item are to be removed. All fences perpendicular to the river are to be made breakaway by cutting the top tension wire and removing the tension brackets.
2. These conditions shall remain in effect until the river level has dropped below 50 feet for a period of ten (10) days.
Agreement for OHV Concession
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EXHIBIT C
ASSUMPTION OF RISK AND INDEMNITY AGREEMENT
DESCRIPTION OF LOCATION OF SCHEDULED EVENTS) DATE RELEASE In CONSIDERATION of being permitted to compete, officiate, observe, work for, or participate in any way in the EVENTS), or being admitted entrance for any purpose to any RESTRICTED AREA (defined as any area requiring special authorization, credentials, or permission to enter or any area to which admission by the general public is restricted or prohibited). EACH OF THE UNDERSIGNED, for himself, his personal representatives heirs, and next of kin:
1. Acknowledges, agrees, and represents that he/she has or will immediately upon entering any such RESTRICTED AREAS, and will premises and event inspectors, surveyors, underwriters, consultants and others who give recommendations, directions, or instructions or engage in risk evaluation of loss control activities regarding the premises or EVENTS) and each of them, their directors, officers, agents and employees, all of the purposes herein referred in as "Releasees", FROM ALL LIABILITY TO THE UNDERSIGNED, his/she/she personal representatives, assigns heirs, and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAM OR DEMANDS THEREFOR
ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARISING OUT OF, OR RELATED TO, THE EVENTS), WHETHER CUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
3. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the releasees and each of them FROM ANY LOSS, LIABILITY, DAMAGE, OR COST they may incur arising out of or related to the EVENT(S) WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES
4. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJRY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(s) whether caused by the NELIGENCE OF RELEASSES or otherwise.
5. HEREBY acknowledges that THE ACTIVITIES OF THE EVENTS) ARE VERY DANGEROUS and involve the risk of serious injury and/or death and/or property damage. Each of THE UNDERSIGNED ALSO EXPRESSLY ACKNOWLEDGES THAT INJURIES RECEIVED MAY BE COMPOUNDED OR INCREASED BY NEGLIGENT RESCUE OPERATIONS OR PROCEDURES OF THE RELEASEES.
6. HEREBY agrees that this Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement extends to all acts of negligence by the Releasees, INCLUDING NEGLIGENT RESCUE OPERATIONS and is intended to be as broad and inclusive as is permitted by the laws of the Province of State in which the Events) is/are conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
I HAVE READ THIS RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, FULLY UNDERSTAND ITS TERMS,
UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND HAVE SIGNED IT FREELY AND VOLUNTARILY WIHTOUT ANY
INDUCEMENT, ASSURANCE OF GUARANTEE BEING MADE BY MY SIGNATURE TO BE A COMPLETTE AND UNCONDITIONAL RELEASE OF LIABILITY TO THE GREATEST EXTENT ALLOW BY LAW.
ALL SECTIONS MUST BE COMPLETED
PRING NAME HERE: SIGN NAME HERE: DUTIES
SIGNATURE AND TITLE OF WITNESS: ADDRESS OF WITNESS:
Agreement for OHV Concession
At Riverfront Park - Armstrong Racing LLC