HomeMy WebLinkAboutAgreement A-24-239 with Fresno County Disc Golf.pdf Agreement No. 24-239
24-0374
1 AGREEMENT
2 THIS AGREEMENT, hereinafter referred to as "Agreement", is made and
3 entered into this 21St day of May 2024, by and between the COUNTY OF FRESNO, a
4 Political Subdivision of the State of California, hereinafter referred to as "COUNTY",
5 and Fresno County Disc Golf, a private non-profit corporation whose address is 10201
6 N. Rowell, Fresno, CA 93730 hereinafter referred to as "CONTRACTOR".
7 WITNESSETH
8 WHEREAS, the CONTRACTOR desires to conduct multiple Disc Golf
9 Tournament Events (the "Event(s)") at the two disc golf courses located at Kearney
10 Park and at a disc golf course located at Lost Lake Park in the years 2024, 2025,
11 2026, and potentially in the years 2027, and 2028 should the Term of this Agreement
12 be accordingly extended; and
13 WHEREAS, the COUNTY desires to make Kearney Park and Lost Lake Park
14 available to the CONTRACTOR for said Events under the terms and conditions of this
15 Agreement.
16 NOW, THEREFORE, in consideration of the mutual promises and covenants
17 contained in this Agreement, and for other valuable consideration, the receipt and
18 adequacy of which are acknowledged, the parties agree as follows:
19 1. TERM
20 The initial term of this Agreement shall be for three years, commencing May 21,
21 2024, through the 20t" day of May 2027, unless terminated earlier in the manner
22 specified below in paragraph 9 "Termination". Upon expiration of said initial three-year
23 term, this Agreement shall automatically renew on its anniversary date for no more
24 than two (2) additional one-year terms, unless terminated earlier in the manner
25 specified in paragraph 9, "Termination".
26 2. PERMISSION TO USE:
27 Subject to the terms and conditions of this Agreement, the CONTRACTOR shall
28 be entitled to both exclusive and non-exclusive use of the two disc golf courses at
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1 Kearney Park and the disc golf course at Lost Lake Park ("Property") to conduct
2 multiple Events each year of the Term, provided the Property, at all times during the
3 Events, shall be open to all members of the public under the same terms and
4 conditions of persons who are invited by, or otherwise allowed by CONTRACTOR to
5 attend or participate in the Events. In conjunction with these Events, CONTRACTOR
6 shall be solely responsible for providing all adequate and appropriate staffing,
7 equipment, and supplies to set-up, operate, breakdown, clean up (both during the
8 Events and upon its conclusion, including, but not limited to, any mobile disc golf
9 courses), and administratively coordinate the Events. CONTRACTOR shall be the
10 responsible sponsor of the Events but may enlist the assistance of or contract with
11 other sponsors for the Events provided the CONTRACTOR shall always be
12 responsible for all of its obligations under this Agreement.
13 In 2024, the first Event shall occur on June 1 . Subsequent Events are expected
14 to occur, but are not limited to, the third Saturday of each month between June and
15 October; June15, July 20, August 17, September 21, October 19. Event dates in 2025
16 and 2026 shall be mutually agreed upon by COUNTY and CONTRACTOR. COUNTY
17 is not responsible if inclement weather affects or otherwise prevents CONTRACTOR
18 from holding the Events on the mutually agreed to dates stated.
19 3. COMPENSATION:
20 A. The CONTRACTOR agrees to pay the COUNTY the standard vehicle
21 entrance fee ("VEF") of Five Dollars ($5.00) per vehicle entering the
22 Property each day of the Events.
23
24 4. EVENT ENTRANCE FEE AUTHORIZATION:
25 The CONTRACTOR shall not be prohibited from collecting an additional fee for
26 entry (i.e. in addition to the standard VEF payable to the County under Paragraph 3,
27 for entry onto the Property during the dates of the Event, and the amount of such
28 additional fee is neither approved nor disapproved of by COUNTY.
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1 5. SECURITY, TRAFFIC CONTROL, PARKING, RUBBISH AND
2 SANITARY FACILITIES:
3 A. CONTRACTOR shall be solely responsible for providing crowd
4 control by making adequate and appropriate arrangements for security
5 to ensure the safety of all persons in and around the Property during the
6 day of the Event. In this regard, CONTRACTOR shall, without any cost
7 or expense to COUNTY, provide all necessary security and traffic control
8 on the day of the Event, sufficient, as determined by the Fresno County
9 Sheriff's Office and the California Highway Patrol, to ensure the safety of
10 all patrons, Event participants, invitees and members of the public who
11 come onto the Property, and County staff. The CONTRACTOR also shall
12 be responsible for providing adequate and appropriate traffic and parking
13 control.
14 B. The CONTRACTOR shall provide an adequate number of
15 clean, portable toilets (stocked with appropriate paper supplies) and
16 hand washing stations (stocked with appropriate paper supplies and
17 soap) in the Event area, as determined by the County's Resources
18 Manager.
19 C. The CONTRACTOR shall be responsible for providing, at its
20 sole expense, adequate dumpsters for disposal of all refuse generated
21 by the Event, and litter and debris control. CONTRACTOR shall also
22 provide, at its own expense, any additional personnel, trash cans,
23 equipment and supplies needed, over and above the COUNTY'S normal
24 and customary operation for making the Property available to
25 CONTRACTOR in the paragraph immediately above, in order to maintain
26 the Property in a safe, clean, attractive, and orderly condition during the
27 Event. CONTRACTOR shall provide, at its sole expense, containers for
28 recycling. CONTRACTOR shall dispose of recycled material at an
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1 approved recycling facility.
2 6. CONSTRUCTION OF FACILITIES, STRUCTURES, TENTS AND
3 STANDS:
4 A. The CONTRACTOR shall, upon the pre-approval from COUNTY and
5 at the CONTRACTOR's sole expense, be allowed to construct and maintain on the
6 Property, during the Event, such temporary facilities and structures as are necessary
7 for conducting the Event, including, but not limited to, fences, barriers, grandstands
8 and signs, provided however, such temporary facilities and structures shall not cause
9 any damage to the Property.
10 B. The CONTRACTOR shall also be and is hereby granted permission to
11 erect tents, concession stands, or both, during the Event provided however, such
12 temporary facilities and structures shall not cause any damage to the Property.
13 C. All construction and installation, including electrical
14 hook-ups, shall be made by CONTRACTOR and at CONTRACTOR'S sole expense,
15 and shall always be done in a good workmanlike manner, with appropriate equipment,
16 supplies and materials, by properly skilled personnel, who shall have contractor's
17 licenses for performing any of such work where contractor's licenses would be
18 required by building and construction codes and laws. CONTRACTOR shall obtain all
19 necessary building permits.
20 D. All structures, facilities, concession stands, tents and items provided
21 by CONTRACTOR shall be removed by CONTRACTOR at CONTRACTOR'S sole
22 expense no later than twenty-four (24) hours following the conclusion of the Event, and
23 CONTRACTOR shall fully restore the Property to its original condition as it existed
24 prior to the Event.
25 7. MAINTENANCE OF, AND PAYMENT FOR DAMAGE TO PROPERTY:
26 COUNTY shall be responsible for making the Property available to
27 CONTRACTOR immediately prior to CONTRACTOR'S Event in as clean, attractive
28 and orderly a condition as would be normal for COUNTY'S parks and recreation
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1 facilities that are of a similar type to the Property, provided, however, COUNTY shall
2 not have any obligation to continue to maintain or clean up the Property during the
3 Event, or provide any other services during the event.
4 CONTRACTOR shall be liable for any and all theft of, and damage and
5 destruction to any and all plants, shrubs, trees, turf, paved surfaces, irrigation systems,
6 equipment and structures and improvements located upon the Property, and
7 improvements located beneath the Property, excluding reasonable wear and tear, and
8 for all cleanup of all litter and debris caused by CONTRACTOR or its officers,
9 employees, agents, sponsors, patrons, Event participants, invitees and members of
10 the public who come onto the Property. COUNTY shall inspect the Property for
11 cleanup purposes no later than twenty-four (24) hours after the conclusion of Event.
12 COUNTY shall inspect the Property for theft, damage and destruction no later than
13 seventy-two (72) hours after CONTRACTOR has removed all temporary structures,
14 facilities, concession stands and tents referred to in section 6 above. If, as a result of
15 said inspections by COUNTY, any theft, damage or destruction, or litter or debris is
16 found to exist, COUNTY shall remove any litter and debris and repair or replace any
17 loss, damage or destruction, and the costs and expenses for repairs or replacement,
18 or cleanup first shall be deducted from the cleaning/damage deposit until exhausted,
19 and thereafter, shall be billed to CONTRACTOR, who shall be fully responsible for
20 paying all such amounts due. COUNTY shall determine its costs and expenses
21 chargeable to CONTRACTOR by using COUNTY'S actual cost and expenses of
22 materials, supplies, goods, and labor, including COUNTY overhead, as applicable.
23 8. SALES:
24 A. Souvenirs and Apparel: The CONTRACTOR shall have
25 the right to sell official Event souvenirs and apparel onsite of the Property
26 and to retain one hundred percent (100%) of such revenue.
27 B. Food, Drinks and Merchandise: The CONTRACTOR or its
28 Concessionaire(s) may sell food, drinks and merchandise onsite of the
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1 Property and shall retain one hundred percent (100%) of such revenue. It
2 is the responsibility of CONTRACTOR or its concessionaire(s) to obtain
3 all necessary license and permits as required depending on the types of
4 food sales.
5 Alcohol sales shall be permitted at the Events, conditioned on
6 compliance with all applicable laws and regulations, specifically including
7 the responsibility of CONTRACTOR or its concessionaire(s) to obtain all
8 necessary licenses for such sales as required by the Alcoholic Beverage
9 Control Board.
10 C. Sales and Use Taxes, and Other Taxes: CONTRACTOR shall be
11 solely responsible for complying with any and all laws concerning the
12 charging of, collecting, and paying to the appropriate governmental
13 authorities, all sales and use taxes, and any other taxes and charges, in
14 connection with the sales of any food, drinks (including, but not limited to,
15 alcoholic beverages), merchandise, and other goods in connection with
16 the Event, and the COUNTY shall not have any obligation in connection
17 therewith.
18 9. TERMINATION:
19 A. Non-Allocation of Funds: The terms of this Agreement, and the
20 services to be provided thereunder, are contingent upon the
21 availability of funds by the COUNTY in connection with the
22 performance of its obligation under this Agreement. Should sufficient
23 funds not be allocated, the services provided may be modified, or this
24 Agreement terminated, at any time by giving the CONTRACTOR ten
25 (10) days advanced written notice.
26 B. Breach of Contract: COUNTY'S Director of the Department of Public
27 Works and Planning, or his or her designee may immediately
28 suspend or terminate this Agreement in whole or in part, upon the
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1 determination by COUNTY that there is on the part of the
2 CONTRACTOR:
3 1) An illegal or improper use of funds;
4 2) A failure to comply with any term of this Agreement; or
5 3) A substantially incorrect or incomplete report or false information
6 submitted to the COUNTY.
7 In no event shall any receipt of any funds by the COUNTY constitute a
8 waiver by the COUNTY of any breach of this Agreement or any default
9 which may then exist on the part of the CONTRACTOR with regard to
10 any additional funds payable to COUNTY in connection with this
11 Agreement. Neither shall such payment impair or prejudice any remedy
12 available to the COUNTY with respect to the breach or default for any
13 additional funds owed by CONTRACTOR to COUNTY.
14 C. Without Cause: Under circumstances other than those set
15 forth above, this Agreement may be terminated by COUNTY or
16 CONTRACTOR upon the giving of fifteen (15) days advance written
17 notice of an intention to terminate to the other party.
18 10. COMPLIANCE WITH LAWS: CONTRACTOR shall comply with
19 any and all federal, state and local laws (including, but not limited to, the Fresno
20 County Ordinance Code), ordinances and regulations applicable to the work, activities,
21 and sales covered by this Agreement.
22 11. INDEPENDENT CONTRACTOR: In the conducting of the Event and the
23 performance of the work, duties and obligations assumed by CONTRACTOR under
24 this Agreement, it is mutually understood and agreed that CONTRACTOR, including
25 any and all of the CONTRACTOR'S officers, agents, and employees, will at all times
26 be acting and performing as an independent contractor, and shall act in an
27 independent capacity and not as an officer, agent, servant, employee, joint venturer,
28 partner, or associate of the COUNTY. Furthermore, COUNTY shall have no right to
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1 control or supervise or direct the manner or method by which CONTRACTOR shall
2 perform its obligations under this Agreement. However, COUNTY shall retain the right
3 to administer this Agreement so as to verify that CONTRACTOR is performing its
4 obligations in accordance with the terms and conditions thereof. CONTRACTOR and
5 COUNTY shall comply with all applicable provisions of law and the rules and
6 regulations, if any, of governmental authorities having jurisdiction over the subject
7 matter.
8 Because of its status as an independent contractor, CONTRACTOR, including
9 any and all of the CONTRACTOR'S officers, agents and employees shall have
10 absolutely no right to employment rights and benefits available to COUNTY
11 employees. CONTRACTOR shall be solely liable and responsible for providing to, or
12 on behalf of, its employees all legally required employee benefits. In addition,
13 CONTRACTOR shall be solely responsible and save COUNTY harmless from all
14 matters relating to payment of CONTRACTOR'S employees and agents, including, but
15 not limited to, compliance with Social Security withholding and all other regulations
16 governing such matters.
17 12. MODIFICATION: Any matters of this Agreement may be modified
18 from time to time by the written consent of all the parties without, in any way, affecting
19 the remainder.
20 13. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract
21 this Agreement nor their rights or duties under this Agreement without the prior written
22 consent of the other party.
23 14. HOLD HARMLESS: CONTRACTOR agrees to indemnify, save,
24 hold harmless, and at COUNTY'S request, defend the COUNTY, its officers, agents,
25 and employees, from any and all costs and expenses (including attorney's fees and
26 costs), damages, liabilities, claims, and losses occurring or resulting to COUNTY in
27 connection with the performance, or failure to perform, by CONTRACTOR, its officers,
28 agents, employees, or sponsors, in connection with this Agreement, and from any and
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1 all costs and expenses (including attorney's fees and costs), damages, liabilities,
2 claims and losses occurring or resulting to any person, firm, corporation, sponsors,
3 patrons, Event participants, invitees and members of the public who come onto the
4 Property who may be injured or damaged by the performance, or failure to perform, of
5 CONTRACTOR, its officers, agents, employees, or sponsors in connection with this
6 Agreement.
7 15. INSURANCE: Without limiting the COUNTY'S rights to obtain
8 indemnification from CONTRACTOR or any third parties, CONTRACTOR, at its sole
9 expense, shall maintain in full force and effect the following insurance policies
10 throughout the term of this Agreement.
11 A. Comprehensive General Liability Insurance with limits of
12 not less than Two Million Dollars ($2,000,000.00) per occurrence and an
13 annual aggregate of Four Million Dollars ($4,000,000.00). Coverage
14 must include products, completed operations, property damage, bodily
15 injury, personal injury, and advertising injury.
16 B. A policy of Workers Compensation insurance as may be
17 required by the California Labor Code.
18 C. Automobile liability. Automobile liability insurance with limits of not
19 less than One Million Dollars ($1,000,000) per occurrence for bodily
20 injury and for property damages. Coverage must include any auto used
21 in connection with this Agreement.
22 CONTRACTOR shall obtain endorsements to the Comprehensive General
23 Liability and Automobile Liability Insurance naming the COUNTY, its officers, agents,
24 and employees, individually and collectively as additional insured, but only insofar as
25 the operations of CONTRACTOR under this Agreement are concerned. Such
26 coverage for additional insured shall apply as primary insurance and any other
27 insurance, or self-insurance, maintained by COUNTY, its officers, agents, and
28 employees shall be excess only and not contributing with insurance provided under
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1 the CONTRACTOR'S policies herein. This insurance shall not be canceled or changed
2 without a minimum of thirty (30) days advance, written notice given to COUNTY.
3 Within five (5) days of its execution of this Agreement, CONTRACTOR shall
4 provide certificates of insurance on the foregoing policies as required herein, to the
5 COUNTY'S Department of Public Works and Planning, stating that such insurance
6 coverages have been obtained and are in full force; COUNTY, its officers, agents, and
7 employees will not be responsible for any premiums on the policies. The
8 Comprehensive General Liability Insurance and the Automobile Liability Insurance
9 shall name the COUNTY, its officers, agents, and employees, individually and
10 collectively, as additional insured, but only insofar as the operations of CONTRACTOR
11 under this Agreement are concerned; that such coverages for additional insured shall
12 apply as primary insurance and any other insurance, or self-insurance, maintained by
13 the COUNTY, its officers, agents, and employees, shall be excess only and not
14 contributing with insurance provided under the CONTRACTOR's policies herein; and
15 that this insurance shall not be canceled or changed without a minimum of thirty (30)
16 days advance, written notice given to COUNTY.
17 In the event CONTRACTOR fails to keep in effect at all times insurance
18 coverage as herein provided, the COUNTY may, in addition to other remedies it may
19 have, suspend or terminate this Agreement upon the occurrence of such event.
20 All policies shall be with admitted insurers licensed to do business in the State
21 of California. Insurance purchased shall be purchased from companies possessing a
22 current A.M. Best, Inc. rating of A FSC VII or better.
23 16. AUDITS AND INSPECTIONS:
24 The CONTRACTOR shall at any time during business hours, and as
25 often as the COUNTY may deem necessary, make available to the COUNTY for
26 examination all of its records and data with respect to the matters covered in the
27 Agreement. The CONTRACTOR shall, upon request by the COUNTY, permit the
28 COUNTY to audit and inspect all such records and data necessary to ensure the
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1 CONTRACTORS compliance with the terms of this Agreement.
2 If this Agreement exceeds ten thousand dollars ($10,000.00), the
3 CONTRACTOR shall be subject to the examination and audit of the Auditor General
4 for a period of three (3) years after final payment under the Agreement (Government
5 Code Section 8546.7).
6 17. NOTICES: The persons and their addresses having authority to
7 give or receive notices under this Agreement include the following:
8 COUNTY
9 County of Fresno
Steve E. White, Director
10 Department of Public Works and Planning
2220 Tulare St. 6th floor
11 Fresno, CA 93721
12 (559) 600-4078
13 CONTRACTOR
Fresno County Disc Golf
14 Jeffrey Castle, President
10201 N. Rowell
15 Fresno, CA 93730
16 discs@fresnoflightcenter.com
17 Any and all notices between the COUNTY and the CONTRACTOR provided for
18 or permitted under this Agreement or by law shall be in writing and shall be deemed
19 duly served when personally delivered to one of the parties, or in lieu of such personal
20 services, when deposited in the United States Mail, postage prepaid, addressed to
21 such party.
22 18. AUTHORIZED SIGNATURE: The CONTRACTOR represents and warrants
to the COUNTY that:
23
24 (A) The CONTRACTOR is duly authorized and empowered to sign and perform its
25 obligations under this Agreement.
26 (B) The individual signing this Agreement on behalf of the CONTRACTOR is duly
27 authorized to do so and his or her signature on the Agreement legally binds the
28 CONTRACTOR to the terms of this Agreement.
19. ELECTRONIC SIGNATURES: The Parties agree that this Agreement may
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1 be executed by electronic signature as provided in this section.
2 (A) An "electronic signature" means any symbol or process intended by an individual
3 signing this Agreement to represent their signature, including but not limited to (1) a
4 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
5 electronically scanned and transmitted (for example by PDF document) of a
6 handwritten signature.
7 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
8 equivalent to a valid original handwritten signature of the person signing this
9 Agreement for all purposes, including but not limited to evidentiary proof in any
10 administrative or judicial proceeding, and (2) has the same force and effect as the
11 valid original handwritten signature of that person.
12 (C)The provisions of this section satisfy the requirements of Civil Code section 1633.5,
13 subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part
14 2, Title 2.5, beginning with section 1633.1).
15 (D) Each party using a digital signature represents that it has undertaken and satisfied
16 the requirements of Government Code section 16.5, subdivision (a), paragraphs (1)
17 through (5), and agrees that each other party may rely upon that representation.
18 (E)This Agreement is not conditioned upon the parties conducting the transactions
19 under it by electronic means and either party may sign this Agreement with an original
20 handwritten signature.
21 20. GOVERNING LAW: For purposes of venue, this agreement shall be
22 deemed to be performed in Fresno County. Venue for any action arising out of or
23 related to this Agreement shall only be in Fresno County, California.
24 The rights and obligations of the parties and all interpretation and performance
25 of the Agreement shall be governed in all respects by the laws of the State of
26 California.
27 21. ENTIRE AGREEMENT: This Agreement constitutes the entire
28 Agreement between the CONTRACTOR and COUNTY with respect to the subject
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1
2 The parties are signing this Agreement on the date stated in the introductory
clause.
3
4 Fresno a
Disc Golf COUNTY OF FRESNO
5
BY:
Title DG President Nathan Magsig, Chairman of the
6 Board of Supervisors of the
7 County of Fresno
8
9
ATTEST:
10 Bernice E. Seidel
Clerk to the Board of Supervisors
11 County of Fresno, State of California
12
By_
13 Deputy
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21 FOR ACCOUNTING USE ONLY:
22 Fund: 0001
Subclass: 10000
23 Org. No: 7910
Account: 5055
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