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HomeMy WebLinkAboutTrail Blazers Inc-2/27/2017Riverview Recreation Area Trail Blazers Off -Road Club User / Maintenance Agreement This User/Maintenance Agreement (the "Agreement") is entered into as of 2J , 2017, by and between the City of Waterloo, Iowa, a municipal corporation having a principal place of business at 715 Mulberry Street, Waterloo, Iowa, 50703 ( "City") and Trail Blazers Inc., a/k/a Trailblazers, a non-profit corporation duly organized and in good standing in the State of Iowa, whose principal place of business is P.O. Box 383, Independence, Iowa 50644 ("Trailblazers"). In consideration of the mutual promises, covenants, tetins, and provisions contained in this Agreement, the parties hereby agree as follows: 1. Definitions. a. "All -Terrain Vehicle" (ATV) means a motorized flotation -tire vehicle with not less than three low pressure tires, but not more than six low pressure tires, that is limited in engine displacement to less than 1,000 cubic centimeters and in total dry weight to less than 1,200 pounds and that has a seat or saddle designed to be straddled by the operator and handlebars for steering control. b. "Off -Road Motorcycle" means a motor vehicle having two wheels designed by its manufacturer for off-road use, to include dual purpose (off road/street legal) use with an engine displacement of not more than 1,000 cubic centimeters and no more than two cylinders. c. "Off -Road Utility Vehicle" (ORV) means a motorized vehicle with not less than four and not more than eight non -highway tires or rubberized tracks that has a seat that is of bucket or bench design, not intended to be straddled by the operator, and a steering wheel or control levers for control. "Off-road utility vehicle" includes the following vehicles: • Type 1: an off-road utility vehicle with a total dry weight not exceeding 1,200 pounds and a width not exceeding 50 inches. • Type 2: an off-road utility vehicle, other than a Type 1 off-road utility vehicle, with a total dry weight not exceeding 2,000 pounds and a width not exceeding 65 inches. d. "Authorized Vehicles" means ATVs, Off -Road Motorcycles and ORVs, as defined above. 2. Purpose of Agreement; Effect on Previous Agreement The purpose of this Agreement is to provide for and coordinate the development of an ATV park which shall be maintained and operated by Trailblazers for the purpose of encouraging safe and proper use of Authorized Vehicles. The parties acknowledge that they previously entered into a User/Maintenance Agreement in 2007. By this Agreement, the parties intend to terminate the former agreement and to adopt this Agreement in substitution of the former agreement. Upon execution of this Agreement by the parties, the former agreement shall be deemed terminated and this Agreement shall govern the relationship of the parties thereafter. 3. Subject Premises. City agrees to permit all Authorized Vehicle users who have current registration for such a vehicle (as issued through the Iowa Department of Natural Resources) to use the premises commonly known as Riverview OHV Park, depicted in Exhibit A which by this reference is made a part of this Agreement as if fully set forth herein, for the sole purpose of using it as a riding area for Authorized Vehicles, except for a designated portion of the proposed north parking area adjacent to the boat ramp that shall remain open for boating access to the Cedar River. Only Authorized Vehicles shall use the premises. The parties acknowledge that the park is a public park and that this Agreement does not confer any exclusive rights of use upon Trailblazers or its members. 4. Term of Agreement. The term of this Agreement shall begin on the date of this Agreement and shall continue thereafter until and including February 28, 2037, unless terminated earlier as set forth herein. This Agreement may be terminated at any time before the expiration of its term as follows: a. Upon the mutual written consent of the parties; b. By City if Trailblazers voluntarily dissolves or is involuntarily dissolved, ceases to operate, or otherwise disbands, and within thirty (30) days after delivery of written notice from City Trailblazers fails to be reinstated as a corporation in the State of Iowa or fails to effectively assign its rights and duties under this Agreement to a successor entity that is acceptable to City. c. By City if Trailblazers fails to care for the subject premises as required by this Agreement or otherwise materially breaches this Agreement and, within thirty (30) days after delivery of written notice from City specifying the default, fails to cure said default to the satisfaction of City. d. By City if Trailblazers, its officers, directors, or members are charged with any criminal act or any other act endangering public health or safety, or complicity with any of the foregoing activities, on the subject premises and such charges are not resolved through dismissal or acquittal. Termination in such instance shall occur immediately upon delivery of written notice from City. 5. Indemnity. Trailblazers shall conduct its activities upon the subject premises so as not to endanger any person lawfully thereon. Furthermore, Trailblazers agrees to indemnify, defend, and hold harmless City and the Waterloo Leisure Services Commission, its officers, elected or appointed officials, consultants, agents, and/or employees, from and against all claims, demands, causes of action, damages, losses, expenses, and liabilities of any type or nature whatsoever (including but not limited to attorneys' fees and expenses, whether incurred prior to or during litigation, administrative hearings, arbitration, or bankruptcy proceedings, including trial and appellate levels) (each of the foregoing is a "Claim"), which may in any way arise out of or result from the occupancy or use of the subject premises, provided that any Claim is caused in whole or in part by any negligent act or omission or other fault of Trailblazers, its directors, officers, members, employees, volunteers, or anyone for whose acts it may be liable. 2 6. Insurance. Trailblazers agrees that it will, at its own expense, procure and maintain combined single limit liability, bodily injury, and property damage insurance in the amount of not less than $1,000,000. Every five (5) years after the date of this Agreement, City may notify Trailblazers of an increase in the minimum insurance coverage amount required. Certificates or copies of said policies, including City and the Waterloo Leisure Services Commission as additional insureds, and providing for thirty (30) days' advance notice to City before cancellation, shall be delivered to City concurrently with execution of this Agreement. A renewal certificate shall be provided to City prior to expiration of any policy. Any liability shall be first assumed by Trailblazers' insurance up to the limits of coverage as set forth herein. City may at its own expense procure and maintain additional insurance. 7. Responsibility for Premises. Trailblazers understands and agrees that it shall make every good faith effort to raise sufficient funds to provide for the operation and maintenance of the subject premises. Upon expiration of the term of this Agreement, or within thirty (30) days from the date of termination of this Agreement if terminated early pursuant to Section 14 below, Trailblazers shall vacate the premises in as good or substantially as good condition as they were in at the commencement of this Agreement, reasonable wear and damages by the elements excepted. Trailblazers also agrees that if the premises are damaged during the term of this Agreement, Trailblazers shall pay to City, upon demand, such sums as may be necessary to restore the premises to the condition they were in at the commencement of this Agreement. 8. Compliance with Laws. All users, including Trailblazers and its members, shall comply with all applicable laws, regulations, or ordinances of the State of Iowa, City, or any other entity having jurisdiction over the subject premises or the activities of Trail Blazers. All Authorized Vehicle users shall have current ATV, motorcycle or ORV registration, as applicable, issued by the Iowa Department of Natural Resources before use of the subject premises. 9. Permitted Use of Premises. Trailblazers shall only use the premises as an off- highway vehicle (OHV) park, and shall not use or permit the use of the premises for any other purpose or for any immoral, objectionable, or unlawful acts. Snowmobiles may not use the park. The decision of the Waterloo Leisure Services Commission in these matters shall be final. The Riverview OHV Park as depicted in Exhibit A shall be used for recreational purposes and by Authorized Vehicles in designated areas only. No other motorized vehicles shall be allowed on the riding area in the park except for maintenance vehicles or equipment. All Authorized Vehicle use shall be subject to operational rules as outlined in the Code of Iowa and regulations promulgated thereunder, as published in the Off -Highway Vehicle Reference Guide, October 2016 or latest subsequent edition published by the Iowa Department of Natural Resources. 10. Utilities. All expense of utilities to serve the subject premises shall be the sole responsibility of Trailblazers. 11. Contracts and Liens. Trailblazers agrees to make no contracts for construction, repair, or improvements on, in or to the subject premises or any part thereof, except those incident to normal maintenance and operation of the premises, without the prior written consent of City. Trailblazers further agree that it shall not permit any liens for work, services, or material provided to be made or filed against the subject premises and further agrees to indemnify and 3 hold City, including the Leisure Services Commission, harmless from any such claim, and to immediately have removed any liens. 12. Performance. Failure by City to insist on strict performance of any of the terms, agreements, conditions, or covenants in this Agreement shall not constitute or be construed as a waiver of any right City may have to thereafter enforce any agreement, term, condition, or covenant hereof. A waiver of any default shall not constitute a waiver of any other or subsequent default. 13. Subletting and Assignments. This Agreement does not give Trailblazers any interest in the subject premises that is capable of being subleased, assigned, mortgaged, or otherwise disposed of to another party. Trailblazers shall not assign its duties under this Agreement to any other person without the prior written consent of City through its Leisure Services Commission. Any consent given by City in a given instance shall not operate as a waiver of this restriction for later assignment. 14. Default. In the event Trailblazers violates any of the provisions of this Agreement or any other requirements of the Leisure Services Commission, such violation shall be construed as a default under this Agreement and City, at its sole option, may then terminate this Agreement without any further liability whatsoever. Termination shall be effective immediately upon delivery of written notice of termination from City to Trailblazers. In the event of default, City shall have and may exercise any and all rights and remedies available to it under applicable law, including but not limited to the right to enter and obtain possession of the entire premises, remove and exclude all persons from the premises, and remove all property of Trailblazers from the premises, all without service of notice or resort to legal process and without any legal liability on City's part. Trailblazers shall be responsible for all expenses incurred by City in enforcing the provisions of this Agreement, including but not limited to reasonable attorneys' fees and expenses. 15. Notices. All notices under this Agreement shall be in writing and addressed as follows: For City, Leisure Services Commission, 1101 Campbell Avenue, Waterloo, Iowa 50701; Attn: Director. For Trailblazers, P.O. Box 383, Independence, Iowa, 50644, Attn: President. Without prejudice to any other method of notifying a party in writing or making a demand or other communication, such message shall be considered given under the terms of this Agreement three (3) business days after the date it is sent, addressed as above designated, postage prepaid, by first class mail and so deposited in a United States mail box. 16. Hours. The Riverview OHV Park Area may be used for Authorized Vehicle purposes only during regular park hours, which shall be from 5:00 a.m. to 11:00 p.m. However, Trailblazers may, with the express prior written permission of City, use the subject premises other than as stated herein. 17. Severability. In the event any provision of this Agreement is held invalid, illegal, or unenforceable, whether in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal, or unenforceable as written, but that by limiting such provision it would become valid, legal, and enforceable, then such provision shall be deemed to be written and shall be construed and enforced as so limited. 4 18. Maintenance. Trailblazers and all users of Authorized Vehicles shall keep the premises clean and litter -free. Trailblazers shall also further develop the park, subject to prior approval of development plans by the Waterloo Leisure Services Commission. 19. One -Year Review. At the one-year anniversary of the date of this Agreement, Trailblazers shall provide a report to the Waterloo Leisure Services Commission addressing any accidents on the premises involving damage to property or injury to persons caused by or arising in connection with the operation of Authorized Vehicles and addressing maintenance of the OHV park for use by all types of Authorized Vehicles. Said commission shall hold a hearing to allow public comment. Following the hearing and upon finding of cause as determined in the commission in its reasonable discretion, the commission may recommend to the Waterloo City Council that this Agreement be amended to restrict or prohibit use of the OHV park by off-road utility vehicles as defined in paragraph 1(c). 20. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and the respective successors and assigns of each. 21. No Joint Venture. Nothing in this Agreement shall, or shall be deemed or construed to, create or constitute any joint venture, partnership, agency, employment, or any other relationship between the parties nor, except as expressly set forth herein, to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 22. Entire Agreement; Modification. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof This Agreement may not be modified or amended except pursuant to the mutual written agreement of the parties. IN WITNESS WHEREOF, the parties have executed this User/Maintenance Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA TRAIL BLAZERS INC. By: By: l iu Quentin Hart, Mayor Lorne Lee, President Attest: Kelley Fele e, City Clerk 5 STATE OF IOWA L� Rik COUNTY ) Acknowledged before me on Trail Blazers Inc. STATE OF IOWA ) BLACK HAWK COUNTY ) Acknowledged before me on , 2017, by Quentin Hart and Kelley Felchle as Mayor and City Clerk, respectively, of the City of Waterloo, Iowa. ss. 4 , 2017, by Lome Lee as President of ss. Notary Public IA:. SHELVE L CRISMAN T -COMMISSION NOJ78700 • Rumr1P-TIFIrEs NANCY HIGBY COMMISSION NO.788229 MY COMMISSION EXPIRES Notary Public 6