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Tour Dubuque Trail and Park Use AgreementMasterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Trail and Park Use Agreement with Tour Dubuque DATE: February 18, 2014 Dubuque band AI- America City 1 2007 • 2012 • 2013 Leisure Services Manager Marie Ware recommends City Council approval of the Trail and Park Use Agreement with Tour Dubuque. The term of the Agreement is from May 19, 2014 through October 26, 2014. I concur with the recommendation and respectfully request Mayor and City Council approval. Mic ael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Marie L. Ware, Leisure Services Manager THE CITY OF Dui Masterpiece on the Mississippi TO: Michael C. Van Milligen, City Manager FROM: Marie L. Ware, Leisure Services Manager DATE: February 14, 2014 SUBJECT: Trail and Park Use Agreement with Tour Dubuque Dubuque trati M- America City '111' 2007 • 2012 • 2013 INTRODUCTION The purpose of this memorandum is to request City Council approval of the Trail and Park Use Agreement with Tour Dubuque. BACKGROUND In 2013 Leo Broughton of Tour Dubuque asked the City for approval to use city trails and certain parks for guided tours using Trikkes. Trikkes are single person motorized electric vehicles that are 4' Tong, 2' wide and 4' high, weighing 50 pounds. They have a maximum speed of 18 mph but for insurance purposes they go 10 mph or less on the tour. Last year, after thorough discussions with Legal, Police, Planning Services, Public Works, city insurance carrier and ICAP, the Park and Recreation Commission and City Council approved the staff recommendation for an agreement for one season as a trial. DISCUSSION Mr. Broughton is requesting to renew the agreement for another season. Since there were no problems or issues reported to the city after last year's agreement, the Park and Recreation Commission recommended approval of the attached Trail and Park Use Agreement at their February 11th meeting. The Trail and Park Use Agreement has been reviewed and approved by City Attorney Barry Lindahl. RECOMMENDATION I respectfully request approval from the City Council of the attached Trail and Park Use Agreement with Tour Dubuque. Prepared by: MLW et cc: Steve Fehsal, Park Division Manager Leo Broughton, Tour Dubuque CITY OF DUBUQUE TRAIL AND PARK USE AGREEMENT OWNER TOUR OPERATOR NAME : City of Dubuque ADDRESS : 50 W 13th Street CITY, ST, ZIP: Dubuque, Iowa CONTACT : Marie Ware TELEPHONE: 563/589-4264 FACSIMILE: 563/589-4391 E-MAIL : mware@cityofdubuque.org NAME: Tour Dubuque ADDRESS: 198 Main Street CITY, ST, ZIP:Dubuque, Iowa 52001 CONTACT : Leo Broughton TELEPHONE: 563-326-5535 E-MAIL : leo@tourdubuque.com FACILITY RATES/CHARGES City of Dubuque off street trails system including but not limited to the Riverwalk as well as city parks. $50.00 / season use fee and $1.00 per Trikke entering Eagle Point Park. DESCRIPTION/PURPOSE OF ACCESS/USE The Facility will be utilized for supervised, guided tours using Trikkes (a single person motorized vehicle). The tour shall have a guide at the beginning and end of each group that will ride single file in all areas outlined in this Use Agreement. This single file line shall be maintained at all times to allow park and trail users to pass by the tour group. Tour guides may stop when sharing tour information with the single file line always in place. Tour groups shall be limited to a maximum of ten (10) persons plus two (2) guides. Speed of Trikkes shall be controlled by the guides to maintain the safety of park and trail users not on the tour. 1. Basic Agreement: In consideration of the Rates/Charges referenced in the relevant box above, Owner hereby grants to Tour Operator access to and the use of the Facility defined above, for the purposes described above. The grant of access herein is on a first-come first served basis and does not constitute a guarantee that the Facility will be available to the Tour Operator at any particular time. Tour Operator is encouraged to coordinate its use of the Facility with other users. 2. Safety and Notifications: Tour Operator shall be responsible for ensuring that its employees, contractors and invitees comply with applicable laws and obey any written safety rules provided by Owner. Tour Operator shall not intentionally interfere with other operations or create any danger or safety hazard at the Facility. Tour Operator shall notify Owner if it believes there are any safety or suitability problems, and in such an event the parties agree to fully cooperate and resolve the same to their mutual 01-30-14 satisfaction. Formal Notices shall be addressed to the Contact defined above for each of the parties and may be given by e-mail, facsimile, or by mail. Notices will be deemed to have been received upon the production of a relevant receipt document. 3. Hold Harmless/Indemnification. To the fullest extent allowed by law, Tour Operator shall indemnify, defend and hold harmless Owner, its Affiliates and their respective partners, shareholders, directors, officers, employees and agents, from and against any and all claims for injury or damages to persons or property arising out of or caused by the negligence of the Tour Operator. Tour Operator further agrees upon receipt of notice from Owner to defend at its own expense, Owner, its Affiliates and their respective partners, shareholders, directors, officers, employees, and agents from any action or proceeding against Owner, its Affiliates and their respective partners, shareholders, directors, officers, employees, and agents arising out of or caused by the negligence of the Tour Operator. If Tour Operator suffers any injury, damage or loss caused by any person or business engaged by or through or for the benefit of Owner or any other person, Tour Operator shall not hold or seek to hold Owner responsible therefore; but, rather, Tour Operator shall proceed solely against such person or entity causing the injury, damage or loss. 4. Insurance: Tour Operator shall maintain during the Term of this Agreement insurance as provided in the attached Insurance Schedule. 5. Term of Agreement: This Agreement shall commence upon its date of execution, shall have a term of from May 19 through October 26, 2014. 6. Governing Law. This Agreement shall be governed by the laws of the state of Iowa. 7. Default. If Tour Operator fails to comply with any of the provisions of this Agreement within seven (7) days after notice of noncompliance from Owner, Owner may terminate this Agreement. 8. Termination. Either party may terminate this Agreement by providing ten (10) days written notice to the other party. 9. Entire Agreement. This Agreement may be executed in counterparts and/or by electronic exchange of signatures, with all such counterparts deemed the same single agreement and signatures exchanged by electronic means deemed equivalent to original signatures. This constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, written and oral. This Agreement shall not be modified except through a writing signed by both parties. 2 DATED THIS 3RD DAY OF MARCH, 2014. Owner Authorized Signature Roy D. Buol, Mayor Printed Name and Title 3 Tour Operator xut orized Signatur L« 4-1-�.7 lJt.�►1-ev Printed Namend Title 1. Insurance Schedule A shall furnish a signed Certificate of Insurance (COI) to the City of Dubuque, Iowa for the coverage required in Exhibit I prior to contract or lease commencement. All lessees of City property shall submit an updated COI annually. Each Certificate shall be prepared on the most current ACORD form approved by the Department of Insurance or an equivalent. Each certificate shall include a statement under Description of Operations as to why issued. Eg: Project # or Lease of premises at or construction of 2. All policies of insurance required hereunder shall be with a carrier authorized to do business in Iowa and all carriers shall have a rating of A or better in the current A.M. Best's Rating Guide. 3. Each Certificate shall be furnished to the contracting department of the City of Dubuque. 4. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 5. All required endorsements to various policies shall be attached to Certificate of insurance. 6. Whenever a specific 150 form is listed, an equivalent form may be substituted subject to the provider identifying and listing in writing all deviations and exclusions that differ from the 150 form. 7. Provider shall be required to carry the minimum coverage /limits, or greater if required by law or other legal agreement, in Exhibit I. 8. Whenever an 150 form is referenced the current edition of the form must be used. 01 -30 -14 City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors (Suppliers, Service Providers) Insurance Schedule A (continued) Exhibit 1 A) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products - Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence $1,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments $ 5,000 a) Coverage shall be written on an occurrence, not claims made, form. All deviations from the standard I50 commercial general liability form CG 0001, or Business owners form BP 0002, shall be clearly identified. b) Include I50 endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit." c) Include endorsement indicating that coverage is primary and non - contributory. d) Include endorsement to preserve Governmental Immunity. (Sample attached). e) Include an endorsement that deletes any fellow employee exclusion. f) Include additional insured endorsement for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and /or authorities and their board members, employees and volunteers. Use I50 form CG 20 10. Ongoing operations. g) If vendor utilizes Trikkes or Segways in the conduct of business, include an endorsement reflecting that these vehicles are not excluded from Commercial General Liability coverage. B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory benefits covering all employees injured on the job by accident or disease as prescribed by Iowa Code Chapter 85 as amended. Coverage A Coverage B Statutory —State of Iowa Employers Liability Each Accident $100,000 Each Employee- Disease $100,000 Policy Limit - Disease $500,000 Policy shall include an endorsement providing a waiver of subrogation to the City of Dubuque. Pdfconvert.10003.1.TOUR DUBUQUE USAGE AGRMT 2014.Docx1 -30 -14 City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors (Suppliers, Service Providers) Preservation of Governmental Immunities Endorsement Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN Pdfconvert.10003.1.TOUR DUBUQUE USAGE AGRMT 2014.Docx1 -30 -14