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HomeMy WebLinkAbout02-02-2016 Item 06 Caltrans Sponsor Applicant Agreement with Race SLO Meeting Date: 2/2/2016 FROM: Derek Johnson, Assistant City Manager Prepared By: Molly Cano, Tourism Manager SUBJECT: CALTRANS SPONSOR APPLICANT AGREEMENT WITH RACE SLO RECOMMENDATION 1. Approve and authorize the Mayor to sign a letter of support (“Support Letter”) for the 2016 SLO Marathon + Half; and 2. Approve and authorize the Mayor to sign a CalTrans Sponsor Application Agreement (“Agreement”) and supporting document (“Authorization Letter”) with Get Off The Couch, Potato Sports Productions, LLC authorizing the City of San Luis Obispo to serve as the Sponsor Applicant for the CalTrans encroachment permit for the 2016 SLO Marathon + Half. DISCUSSION Background The SLO Marathon + Half (the “Marathon”) is an annual event produced by Get Off The Couch Potato Sports Productions, LLC (“Race SLO”). Now entering its fifth year of production, the annual event attracts thousands of participants and spectators to the City and County of San Luis Obispo for the weekend events including: Family Fitness Day and t he SLO Life Expo, 5K run, Children’s Fun Run, SLO Half Marathon, and the SLO Full Marathon. The event will occur April 29-May 1, 2016. The Marathon takes place on City, County and State right-of-way and the event organizer is required to obtain an encroachment permit from each of these agencies for the event. In years prior, Race SLO obtained their permit directly CalTrans for use of the State Highway. However, this year, Race SLO has been notified that CalTrans’ permit regulations require that the applicant or sponsor applicant must be a non-profit organization or a City or County or other public agency. Need for the City to Sponsor the CalTrans Encroachment Permit Application Race SLO is a for-profit entity and is ineligible to submit an application for an encroachment permit with CalTrans. Upon learning of this change in encroachment permit application practice, Race SLO discussed with the City staff whether the City could serve as the sponsor applicant for the CalTrans permit. Due to the time sensitive nature of the application and the significant local and regional community benefits of the Marathon, staff recommends that the City move forward as the sponsor applicant for the CalTrans encroachment permit. CalTrans staff has indicated that 6 Packet Pg. 26 this would be a permissible arrangement for its permit review purposes. If approved, the proposed “Agreement” (Attachment A) and “Authorization Letter” (Attachment B) would allow the City to serve as the sponsor applicant for Race SLO on the CalTrans encroachment permit application. The Agreement requires Race SLO to indemnify the City and have certain insurance in place in order to shift any additional liability imposed on the City as part of this arrangement onto the event organizer Race SLO. It should be noted that of the approximately 26 miles for the race course, less than 2 miles takes place on State right -of-way – Highway 227 and the Marsh Street/Highway 101 on/off ramps (see map, Attachment C). Additionally, Race SLO must also provide “Support Letter” (Attachment D) from the City or County for the Marathon as part of the encroachment permit application. FISCAL IMPACT There is no fiscal impact associated with this Agreement for the City of San Luis Obispo. However should the event not take place in 2016, the estimated fiscal impact on the community would be the loss of $3.2 million dollars county-wide based on the annual economic impact report commissioned by the Event Producers. ALTERNATIVES 1. Amend or Edit Materials Provided. The Council could direct staff to amend or edit the letter of support and/or the agreement with Race SLO authorizing the City to serve as the Sponsor Applicant for the CalTrans encroachment permit for the 2016 SLO Marathon + Half. This is not recommended as the terms of the Agreement have been carefully negotiated so that the City is indemnified of any liability and allows RaceSLO to hold this important community event. 2. Disapprove. The Council could not to approve the agreement with Race SLO authorizing the City to serve as the Sponsor Applicant for the CalTrans encroachment permit for the 2016 SLO Marathon + Half and not authorize the letter of support for the 2016 SLO Marathon + Half. This is not recommended because without the City serving as the sponsor applicant RaceSLO would not be able to receive the permit to hold this important community event. If the event was not held in 2016, the result would create a loss in the annual $3.2 million in economic impact from the event including the loss of hundreds of overnight stay in our community which would directly impact the general fund through the loss of transient occupancy tax and sales tax collection. Attachments: a - Agreement b - Authorization Letter c - 2016 Proposed Race Map d - Support Letter 6 Packet Pg. 27 1 ENCROACHMENT PERMIT APPLICATION AGREEMENT This Encroachment Permit Application Agreement (“Agreement”) is made and entered into this _____ day of _______, 2016 (the “Effective Date”), by and between the City of San Luis Obispo, a charter city and municipal corporation (“City”), and Get Off the Couch, Potato Sports Productions, LLC, a California limited liability corporation (“GOTC”) doing business as “Race SLO”. WHEREAS, for the last four years, GOTC has organized and produced an annual marathon event called “SLO Marathon + Half” (the “SLO Marathon”) which takes place within San Luis Obispo County, primarily within the City’s limits; WHEREAS, SLO Marathon’s route is within the City, San Luis Obispo County and State California Department of Transportation’s (“CalTrans”) right-of-way; WHEREAS, for the last four years, GOTC has obtained an encroachment permit from CalTrans for the use of their right-of-way for the SLO Marathon event; WHEREAS, this year, CalTrans has indicated that only public agencies or certain non-profit organizations can apply for an encroachment permit; WHEREAS, GOTC is a for profit entity, and therefore, CalTrans has indicated GOTC cannot apply for an encroachment permit; WHEREAS, City acknowledges that the SLO Marathon has become a widely popular event, attracting thousands of participants and spectators to the central coast area. The City further acknowledges that this event has become an important component of the City’s tourism industry and has important and significant community benefits, including, but not limited to, providing a unique recreational opportunity to enhance the quality of life for residents as well as visitors; and the contribution of a significant economic impact to the City, community, and local businesses. WHEREAS, the City desires for the SLO Marathon to continue on an annual basis and is willing to apply for an encroachment permit from CalTrans on behalf of GOTC, subject to the terms and conditions set forth in this Agreement. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Recitals. The above recitals are true and correct and are incorporated herein by this reference. 2. Authorized Agent. Subject to the terms and conditions hereof, GOTC hereby authorizes City to act as its agent for the purpose of applying for an encroachment permit from CalTrans for the SLO Marathon event. The scope of this agency 6.a Packet Pg. 28 At t a c h m e n t : a - A g r e e m e n t ( 1 2 4 1 : R a c e S L O a g r e e m e n t f o r C a l T r a n s p e r m i t ) 2 relationship shall include the right to fill out and submit CalTrans’ Standard Encroachment Permit Application (the “Permit”), a copy of which is attached hereto as Exhibit A. GOTC agrees to provide, at its sole cost and expense, any and all information, maps, bonds, financial assurances, certificates, traffic plans, contractor and subcontractor information, insurance information, documents or other materials needed to fill out and submit the Permit application with CalTrans. GOTC acknowledges and agrees that City shall incur no costs or expenses under this Agreement. 3. Term of Agreement. The term of this Agreement shall commence as of the Effective Date and shall automatically terminate upon: CalTrans’ denial of the Permit; or ten days after completion of the 2016 SLO Marathon event. In addition to the foregoing, either City or GOTC may terminate this Agreement without cause upon five (5) days prior written notice to the other party. Either party may terminate this Agreement immediately upon a material breach of the terms and conditions hereof. City and GOTC acknowledge that a material breach of this Agreement includes, but is not limited to: i. GOTC’s failure to maintain insurance requirements as required herein; ii. GOTC’s failure to be in good standing with the Secretary of State; iii. GOTC’s failure to provide the information needed for the Permit application; iv. Bankruptcy of insolvency of GOTC; v. Sale of GOTC or assignment of this Agreement; or vi. GOTC’s failure to comply with the terms and conditions hereof. 4. Representations of GOTC: GOTC represents and warrants to City that: i. It is a limited liability company organized under the laws of California and is in good standing; ii. That the insurance policies required herein are in full force and effect as of the Effective Date; and iii. CalTrans refuses to allow it to apply for the Permit and an authorized representative(s) of CalTrans is aware of this Agreement and the terms hereof. 5. Release. GOTC acknowledges and agrees that City is not, and shall not be, in any way liable for any damages or injuries that may be sustained as a result of City’s performance under this Agreement. GOTC further acknowledges that issuance of the Permit is subject to discretionary approval of CalTrans. GOTC does hereby release and forever discharge the City, its officials, officers and employees, from and agains t any and all claims, causes of action, demands and liability whatsoever, the undersigned now has or hereafter may have arising from or in any way related to the SLO Marathon event, City’s application for the Permit, and/ or City’s performance under this Agreement. GOTC, on behalf of itself, its successors, and assigns, expressly waive the benefit of section 1542 of the California Civil Code with respect 6.a Packet Pg. 29 At t a c h m e n t : a - A g r e e m e n t ( 1 2 4 1 : R a c e S L O a g r e e m e n t f o r C a l T r a n s p e r m i t ) 3 to all claims that arise from or relate to the this Agreement. Furthermore, GOTC, on behalf of itself, its predecessors, successors, and assigns, understand and acknowledge the significance and consequences of their specific waivers of section 1542 of the California Civil Code which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. 6. Insurance. GOTC shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the SLO Marathon event. i. Minimum scope of insurance. Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. ii. Minimum limits of insurance. GOTC shall maintain limits no less than: 1. General Liability: $2,000,000 per occurrence, $4,000,000 general aggregate for bodily injury, personal injury and property damage. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: $1,000,000 per accident for bodily injury or disease. iii. 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 GOTC shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. iv. Other insurance provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of 6.a Packet Pg. 30 At t a c h m e n t : a - A g r e e m e n t ( 1 2 4 1 : R a c e S L O a g r e e m e n t f o r C a l T r a n s p e r m i t ) 4 activities performed by or on behalf of GOTC; products and completed operations of GOTC; premises owned, occupied or used by GOTC; or automobiles owned, leased, hired or borrowed by GOTC. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official, employees, agents or volunteers. 2. For any claims related to this Agreement or the SLO Marathon event, GOTC's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of GOTC 's insurance and shall not contribute with it. 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers. 4. GOTC 's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. v. Acceptability of insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. vi. Verification of coverage. GOTC shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City. 7. Indemnity. To the fullest extent provided by law, GOTC shall indemnify, defend (with counsel reasonably acceptable to City) and hold harmless CITY, its officials, employees, agents and contractors (“Indemnitees”) from and against any and all liability, costs, expenses (including attorney’s fees), demands, lawsuits, arising from or related to the SLO Marathon, City’s application for and/ or the issuance of the Permit, and/ or City’s performance under this Agreement for: bodily injury and/ or 6.a Packet Pg. 31 At t a c h m e n t : a - A g r e e m e n t ( 1 2 4 1 : R a c e S L O a g r e e m e n t f o r C a l T r a n s p e r m i t ) 5 death to persons and damage to property of anyone. Except as provided by law, the indemnification provisions stated above shall apply regardless of the existence or degree of fault of Indemnitees. GOTC’s duty to indemnify City as provided herein shall survive termination of this Agreement. 8. Notices. Unless otherwise specified herein, any notice which any party may or is required to give shall be given by personal service or by depositing such notice with the U.S. Postal Service, postage pre-paid, to the mailing address given below, or at such other place as may be designated by the party in writing from time to time. Notice shall be effective upon the date of personal delivery or 3 days after date of mailing. If to City: City of San Luis Obispo Attn: Economic Development Director 990 Palm Street San Luis Obispo, CA 93401 With copy to: City of San Luis Obispo Attn: City Attorney 990 Palm Street San Luis Obispo, CA 93401 If to GOTC: Get Off the Couch, Potato Sports Productions, LLC 205 Suburban Rd. Ste. 6 San Luis Obispo, CA 93401 9. Relationship of Parties. GOTC shall not be considered a partner, agent, officer or employee of the City. GOTC's officers, members, affiliates, volunteers, employees and independent contractors shall not be considered agents, officers or employees of the City. 10. Construction. When the context of any provision requires it, the singular shall be held to include the plural, and the masculine shall be held to include the feminine gender. Should any provisions of this Agreement require judicial interpretation, it is understood by City and GOTC and agreed that a court interpreting or construing same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that the document is to be constructed more strictly against the party who prepared it sine the parties agree that both have participated in the preparation of this document with the assistance of counsel. 11. Authority to Sign and Binding Effect. The parties executing this Agreement personally warrant that they have the full authority to enter into this Agreement on behalf of the agency or entity for which they are signing, and that said agency or entity will be legally bound to the Agreement by their signature hereto. 6.a Packet Pg. 32 At t a c h m e n t : a - A g r e e m e n t ( 1 2 4 1 : R a c e S L O a g r e e m e n t f o r C a l T r a n s p e r m i t ) 6 12. Attorney’s Fees. In the event that suit, motion or application is brought by one party against another to declare rights under this Agreement, the prevailing party shall be entitled to recover their attorney’s fees and costs actually incurred 13. Counterparts. This Agreement may be executed in counterparts. 14. Entire Agreement. This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, are merged into this Agreement and shall be of no further force and effect. IN WITNESS WHEREOF, this Agreement is executed on the date above stated, at San Luis Obispo, California. City of San Luis Obispo By: ___________________________ Jan Marx, Mayor Attest: By: ___________________________ Traci R. McGinley, MMC City Clerk Approved as to Form: By:___________________________ J. Christine Dietrick, City Attorney Get Off the Couch, Potato Sports Productions, LLC By: _____________________________ Its: 6.a Packet Pg. 33 At t a c h m e n t : a - A g r e e m e n t ( 1 2 4 1 : R a c e S L O a g r e e m e n t f o r C a l T r a n s p e r m i t ) City of San Luis Obispo, Office of the City Council, 990 Palm Street, San Luis Obispo, CA, 93401-3249, 805.781.7114, slocity.org February 3, 2016 Encroachment Permits Office Caltrans District 5 50 Higuera Street San Luis Obispo, CA 93401 Re: Authorization of Agent for 2016 SLO Marathon + Half To Whom It May Concern, I, the undersigned, hereby authorize Samantha Pruitt of Get Off The Couch Potato Sports Productions, LLC (“Race SLO”), to act in all matters necessary with regards to the Encroachment Permit Application for the 2016 SLO Marathon + Half. Please contact Katie Lichtig, City Manager for the City of San Luis Obispo for any clarification or verification at (805) 781-7114. Sincerely, Jan Howell Marx Mayor 6.b Packet Pg. 34 At t a c h m e n t : b - A u t h o r i z a t i o n L e t t e r ( 1 2 4 1 : R a c e S L O a g r e e m e n t f o r C a l T r a n s p e r m i t ) 6.c Packet Pg. 35 At t a c h m e n t : c - 2 0 1 6 P r o p o s e d R a c e M a p ( 1 2 4 1 : R a c e S L O a g r e e m e n t f o r C a l T r a n s p e r m i t ) City of San Luis Obispo, Office of the City Council, 990 Palm Street, San Luis Obispo, CA, 93401-3249, 805.781.7114, slocity.org February 3, 2016 Encroachment Permits Office Caltrans District 5 50 Higuera Street San Luis Obispo, CA 93401 Re: Support for the 2016 SLO Marathon + Half On behalf of the City of San Luis Obispo and the community members we serve, I would like to express our support for the 2016 SLO Marathon + Half produced by Get Off The Couch Potato Sports Productions, LLC (a.k.a Race SLO). I would also like to acknowledge the support of the use of local roadways by the event participants. Over the past five years, the SLO Marathon + Half event has become an anticipated happening in and around the City of San Luis Obispo. This event directly supports our community values, contributes to the quality of life for residents, and serves as a draw for regional, national, and international visitors. The City of San Luis Obispo strongly supports this annual event in our community. We look forward to Caltrans’ approval of the necessary permits to make this event possible in 2016. Sincerely, Jan Howell Marx Mayor 6.d Packet Pg. 36 At t a c h m e n t : d - S u p p o r t L e t t e r ( 1 2 4 1 : R a c e S L O a g r e e m e n t f o r C a l T r a n s p e r m i t ) Page intentionally left blank.