IV.8. Overpass Skate Park Operational Agreement with Action Sports of Minnesota, Inc. dba The Third Lair; Olson (CR 2015-043) 1;g:
Date: 4/21/15 Cily of Hopkins Council Report 2015-043
Overpass Skate Park Operational Agreement With
Action Sports of Minnesota, Inc dba The Third Lair
Proposed Action
Staff recommends adoption of the following motion: Move to approve the Operators Agreement
between Action Sports of Minnesota, Inc dba The Third Lair and the City of Hopkins for the
operation of the Hopkins Overpass Skate Park for the 2015 - 2017 seasons.
Overview
Third Lair has operated the Overpass Skate Park under the terms of the operator's agreement
since 2005. The agreement presented in this report has Third Lair operating the park under the
same operator's agreement signed in 2012. Third Lair is proposing to operate the park with the
same public hours and at the same admission rates as 2014. The city's expenditure on new
equipment/improvements will remain the same as the 2012 agreement.
Primary Issues to Consider
• How does the 2015 Operators Agreement differ for the 2012 Operators Agreement?
• How will this agreement impact Hopkins residents and park users?
• Does the Operations Agreement meet the needs of the City?
Supporting Information
• Hopkins Overpass Skate Park Operating Agreement
• Overpass Skate Park Wavier and Attendance Records
QCi21.,
Don Olson
Pavilion Manager/
Athletic Complex Coordinator
Financial Impact: $ 7,000/year Budgeted: Y/N Yes_
Source: Park Dedication Fund
Notes:
How does the 2012 Operators Agreement differ from the 2015 agreement?
There are no changes in the agreement except for the term (dates) of the agreement.
How will this agreement impact Hopkins residents and park users?
The park will be open once again as a service to resident skaters &BMX bikers, giving them a
suitable place to practice their sport. The park provides a safe location in the community for
skaters &bikers, and creates a safe separation between skaters, pedestrians, and motor vehicles.
The addition of the new and redesigned equipment each year creates a new experience for those
who have used the park regularly in the past.
Does the Operations Agreement meet the needs of the City?
City Council has impressed upon staff that the Council would like to see a few key objectives
met- the skate park is open to the public as much as possible, that the price is affordable, and the
park is safe.
The Third Lair is committed to staffing the park on the same schedule as previous years and
opening more hours if there is demand for it. The park admission rate will be as affordable as in
years past. The Third Lair will carry the appropriate insurance as recommended to the City by the
League of Minnesota Cities Insurance Trust. The Third Lair's insurance provider will require the
use of liability waiver forms to be completed by all participants and require helmets and
encourage additional safety equipment by all participants.
With regards to the budget The Third Lair will pay all operating expenses associated with the
park and retain all the revenues generated from the park. The Operators Agreement eliminates
the City's direct expenses associated with the daily operations of the Overpass Skate Park.
For these reasons staff feels this agreement meets the needs of the City of Hopkins in the
operations of the Overpass Skate Park.
Current Hours of Operation and Rates
Hours
May 2—June 7 Sat & Sun: Noon—Dusk (Open weekends only)
June 8—September 4 Open 7 days a week: Noon—Dusk
September 5—October 25 Sat & Sun: Noon—Dusk(Open weekends only)
Rates
$8/day
$6/day resident discount rate (includes residents of Hopkins, Minnetonka, and St. Louis Park)
Hopkins Overpass Skate Park Operating Agreement
THIS AGREEMENT("Agreement")is made and entered into effective May 1,2015,by and between the
City of Hopkins,a municipal corporation under the laws of Minnesota("City")and Action Sports of Minnesota,Inc.,
a Minnesota corporation doing business as The Third Lair,("Operator").
The City operates a skate park facility,including the equipment,building,parking lot and other related
improvements,all located at 100 Washington Avenue South,Hopkins,Minnesota,known as the Overpass Skate Park
(the"Facility").The City owns the equipment located at the Facility and leases the Facility site("Premises")from
the Minnesota Department of Transportation("MNDOT").
The City and the Operator desire to enter into an Agreement setting forth the terms and conditions under
which the Operator will operate the Facility for and on behalf of the City.
The City and the Operator agree as follows:
1.The City hereby hires the Operator and the Operator hereby agrees to operate the Facility pursuant to the
terms of the Agreement.
2.Term. The term of this Agreement shall begin May 1,2015,and shall continue until October 31,2017,
unless earlier terminated by the City.The Operator acknowledges that the City has made no representations or
promises to the Operator regarding any renewal or extension of this Agreement.
3.Compensation. Neither the City nor the Operator shall make any direct payment to the other as
consideration for the Agreement.As sole compensation for all services to be performed hereunder,the Operator shall
receive and retain all revenues of the Facility,including rental or other charges for use of the facility,admission
charges,concessions,and income of any kind,subject to payment of expenses of the Facility as herein provided.
4.Expenses. The Operator shall pay all costs and expenses of any nature or kind whatsoever attributable to
the Facility or Premises during the term of this Agreement.These costs and expenses shall include,but are not
limited to the following:wages and insurance for all employees;utilities,including electricity,telephone,etc:
maintenance of the Facility and Premises,including but not limited to sweeping sidewalks and Premises;repair,
maintenance and upkeep of the building;repair,maintenance,and upkeep of all equipment and improvements to the
Facility and the Premises,either currently placed or to be placed on the Facility or Premises by either the City or
Operator,and;all insurance premiums relative to the Premises.It is specifically contemplated and understood by the
parties that by the terms of this section,the Owner shall not incur any financial responsibility relative to the Premises
during the term of this Agreement.
5. Taxes. Except as specifically provided herein,the Operator shall pay and discharge as they become due
all governmental charges on or against the Premises,or on or against the City by reason of its lease of the Premises.
The parties contemplate and intend that the Premises shall be and remain during the term of this agreement exempt
from general real estate taxes.If such taxes become payable upon the Premises during the term hereof,the Operator
shall pay or reimburse the City for the amount thereof,less that part of such taxes payable to or levied by the City of
Hopkins or any instrumentality thereof.
6.Use of Premises. Subject to other terms and provisions contained herein,and for the period of time
beginning each year of this Agreement on May 1 and continuing through October 31,the Operator shall cause the
Premises to be used for the following purposes and subject to the following restrictions:A skate park facility and any
use incidental thereto or any other use agreed upon in writing between the parties hereto.During the terms of the
Agreement or any renewal thereof,the Operator shall comply with all applicable laws affecting the Premises,
whether federal,state,or local.The Operator shall not commit or allow to be committed any waste on,destruction or
damage to,or nuisance on the Premises. Should the Operator commit or allow to be committed any waste on or
damage or destruction to the Premises,the Operator shall immediately restore the Premises to the original condition
of the Premises at the inception of this Agreement or as the Premises have been improved by either the City or
Operator,subject to ordinary wear and tear.The Operator must operate the Facility and Premises in strict compliance
with the terms of the MNDOT lease,a copy of which is attached hereto as Exhibit A.
7.Care of Premises. All care,maintenance,and repair of the Premises and all improvements currently
placed thereon or to be placed thereon shall be the sole responsibility of the Operator and shall be performed at the
Operator's expense.
8. City's Right to Enter. The Operator shall permit the City and the agents and employees of the City to
enter into and on the Premises at all reasonable times for any proper purpose.
9.Assignment and Subletting_ The Operator shall not assign this Agreement or let the Premises or any part
thereof,whether by voluntary act,operation of law,or otherwise,without the prior written consent of the City in each
instance,except that the Operator may permit use of the Facility,for rental,admission or other charges,in the normal
course of business,without such consent.Consent by the City to any assignment of this Agreement or to any letting
of the Premises or part thereof shall not be a waiver of the City's rights under this Agreement as to any subsequent
assignment or letting.The City's right to assign this Agreement is and shall remain unqualified and no assignment by
the City shall release the Operator of any of its obligations under this Agreement.
If the Operator is a corporation,any transfer of this Agreement through merger,consolidation,corporate
reorganization,or liquidation or any transfer,or hypothecation,shall constitute an assignment of this Agreement
requiring the prior written consent of the City.
10. Improvements and Alterations.Except as otherwise provided in Paragraph 10.A below,the Operator
shall not be permitted to make any improvements or alterations to the Premises without the prior written consent of
the City,except,however,the Operator shall,at its expense,make any repairs to the premises which are needed to
maintain the Premises in the same condition they were in at the inception of this Agreement or as improved,subject
to ordinary wear and tear.
A. The Operator shall acquire and install at the Facility the equipment described annually in Exhibit B
Improvements&New Equipment attached hereto(the"New Equipment").The New Equipment shall
not exceed a total price,installed,of$21,000.The Operator must acquire and install not less than
$7,000 of the New Equipment by May 31,2015,not less than$14,000 of the New Equipment by May
31,2016,and the balance of the New Equipment by May 31,2017.Failure to meet this condition is
cause for the City to terminate this Agreement. Prior to April 1 of each year of this Agreement,the
Operator shall provide the City with a Construction Plan detailing the New Equipment to be acquired
and installed by May 31 of that year.The City will reimburse the Operator for the New Equipment on
the following schedule:$7,000 on or before June 15,2015,upon receipt from the Operator of written
proof of acquisition and installation of New Equipment equal to or exceeding$7,000;an additional
$7,000 on June 15,2016,upon receipt from the Operator of written proof of acquisition and
installation of New Equipment equal to or exceeding at least$14,000;the fmal$7,000 on June 15,
2017,upon receipt from the Operator of written proof of acquisition and installation of New
Equipment equal to or exceeding at least$21,000. The Operator warrants that the New Equipment
will be free from defects in material and workmanship for a period of one year from the date the New
Equipment is installed.
11. Mechanic's Lien The Operator shall not permit any mechanic's lien,judgment or other lien of any type
to encumber the Premises.
12. Covenants to Hold Harmless. The Operator shall indemnify,defend,and hold harmless the City and its
agents and its employees from and against all claims,damages,losses,and expenses,including attorney's fees,
arising out of or resulting from the maintenance or use of the Premises,provided that any such claim,damage,loss,
expenses is attributable to bodily injury,sickness,disease or death,or to injury to or destruction of tangible property
(other than said property itself)including the loss of use resulting therefrom.The Operator also shall indemnify,
defend and hold harmless the City and its agents and its employees from and against any claims for costs or expenses
incurred to operate the Facility during this Agreement,said obligation to indemnify to include any attorney's fees
incurred by the City as a result of such a claim.
13. Insurance. A)Liability:The Operator shall maintain comprehensive general
liability insurance with a limit of not less than$1,000,000 per each occurrence and shall provide a certificate of
insurance showing evidence of such insurance before operating the Facility in any manner.This insurance shall cover
liability arising from premises operations,independent contractors,personal injury and advertising injury,and
contractually assumed liability.The City shall be named as an additional insured under the comprehensive liability
insurance.B)Workers'Compensation Insurance: The Operator shall provide a certificate of insurance showing
evidence of workers' compensation coverage or provide evidence of qualification as a self-insurer of workers'
compensation.
14.Default. In the event of any default of this Agreement by either party,which remains unremedied after
ten(10)days written notice specifying the default,the
aggrieved party may,in addition to any other rights or remedies it may have,by written notice declare this
Agreement to be terminated,in which case all rights and liabilities hereunder shall cease,and the Operator shall
forthwith surrender the Premises to the City.
15. Ownership of Improvements on Termination of Agreement. The City is and shall be the absolute
owner of any structures or other improvements of any nature or kind situated on the Premises at the beginning of the
Agreement or installed after the beginning of the Agreement,regardless of who placed such structures or other
improvements thereon,and specifically including but not limited to the New Equipment,and the Operator shall not
have any interest whatsoever therein.The City shall have no obligation to compensate the Operator for any monies
expended by the Operator for construction of structures or other improvements on the Premises other than for those
specifically requested in writing by the City.
16.Amendments,Modification,and Waiver. No amendment,modification,or waiver of any condition,
provision,or term of this agreement shall be valid or of any effect unless made in writing,signed by the party or
parties to be bound or it's duly authorized representative,and specifying with particularity the extent and nature of
such amendment,modification,or waiver.Any waiver by any party of any default of another party shall not affect or
impair any right arising from any subsequent default.
17.Notices. Any notice,demand,or other communication required or permitted to be given hereunder shall
be deemed delivered and effectively given when delivered personally to the representatives of the City and Operator
identified below or one(1)business day after being mailed by registered or certified mail,return receipt requested,
addressed as follows:
To City:City of Hopkins To Operator: The Third Lair
Attention:City Manager Attention:Mark Rodriguez
1010 First Street South 850 Florida Ave. S.
Hopkins,MN 55343 Golden Valley,MN 55426
Copy to:Kim Kozar
Hoff,Barry,&Kozar PA
775Prairie Center Drive
Suite 160
Eden Prairie,MN 55344
Either party may change its address or the identity of its designated representative named above by written notice to
the other party in the manner stated in this paragraph.
18.Miscellaneous Provisions:
a. The captions and headings used in this Agreement are used for convenience only and shall not be used in
construing or interpreting of this Agreement.
b. The Operator is an independent contractor of the City,and shall act only pursuant to and in accordance with
the terms of this Agreement.No provision of the Agreement,or any acts of the parties hereto,shall be
deemed to create a partnership or joint venture between the City and Operator.
c. This Agreement represents the entire Agreement between the City and the Operator with respect to its
subject matter,and supersedes all prior agreements between the parties related to the subject matter of this
agreement.Any amendment to this Agreement must be in writing and signed by both parties.
d. The Operator agrees that it shall comply with all state and federal codes,statutes,rules,regulations and
ordinances applicable to the performance of its duties and responsibilities under this Agreement.
e. Each and every provision of this Agreement is intended to be severable.If any term or provision hereof is
determined to be illegal or unenforceable for any reason whatsoever,such term or provision shall be
severed from this Agreement,and shall affect the validity of enforceability of the remaining terms and
provisions of this Agreement.
f. This Agreement shall be governed by,construed and enforced in accordance with the laws of the State of
Minnesota.
IN WITNESS WHEREOF,the parties hereto have executed and entered into this
Agreement effective as of the date first above written.
CITY OF HOPKINS ACTION SPORTS OF MINNESOTA,INC.
By By
Its Its
By By
Its Its
Overpass Skate Park Yearly Attendance Summary
2011 Yearly Totals Monthly
Sundays Mondays Tuesdays Wednesdays Thursdays Fridays Saturdays Totals
May 55 0 0 0 0 0 25 80
June 53 36 28 29 22 20 36 224
July 28 16 42 40 28 37 22 213
August 52 49 54 50 45 47 45 342
September 52 0 0 0 3 3 95 153
October 79 0 0 0 0 0 92 171
TOTAL 31 , 107 315
'r,:,,�.:_ .., . .: ., Monthly
Sundays Mondays Tuesdays Wednesdays Thursdays Fridays Saturdays Totals
May 29 0 0 0 0 0 50 79
June 49 40 28 57 9 33 53 269
July 39 43 59 18 24 34 43 260
August 17 26 19 56 43 66 16 243
September 46 0 0 0 0 0 47 93
October 16 0 0 0 i 0 0 20 36
TOTAL 196 133 229
2013 Yearly Totals Monthly
Ma Sundays' I Mondays' I Tuesdays I I 1 Wednesdays I I Thursdays' I Fridays I I Saturdays Totals
Y 0
June Closed For the Season Due To M nDot Bridge Work 0
July 0
August 0
September 0
OctobeTOTAL 0 11 0 I 1 0 I I 0 I 1 0 1 0 1 1 °
2014 Yearly Totals Monthly
Sundays Mondays Tuesdays Wednesdays Thursdays Fridays Saturdays Totals
May 12 0 0 0 0 0 30 42
June 83 52 40 21 17 41 17 271
July 44 70 48 58 41 50 40 351
August 52 66 53 62 55 41 43 372
September 33 0 0 0 0 0 33 66
October 43 0 0 0 0 0 43 86
TOTAL 267 188 141 141 113 132 206
Overpass Skate Park Waiver Records
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CO N
\eco .\0 °� J a ° a ���a °�G °� °�
Vaiver 1`el` 5 • G 0 O O O O , ,
2011 ' 29 19 25 20 3 15 165 39 9 1 73 251 324
2012 23 25 30 30 5 14 175 168 14 1 78 406 484
2013 closed for season due to bridge repair 0 0 0
2014 48 11 30 19 14 12 273 131 49 89 498 587