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CR 2004-072 Overpass Skate Park Operational Agreement With COmmunity Sports And Recreation CITY OF ~ . Date 5/12104 HOPKINS Council Report 2004-72 Overpass Skate Park Operational Agreement With Community Sports and Recreation Proposed Action Staff recommends adoption of the following motion: Move to approve the Operators Aqreement between Community Sports and Recreation and the City of Hopkins for the operation of the Hopkins Overpass Skate Park for the 2004 season, Overview As a part of the budget reduction efforts for 2004 the City Council instructed staff to find a means of operating the Overpass Skate Park that would have minimal or no cost to the General Fund, While staff was preparing to operate the park though grants and contributed revenues a local non-profit organization, Community Sports and Recreation (CSR), stepped forward and asked for an opportunity to make a proposal to operate the park for the City. CSR is proposing to operate the park with public hours similar to the hours of operation in previous years and at a per skater admissions price of less than previous years, Attached you will find the operational plans submitted by CSR as well as an Operations Agreement for Council approval. . Primary Issues to Consider . Why does Community Sports and Recreation want to operate the park? . How will this agreement impact Hopkins residents and park users? . Does the Operations Agreement meet the needs of the City? Supportina Information . Community Sports and Recreation's Operations & Financial Projections. . Hopkins Overpass Skate Park Operating Agreement JMo~ Facilities Director Financial Impact: $ 0 Budgeted: Y/N Source: - Related Documents (GIP, ERP, etc.): Notes: There is no budqet for the Overpass Skate Park for 2004 . Council Report 2004-72 Page 2 . Why does Community Sports and Recreation want to operate the park? CSR has been positioning themselves to create, or take advantage of, an opportunity to operate a facility that can act as a focal point to further CSR's mission. A facility like the Overpass Skate Park will give the organization the depth and substance that will help them not only with their mission, but help them financially. While financially CSR believes they can operate the park on at least a breakeven basis they also believe that having a physical base will help with mission related funding. The skate park for CSR is a necessary tool to use to meet their mission, From Community Sports and Recreation web site: "Since 1998 our organization has been providing programs for peoples ranging from ages 5-18+, Focusing on Diversity & Teens has won us praise in those we have helped and served. Leadership Development programs take place at all levels whether those people are at risk or not at risk, everyone comes from a wide range of cultures, backgrounds, & upbringings, Everyone benefits from leadership development, it brings them together as a group, it gives them something positive to focus on, with a challenge to overcome, they become & are great team players, peer mediators, help each other out, and the younger youth learn from the older & imitate the positive interactions vs. the negatives that can be learned, We accomplish this through youth sports, teen leadership, and programs in Traditional, Alternative, & Extreme sports & recreational programming. Dealing with . such diversity is a struggle, and a challenge and one that is worth fighting for..... for the benefits far outweigh the consequence. For the hundreds and thousands that our organization interacts with, it is a divine challenge not having a facility of our own in which programming can be tailored for purposes on our level and time frame, without working around other people's gym time use, schedules, space time, etc, The other challenge is dealing with the use of tobacco products (cigarettes), drugs, alcohol, & gang affiliations, and the increase is amongst minors, We target such groups, and not having our own facility/facilities hampers our competition with the world of teen/youth using cigarettes, drugs, alcohol, and gang affiliations. They want a place to call their own, a place in which their words will help make a difference, I know from life experiences (about founder section), A facility/facilities of our own can accomplish a great deal. Focusing on teen issues whether at risk or not at risk, we can tailor programs towards them. It's what we have done since our founding at other locations with limited time frames & space in which to accomplish tasks/goals, And it is hard to do with out a central location, a place to call home of our own. We are a program and organization that helps many and can do a lot more with a bigger impact, we know how to, we know we can do it, with a facility of our own." How will this aQreement impact Hopkins residents and park users? . The park will be open once again as a service to resident skaters, giving them a place to practice their sport. The park provides a safe place in the community for skaters, and Council Report 2004-72 Page 3 . creates a safe separation between skaters, pedestrians, and motor vehicles. Staff's model of funding the park with contributed revenues and grants was heading toward a season of limited hours and the season would be cut short if funding goals were not met. With CSR's connection to the extreme sport community and use of volunteers they intend to be open a full schedule of hours and days. CSR is proposing an admissions charge of $2.00 per resident and $3,00 per non- resident. CSR intends to provide more opportunities for instruction and more special events. In 2003 the City charged skaters $5.00 for residents, $6,00 for non-resident admission, and in 2003 most lessons and events were cancelled. The primary reason lessons and events were cancelled is staff worked through third party providers who had litUe to lose if the programs were not successful. CSR's success depends on the success of the skate park and as an insider in the world of extreme sports CSR should be more successful in attracting and retaining skaters. So the skaters are more likely to be able to use the park more and at the lowest rate ever with CSR operating the park. Does the Operations AQreement meet the needs of the City? In past Overpass Skate Park budgeting meetings the City Council has impressed upon staff that for the good of the community Council would like to see a few key objectives met. These objectives include that the skate park be open to the public as much as possible, that the price is affordable, the park is safe, and the budget breaks even. . CSR is making a commitment to be open as much as previous years and more if successful. The park admission rate will be more affordable than in years past. CSR will carry the appropriate insurance as recommended to the City by the League of Minnesota Cities Insurance Trust. The City Attorneys office reviewed and made the necessary revisions to the Operators Agreement to address the City's safety and insurance concerns. CSR'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, CSR has paid staff and volunteer pool they call the "CSR Crew" that will staff the park, so we expect park supervision to be at the level of past supervision or above. With regards to the budget CSR will pay all expenses associated with operating the park and retain all the revenues generated from the park, The Operators Agreement will eliminate the City's direct expenses associated with the operations of the Overpass Skate Park. The last sentence of Section 4, EXPENSES, sums up the paragraph by stating "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" CSR will retain all revenues from the park as the City's payment to CSR to operate the park. Revenues have not exceeded expenses at the park since the summer of 2000, . The agreement is a one-season agreement " -I[ ~ -Ii Q) ::l 0 n -=1[ u Q) eo, -. y ~ ~' QJ , , ~ ~ 0 -I[ 0 ~C' ro =' Cl (ji, ~ " =.t 0 ~ = ~, ct' -{ e . . . . 0 0 Cf) r-- en Cf) ~ :s: -c ""'0 CD ^ CD ^ C) 0 CD m en OJ Q) ~ :l ~ ---. . ~ ~ ~ C/) ,...-+. " -... CD 0 1:: CD ---. . c. :;j OJ ~ ~ tQ ::J --. Q) t'""""'f- CO a.. OJ CD -- ~ Q) CI) ~ :J: 0 Qo '< Qo -...........:.. I 0 :J OJ I OJ ." t: (j) - - .., OJ (fJ OJ .., t/) -. 0... r: 0.. c. 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""'- --, CD 0? r-;.. ~ t-.;.. -n -6A- CD a ~ --.. :::; Q CD 0 CI) CD . 0 , ::::3 U "U Q) (t) ..., ~ CD "'""+0. "'0 CD U w ..., '"b 0) CD Q. \ ~ ~ 0- -.... , 1""'+ '< f'l -. (') en CD -. r en u z ~ Q) CD - ~ Q) '-I r-t- "'"\ (f) . .n.__ . Hopkins Overpass Skate Park Operating Agreement TIDS AGREEMENT ("Agreement") is made and entered into effective as of the day of ,2004, by and between the City of Hopkins, a municipal corporation under the laws of Minnesota ("City") and Community Sports and Recreation, a non-profit corporation under the laws of Minnesota ("Operator") i , I The City operates a skate park facility, including the equipment, building, parking lot and other related improvements, all located at 100 Washington A venue 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 the Agreement for the purpose of stating 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, 2, Term. The term of this Agreement shall commence on May _,2004, and shall continue until October , 2004, unless earlier terminated by the City, The Operator acknowledges that the City's lease with MNDOT expires in 2004 and the City has made no representations or promises to the Operator regarding any renewal or extension of the MNDOT lease, 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 payor 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, 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. S, 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 of Letting, 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, la, Improvements and Alterations, 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. 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 th~efrom, 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. Insurance, A) Liability: The Operator shall maintain comprehensive general 13, 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, ]4, 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 ofImprovements on Termination of Agreement. On termination of this agreement for any cause, the City shall be the absolute owner of any structures or . other improvements of any nature or kind situated on the Premises, regardless of who placed such structures or other improvements thereon, and the Operator shall not -- ---- -- -------- . thereafter 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. 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: To Operator: City of Hopkins Community Sports and Recreation Attention: City Manager 1010 First Street South Hopkins, MN 55343 . Copy to: Wynn Curtiss Miller, Steiner & Curtiss, P,A. 1011 First St. S, #400 Hopkins, MN 55343 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, nor 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, MINNESOTA COMMUNITY SPORTS AND RECREATION By By . Its Its By By Its Its .