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Minutes - 2008 - City Council - 01/15/2008 - Regular EAGLE CITY COUNCIL Minutes January 15, 2008 PRE-COUNCIL AGENDA: 6:30 p.m. - 7:30 p.m. A. Presentation to Capt. Dana Borgquist. Mayor introduces the issue. Mayor Bandy presents Capt. Dana Borgquist a golf print for his new office which was signed on the back by Mayor, Council, and Staff and thanks him for a job well done while serving the City of Eagle. Capt. Dana Borgquist thanks the Mayor and Council. General discussion. B. Discussion of liaison positions. Mayor introduces the issue. General discussion on the liaison positions for the Council Members. Mayor will update his spreadsheet and e-mail to everyone. Mayor calls a recess at 7:25 p.m. REGULAR COUNCIL AGENDA: 7:30 p.m. 1. CALL TO ORDER: Mayor Bandy calls the meeting to order at 7:30 p.m. 2. ROLL CALL: GUERBER, HUFFAKER, SHOUSHTARIAN, SEMANKO. All present. A quorum is present. 3. PLEDGE OF ALLEGIANCE: Cade Anderson and Cameron Daley leads the Pledge of Allegiance. 4. PUBLIC COMMENT: Frank Thomason inquires about televising the City meetings. General discussion. City Attorney Buxton: I need to have you amend the Agenda for threatened litigation regarding the Urban Renewal District and the Meridian School District. So Moved by Semanko. Seconded by Guerber. ALL AYES: MOTION CARRIES............ 5. UNFINISHED BUSINESS: A. Review and discussion of Council Liaison positions for 2008: Mayor introduces the issue. Guerber moves to continue Review and discussion of Council Liaison positions for 2008 to the January 22, 2008 City Council meeting. Seconded by Huffaker. ALL AYES: MOTION CARRIES................ B. Review and Consideration ofVelodrome Concessionaire a2:reement: This item was continued/rom the January 7,2008 meeting. (SEB) Mayor introduces the issue. Page I K:ICOUN CIL IMINUTESI2008ICC-O 1-IS-08min.doc City Attorney Buxton: Provides the Council an overview of the agreement. What you have before us is our recommended agreement. We have not heard back from Ada County. Discussion on the Construction Management Agreement with Wright Brothers and the Task Order No.1. I am still waiting for Wright Brothers to provide me this agreement for review. We have added $5,000.00 for field engineering and architect services. This would be an agreement for $135,000.00. General discussion. Dave Beck, President Velodrome Association, there is also an escape clause at the end of the bids so the City can reject bids if they so desire. We are confident that we can have a significant amount of in-kind contributions so our out of pocket is significant less. General discussion. Guerber moves to approve the Velodrome Concessionaire and Operations Lease document providing approval of the Mayor to sign the Contract contingent upon receipt of the Construction Management Documents signed by Wright Brothers Construction Company and receipt of the Letter of Support from Ada County. Seconded by Huffaker. Guerber: AYE; Huffaker: AYE; Shoushtarian: AYE; Semanko: ALL AYES: MOTION CARRIES................. . C. Approval of Brookwood Well Payment ReQuest. (ME) Mayor introduces the issue. Discussion on the payment request. Huffaker moves to continue Approval of Brookwood Well Payment Request to the January 22, 2008 city Council meeting. Seconded by Semanko. ALL AYES: MOTION CARRIES........ 6. PUBLIC HEARINGS: None 7. NEW BUSINESS: A. Ordinance No. 588 - Adoptin2: the 2006 International Residential Buildin2: Code: An Ordinance Of The City Of Eagle, Idaho, A Municipal Corporation Of The State Of Idaho, Repealing Title 7, Chapter I Of The Eagle City Code; Adopting The 2006 International Building Code And The 2006 International Residential Code (Parts I Through Iv And Ix); Amending Or Deleting Certain Sections Of The 2006 International Building Code; Amending Or Deleting Certain Sections Of The 2006 International Residential Code; Approving The Summary Of This Ordinance; And Providing An Effective Date For Adoption. (MM) Mayor introduces the issue. Mike Mongelli, Building Official, provides Council an overview of the International Residential Building Code. General discussion. Guerber that we consider the first reading of Ordinance #588 and that Ordinance #588 be considered after being read once by title only. Guerber reads Ordinance # 588 by title only. This will be considered the first reading and that this item be added to the Agenda for the January 22, 2008 City Council meeting. General discussion. Seconded by Huffaker. ALL AYES: MOTION CARRIES................. B. Ordinance No. 593 - Adoptin2: the 2006 Ener2:V Code: (MM) Page 2 K:ICOUN CIL IMINUTESI2008ICC-O 1-IS-08min.doc Mayor introduces the issue. Mike Mongelli, Building Official, provides Council an overview of the 2006 Energy Code. Guerber moves, pursuant to Idaho Code, Section 50-902, that the rule requiring Ordinances to be read on three different days with one reading to be in full be dispensed with, and that Ordinance #593 be considered after being read once by title only. Guerber reads Ordinance #593 by title only. Seconded by Semanko. General discussion. Guerber withdraws the Motion, Second concurs. City Attorney: Someone needs to read just the Title only. Guerber moves that Ordinance #593 be considered as having been read in its entirety with the reading of the Title. Guerber reads Ordinance by title. Upon this first reading this Ordinance be continued to the January 22, 2008 City Council meeting for consideration of the second reading. Seconded by Semanko. ALL AYES: MOTION CARRIES............. 8. REPORTS: Mayor and Council's Report: Mayor: Discusses the January 9th meeting with Eagle Water's Staff. This was a good meeting. Discusses the meeting with Corridor Preservation Committee. Planner Baird Spencer provides an overview of the Committee and discusses their mission. General discussion. I meet with Eagle Chamber on the planning of the Eagle Fun Days, the event will be the 13t\ 14th and 15th of June this year and it will fall on Father's Day week-end and Flag Day. We are coordinating this with the Field of Honor. The theme this year is Flags of our Fathers. The Kiwanis are going to coordinate the Field of Honor and the Chamber will be doing the Fun Days. The parade will have a new route. Friday night we will try to do some type of classic car cruise and some entertainment. I met with the Boise Metro Chamber Board Directors and Board of Advisers. The Board of Advisers includes elected officials from throughout the Valley and they meet on a quarterly basis. I received updates and the Boise Valley Economic Partnership and the Local Option Legislation and the Small Business Success Center. Discusses the meeting with Sharon and Ron Baker to discuss the Comp and Class Study for the City of Eagle. We will be signing that contract. Discusses the meeting with the Open Space Task Force. Discusses the meeting with Mayor's Youth Action Committee. I met with Mat Stoel with Compass this morning. We discussed the Local Option Taxes. Discussion on the meeting. They will be willing to come in talk to us at Pre-Council next week. Discusses a meeting on Eagle Island State Park. Mayor: Discusses a joint meeting on the 5th Monday of the month. Mat Stoel would be willing to do a Compass overview at this meeting. Also, there has been some discussion on starting our meetings early. Ifwe do this we have to change the Code and have some lag time for public notices. Page 3 K:ICOUN CIL IMINUTESI2008ICC-O 1-IS-08min.doc Discussion on the joint meeting on January 28,2008 and the agenda. General discussion. If you have agenda items for this meeting send them to me. Discussion on having an orientation for the new Council Members. The meeting on January 28,2008 will meet at 5:00 p.m. and dinner will be provided. Discussion on the Chamber Reception on January 28th. Council concurs to have the Meeting on Tuesday, January 29,2008 at 5:00 p.m. Discussion on starting the meetings at 6:00 p.m. Mayor and Susan will discuss this and bring it back to the City Council. Discussion on having a cut off for Council meetings. Matt Stoel would like to have personal contact information for the Council. General discussion. Council concurs that it would be all right to provide this information. Discussion on the meeting with Denise VanDoren, editor of the Eagle Independent newspaper that comes out monthly. She would like to profile each of the Council Members this year. She would like to have head shots of everyone. She will be contacting each of you to do a short profile in the near future and she has also asked me to do column for the paper. General discussion on meetings. Discussion on the Local Option Tax. Guerber: Parks and Pathways meet tomorrow night. Norm and Mike will be attending the meeting. Historical Commission met on Wednesday. Discussion on the Commission requesting the $3,500 for printing the Arthur Hart book. I got an e-mail today and two people made a contribution towards the $3,500.00. Wayne and Jayne Crosby made a contribution of$3,000.00 so they now have the money to proceed with the book. Fire Department is opening a new station on Linder Road in April. They will have a graduation of 12 firemen on March I st here at City Hall. Discussion on the Performing Art Committee on building a performing art center here in Eagle. If you, Mike, wants to take this on that would be all right or we both can be involved. Semanko: I would like to have someone come before the Council to discuss how to ride the bus. General discussion. I was contacted Donna Marie Hayes with Water Shed Center, she would like to be on a Pre- Council. January 31 st is the AIC Legislation luncheon. Huffaker: I have a couple of things that I would like to see added to a pre-council agenda or the joint meeting on the 29th. One of our priorities should be to see if we can arrive at an idea of what we want to see downtown. I would also like to discuss public relations in general and to discuss other ways that we can increase communication both ways. I would also like to discuss the current status of our Public Facilities Ordinance. Shoushtarian: I would like to see Council be able to evaluate applications up front and that Council and the Mayor get together with Planning and Zoning about the vision we have for Eagle. Mayor: Nichole is working on a flow chart on how an application moves through the process. Page 4 K:ICOUN CIL IMINUTESI2008ICC-O 1-IS-08min.doc City Clerk/Treasurer Report: No report City Attorney Report: Discussion on a Joint Powers Agreement with lTD. I am meeting on Thursday in regards to an access to the By-Pass. General discussion. Zoning Administrator's Report: We have been preparing a Strategic Plan for the upcoming year. We would like to meet with Council and go over this. We are doing some visioning and goal sharing in our Department. Planner Baird Spencer: Discusses the Corridor Preservation. I had a meeting with Ada County Commissioners on the Northwest Ada County Transportation Plan for the Foothills. Discussion on the meeting. Mike Echeita: No report City Engineer Report, Vern Brewer: Testing the reservoir is still on going. Testing of the wells at Eaglefield and Legacy sites has proceeded and they do flow in excess at both wells. We are running a joint test tomorrow morning. We are evaluating the SCADA proposals. The dollar amounts were quite close however there were two software proposals. We will be evaluating further before we make a recommendation to the Council. + I have kept the Mayor apprised of the ongoing consent issues with the Eagle Water Company. Discussion on the issues with Eagle Water Company. There is a Public Works Committee meeting scheduled for Thursday afternoon. Frank Thomason, Valley Times: Discussion on Customer Appreciation Days. We would like to have some comments from the Council in regards to the Customer Appreciation Days I will need it before February 4th. In the past we have had a Mayor's statement but if you all want to put your thoughts into a combined statement that would work or you can each do your own statement. This needs to be sent to the Chamber and will be published in the paper. Shoushtarian: I just want to thank Staff for helping us get familiar with everything and working with us to get us educated. 9. EXECUTIVE SESSION: Mayor introduces the issue. Guerber moves pursuant I.c. 67-2345(f) to go into Executive Session for the discussion of pending or threatened litigation, in regards to Urban Renewal and the Meridian School District. Seconded by Semanko. Guerber: AYE; Huffaker: AYE; Shoushtarian: AYE; Semanko: ALL AYES: MOTION CARRIES......... Council goes into Executive Session at 9:35 p.m. Council discusses pending and threatened litigation in regards to Urban Renewal and the Meridian School District. Council leaves Executive Session at 9:50 p.m. 10. ADJOURNMENT: Mayor: I will entertain a Motion to adjourn. Page 5 K:ICOUN CIL IMINUTESI2008ICC-O 1-IS-08min.doc So moved by Semanko. Seconded by Huffaker. ALL AYES: MOTION <=A~ES............ Hearing no further business, the Council meeting adjourned at 9:50 p.m. Respectfully submitted: SHARON K. BERGMANN CITY CLERK/TREASURER APPROVED: PHILLIP 1. BANDY MAYOR A TRANSCRIBABLE RECORD OF THIS MEETING IS AVAILABLE AT EAGLE CITY HALL Page 6 K:ICOUN CIL IMINUTESI2008ICC-O 1-IS-08min.doc So moved by Semanko. Seconded by Huffaker. ALL A YES: MOTION <:~~~S;............ Hearing no further business, the Council meetin!! adjourned at 9:50 p.m. ,".........", . ~ ~ Res ctfully submItt ~~......J Of BAO,"", ~, ..c~ ......... "'.io.. " ..' ,""" .. V" , ! VI ",yORAl':.. \ : _ o~ v. . . -v."" . : . : : : .. : ~... .- : . - AL . ~ \ SEt' -loE ~ e. /". ,~.. ~ -~ .". "or <;l _ . 'lo.: , ~ V"A ..iRI'OH~~... .:!-T ~ *- ~. ...... <"\ ~y ~ #### -11'8 Of \v ......' '" ,,, 'I", ..II"" PHILLIP J. BANDY MAYOR A TRANSCRIBABLE RECORD OF THIS MEETING IS AVAILABLE AT EAGLE CITY HALL Page 6 K:\COUNCIL~1INUTES\ Temporary Minutes Work Area\CC -01-1 S-08min.doc City of Eagle DEVELOPMENT AND SUBLEASE AGREEMENT By and Between THE CITY OF EAGLE an Idaho municipal corporation, and THE IDAHO VELODROME AND CYCLING PARK ASSOCIATION, INC., an Idaho non-profit corporation, THIS AGREEMENT made and entered into the day of , 2008, by and between the City of Eagle, Idaho an Idaho municipal corporation, hereinafter called "CITY," and the Idaho Velodrome and Cycling Park Association, Inc., an Idaho non-profit corporation, hereinafter called "IVCPA,". WHEREAS, the CITY is an Idaho municipal corporation of the State of Idaho, and; WHEREAS, the IVCPA is an Idaho non-profit corporation, comprised of members of the local cycling community, who have organized for the purpose of constructing and operating a multi -discipline, dedicated cycling park to serve the residents of, and visitors to, the Treasure Valley, and; WHEREAS, IVCPA and the CITY desire to cooperate to improve recreation opportunities by creating a facility which can be used by cyclists at all levels, abilities, and age groups, and; WHEREAS, the CITY leases Eagle Sports Complex from ADA COUNTY, and IVCPA desires to locate the proposed cycling park within the Eagle Sports Complex and; WHEREAS, the CITY is willing, upon certain terms and conditions to sublease a portion of the Eagle Sports Complex to IVCPA for a period of time upon the terms and conditions as set forth in this Agreement, and; WHEREAS, the CITY has developed and approved a revised Master Plan for the Idaho Velodrome and Cycling Park, hereinafter called "Project," and; K:CLERKS/CONTRACTS/2008 Page 9 WHEREAS, IVCPA has secured donations for the design review process for the Project and has successfully raised Five Hundred Thousand Dollars ($500,000.00) of cash and in-kind donations for the development of Phase I of the site now known as the Eagle Sports Complex, which site design is substantially complete, and; WHEREAS, IVCPA intends to continue raising in-kind donations and to pursue other donations and sources of funding in order to meet project needs, and; WHEREAS, IVCPA desires to partner with the CITY, with the intent of seeking and raising additional funding and securing donations for the development of the Project, and; WHEREAS, the CITY desires to assist IVCPA as provided for in this Agreement, and; NOW THEREFORE, in consideration of mutual agreements and covenants contained herein, the parties agree as follows: TERMS OF DEVELOPMENT AND SUBLEASE AGREEMENT 1. DEFINITIONS. The following terms as used in this Development and Sublease Agreement, hereinafter called "Agreement," shall have the meanings hereinafter set forth: a. Grantor: City of Eagle, an Idaho municipal corporation, whose address is PO Box 1520, Eagle, ID 83616. b. Grantee: Idaho Velodrome and Cycling Park Association, Inc., an Idaho non-profit corporation, IVCPA whose address is 1001 West Idaho, Suite 400, Boise, Idaho 83702. c. Lessor: Ada County, Idaho, a duly organized and existing County under the laws and constitution of the State of Idaho, the owner of the Premises, which it has leased to the City of Eagle. d. Premises: The specified parcel of land, situated in the County of Ada, State of Idaho, more particularly described in Exhibit A attached hereto. e. Project: Multidiscipline, dedicated public cycling park, consisting of cycling specific infrastructure (as defined below) and shared facilities (as defined below). f. Cycling Specific Facilities: The following cycling -specific facilities will be located on the Premises: (i) Dirt tracks and pathways including, but not limited to, the following: four cross track, dual slalom course, jump line, pump track, bmx track, skills park, cross country trails, cyclocross track, short track mountain bike course, associated kiosks, trailheads and signs; K:CLERKS/CONTRACTS/2008 Page 9 (ii) Velodrome track, to include infield elements, access tunnel, seating and other associated components; (iii) Velodrome building, to include space for office, locker, food concession, pro shop, training, workout, storage, bathroom and other facilities. g. Shared Facilities: Those Project facilities/improvements located on the Premises which are not cycling -specific, including, but not limited to, landscaping, irrigation, parking, public restrooms, playing fields, utilities, lighting, signage and the like. 2. USE. For and in consideration of promises contained herein, and other good and valuable consideration, CITY hereby grants to IVCPA a Sublease to use the Premises for the purpose of the Project, as provided for herein, and for no other purposes. Except as otherwise provided in this Sublease, the IVCPA and the agents and employees of the IVCPA will only use the Subleased Premises for a purpose consistent with the permitted use further described in this Agreement. Further, the provisions of the Sublease Agreement are subject to the terms and conditions of the Master Lease Agreement entered into between CITY and COUNTY, a copy of which is attached hereto as Exhibit B and incorporated herein by reference. 3. SUBLEASE SUBJECT TO MASTER LEASE WITH ADA COUNTY. This Agreement is subject to, and IVCPA accepts the Agreement is subject to, all of the terms, covenants, provisions, conditions and agreements contained in the Master Lease, except as modified and amended by this Agreement. IVCPA covenants and agrees: (i) to perform and to observe all of the terms, covenants, conditions and agreements of the Master Lease on CITY's part to be performed to the extent the same are applicable to the Premises and are not modified or amended by this Agreement; (ii) that IVCPA will not do or cause to be done or suffer or permit any act or thing to be done which would or might cause the Master Lease or the rights of CITY, as tenant under the Lease, to be cancelled, terminated or forfeited or which would or might make CITY liable for any damages, claims or penalties; and (iii) to indemnify and hold CITY harmless of, from and against any and all liabilities, losses, damages, suits, penalties, claims and demands of every kind or nature (including, without being limited thereto, reasonable attorneys' fees and expenses of defense by reason thereof) arising from a breach of this Agreement and the intentional or negligent acts of the IVCPA, its agents, contractors and employees. All of the terms, covenants and agreements of the Master Lease, to the extent applicable to the Premises, are incorporated in and made a part of this Agreement as though fully set forth herein except as modified and amended by this Agreement. 4. TERM OF AGREEMENT. The term of this Agreement shall be twenty-five (25) years, renewable for an additional twenty-five (25) years, upon the written mutual agreement of the parties. This Agreement shall be effective upon execution by the parties. 5. CONSIDERATION. Consideration for this Agreement shall be the operation and K:CLERKS/CONTRACTS/2008 Page 9 maintenance of the Project by IVCPA forpublic park and recreational purposes for the benefit of the City of Eagle, the County of Ada, and the general public in accordance with the terms and conditions as set forth herein. 6. PROJECT SITE. IVCPA acknowledges that it has inspected the Premises, knows its condition, and understands that the same is subleased to IVCPA without any representation or warranties whatsoever and without obligation on the part of CITY to make any alterations, repairs, or additions thereto, unless specifically set forth in this Agreement. CITY makes no warranty or promise as to the condition, safety, usefulness, or habitability of the Premises and IVCPA accepts Premises as is; 7. DEVELOPMENT AND USE OF PREMISES. The City has appropriated (FY 07- 08) funds not to exceed one million dollars ($1,000,000.00) for the construction of the shared facilities for the Project. Any additional amounts to be provided by the City must be appropriated as required by law at the sole discretion of the City. The City hereby reserves the right to reject all bids in relation to the project. IVCPA shall assist in the construction of the Project by raising funds, identifying in-kind donations, providing design, and other assistance. IVCPA shall provide all funding, or in-kind contributions, to complete the cycling -specific facilities under this Agreement, which shall, in no event, be in an amount not less than five hundred thousand dollars ($500,000). a. Development. The development of the Project shall consist of developing the cycling - specific and shared facilities as defined herein. b. Cycling -specific Infrastructure. With the exception of a $10,000 contribution previously approved and provided by CITY, IVCPA shall provide all funding necessary for the construction of all cycling -specific facilities located on the Premises. c. Shared Facilities. CITY shall contribute funding for the construction of the shared facilities located on the Premises in an amount not to exceed one million dollars ($1,000,000.00) as described in Paragraph 7 herein. Should the completion of the shared facilities require funds in excess of one million dollars ($1,000,000.00) any additional amounts provided by the City must be appropriated as required by law at the City's sole discretion. Should the shared facilities be completed in an amount less than one million dollars ($1,000,000.00) either through cost -savings or in-kind donations, any residual of the City's contributed amount of one million dollars ($1,000,000.00) maybe utilized to complete the construction of the cycling -specific infrastructure, without any requirement of reimbursement by the IVCPA. However, IVCPA acknowledges and agrees that any funds provided by CITY for construction of cycling -specific facilities in excess of one million dollars ($1,000,000.00) shall be reimbursed by IVCPA within one (1) year from the time said funds are expended by the City or said funds shall be reimbursed to the City through user K:CLERKS/CONTRACTS/2008 Page 9 fees generated pursuant to this Agreement. d. Duty to Inspect. IVCPA shall be under a duty throughout the duration of this Agreement to reasonably inspect the cycling -specific facilities for dangerous conditions and/or hazards, hidden or otherwise, and to make reasonable efforts to repair any discovered dangerous condition or hazard or immediately make such condition or hazards obvious to persons who might encounter the same. Further, IVCPA shall clean up all litter associated with its use of the cycling specific facilities of the project and the concessions facility. Any damage to the Premises by IVCPA or its invitees shall be the responsibility of IVCPA. e. Limitation of City's Contribution. IVCPA acknowledges, understands, and agrees that CITY has no obligation to pay for construction of any portion of the Project unless specifically set forth in this Agreement. f. Phases. Development of the Project shall be in two phases, and shall be completed within three (3) years of the date of execution of this Agreement. Three (3) additional years may be granted if necessary, at the discretion of CITY, so long as IVCPA can demonstrate its good faith efforts to raise funds and make reasonable progress toward completion of the Velodrome. i. Phase I shall include the construction of the parking area, landscaping, irrigation, dirt trails and Velodrome track. This phase is scheduled for final completion in 2008. ii. Phase II shall include the construction of the Velodrome building and other cycling infrastructure. g. Storage. IVCPA shall have the right to build and maintain storage buildings that are consistent with the terms of this Agreement and CITY's approved Park Master Plan. h. Limited Use. IVCPA shall not use or permit the use of the Premises for any other purpose, other than the purpose stated in this Agreement, without the express written consent of CITY. i. Development in Compliance with Eagle City Code. IVCPA agrees to design the Project to CITY park construction specifications in compliance with Eagle City Code. Before construction begins, all construction must be approved by the City with all applicable permitting requirements fulfilled. j. Maintenance of Shared Facilities. CITY agrees to perform upkeep, repair and maintenance on all shared facilities located on the premises other than upkeep and cleaning of the concessionaire. K: CLERKS/CONTRACTS/2008 Page 9 k. Open to Public Use. The Project is to remain open to public use when not scheduled for organized use by the IVCPA. When scheduling organized use IVCPA shall do so in a fashion that allows use of the facilities by the public at reasonable times. 1. Signage. IVCPA shall maintain proper and adequate signage reflecting safety concerns, and the rights, duties, and obligations of those using cycling -specific infrastructure. m. Schedule. IVCPA acknowledges, understands, and agrees that a monthly schedule of Project events will be given to CITY within a reasonable period of time so that CITY may post the schedule on its website and in the City Council building for public view. n. Sponsorship Approval. IVCPA acknowledges, understands, and agrees that IVCPA must submit all proposed sponsorships to the City for prior approval, which approval shall not be unreasonably withheld, delayed or denied. o. Use of Proiect Buildings. IVCPA shall have sole and exclusive use of the interior of the Project buildings, and all personal property stored in such buildings is the property of IVCPA. The CITY maintains the right to schedule and reserve site facilities when not scheduled for organized use by the IVCPA. p. Concessionaire Facility. IVCPA shall be permitted to exclusively operate and maintain a food concession on the Premises. Maintenance and operation of concession operation shall include, but shall not be limited to: maintain the interior and exterior of the concession area, obtain all permits and operate the concession to all municipal, county, state, and federal standards for food operation; schedule, staff, and manage concession operations; remove and properly dispose of litter generated from the concession operation; pay all costs of operation including utilities. Revenue generated from the concession is to be utilized for cycling park operation and maintenance. IVCPA shall indemnify and hold the City harmless for all intentional and/or negligent acts of the IVCPA or its agents in its responsibilities to manage, operate, and maintain the concession. q. Master Plan. IVCPA shall submit to CITY for approval a detailed Master Plan including detailed specifications for construction of all site improvements to the Premises. r. Inspections. IVCPA shall provide Project inspections during construction to ensure all improvements are constructed to approved specifications. s. Proiect Site Maintenance. IVCPA shall perform all site maintenance on the cycling - specific facilities of the Project, including, but not limited to, repair, upkeep and maintenance of the Velodrome track and dirt tracks, as well as the cycling park building and other cycling K:CLERKS/CONTRACTS/2008 Page 9 infrastructure. IVCPA shall have no responsibility to repair or maintain shared facilities. IVCPA shall remove all trash and debris on all shared facilities following IVCPA events. t. Utilities. IVCPA agrees to pay all utilities and fees associated with the cycling specific infrastructure on the Premises and the concession facility. 8. SURRENDER UPON EXPIRATION OR TERMINATION. Upon expiration or termination of this Agreement, IVCPA shall surrender possession of the Project to CITY in the condition of the Premises at such expiration date, including any permanent improvements, including the cycling park facilities, that IVCPA placed or constructed on the Project shall not be removed prior thereto, which shall revert to ownership and control of the CITY. 9. ASSIGNMENT, SUBLEASE, OR TRANSFER. This Agreement may not be assigned, transferred, or subletted in whole or in part by either of the parties hereto without the prior express written consent of the other party, and nothing contained herein shall create any relationship, contractual or otherwise, with, or any rights in favor of, any third party. 10. NOTICE. If, under the terms of this Agreement, a written notice is required, it shall be either delivered in person or sent by registered or certified mail, postage prepaid, return receipt requested, or overnight UPS, Fed Ex, or other like service to the party to be notified at the address specified below, or such ,other address as either party may designate in writing: To IVCPA: The Idaho Velodrome and Cycling Park Association, Inc. 1001 West Idaho Suite 400 Boise, Idaho 83702 To CITY: City of Eagle PO Box 1520 Eagle, Idaho 83616 11. APPLICABLE LAWS AND REGULATIONS. IVCPA shall comply with all applicable Federal, State, and local laws and regulations, including, but not limited to, those regarding construction, health, safety, food service, water supply, sanitation, use of pesticides, and licenses or permits to do business. IVCPA shall certify that all water and sanitary system modifications made on the Project comply with all Federal, State, and local laws and regulations. 12. INSURANCE. IVCPA shall maintain, and specifically agrees to maintain throughout the term of this Agreement, comprehensive general liability insurance in which K:CLERKS/CONTRACTS/2008 Page 9 the CITY and COUNTY shall be named insureds in the minimum amount of one million dollars ($1,000,000.00) per occurrence. If CITY or COUNTY becomes liable for an amount in excess of insurance limits, herein provided, IVCPA agree to indemnify and hold harmless CITY and COUNTY from and for all amounts in excess of insurance limits, herein provided. IVCPA shall furnish proof of said insurance protection to CITY, with a Certification of Insurance. 13. MODIFICATION. This Agreement may be modified or amended only by a writing duly executed by both parties; 14. SEVERABILITY. In the event any provision or section of this Agreement conflicts with applicable law, it is otherwise held to be unenforceable, the remaining provisions shall nevertheless be enforceable and shall be carried into effect. 15. HEIRS AND ASSIGNS. This Agreement and the terms and conditions hereof shall apply to and are binding upon heirs, legal representatives, successors, and assigns of the parties. 16. CHOICE OF LAW. This Agreement and its performance shall be construed in accordance with and governed by the laws of the State of Idaho, with venue for any action brought pursuant to this Agreement to be in the Fourth Judicial District, State of Idaho. 17. MERGER AND INTEGRATION. This writing embodies the whole agreement of the parties other than as subject to the Master Lease attached hereto. There are no premises, terms, conditions, or obligations other than those contained in this Agreement. All previous and contemporaneous communications, representations, or agreements, either verbal or written, between the parties are superseded by this Agreement. 18. PERFORMANCE. The failure of a party hereto to insist upon strict performance or observation of the Agreement shall not be a waiver of any breach or of any terms or conditions of the Agreement by any tither parry. 19. TERMINATION. This Agreement may be terminated by either party by mutual agreement or upon a material breach of this agreement and failure to cure such material breach after sixty (60) days written notice. In such event, IVCPA shall be required to remove all personal property and otherwise vacate the premises on or before the expiration of the sixty (60) day period. CITY may immediately re-enter and take possession of the property with or without process of law. In the event of re-entry by CITY, its agents, or employees, IVCPA shall be liable for any damages, costs, or fees incurred by CITY in recovering the premises. K:CLERKS/CONTRACTS/2008 Page 9 20. ATTORNEY'S FEES. In the event of litigation relating to the subject matter of this Agreement, the non -prevailing party shall reimburse the prevailing party for all reasonable attorney fees and costs resulting therefrom. IN WITNESS WHEREOF, the Parties hereby agree to the terms, conditions, and limitations of this Agreement. CITY OF EAGLE Signed: Date: Signed: Date: IDAHO VELODROME AND CYCLING ASSOCIATION, INC.: Signed: Signed: Date: Date: K: CLE RKS/CONTRACTS/2008 Page 9 .200N011$1.47L011p{200, W rot ...DI" ♦Y SJ9M3ad m x to l IIHIE if r;jI 2 t r \\81-. ZI Ny.„,::411)11)"'"*? if \ S • 041 1/4\N. 4 C rirEl A Poi •DIS > rr a ;."1 S I (JjlIj t� b Idaho Velodrome Eagle Sports Community Park Eagle, Idaho V 118111 -DCA EXHIBIT B �•, Agreement No. leo lQc. LEASE AGREEMENT BETWEEN ADA COUNTY AND THE CITY OF EAGLE FOR ADA -EAGLE SPORTS COMPLEX THIS LEASE AGREEMENT is entered into this c92.14 day of 2004, by and between Ada County, a political subdivision of the State of Idaho, (hereinafter "County"), and the City of Eagle, a municipal corporation of the State of Idaho (hereinafter "City"). WITNESSETH WHEREAS, County owns certain real property located in Ada County, Idaho, commonly known as Ada -Eagle Sports Complex, consisting of approximately eighty-five (85) acres, more fully described in "Exhibit A" hereto attached (hereinafter "Property"); and WHEREAS, a portion of the Ada -Eagle Sports Complex consisting of approximately four (4) acres, known as the Eagle Skate Park, more fully describe in "Exhibit B" hereto attached (hereinafter "Skate Park") has been developed; and WHEREAS, City desires to lease the Property including Skate Park from County for recreational purposes and for use as a public park; and WHEREAS, County hereby agrees to lease the Property to City for a public park and recreational purposes, according to the terms set forth herein; NOW, THEREFORE, the parties hereto mutually agree as follows: TERMS OF LEASE AGREEMENT 1. USE OF PROPERTY. The Property shall be used by City for the purpose of a public park and recreational purposes and for no other purpose. 2. TERM. AND RENEWAL OF LEASE AGREEMENT. Pursuant to Idaho Code § 31- 836(4) County shall lease to City the entirety of the Property for a term of ninety-nine (99) years. LEASE AGREEMENT BETWEEN ADA COUNTY AND THE CITY OF EAGLE FOR ADA -EAGLE SPORTS COMPLEX — PAGE 1 k:lclerkslparks\skatcboard parklfinal eagle-ada sports complex lease june 04.doc Initiate Stop Payments Confirmation Page 1 of 1 WELLS FARGO Stops - Images - Search® Search for Items Initiate Stop Payments Request Images Requested Imagesf0} Reports Advanced Search *All fields required Search for --Select-- Account Number Additional Search Critena --Select-- Go > Contact Us Help Close ie:come Tracy Osborn Initiate Stop Payments ► Verify Stop Payments Initiate Stop Payments Confirmation Initiate Stop Payments Confirmation Ca! Your confirmation number is 01152008SPS608228. You may want to print this page for your records Routing # / Account # / Account Name 124103799 / 2190002820 / CITY OF EAGLE Today's Date 01/15/2008 Time 2.35 PM ET New Stops Check # 10593 Print Amount Placement Date Expiration Date Payee 5210.00 01/15/2008 07/16/2008 Sue A Cook ©Copynght 2002 - 2008 Wells Fargo All rights reserved https://wellssuite.wellsfargo.com/sps/sps/InitiateStopConfirmation/index.jsp 1/15/2008 This Lease Agreement shall be effective upon the signature of both parties, and may be terminated by either party upon six (6) months written notice. This Lease Agreement may be renewed for additional terms upon written mutual agreement of the parties. 3. CONSIDERATION. The consideration for this Lease Agreement shall be the operation and maintenance of the Property by the City for public park and recreational purposes, for the benefit of the people the City of Eagle, Ada County, and the general public in accordance with the terms and conditions set forth herein. This lease is contemplated by the parties as being included within the terms of Idaho Code § 36-1604 (Recreational Limitations of Liability of Land Owners). 4. UTILITIES AND INSURANCE. City agrees to pay all utilities, insurance, and fees associated with the Property throughout the duration of this Lease Agreement, unless said Lease Agreement is terminated by the parties pursuant to Paragraph I.1. above. This lease is subject to the Idaho Power Easement of Record. 5. ANNEXATION TO CITY. The County agrees to allow the City to annex the Property into the City, at the City's discretion. 6. MAINTENANCE. City agrees to maintain the Property throughout the duration of this Lease Agreement. City shall be responsible for any repairs and costs incurred in maintaining the Property. During the term of this Lease Agreement, City shall maintain the Property in a condition that is reasonably safe for visitors to the Property. City shall be under a duty throughout the duration of this Lease Agreement to reasonably inspect the Property for dangerous conditions and/or hazards, hidden or otherwise; and to make reasonable efforts to repair any discovered dangerous condition or hazard or immediately make such condition or hazard obvious to persons who might encounter the same. Further, City shall clean up all litter LEASE AGREEMENT BETWEEN ADA COUNTY AND THE CITY OF EAGLE FOR ADA -EAGLE SPORTS COMPLEX — PAGE 2 k:lcicrkslparksstkateboard parklfinal caglc-ada sports complex lease jure 04.doc associated with use of the Property. Any damage to the Property by City or City's invitees shall be the responsibility of City. 7. CONSTRUCTION OF IMPROVEMENTS. The City agrees that as funds are appropriated to improve the Property, City shall work cooperatively with County regarding the construction of the proposed improvements. County reserves the right to construct or make improvements on the Property without the need for prior consent of City, but shall inform City of such proposed improvements either ninety (90) days prior to construction or thirty (30) days prior to advertisement for bid. 8. DEVELOPMENT PLAN. The development of the Property shall consist of developing the facilities and services necessary to create public park and recreational facilities on the Property. City may seek grant funds for the development of the Property, consistent with terms of this Lease Agreement, and County shall cooperate with City and may co-sponsor, as necessary, such grant applications sought by City. 9. SURRENDER UPON EXPIRATION OR TERMINATION. Unless otherwise agreed in writing, upon expiration or termination of this Lease Agreement, City shall surrender possession of the Property to County in the condition of the Property at such expiration date, including any permanent improvements that may be made upon the Property by City. Any permanent fixtures, alterations, additions, improvements, and appurtenances attached to or built on the Property prior to or during the term of this Lease Agreement, whether by City at its expense or by County at its expense, or both, shall revert to the ownership and control of County. 10. NOTICE. If under the terms of this Lease Agreement a written notice is required, it shall be accomplished by certified mail, return receipt, postage prepaid, and addressed as follows: LEASE AGREEMENT BETWEEN ADA COUNTY AND THE CITY OF EAGLE FOR ADA -EAGLE SPORTS COMPLEX — PAGE 3 k:lclerkslparks\skateboard parklfinal eagle•ada spats complex lease jure 04.doc Eagle City Clerk P.O. Box 1520 Eagle, ID 83616 Ada County Board of Commissioners 200 W. Front Street, 3rd Floor Boise, ID 83702 Notice as served by mail shall be deemed complete when deposited with the United States Postal Service. Any change of address shall not be effective unless served upon the parties in the same manner as notices referred to herein. 11. APPLICABLE LAWS AND REGULATIONS. City shall comply with all applicable Federal, State, and local laws and regulations, including, but not limited to, those regarding construction, health, safety, food service, water supply, sanitation, use of pesticides, and licenses or permits to do business. City shall make and enforce such regulations as are necessary and within its legal authority in exercising the privileges granted in this Lease Agreement, provided that such regulations are not inconsistent with those issued by County. City shall require that all water and sanitary system modifications made on the Property, with County's prior approval, comply with all Federal, State, and local laws and regulations. City shall also assure compliance with the Americans with Disabilities Act. 12. CONDITION OF PREMISES. City acknowledges that it has inspected the Property, knows its condition, and understands that the same is leased without any representations or warranties whatsoever and without obligation on the part of County to make any alterations, repairs, or additions thereto, unless specifically mentioned elsewhere in this Lease Agreement. 13. TRANSFERS, ASSIGNMENTS, AND SUBLEASES. City shall neither transfer, sublet, nor assign this Lease Agreement without the prior written approval of County. Written approval shall not be unreasonably denied by the County. City shall honor the Agreement between Ada LEASE AGREEMENT BETWEEN ADA COUNTY AND THE CITY OF EAGLE FOR ADA -EAGLE SPORTS COMPLEX — PAGE 4 k:klerkslparks\skateboard parklfinal eagle-ada sports complex lease june 04.doc County and the Treasure Valley Family YMCA ("YMCA") dated June , 2004 to conduct a children's skateboarding academy for the 2004 summer season on the Property. Future agreements for use of the Property by the YMCA will be negotiated by the City and the YMCA. 14. FACILITIES. SERVICES AND FEES. City shall have the ability to enter into concessionaire and short-term event -related agreements for the purpose of providing services for the general public. 15. NONDISCRIMINATION. City shall not discriminate against any person or persons or exclude them from participation in City's operations, programs, or activities conducted on the Property due to race, color, religion, gender, age, handicap, or national origin. 16. HEALTH AND SAFETY. City shall maintain the Property in good order and in a clean, sanitary, and safe condition and shall have the primary responsibility to ensure that any sub- lessees and concessionaires operate and maintain the Property in such a manner. County, upon discovery of any hazardous conditions on the Property that presents a threat to health and or danger to life or property, will notify City in writing and shall require that the affected part or all of the Property be closed to the public until such condition is corrected and the danger to the public is eliminated. If the condition is not corrected by City within a reasonable time, no less than 60 days, County shall have the option to correct the hazardous conditions and collect the cost of repairs from City only after obtaining the City's prior written approval, or immediately revoke this Lease Agreement. City, its concessionaires and sub -lessees shall have no claim for damages against Ada County, or any officer, agent, or employee thereof, on account of action taken pursuant to this section. LEASE AGREEMENT BETWEEN ADA COUNTY AND THE CITY OF EAGLE FOR ADA -EAGLE SPORTS COMPLEX — PAGE 5 k:lckrkslparks\skateboard parklfinal eagle-acla sports complex lease june 04.doc 17. PUBLIC USE. No attempt shall be made by City to forbid the use of the Property by the public, subject, however, to the authority to set hours, limit public access during special events, and manage the Property to provide safety and security to the visiting public. 18. NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION.. City shall conduct no mining operations, remove no sand, gravel, or kindred substances from the ground, commit no waste of any kind, nor in any manner substantially change the contour or condition of the Property, except as may be authorized by County. The City agrees not to dispose of toxic or hazardous materials on the Property. 19. HISTORIC PRESERVATION. City shall not remove or disturb, or cause or permit to be removed or disturbed, any historical, archeological, architectural or other cultural artifacts, relics, remains, or objects of antiquity. In the event that such items are discovered on the Property, City shall immediately notify County and protect the site and the material from further disturbance until County gives clearance to proceed. 20. FINANCIAL OBLIGATIONS OF THE PARTIES. Nothing in this Lease Agreement shall bind either party to a commitment of funds in excess of that lawfully appropriated by their respective governing bodies. II. GENERAL TERMS AND CONDITIONS 1. INDEMNIFICATION AND HOLD HARMLESS City agrees to indemnify, defend, save and hold County, its employees, representatives, and agents harmless from and against any and all claims, demands, suits, causes of action, or other proceedings arising from any and all accidents and/or incidents that result in injury, death, damage or Loss to any party or the personal property of any party that occur on the Property during the term of this Lease Agreement, and LEASE AGREEMENT BETWEEN ADA COUNTY AND THE CITY OF EAGLE FOR ADA -EAGLE SPORTS COMPLEX -- PAGE 6 k:lclerksVarkssskateboard parktfinal eagle-ada sports complex least jure 04.doc during any extensions or renewals hereof, which directly or indirectly arise out of any actions, activities or omissions of or by City or any City invitee. County agrees to indemnify, defend, save and hold City, its employees, representatives, and agents harmless from and against any and all claims, demands, suits, causes of action, or other proceedings arising from any and all accidents and/or incidents that result in injury, death, damage or loss to any party or the personal property of any party that occur on the Property during the term of this Lease Agreement, and during any extensions or renewals hereof, which directly or indirectly arise out of any actions, activities or omissions of or by County. 2. LIABILITY INSURANCE. During the term of this Lease Agreement, City shall maintain in full force and affect a policy of comprehensive general liability insurance covering the Property and naming as insureds, City and County, in an amount not less than One Million Dollars ($1,000,000) per occurrence. Said insurance shall provide liability protection for and against all claims of injury and/or property damage occurring on the Property during the term of this Lease Agreement, which directly or indirectly relate to the use of the Property by City. Further, said liability insurance shall provide primary liability coverage over any other policy or program of insurance maintained by County. City shall furnish proof of said insurance protection to County, with a Certification of Insurance. 3. MODIFICATION. This Lease Agreement may be modified or amended only by a writing duly executed by both parties. 4. SEVERABILITY. In the event any provision or section of this Lease Agreement conflicts with applicable law, or is otherwise held to be unenforceable, the remaining provisions shall nevertheless be enforceable and shall be carried into effect. LEASE AGREEMENT BETWEEN ADA COUNTY AND THE CITY OF EAGLE FOR ADA -EAGLE SPORTS COMPLEX — PAGE 7 k:lclerkslparks\skateboard parklfinal eagle-ada sports complex !case juae 04.doc 5. ASSIGNMENT. This Lease Agreement may not be assigned in whole or in part by either of the parties hereto without the prior express written consent of the other party, and nothing contained herein shall create any relationship, contractual or otherwise, with, or any rights in favor of, any third party. 6. CHOICE OF LAW. This Lease Agreement and its performance shall be construed in accordance with and governed by the laws of the State of Idaho, with venue for any action brought pursuant to this Lease Agreement to be in the Fourth Judicial District, State of Idaho. 7. MERGER AND INTEGRATION. This writing embodies the whole agreement of the parties. There are no promises, terms, conditions, or obligations other than those contained in this Lease Agreement. All previous and contemporaneous communications, representations, or agreements, either verbal or written, between the parties are superseded by this Lease Agreement. 8. DEFAULT, NOTIFICATION OF AND CURE. Any of the following shall constitute an "Event of Default": 1. This Lease or the Property or any part of the Property are taken upon execution or by other process of law directed against City, or are taken upon or are subject to any attachment at the instance of any creditor or claimant against City, and the attachment is not discharged or disposed of within thirty (30) days after its levy; 2. City or any guarantor of City files a petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act of any state, or admits the material allegations of any such petition by answer or otherwise, or is dissolved or makes an assignment for the benefit of creditors; LEASE AGREEMENT BETWEEN ADA COUNTY AND THE CITY OF EAGLE FOR ADA -EAGLE SPORTS COMPLEX — PAGE 8 k:kierkslparks\skateboard park\final eagle-ada sports complex lease june 04.doc 3. City attempts to assign, pledge, mortgage, transfer or sublet City's interest under this Lease without County's prior written consent, except as permitted herein; or 4. City breaches any other agreement, term, covenant or condition of this Lease and such breach continues for a period of thirty (30) days after written notice from County to City, or, if such breach cannot be cured reasonably within such thirty (30) day period and City fails to commence and proceed diligently to cure such breach within a reasonable time period. 5. If any one or more Events of Default occur, then County may, at County's option: a. Notify City, in writing, that this Lease shall terminate as of the earliest date permitted by law or on any later date specified in such notice, and City's right to possession of the Property shall cease as of the date set forth in County's notice of termination. b. With or without terminating this Lease and only with written notice or demand to City, re-enter and take possession of the Property using such procedures as may, from time to time, be provided by law to expel City and those claiming through or under City, and to remove the effects of either or both. County's exercise of such right of re-entry shall not subject County to liability for conversion or trespass and shall not affect County's right to recover any amounts due as a result of any preceding breach of covenants or conditions. c. In the event of re-entry by County as set forth in subparagraph b) above, or should County take possession pursuant to legal proceedings or otherwise, County may, from time to time, without terminating this Lease, re -let the Property or any part of the Property in County's name. LEASE AGREEMENT BETWEEN ADA COUNTY AND THE CITY OF EAGLE FOR ADA -EAGLE SPORTS COMPLEX — PAGE 9 k:lclerkslparkskskateboard parklfinal eagle-ada sports complex lease june 04.doc d. With or without terminating this Lease and without demand or notice to City, to cure any Event of Default and charge City for the cost of effecting such cure, including, without limitation, attorneys' fees. 6. Any suit or suits for the recovery of the amounts and damages set forth above may be brought by County, from time to time, at County's election, and nothing in this Lease will be deemed to require County to await the date upon which this Lease or the Lease Term would have expired had not Event of Default occurred. Each right and remedy provided to County in this Lease is cumulative and is in addition to any other right or remedy provided to County in this Lease or existing now or after the date of this Lease at law or in equity or by statute or otherwise. All costs incurred by County in collecting any amounts and damages owing by City pursuant to the provisions of this Lease or to enforce any provision of this Lease, including reasonable attorneys' fees from the date any such matter is turned over to an attorney, whether or not one or more actions are commenced by County, will also be recoverable by County from City. 10. PERFORMANCE. The failure of a party hereto to insist upon strict performance or observation of this Lease Agreement shall not be a waiver of any breach or of any terms or conditions of this Lease Agreement by any other party. LEASE AGREEMENT BETWEEN ADA COUNTY AND THE CITY OF EAGLE FOR ADA -EAGLE SPORTS COMPLEX -- PAGE 10 k:klerkslparksskateboard parklfinal cagk-ada sports complex least juuc 04.doc IN WITNESS WHEREOF, the parties have hereunto executed this Agreement and made it effective as herein above provided. �• �� avid Navarro, Ada County Clerk BOARD OF ADA COUNTY COMMISSIONERS LESSOR ABSENT By: Judy M. Peavey -Derr, Chairman By: By: ATTEST: Rid Tilman, Commissioner THE CITY OF EAGLE LESSEE By: Sharon K. Bergmann, Eagle itClerk LEASE AGREEMENT BETWEEN ADA COUNTY AND THE CITY OF EAGLE FOR ADA -EAGLE SPORTS COMPLEX — PAGE 1 I k:lcicrkslparksleagle-ada park\final eagle-ada sports complex least jure 04.doc Eagle/Ada Sports Park Exhibit A A parcel of land located in Lot 1, Block 1, Hidden Hollow Subdivision, in Sections 2 and 3, T. 4 N. R. 1 E., 8.M., Ada County, Idaho more particularly described as follows: Commencing at the West Quarter Comer of said Section 2 and being the REAL 1 POINT OF BEGINNING: Thence N. 89° 29' 29" W. 665.66 feet to a point on the easterly right of way of Idaho State Highway No. 55; Thence S. 18° 06' 50" E. 2111.37 feet along said easterly right of way; Thence a distance of 60627 feet along a curve to the right having a radius of 1945.94 feet, a central angle of 17° 51' 03", and a long chord of S. 09° 11' 18' E. 603.82 feet to a point on the south boundary of said Section 2; Thence S. 89° 11' 341 E. 1865.40 feet along said south boundary of said Section 2 to a point Thence N. 30° 38' 23" W. 3046.18 feet to a point on the north boundary of the SW% of sa d Section 2; Thence N. 39° 40' 28" W. 400.00 feet to the REAL POINT OF BEGINNING, said parcel contains 84.91 Acres. Eagle/Ada Sports Park Exhibit C iiiko Mon iml 1 WIVI i00-"--- 1-1110114 140 0 i\., 111101111 41 001116.4814141. iglI•E;1kIliwiii!I. •\r.100111,00\ VA 1r■ • Imam 0--.:drifou j ;Ji 1300 EMMEN 0 1300 2600 Feet 1 Located in the SW 114 of Secfson 2, T4N, and, the SE 114 of Section 3 T4N, RIE E. Area of City Impact Boundary 1 0 Mks N MOORE SMITH BUXTON & TURCKE, CHARTERED STEPHANIE ). BONNEY SUSAN E. BUXTON* PAUL J. FrrzER MICHAEL C. MOORES BRUCE M. SMITH PAUL A. TURCKE° CARL ). WITHROE»* TAMMY A. ZOKAN` ATTORNEYS AND COUNSELORS AT LAW 950 W. BANNOCK STREET, SUITE 520 • BOISE, ID 83702 TELEPHONE (208) 331-1800 FAX: (208) 331-1202 www.msbtlaw.com RECEIVED & FILED CITY OF EAGLE JAN 1 5 2008 File: Route to: JOHN J. MCFADDEN*= of Counsel » Also admitted in California *Also admitted in New Mexico * Also admitted in Oregon G Also admitted in South Dakota *Also admitted in Washington Please note: This communication is confidential attorney work product, intended solely for the recipients listed below. It is protected by the attorney-client privilege. January 15, 2008 Sent via email to sbervmann@citvofeazle.ors Mayor Phil Bandy and City Council City of Eagle 660 E. Civic Lane P.O. Box 1520 Eagle, Idaho 83616 Re: Participation by the city council in pre -application meetings Dear Mayor Bandy and Members of the City Council: You have asked us whether, and if so how, the city council can participate in a pre -application meeting with a developer for land use matters without running afoul of the Open Meetings Act, the Local Land Use Planning Act, or other provision of law. The answer to your question is not answered directly in the Idaho Code nor has a similar question been posed to an Idaho appellate court. However, after reviewing the authorities, we believe that the city council may participate in such meetings. The city council should be aware that though a pre -application meeting does not necessarily by itself violate Idaho law, such meetings probably reside at the outer limits of the universe of activities in which a city council may participate without violating the law. Pre - application meetings must therefore be conducted with tremendous caution. Our explanation is set forth below. I. The Open Meetings Act The Open meetings Act provides that "all meetings of a governing body" shall be open to the public and that "all persons shall be permitted to attend any meeting ...." I.C. § 67-2342(1) (emphasis added). We do not believe a pre -application meeting necessarily meets the definition of a "meeting" which triggers the requirements of the Open Meetings Act. As used in the Open Meetings Act, a "meeting" is defined as "the convening of a governing body of a public agency to make a decision or to deliberate toward a decision on any matter." I.C. § 67-2341(6). Therefore, if the city council makes a decision or will deliberate toward a decision, the meeting will be subject to the Open Meetings Act. The term "deliberation" means "the receipt or exchange of information or opinion relating to a decision, but shall not include informal or impromptu discussions of a general nature which do not specifically relate to a matter then pending before the public agency for decision." Id. at (2). A "decision" is "any determination, action, vote or final disposition upon a motion, proposal, resolution, order ordinance or measure upon which a vote of the governing body is required ...." Id. at (1). As the members are aware, a city council sits in one of two capacities: (1) as a legislative body; and (2) as a quasi-judicial body. This distinction is critical to answering your question. When a city council considers and/or passes a general rule or policy applicable to an open class of individuals, interests, or situations, that action is considered part of the governing body's legislative function. Cooper v. Board of County Comm 'rs, 101 Idaho 407, 410, 614 P.2d 947, 950 (1980) (quoting Fasano v. Board of County Comm 'rs, 507 P.2d 23, 26-27 (Or. 1973)). (An example of this is the passing of a zoning ordinance or comprehensive plan.) On the other hand, when the body applies a general rule, such as an ordinance, to specific individuals, interests, or situations, the body is functioning more like a court—hence the term quasi-judicial. Id. (An example of this is the consideration of an application to subdivide real property.) A city council, of course, always possesses the inherent authority to consider and pass generally -applicable rules or policies on matters within its jurisdiction, whether proposed by a citizen or upon the city council's own motion. Legislative matters are therefore always "pending" before the city council, and the city council may not deliberate on such matters outside of a duly -conducted public meeting. However, in the land use context, a city council's quasi-judicial authority is not triggered until an application is filed. Accordingly, we infer from the definitions provided in the Open Meetings Act that informal discussions of a general nature about matters that are not before the city council are not subject to the Open Meetings Act. A pre -application meeting will doubtless involve the "receipt or exchange of information," but if an application has not been filed, there is no "decision" that can be made or toward which the city council can deliberate. In sum, pre -application meetings do not meet the definition of a "meeting": there is no "deliberation" being conducted because there is no "matter then pending" before the city council. Thus, we believe that a pre -application meeting may be conducted without violating the Open Meetings Act or the Local Land Use Planning Act. II. How the City Council Should Conduct Pre -application Meetings Mayor Phil Bandy and City Council January 15, 2008 Page 3 That pre -application meetings are not necessarily unlawful does not mean they are without parameters. And the line separating a lawful pre -application meeting from an unlawful meeting is blurry and easily crossed. First, the discussion must be informal and general—no promises or guarantees should be solicited of offered. The purpose of the meeting should be informational, intended to provide each party the opportunity to familiarize itself with the process and plans. Moreover, pre - application meetings are not substitutes for full and properly -conducted public hearings once the application process has begun. Then, any decision on an application must, as always, be based solely on the record developed during the public process. See Eacret v. Bonner County, 139 Idaho 780, 86 P.3d 494 (2004). Second, as we have said, the city council should probably refrain from discussing matters of a legislative nature—that is, matters that could be initiated by the city council or citizen without formal application—outside of a proper public meeting. In the context of a pre -application meeting, a difficulty arises when one aspect of a developer's application will be evaluated and processed under existing ordinances and the existing comprehensive plan, and another aspect will, if approved, require action that can only be accomplished by ordinance. In this situation, the city council should not discuss matters that could be conducted through the legislative process. A court would likely deem such discussions unlawful deliberations. Failure to strictly adhere to these recommendations could subject the members of the city council to sanctions under the Open Meetings Act or result in legal challenges to decisions made on land -use applications which may result in the voiding of any decision rendered on a particular application. Moreover, the business of conducting pre -application meetings carries the risk of an appearance of impropriety, and the public and judges may view them with skepticism. Indeed, due process requires that decisionmakers be free of bias or improper influence. See Ecaret, 137 Idaho at 784-87, 86 P.3d at 498-91. For example, any statements that demonstrate a decisionmaker has prejudged the facts, will not apply the law, or has made up his or her mind on the outcome of a matter will be deemed to be biased. Id. at 499-500, 86 P.3d at 785-86. Whether such statements come before or after an application has been filed will likely be of little relevance to a reviewing court. This underscores the importance of not offering any promises or guarantees to a would-be applicant. Similarly, the Idaho Supreme Court has held that in quasi-judicial proceedings, decisionmakers must disclose the nature of any ex -parte communication, including the identity of the ex -parte contact. See Idaho Historic Preservation Council v. City Council, 134 Idaho 651, 8 P.3d 646 (2000). In Idaho Historic Preservation Council and the cases discussing ex -parte contacts the contacts were made after an application was filed. The Court was concerned that interested persons could not rebut information submitted to the governing body. By definition, of course, a Mayor Phil Bandy and City Council January 15, 2008 Page 4 pre -application presupposes that a full public process will ensue once the application is filed. However, the fact that an application has not been filed will be of little significance to citizens who perceive that any back -room decisionmaking is occurring. To minimize the appearance of impropriety, we therefore advise that the purpose, number, and nature of any pre -application meetings be disclosed once the public process begins. Please bear in mind that this legal analysis is subject to amendment or change given new caselaw or amendment of applicable Idaho Code sections. Further, a case-by-case analysis must be made to determine whether any set of circumstances violates any of the legal standards discussed herein. If you have any questions, please do not hesitate to contact me. Sincerely, MOORE SMITH BUXTON & TURCKE, CHTD. SENT VIA EMAIL WITHOUT ORIGINAL SIGNATURE TO AVOID DELAY Susan E. Buxton