Resolution - 2013 - 13-18 - Approve Concessions And Exclusive Use Agreement For Recreation At Eagle/Ada Park Btwn City Of Eagle/Eagle Superparks, Llc - 08/27/2013 !Memorandum
To: File
From: Sharon K. Bergmann, City Clerk/Treasurer
Date: 9/26/13
Re: Resolution No. 13-18 Terrain Park Adoption
Per Special City Attorney Mimura.
Council adopted Resolution No. 13-18 and the Concession Agreement on August 27, 2013 and
sent the Agreement to the Ada County Commissioners for their consent/approval according to
the Lease Agreement.
Ada County Commissioners did not sign the Agreement and significant changes were thereafter
made to the Concession Agreement.
Special City Attorney Mimura at the September 24, 2013 City Council meeting presented
Council with a new Resolution,No. 13-18A, and a revised Concession Agreement for approval.
Council approved Resolution No. 13-18A and the Concession Agreement.
•
,
From the desk of
Sharon K.Bergmann
City Clerk/Treasurer
RESOLUTION NO. 13-18
BY THE COUNCIL: BUTLER, DEFAYETTE, GRASSER,
PIERCE
A RESOLUTION APPROVING A CONCESSIONS AND EXCLUSIVE USE
AGREEMENT FOR RECREATION AT EAGLE/ADA PARK BY AND BETWEEN THE
CITY OF EAGLE AND EAGLE SUPERPARKS, LLC; AUTHORIZING THE MAYOR
AND CITY CLERK TO RESPECTIVELY EXECUTE AND ATTEST SAID
AGREEMENT; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Eagle desires to have recreational opportunities available to the
community to enhance its family-oriented quality of life and create a setting that will encourage
families and youths to play outdoors, develop life sport skills, confidence and enjoy outdoor
activities year-round; and,
WHEREAS, Eagle Superparks, LLC. desires to design, construct, and manage a to-be-
created snow park, with enhanced skateboard and mountain bike areas as well as a new water
feature which could provide for wakeboard and other compatible water sport activities; providing
alternative recreational opportunities to youth, adults, and their families;
WHEREAS, Eagle Superparks, LLC. will pay all the cost and expense of completion of
the project, including fees, designing, engineering, equipment, personnel and utilities; and the
City of Eagle will have no capital outlay for the development of the new park features, nor
maintenance or operation costs associated with the concessions or use of the property for the
snow and wakeboard parks;
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF BOISE CITY,IDAHO:
Section 1. That the CONCESSIONS AND EXCLUSIVE USE AGREEMENT,
attached hereto and incorporated herein by reference, be, and the same is hereby, approved as to
both form and content.
Section 2. That the Mayor and City Clerk be, and they hereby are, authorized to
respectively execute and attest said Concessions and Exclusive Use Agreement for and on behalf
of the City of Eagle, Idaho.
Section 3. That this Resolution shall be in full force and effect immediately upon its
adoption and approval.
ADOPTED by the Council of the City of Eagle, Idaho, this.;( day of August, 2013.
APPROVED by the Mayor of the City of Eagle, Idaho thisol/day of August, 2013.
APPROVED: ATTEST:
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1 s Sharon K. Bergmann ,•+••""""'•.,,a
MAYOR •CITY CLERK �.••*�0:&I ,''•
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CONCESSION AND EXCLUSIVE USE AGREEMENT
BETWEEN CITY OF EAGLE AND EAGLE SUPERPARKS, LLC
THIS AGREEMENT ("Agreement") is made and entered into this 4 7 day of
2013, by and between CITY OF EAGLE, an Idaho municipal corporation,
reA9.44,_ented by and through its Department of Parks and Recreation ("Licensor") and EAGLE
SUPERPARKS, LLC, an Idaho limited liability company ("Licensee"). Licensor and Licensee
may collectively be referred to as "the Parties."
RECITALS
WHEREAS, the City of Eagle holds the lease with Ada County to certain real property
zoned RS, and has managed and operated the Eagle Ada Sports Complex ("Sports Park"), a
municipal facility located near the intersection of State Highway 55 and Floating Feather Road,
predominantly within the municipal limits of City of Eagle City; and,
WHEREAS, Licensee, having a business address of 3200 Mountain View Drive in
Boise, Ada County, Idaho 83704, is engaged in the business of providing outdoor recreation
opportunities, including, but not limited to: providing access to rental equipment; use of facilities
and equipment provided by Licensee; and selling food and beverages and novelty items (e.g.,
pre-sealed food items, bottled beverages, snacks, tee shirts, baseball caps, sunglasses, sunscreen
and the like); and desires to operate that certain business known as "EAGLE SUPERPARKS,
LLC"within the Sports Park; and,
WHEREAS, the Parties acknowledge that this Agreement is not a vendor permit subject
to Title 3, Chapter 4, Eagle City Code; but is rather a Concessions Agreement as described
herein, akin to a longer term lease; provided, however that the public shall have access to the
non-exclusive use areas for recreational purposes.
NOW THEREFORE, in consideration of the mutual promises herein contained and for
other good and valuable consideration, acknowledged by each of them to be satisfactory and
adequate, Licensor and Licensee hereby mutually undertake, promise and agree, each for itself,
and its successors and assigns, as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. The following terms shall have the meanings stated below:
"Sports Park" shall mean the Eagle Ada Sports complex as defined under the Lease
Agreement between Ada County and the City of Eagle dated August 24, 2004, including
the unincorporated area described in the Addendum to Lease Agreement between Ada
County and City of Eagle for the Ada Eagle Sports Complex dated May 2, 2012.
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CITY OF EAGLE/EAGLE SUPERPARKS LLC --1
"Exclusive Use Areas" shall mean those areas of the Sports Park identified on Exhibit A
attached hereto and incorporated herein by this reference as if set forth in full,
encompassing the uses described in Article 3.1 of this Agreement.
ARTICLE II
TERMS OF CONCESSIONS AND EXCLUSIVE USE AGREEMENT
2.1 Term. This Agreement shall become effective August 1, 2013, and shall continue for a
term of twenty (20) years, ending July 31, 2033 or until such termination or default as provided
for by this Agreement.
2.2 Renewal. This Agreement shall be renewable for an additional two (2) terms not to
exceed ten (10) years each. Formal execution of an Addendum to this Agreement, setting forth
the intentions of the Licensor and Licensee to renew and any new or modified terms and
conditions, shall be required for renewal. Neither Licensor nor Licensee shall be under any
obligation to renew this Agreement.
2.3 Termination. Either party may terminate this Agreement with cause and without regard
to payment periods by providing the other party thirty (30) days written notice. The ability to
terminate this Agreement with cause expressly includes Licensor's ability to terminate under any
circumstances which involve non-appropriation of funds by the Eagle City Council, if required
and mutually agreed upon in writing in the future for additional capital improvements or
infrastructure. Under the following circumstances, a shorter termination period is allowed, as
well:
a. Total destruction: The complete destruction by fire, flood or other casualty of the
Sports Park or an essential part of the area used by Licensee for business
operations shall result in the immediate termination of this Agreement.
b. Partial destruction: Licensee shall not surrender possession of the Exclusive Use
Areas of the Sports Park, nor shall the liability of Licensee to pay the
compensation herein provided cease, without the mutual consent of the parties
hereto, if those Exclusive Use Areas of the Sports Park or the equipment and
facilities of Licensee are damaged by fire, the elements, or other natural calamity,
and either (a) the damage can be reasonably repaired within thirty (30) days from
the date of the damage, or (b) Licensee can reasonably continue use and operation
of the premises for the purposes specified in this Agreement.
c. Breach of Agreement as provided in Article 4.5 of this Agreement.
d. If Licensee makes an assignment for the benefit of creditors, or is placed in
receivership or adjudicated bankrupt, or takes advantage of any bankruptcy or
insolvency law, Licensor may terminate this Agreement by giving written notice
to Licensee specifying the date of termination, such notice to be given not less
than ten (10) days prior to the date specified in such notice for the date of
termination.
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CITY OF EAGLE/EAGLE SUPERPARKS LLC --2
e. If Licensor cancels without cause, Licensor agrees to pay three (3) times the
immediate preceding full calendar year's Gross Entry Fee Sales. Before the end
of the initial term or the subsequent renewed term, the parties shall enter into
good faith negotiations regarding the concessions fee, and may include any other
term(s) the parties mutually agree that need to be addressed prior to entering the
next renewal term.
£ If Licensor does not renew or enter into another agreement after such good faith
negotiations have occurred with the Licensee at the end of any term within the
contract hereto, the Licensor will not operate similar contracted-for activities at
the Eagle Sports Complex facility or enter into another agreement of the same or
similar operation within the City of Eagle limits or within its governing
boundaries within the immediate five (5) years following the end or termination
of this Agreement. However, if Licensee desires to terminate without cause, or
Licensor terminates for cause, Licensor may at its sole option, enter into another
agreement or operate a similar facility at any location within the Eagle City limits.
Licensor shall have the option to purchase Licensee's equipment and fixtures if
Licensee chooses to terminate without cause.
2.4 Holding Over. In the event that Licensee shall remain in possession of the Exclusive
Use Areas of the Sports Park upon expiration of either the original term or any renewal term,
such possession shall be as a month-to-month contract period. During such month-to-month
term, the compensation payments from Licensee to Licensor shall be payable at the same rate as
in effect during the last month of the preceding term or any extension thereof.
ARTICLE III
LEASE AND PREMISES
3.1 Grant of Exclusive Use of Certain Areas of the Premises. Licensor hereby grants to
Licensee an exclusive lease to operate the business of EAGLE SUPERPARKS, LLC for the
following purposes and uses:
3.1.1 The sale of a variety of meals and snacks, gifts and clothing in an area of
the Sports Park identified on Exhibit A, attached hereto and incorporated
herein by reference.
3.1.2 The sale of tickets for entrance or passes to enter and use the water feature
area of the Sports Park, identified on Exhibit A, attached hereto and
incorporated herein by reference.
3.1.3 The sale of tickets for entrance or passes to enter and use the magic carpet
feature area of the Sports Park, identified on Exhibit A, attached hereto
and incorporated herein by reference.
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3.1.4 Patron parking for (i) the concessions or exclusive use permittees of
Licensee, which shall encompass one parking area (Lot 1, 2, or 3) during
each season; and (ii) the snowpark area, including the proposed tube hill
and the water feature area, which shall be properly signed to give notice to
the public of the restricted parking in the area identified on Exhibit A,
attached hereto and incorporated herein by reference. Patrons will be able
to park in all public parking areas including the parking area that is
designated for Exclusive Use to and by Licensee.
3.1.5 Concessions room adjacent to the existing public restrooms for the first
two (2) year period; subject to renegotiation for year Three (3) and
beyond.
3.2 Licensed Premises. The Licensee is allowed access to the Sports Park and has the
ability to operate the business known as EAGLE SUPERPARKS, LLC therein during those
hours set forth in Article 3.4 of this Agreement.
3.3 Additional Sale Items. If Licensee seeks to contract with a sub-Licensee to supply
additional items for sale, i.e., beverage, food items and novelties not included or not within the
reasonable contemplation of Licensee, at the Sports Park, sub-Licensee shall submit a request in
writing to Licensor. Licensor will approve or deny the request within three (3) business days,
which request shall not be unreasonably conditioned, delayed or denied. Any sub-Licensee
approved by Licensor shall enter a separate agreement in writing with Licensor and must comply
with all local, state and federal requirements by law.
3.4 Hours of Operation. Licensee may operate its business at the Sports Park during the
Parks' normal operating hours of the City's facility, the specific operating hours to be agreed
upon between Licensor authorized representative and Licensee; days and hours to be
conspicuously posted and said hours of operation for permittees shall not be before 9 a.m. nor
after 10:00 p.m., except that Licensee shall be allowed to operate equipment to make snow on
any day or night as weather allows, provided that the snow making equipment does not cause a
public nuisance to the adjoining property owners. Licensee shall keep the Sports Park
adequately stocked, equipped and staffed during such hours of operation. Licensee may operate
Sunday through Saturday, depending upon the public's use/demand.
3.5 Limitations on Use. Licensee acknowledges this Agreement does not guarantee
participation in community or Licensor sponsored events and activities held within the Sports
Park. Any arrangements for Licensee's participation at such events or activities, including all
fees to event sponsors, are the sole responsibility of Licensee. The terms of this Agreement shall
continue to apply during Licensee's participation at such events, including Licensee's obligations
to Licensor under Article V of this Agreement.
3.6 Lawful Business Use. During the term of this Agreement, Licensee shall use the facility
exclusively for the business described herein and in any attached exhibits. The Licensee shall
not use or allow to be used such premises or any part thereof for any immoral or illegal purposes
and shall not allow, suffer, or permit such premises to be used for any purpose, business, activity,
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CITY OF EAGLE/EAGLE SUPERPARKS LLC --4
use, function or object to which Licensor objects in writing. The Licensee shall, at all times
during the terms of this Agreement, be subject to the lawful exercise of the police power of Eagle
City.
3.7 Non-Exclusive Use. During the term of this Agreement, Licensee shall not obstruct or
prohibit the public's lawful use of the non-exclusive areas, such as the existing mountain bike
pathways, bmx track, skatepark, restrooms and all other non-exclusive parking areas.
ARTICLE IV
DUTIES OF LICENSEE
4.1 Duties. In exchange for the privilege of obtaining this exclusive, revocable Agreement
for concessions and exclusive use, Licensee agrees to:
a. Provide a copy of the insurance policy required by Article 6.2 of this Agreement
within sixty (60) days of execution of this Agreement and prior to entry of
Licensee or its employees, agents, contractors, subcontractors or volunteers enter
upon the premises to make any renovations, repairs, or maintenance of said Sports
Park area.
b. Provide all services and business operations in a safe and law-abiding manner
while generating maximum utility from the resource for the benefit of the public
and shall make every reasonable effort to promote good will and enhance the
public's image of the facility.
c. Provide Licensor with extraordinary anticipated traffic impacts for special events
run by Licensee at the Sports Park at least thirty (30) days prior to the event so
that the Licensor may provide appropriate city services such as additional traffic
control. These extraordinary additional services will be at Licensee's expense.
d. Work cooperatively with Licensor's authorized agents to address any complaints
or concerns received by the City of Eagle related to the activities of Licensee's
employees, agents, permittees, or the maintenance and operation of the proposed
uses under this Agreement.
e. Follow all rules and regulations of the Sports Park and the laws of the City of
Eagle City; other than the hours of operation as herein described and approved by
Licensor.
f. Keep all company vehicles and equipment on roadways, parking lots or sports
venues and within the property boundaries. All equipment and supplies shall be
carried by hand, handcart, or 4-wheeler from any company vehicle to the
concession stand within the Sports Park.
g. Pay for all damages to the Sports Park caused directly or proximately by
Licensee's business equipment, employees, servants, agents, business invitees,
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patrons, and guests, which are not a result of normal wear and tear that would
have occurred had Licensee's business not operated within the park.
h. At the termination of this Agreement, either by natural expiration or default as
provided for herein, return the area of use to its original condition, normal wear
and tear excepted. However, specifically, all retained water within the water
feature shall be drained in a proper manner to assure maximization to the aquifer;
all of Licensee's equipment shall be removed from the Sports Park; and any
signage shall be removed and the surfaces repaired; and the fill dirt of the former
Velodrome shall not be returned. The Licensor may agree in writing with
Licensee to leave the liner of the water feature in place upon termination and after
the water is drained. Otherwise, the liner shall be removed by Licensee at its
expense.
i. Licensee shall bear all costs and expenses in the development, construction,
design and implementation of the snow park area and the potential water feature
identified in Exhibit A; and shall maintain and repair their equipment and
facilities used for the identified proposed uses at the Sports Park, including the
existing restrooms and concession facility. Licensee shall also move the existing
road/easement to the water tower at its expense, including all costs of recording,
and Licensor shall cooperate with this process. Additionally, Licensee shall be
liable for the tortious conduct of its employees, agents, contractors,
subcontractors. The Licensor shall not be liable for any costs or expenses related
to personnel or benefits for Licensee's employees. Licensor shall be liable for the
acts or omissions of its city officials, employees, or agents pursuant to the Idaho
Tort Claims Act, §6-901, et seq.
j. Any capital improvement after the first full year of operation under this
Agreement, shall be reviewed and approved by the City of Eagle, in advance.
Improvements that mutually benefit the general public's use, such as added
restrooms or changing facilities, shall be negotiated and the parties may enter a
separate public-private agreement for the development and construction of those
types of improvements.
k. Licensee shall submit for Licensor's prior approval: a Water Management Plan
that includes a water system design, an erosion and sediment control plan, a water
operation plan and a reservoir maintenance plan; and the design of the water
system to limit the maximum flow rate from the City water system to prevent
impacts to other uses of the water system as recommend by the Water Study
prepared by SPF Water Engineering. Until said approval is received, Licensee
shall not have access to the Eagle City water.
4.2 Licensee's Disposal of Refuse. Licensee shall not dump, dispose, reduce, incinerate, or
otherwise burn trash, refuse, or garbage of any kind in or about the Sports Park except as
permitted herein. Licensee shall store all trash and garbage within the Sports Park receptacles or
at a location designated by Licensor in covered containers so located as not to be visible to
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CITY OF EAGLE/EAGLE SUPERPARKS LLC --6
customers or business invitees at the Sports Park. Licensee will be responsible for providing and
placing in and around the Sports Park approved covered receptacles for trash, garbage, and other
refuse. Licensee shall not allow the accumulation of trash, debris and boxes inside or outside of
the Sports Park. Licensee shall provide for the proper handling and disposal of trash, garbage
and other refuse generated through its operation in Licensor's containers provided for such
purpose. If Licensee requires additional containers to fulfill its obligation hereunder it shall
provide them at its cost and bear any costs for waste removal from the Licensee's site.
4.3 No Assignment. Licensee shall not assign this Agreement or any of its privileges
hereunder, in whole or in part, either voluntarily or involuntarily, without the prior written
consent of Licensor, which consent shall not be unreasonably withheld or delayed.
4.4 Limitations. This Agreement shall apply to and be binding on Licensee only to the
extent Licensee's busin ess operates within the confines of the Sports Park and as may be
approved by Licensor.
4.5 Default and Cancellation. If Licensee is in default of any of the terms and conditions of
this Agreement or violates any laws of the United States, the State of Idaho, or applicable City of
Eagle ordinances, rules or regulations and thereafter fails or refuses to perform or correct the
conditions constituting a breach or default within five (5) days, after written notice from
Licensor, this Agreement shall be deemed terminated and forfeited without further notice or
demand, and all rights of Licensee hereunder shall be terminated. In the event Licensee fails to
cure any default hereunder and Licensor terminates this Agreement as provided herein, at any
time prior to the end of the initial term or any extended term, Licensee shall be responsible for
and pay a restoration fee of Fifteen Thousand Dollars ($15,000.00). A performance bond as
described in §5.4 shall be posted and filed with the Clerk of the City within sixty (60) days of
full execution of this Agreement by both parties to cover the restoration fee if the restoration is
not undertaken by Licensee. The payment of the restoration fee shall not constitute a waiver of
the terms to restore or repair the property to its original condition as provided in Articles 4.1, 5.4,
or any other provision requiring any act or payment by Licensee to the contrary.
Initial:
4.6 Code of Conduct. In order to ensure a professional and respectful relationship with the
general public, the City of Eagle requires its business Licensees and their employees, servants,
agents and volunteers, to behave in a civil and courteous manner at all times. While it is
impossible to list every type of conduct that is unacceptable, the following are examples of
behavior that may, at the sole discretion of Licensor, result in termination of this Agreement:
a. Unlawful and malicious harm or threat of harm to any City employee, member of
the public, City government department or division, or City property, regardless
of location.
b. Physical violence against persons or property.
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c. Sabotage of, or malicious injury or damage to City property or processes.
d. Theft or unauthorized removal or possession of the City's property from City
premises.
e. Speech or conduct deemed rude, disrespectful, aggressive, intimidating, harassing
or otherwise inappropriate when conducting Licensee's business.
f. Making malicious, vindictive, false, and/or harmful statements about others or
engaging in verbal abuse, altercations or outbursts.
g. Any conduct that obstructs, disrupts, or interferes with City business, service,
work environment or administrative functions, including City sponsored events.
h. Untruthfulness related to this Agreement that could hinder or jeopardize the City's
interests.
i. Use, possession, distribution, or sale of illegal drugs, paraphernalia, or controlled
substances not prescribed to the user by a physician, on City property or at City
sponsored events, including the use of alcohol, drugs, or controlled substances
while working in accordance with this Agreement.
4.7 Criminal History. Licensee shall not knowingly employ to work under the terms of this
Agreement any employee, servant, or agent who is unsuitable to interact with children.
"Unsuitable to interact with children" shall mean having been convicted of a crime listed in
Idaho Code § 18-8304 (or similar statute from any other state or territory) or required to register
under Idaho's Sexual Offender Registration Notification and Community Right-to-Know Act,
Idaho Code §§ 18-8301 — 8331 (or similar statute from any other state or territory).
a. Licensee, at it own expense, shall conduct appropriate and applicable background
and reference checks on each of its employees, servants, and/or agents to ascertain
that there is no history of behavior that would make Licensee or its employees,
servants, or agents unsuitable to interact with children.
b. Licensee shall certify to Licensor that each of Licensee's employees, servants,
and/or agents is fit to interact with children and will so certify this information
prior to allowing the employee, servant, or agent to perform any on-site services.
Failure to certify shall be grounds for immediate revocation of this Agreement.
ARTICLE V
FEES AND RELATED PROVISIONS
5.1 Concessions Fee. Licensee shall pay to Licensor a monthly fee ("Concessions Fee") of
ten percent (10%) of gross entry fee sales, commencing January 10, 2014, and due on the 10th
day for each month thereafter for the duration of the initial term. The parties shall negotiate the
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Concessions Fee for each and every renewal term thereafter. Fifty percent (50%) of the ten
percent (10%) collected by the Licensor shall be used specifically for capital improvements
within the Sports Park that are above and beyond existing and forecasted budgets and not to be in
place of existing maintenance budgets. The remaining fifty percent (50%) of the ten percent
(10%) collected shall be deposited in the General Fund and may be specifically identified in the
Eagle Parks and Recreation budget to be spent at Licensor's discretion upon Eagle City Council
approval.
Initial:
(a) The term "Gross Entry Fee Sales" shall mean all receipts of the conduct of all
business upon the Sports Park collected by Licensee, including the gross sales of admission
ticket or passes sales, parking fees, and tube rental fees, if any.
(b) In computing Gross Entry Fee Sales amount there shall be no deduction in the
amount for taxes payable by Licensee on the sale of admission ticket or passes sales in or from
the Sports Park under any federal, state or local law levying or imposing a tax upon the sale of
merchandise or services. For example, if the price of admission is $10.00, the Concession Fee to
the City will be $1.00, and the patron would pay the .60 cent sales tax to Licensee.
Initial:
5.2 Equipment Use, Repair and Replacement. Licensee's right to use of the Sports Park
shall include the right to utilize all existing trade or other fixtures owned by the City and
currently installed at the Sports Park for concessions or sales at no additional cost to Licensee.
Throughout the term of this Agreement or any extension thereof, all repairs, maintenance and
replacement of such trade or other fixtures shall be at Licensee's sole expense. All trade or other
fixtures, merchandise, supplies, and equipment owned by Licensee or installed in the Sports Park
at Licensee's expense shall be the property of Licensee, and at the expiration of this Agreement
Licensee shall remove the same as provided in Article 5.4 of this Agreement.
5.3 Utilities and Improvements. In addition to the Concessions Fee, Licensee shall pay all
cost of utilities, specifically power, water and sewer, for any new burdens for new areas Licensee
has developed within the Sports Park so long as Licensor makes no alterations to the Sports Park
that result in an increase in utility costs to Licensee without Licensee's written approval.
Licensee shall pay utility costs in the same manner as set forth in Article 7 below. In the event
Licensee seeks to alter the Sports Park during the term of this Agreement or any extension
thereof, such alterations shall occur only with the written consent of Licensor, which consent
shall not be unreasonably withheld or delayed. Such alterations, if approved, shall include
installation of separate utility meters that measure Licensee's utility consumption, if deemed
reasonably necessary by Licensor, at the cost of the Licensor through collections from Gross
Entry Fee Sales provided by Licensee from ongoing operations. Any alterations of, additions to
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or capital improvements of Sports Park areas (i.e. parking surface improvements or additional
restrooms or fixtures upon the real property) shall be at Licensee's expense unless otherwise
negotiated between the Parties and shall be maintained at the expense of Licensee. All such
alterations, additions, or improvements must be scheduled and phased between the Parties in a
mutually agreed upon schedule that takes into account the Gross Entry Fee Sales received and
expected in order for such construction to be justified. At no time may a magic carpet, rope tow,
cable wake facility and any similar or integral equipment be considered a fixture. All such
alterations, additions, or improvements shall become part of the Sports Park and shall become
Licensor's property upon expiration or termination of this Agreement.
5.4 Maintenance and Repairs of Sports Park. Licensee shall keep the interior, non-
structural portions of the Sports Park in good order and condition as when delivered to it,
excepting ordinary wear and tear, or damage by fire, elements or other casualty not due to the
intentional act or negligence of Licensee, and shall provide at its sole cost and expense any and
all additions or improvements to the Sports Park that may hereafter be required by any law or
ordinance for safety purposes. The cost of repairs due to the intentional act or negligence of
Licensee, its employees, agents, guests, or business invitees, shall be at Licensee's sole expense.
Upon expiration of this Agreement, or any extension thereof or the earlier termination thereof,
Licensee shall within sixty (60) days thereof, remove all personal property and shall restore the
premises to that condition existing at the time this Agreement commenced, ordinary wear and
tear and structural damage resulting from natural causes excepted. Failure of Licensee to remove
its personal property or to have restored the premises to its original condition as herein provided
shall constitute a holding over and be subject to the provision of Article 2.4 of this Agreement.
At Licensor's option, any property not removed as herein provided shall become the property of
Licensor and the performance bond posted pursuant to Article 4.5 shall be forfeited by Licensee.
In this event, Licensee may be released from any additional amount owed to restore the
Premises. In the event Licensor does not exercise this option, Licensee shall be liable for all
costs and expense to return the property to its original order and condition as herein described,
and any and all damage to the leased property occasioned or caused by the presence or removal
of Licensee's personal property from the premises. Any amounts not covered by the
performance bond, shall be invoiced to Licensee and will be due and payable within thirty (30)
days of the invoice. Any unpaid balance in arrears after thirty (30) days, shall accrue interest at
the statutory amount as of the day of the invoice. Costs of repair and restoration to the
Licensor's property at the Sports Park necessitated by vandalism caused by third parties and
through no fault of Licensee shall be borne by Licensor. Any costs of repair and restoration to
the Licensee's property necessitated by vandalism caused by the third parties shall be borne by
Licensee.
Initial:
5.5 Signs. Licensee may install, maintain and operate such equipment, signs and facilities as
are necessary or convenient for its use and occupancy, provided that such equipment, signs, and
facilities are furnished and installed within the places or locations assigned and at Licensee's sole
expense and with the prior consent of Licensor, which consent shall not be unreasonably
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withheld, denied or delayed. Signage also shall be subject to applicable local, state and federal
ordinances and statutes.
5.6 Product Pricing and Restrictions. Licensee shall establish and conspicuously post
entry fee prices at the Sports Park. Licensee may, at its sole discretion, run promotions and
discounts on entry fees, products and services. Licensee agrees it shall offer for sale on the
Sports Park the same branded beverage products as Licensor and with which Licensor may from
time to time enter into a sponsorship agreement and that Licensee will offer no other similar
products that compete with Licensor's sponsored product if required by Licensor's sponsorship
agreement.
5.7 Use of Licensor Name, Trademarks or Logos. Licensee may use the "CITY OF
EAGLE," its trademarks and logos in its marketing brochures, websites, reports, and
merchandise with prior written approval by Licensor of said print, electronic media, or goods.
Said approval may be made by Licensor or its authorized agents.
5.8 Payment of Concessions Fee and Utility payments; Notices to Licensor. Payment of
the Concessions Fee and all other amounts payable by Licensee to Licensor shall be monthly and
shall be due by the tenth (10th) day of the month following the month for which the Concessions
Fee was calculated or the utility costs incurred, but subject to billing periods from utility
agencies. The calculations of month end gross receipts will be determined based on the start of
each season and negotiated between Licensee and Licensor within the respected sports season.
Payment of the amounts due hereunder and all notices to Licensor set forth in this Agreement
shall be made at the following address, without demand, or such other place as the Licensor may
designate to Licensee in writing:
City of Eagle
Department of Parks and Recreation
Attn: Director
City Recreation Office
660 E. Civic Lane
Eagle, Idaho 83616
After confirming the amounts paid and received by Licensee are correct, Director
shall forward the payment and confirming information to the City Clerk.
5.9 Unpaid Fees or Utility Expenses. All amounts not paid by Licensee to the Licensor
when due shall bear a service charge at twelve percent (12%) per annum on all delinquent
account balances, applied from the date when the same was due until paid by the Licensee. Past
due accounts shall be subject to a minimum administrative charge per month which shall cover
the costs of handling in the amount of Twenty-Five Dollars and No Cents ($25.00). Licensee
agrees that it shall pay and discharge all costs and expenses, including reasonable attorney's fees,
incurred or expended by Licensor in collection of any delinquent amounts due.
5.10 Other Taxes, Fees, or Charges. Concessions Fees and utility charges paid to the
Licensor shall not include any taxes, fees or license charges that may be levied, assessed or
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CITY OF EAGLE/EAGLE SUPERPARKS LLC --11
charged by any governmental entity on Licensee. Licensee agrees to pay such taxes, fees or
license charges directly to the appropriate taxing authority, without involving the Licensor, or in
the event Licensee desires to contest such taxes, fees or license charges, such contest shall be in
good faith and the taxes, fees, or charges in contest shall be bonded if not paid when due.
5.11 Inspection of Records. Licensee agrees to maintain accurate business records and to
allow Licensor to inspect all financial books, records, and receipts from the business operations
conducted by Licensee at the Sports Park. Licensee shall furnish Licensor an annual statement of
revenues, verified by a certified public accountant, setting forth the amount of Gross Entry Fee
Sales for each period for which the monthly Concessions Fee is due.
ARTICLE VI—INDEMNIFICATION AND INSURANCE
6.1 Indemnification. Licensee shall protect, defend, and hold Licensor and its officials,
agents, attorneys, engineers and/or employees harmless from and against any and all liabilities,
losses, suits, claims, judgments, fines or demands arising by reason of injury or death of any
person or damage to any property, including all reasonable costs for investigation and defense
thereof (including but not limited to attorney fees, court costs, and expert fees), of any nature
whatsoever arising out of the negligent acts or omissions of Licensee or its officers, agents,
employees, contractors, subcontractors, or invitees incident to this Agreement and/or the use or
occupancy of the Sports Park Athletic Complex regardless of where the injury, death, or damage
may occur. Licensor shall protect, defend, and hold Licensee and its officers, owners, agents,
attorneys, engineers and/or employees harmless from and against any and all liabilities, losses,
suits, claims,judgments, fines or demands arising by reason of injury or death of any person or
damage to any property, including all reasonable costs for investigation and defense thereof
(including but not limited to attorney fees, court costs, and expert fees), of any nature whatsoever
arising out of the negligent acts or omissions of Licensor or its officers, agents, employees,
contractors, subcontractors, or invitees incident to this Agreement and/or the use or occupancy of
the Sports Park Athletic Complex regardless of where the injury, death, or damage may occur.
The provisions of this section shall be deemed to be a separate contract between the Parties and
shall survive the expiration or any default, termination or forfeiture of this Agreement.
6.2 Liability Insurance. Licensee shall maintain, and specifically agrees that it will
maintain, throughout the term of this Agreement, a $5,000,000.00 Comprehensive General
Liability ("Umbrella") Insurance policy, in the form of a Certificate of Insurance issued on
behalf of the City of Eagle, naming the City (Licensor) as an Additional Named Insured.
The limits of insurance shall not be deemed a limitation of the covenants to indemnify and save
and hold harmless Licensor. And if Licensor becomes liable for an amount in excess of the
insurance limits herein provided, Licensee covenants and agrees to indemnify and save and hold
harmless Licensor from and for all such losses, claims, actions or judgments for damages or
liability to persons or property. Licensee shall provide Licensor with a Certificate of Insurance
or other proof of insurance evidencing Licensee's compliance with the requirements of this
paragraph and file such proof of insurance with Licensor's Risk Manager and Department of
Parks and Recreation. In the event the insurance provisions of the Idaho Tort Claims Act are
changed to exceed the current amounts, Licensee shall immediately submit proof of compliance
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CITY OF EAGLE/EAGLE SUPERPARKS LLC --12
with the changed limits.
6.3 Other Insurance Coverage. Licensee shall be solely responsible for obtaining any
workers' compensation insurance, medical insurance, unemployment insurance (regardless of the
number of employees, or lack thereof), in the statutory limits as required by law, employers'
liability insurance, business interruption insurance, and any other type of insurance for the
benefit of Licensee. Licensee shall furnish evidence of all such insurance to Licensor upon
execution of this Agreement.
ARTICLE VII—GENERAL PROVISIONS
7.1 Non-Discrimination. Licensee, in its exercise of the Lease herein granted, shall not
discriminate or permit discrimination against any person or group of persons in any manner on
the grounds of race, color, sex, religion, national origin or ancestry, age or physical handicap.
Non-compliance with such assurances shall constitute a breach of this Agreement, and in the
event of non-compliance, Licensor may take appropriate action to enforce compliance and may
terminate this Agreement or seek judicial enforcement thereof.
7.2 Compliance With Laws. In performing the scope of services required hereunder,
Licensee shall comply with all applicable laws, ordinances, and codes of federal, state, and local
governments including, but not limited to, required licensing for drivers of commercial vehicles
in the State of Idaho, workers compensation insurance, and all sales and use tax legislation. The
Licensor hereby requires Licensee to show proof of workers compensation insurance and of
compliance with any applicable statute, ordinance or regulation with which Licensee is required
to comply.
7.3 Applicable Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Idaho and the ordinances of the City of Eagle City.
7.4 Interpretation. The paragraph headings used herein are for convenience only, are not a
part of this Agreement, and are not to be used in construing it.
7.5 Notices to Parties.
The Licensee's address for all notices set forth in this Agreement shall be as follows, or such
other Idaho address as the Licensee may designate to Licensor in writing:
EAGLE SUPERPARKS, LLC
Attn: Ryan Neptune, authorized agent for Managing Member Neptune Industries, Inc.
3200 Mountain View Drive
Boise, Idaho 83704
Telephone: 208-321-9353
The Licensor's address for all notices set forth in this Agreement shall be as follows:
City of Eagle
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Attn: City Clerk
660 E. Civic Lane
Eagle, Idaho 83616
7.6 Attorney's Fees. Should any litigation be commenced between the Parties to this
Agreement, the prevailing party shall be entitled, in addition to any other relief as may be
granted, to court costs and reasonable attorneys' fees as determined by a court of competent
jurisdiction. This provision shall be deemed a separate contract between the Parties and shall
survive any default, termination, or forfeiture of this Agreement.
7.7 Independent Parties. Licensee is and shall at all times be considered as an independent
contractor and is in no way an employee of the City of Eagle City.
a. The P arties intend that this Agreement create only an independent Licensor-
Licensee relationship. Licensee shall complete the services agreed upon with
Licensor according to its own means and methods, which shall be in the exclusive
control of Licensee and which shall not be subject to the control or supervision of
Licensor. The parties agree that this Agreement does not entitle Licensee or its
employees or agents (if any) to Licensor's workers' compensation benefits,
unemployment compensation benefits, or any other benefits or protections that
accrue from an employment relationship, all of which shall remain the sole and
exclusive responsibility of Licensee and/or its employees or agents.
b. Licensee is not required to perform its services exclusively for the Licensor.
Licensee, its employees or agents shall be responsible for any business
registrations or licenses required by any governmental entity. Licensor shall not
control, directly or indirectly, the number of hours Licensee, its employees or
agents shall perform services under this Agreement. Licensor shall not combine
business operations with Licensee.
c. Neither Licensee nor its employees or agents are to be considered agents or
employees of Licensor for any purpose, including that of federal and state
taxation, and neither Licensee nor its employees or agents are entitled to any of
the benefits that the City may provide to its employees. It is understood and
agreed that Licensor does not require Licensee to provide services exclusively to
Licensor and that Licensor is free to contract to provide services to other entities
during the term of this Agreement.
7.8 Entire Agreement. This instrument embodies the whole Agreement of the Parties and
supersedes any and all other agreements or understandings. No failure of Licensor to exercise
any power given it hereunder, or to insist upon strict compliance by Licensee of any obligation
hereunder, and no custom or practice of the parties at variance with the terms hereof, shall
constitute a waiver of Licensor's right to demand strict compliance with the terms hereof
7.9 Approval. Licensor and Licensee each acknowledge that this Agreement, even though
agreed upon by the City's representatives, is not binding upon the City until such time as the
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CITY OF EAGLE/EAGLE SUPERPARKS LLC --14
Eagle City Council approves this Agreement and authorizes the Mayor to execute this
Agreement on behalf of the City. Ryan Neptune represents that he is the authorized agent for
Neptune Industries, Inc., a member of Licensee EAGLE SUPERPARKS, LLC, and is authorized
to enter this Agreement on behalf of Licensee.
7.10 Duplicate Originals. This Agreement may be executed in several counterparts each of
which shall be deemed an original.
7.11 Modification. There shall be no modification of this Agreement, except in writing,
executed with the same formalities as this Agreement.
7.12 Severability. If any provision of this Agreement or application thereof is held invalid,
such invalidity will not affect other provisions or applications of this Agreement which can be
given effect without the invalid provision or application, and to that end, the provisions hereof
are declared to be severable.
End of Agreement
[Signatures on following page]
CONCESSION AND EXCLUSIVE USE AGREEMENT-
CITY OF EAGLE/EAGLE SUPERPARKS LLC --15
IN WITNESS WHEREOF the parties hereto have subscribed their names the date first written
above.
Licensor
City of Eagle
James Reynolds
Mayor
ATTEST:
Sharon K. Bergmann
City Clerk
Licensee
EAGLE SUPERPARKS, LLC
Ryan Neptune
President Neptune Industries, Inc.
Member
STATE OF IDAHO )
) ss.
County of Ada )
I, , a Notary Public for the State of Idaho, do hereby
certify that RYAN NEPTUNE, personally appeared before me, and signed same as the Member
of Eagle Superparks, LLC, a limited liability company organized under the laws of the State of
Idaho.
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CITY OF EAGLE/EAGLE SUPERPARKS LLC --16
Notary Public for Idaho
Residing at:
Commission Expires
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Pre-Approved by:
Ada County Board of Commissioners:
Commissioner
Commissioner
Commissioner
Exhibit A: Sports Park Map
CONCESSION AND EXCLUSIVE USE AGREEMENT—
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