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Minutes - June 24, 2003 SSCITY OF LODI INFORMAL INFORMATIONAL MEETING "SHIRTSLEEVE" SESSION CARNEGIE FORUM, 305 WEST PINE STREET TUESDAY, JUNE 24, 2003 An Informal Informational Meeting ("Shirtsleeve" Session) of the Lodi City Council was held Tuesday, June 24, 2003, commencing at 7:00 a.m. A. ROLL CALL Present: Council Members — Beckman, Howard, Land, and Mayor Hitchcock Absent: Council Members — Hansen Also Present: City Manager Flynn, City Attorney Hays, and City Clerk Blackston B. CITY COUNCIL CALENDAR UPDATE City Clerk Blackston reviewed the weekly calendar (filed). C. TOPIC(S) C-1 "Update on Lodi Skate Park" Parks and Recreation Director Baltz recalled that the City entered into a contract agreement with Spohn Ranch to be the concessionaire for the skate park operation at Kofu Park. It was driven by liability issue concerns and the desire to have a monitored park. He reported that according to the results of a recent survey conducted by staff (filed) there now seems to be a trend of free, unmonitored skate park facilities. A profit and loss statement (filed) from Spohn Ranch for the period of June 2002 through May 2003 indicates that it is having revenue difficulties due to low attendance at the park. For this reason Spohn Ranch has requested that the City subsidize its operation, similar to the agreement it has in Lake Elsinore. City Manager Flynn commented that the skate park project was community driven. A skate park task force was formed and made a recommendation to Council regarding the project and location. Aaron Spohn, President/Chief Executive Officer of Spohn Ranch, stated that the climate had changed since the Lodi skate park opened and now free parks are operating in the surrounding area. He acknowledged that Spohn Ranch was struggling financially and it would be difficult to continue without assistance from the City. He reported that state legislation stipulates that skate boarding in parks is an at -risk activity for ages 14 years and above; it does not cover in-line skating. In addition, the law states that if cities continuously supervise their own facilities, the liability of the actions can transfer to the city. It also requires the use of safety gear, recording injuries, and reporting to the state. He explained that Spohn Ranch's operation in Lake Elsinore was experiencing similar difficulties and it has since received subsidy from the city, began operating it as a free park, and decreased some of the structure related to having specific sessions. Attendance at the park has increased significantly since these changes took place. The goal of Spohn Ranch is to build on the momentum and eventually get the retail concession to fund the operation of the park. Eric Lee, Manager of the Operations Division for Action Park Alliance, reported that the skate park has had 5,700 visits from a base of 3,600 registered users. Everyone that uses the park has to have a waiver signed by their parents if they are under 18 years. The Lodi skate park now has 50 members that have paid $40 to receive a $2 discount on the entrance fee of $5 per session. The insurance requires one supervisor for every 35 participants and once the number reaches 36, two supervisors must be present, which increases costs significantly. He reported that 70% to 80% of the operating costs are for staffing. At the end of each year Spohn Ranch is audited by the insurance company and is charged a flat fee for each member and an additional fee for non-member participants. He stated that if the City agreed to subsidize the cost of staffing the skate park, 80% of Continued June 24, 2003 the net profit from the revenue they generated would be returned to the City to repay the subsidy. Council Member Land asked how much of the $60,000 income shown on the profit and loss statement is from fees and concessions, to which Mr. Lee replied that 60% is from concessions and 40% is from fees. In answer to additional questions posed by Council Member Land, Mr. Lee reported that the hours of operation are 3:00 to 9:00 p.m. daily and 12:00 to 10:00 p.m. on weekends. He stated that attendance is eight times as busy when the park has free sessions and concession sales increase from an average of $13 a day to over $100 a day. He noted that Lodi is one of the rare skate parks that allow BMX riders. Mr. Spohn explained that restrictions that have been placed on the facility are contributing to the current difficulties facing the Lodi skate park. As an example, he reported that at 10:00 p.m. last night he drove past the park and the lights were on in the baseball field and tennis courts, yet they were off over the skate park. Programming has also been restricted. At the request of Mayor Pro Tempore Howard, Mr. Lee stated that he would like to pursue sponsorships wherein local businesses would cover the membership and entrance fees for particular groups of youth, similar to sponsors for little league baseball. He also suggested that if each major club in Lodi made a donation it could cover the staffing costs. Mayor Pro Tempore Howard emphasized the importance of the Council and community allowing the skate park opportunities to create the revenues it needs for the successful operation of the facility. Special events can be done in a way that is respectful to the surrounding neighborhood, as well as being fun for those that use the park. As an example she cited the Bethel Open Bible Church event held last Halloween. Mr. Lee replied that the Bethel event was the single most successful event held at the Lodi skate park and produced over $1,000 in revenue. Mayor Pro Tempore Howard commented that she attended the San Joaquin County Fair last week, at which there was a skate boarding event. They used a PA system and played music, yet it did not interfere or detract from nearby events. She noted that a group consisting of all age groups was watching the skate boarders, and as a spectator, she appreciated being able to hear the announcements that described the tricks and accomplishments of the riders. In answer to questions posed by Council Members, Mr. Lee noted that an obstacle to not having more events at the Lodi skate park is because they are not allowed to have amplified sound. He attributed difficulty in getting sponsorships to the original controversy regarding the location and subsequent low attendance. Letters were sent to 36 local businesses and only three responded indicating that they were not interested. He mentioned the following potential drawbacks to having an unsupervised, free skate park: 1) increased police patrol to the area; 2) graffiti, 3) alcohol and tobacco use, 4) fights, and 5) elimination of BMX use. Mr. Spohn clarified that this request is for the City to subsidize personnel costs; however, Spohn Ranch would continue to staff the park. He emphasized the urgency of the request. In response to Council Member Beckman's suggestion to allow amplified sound and banners for a six-week period and use City newsletters to advertise that the skate park is free for a certain period of time, Mr. Spohn explained that when momentum dies down it is difficult to regenerate. Mr. Lee noted that advertising and marketing for special events requires a large reinvestment of money. Spohn Ranch has a deficit of approximately $68,000 and depending upon the percentage that is owed back the City, this amount may 2 Continued June 24, 2003 increase by an additional $3,200. Mr. Lee stated that the park could not be free unless the staffing were subsidized because the insurance cost would rise as the attendance increased. Without fees a cash flow problem would result when buying products for the concession. Mayor Pro Tempore Howard spoke about the need for consistency, without which, confusion would result in the community and surrounding neighborhood regarding what to expect in terms of cost, rules, etc. She suggested decreasing the entrance fee to one or two dollars and increasing the annual membership registration fee, but allowing members to enter the park for free. In response to the suggestion to allow banners, Mayor Hitchcock did not believe it would be compatible with the neighborhood to have the skate park look like a commercial establishment. PUBLIC COMMENTS: • John Connelly stated that he had submitted written requests to address the Council on this issue and never received an answer. He believed there would be gangs and loud music if the skate park were unsupervised. He stated that his wife has been ill and housebound since 1997 and now has to wear earplugs to muffle the clanking sound emanating from the skate park. He complained that concerned parties have not been allowed to meet with the City Council about this matter, nor have residents of the surrounding area been invited to a community meeting as was initially directed by the Council. In reference to the Bethel Open Bible event that was held at the skate park, Mr. Connelly reported that they had speakers directed toward Ham Lane. He asked them to redirect the speakers; however, they chose not to and replied that they had a permit. Subsequent to this he phoned the Parks and Recreation Department and asked to speak with former Director Baltz, who never returned his call. He urged the Council to consider the neighborhood when making decisions related to the skate park. • Reuven Epstein stated that he served on the skate board park ad hoc committee for Galt. He expressed his opinion that skate boarders are generally somewhat antisocial and antiestablishment. He implied that because skate boarders are dissimilar to little league baseball players, the hope to get sponsors would likely not come to fruition. He believed that by offering a park with a high entrance fee and limited hours of operation, it sent a message to skate boarders that they cannot trust government. He pointed out that they can skate for free on sidewalks and parking lots, and that it did not make sense to charge for something when there is a free version available. The Galt skate park is open 80 hours a week and will be open 90 hours a week during the summer months. It was his understanding that the liability burden is shifted away from cities if skate parks are open, free, unsupervised, with rules posted, and located for easy visibility from the street by police officers. He recalled that Lodi was sued for injuries sustained by a youth using an indoor skate park, which could have easily been prevented. He pointed out that by merely placing a piece of aluminum over the plywood on the glass door it would have satisfied the fire department as well as ensured the safety of the users of the facility. Dennis Cunnington believed that Spohn Ranch had done a good job running the park, but not in marketing it. He noted that the church youth center on Lockeford Street has a small area for skate boarding, is free of charge, and well attended. He suggested that a banner be placed on the outside of the Lodi skate park with the phone number and hours of operation. In addition, he recommended that the fee for BMX riders be increased, and the general entrance fee to the park be either reduced, eliminated, or be in an amount sufficient only for covering the insurance costs. He urged Council to approve (for a one-year trial period) Spohn Ranch's request for a subsidy. 3 Continued June 24, 2003 Council Member Land spoke in support of subsidizing the program for one year and believed that it should remain a supervised park, as was promised to the surrounding residents. Mr. Flynn stated that staff would return to Council with recommendations at either the regularly scheduled meeting of July 16 or August 6. He expressed concern that problems would result without supervision. Mayor Hitchcock suggested that Parks and Recreation Director Goehring contact cities that have free, unsupervised parks, to determine what, if any, challenges they have faced by doing so. John Connelly asked if anything could be done to reduce the clanking sound at the park, to which Mr. Spohn indicated that it was possible and he would bring a recommendation regarding the matter to the City. D. COMMENTS BY THE PUBLIC ON NON -AGENDA ITEMS None. E. ADJOURNMENT No action was taken by the City Council. The meeting was adjourned at 8:50 a.m. ATTEST: Susan J. Blackston City Clerk 4 03113t03 02:S4pm P. 001 Summer Skate park jLoyr IDays of the Week: BMX Session Skate Sessions: Free Sessions Monday: Spm - 6pm 6pm - Spm Tuesday: bpm - 9pnz 3pm - bpm Wednesday: 6pm - 9pm 3pm - 6pm Thursday: 7pm - l Opm Spm - 7pm* 3 - 5 Sk8 _- Friday: 5pm - h n* 7pm - lopm 3 - 5 Bmx Saturday: 12pm - 3pm Spm - 6pm Bpm'=1opm* 6pm -bpm* Sunday: 3pm - 6pm 12pm - 3pm 6pm Spm Summer Skate park Ho ays of the Week Bmx Session: Skate Sessions: Free Sessions Monday: 3pm - 6pm bpm - 9pm Tuesday: 6pm - 9pm 3pm-6pm Wednesday: 6pm -9pm 3pm-6pm Thursday: 7pm - iopm Spm - 7pm* 3 - 5 Sk8 Friday: 5pxa - 7pm* 7pm -1 Opm 3 - 5 Bmx Saturday: 12pm - 3pm 3pm - 6pm spun - IOpm* 6pm - Bpm* Sunday: 3pm - 6pm 12pm - 3pm 6pm - 9prn C�F'Y AGREEMENT I&G-0 DESIGN, CONSTRUCTION AND OPERATION OF THIS AGREEMENT is made and entered into, by and between the CITY OF LODI, a municipal corporation organized and existing under the Constitution and Laws of the State of California, hereinafter referred to as the "City," and SPOHN RANCH, INC., a California corporation, hereinafter referred to as the "Concessionaire," and pursuant to the authority granted by Resolution No. �w -J'{3 adopted by the Council of the City of Lodi on the Ol day of 2001. WITNESSETH: WHEREAS, City is the owner of that certain real estate located in the City of Lodi, County of San Joaquin, State of California, known as Kofu Park; and WHEREAS, City and Concessionaire wish to enter into an agreement providing for the construction and operation of a skate park. NOW, THEREFORE, for and in consideration of the premises and mutual benefits flowing to the parties herein, the parties hereto agree as follows: 1. TERM—The term of this Agreement; shall be for one five (5) year period and one additional five (5) year renewal period, beginning with the date upon which this instrument is executed. The renewal period shall be automatic unless either party makes written notification of non -renewal to the other party at least one year prior to the renewal date. The parties reserve the right to renegotiate the terms of the Agreement within the first ninety (90) days of the renewal period. 2. PREMISES—City hereby agrees to provide to Concessionaire, subject to the conditions and restrictions as hereinafter provided, the site located within Kofu Park listed below and designated in the sketch attached hereto as Exhibit A, which is made a part of this Agreement. It is understood and agreed that Concessionaire shall have the use of the premises for twelve (12) months out of the calendar year, unless the parties otherwise agree in writing to close the premises for particular event(s). Concessionaire agrees that City may direct the skate park to be closed for up to four (4) days per calendar year with at least ten (10) days written notice of the closure being given Concessionaire by City. 3. CONSTRUCTION—Concessionaire agrees to provide design, construction and ramp installation, and further agrees to manage and operate the same within the site in Kofu Park. All skate ramps shall be equipped with full enclosures and metal tubing shall be capped. Deck CA/CITY/CONTRACTILODISKAT✓=PARK-2001 WITH SPOHN AS OF JULY 3, 2001 surfaces shall not exceed eight (8) feet in height above the concrete slab. Concessionaire agrees to provide a pro -shop. City shall pay Concessionaire the sum of $219,303.89 for the design and construction of the skate park facilities being provided by Concessionaire as shown in Exhibit B. City shall own all improvements and equipment listed in Exhibit B. Concessionaire shall furnish, install, and own all pro -shop furniture, shelving fixtures, equipment and products. City shall furnish and install the following improvements for use by Concessionaire: Chain-link fence with mow strip to enclose skate park area (option B) Concrete pad (to Spohn Ranch specifications) Sprinkler system modifications Lighting system (30 foot candle, and a 1:2 uniformity ratio.) Grading and access improvements (path) Site preparation for pro shop Electrical service to pro shop All work shall conform to applicable standards and City requirements. Concessionaire will be consulted as to design and construction requirements. 4. RENT—Concessionaire shall pay to City for the use of the heretofore described premises Five (5) percent of the gross revenue up to $100,000, four (4) percent of the gross revenue between $100,000 and $200,000, and three (3) percent of the gross revenue above $200,000 measured on an annual basis. Gross revenue shall not include sales tax. Concessionaire shall, within forty-five (45) days following the anniversary of opening day of this facility, remit payment to the City Finance Director. Simultaneously with the payment provided for herein, Concessionaire shall submit to the City Finance Director an itemized accounting of all receipts taken in during the preceding year. The Parks and Recreation Director shall reimburse Concessionaire for equipment and materials expenses incurred for extraordinary cleaning costs on the part of Concessionaire necessitated by storage of storm water in the Kofu Park basin. It is further agreed that City shall have the right to inspect the financial records of Concessionaire, and further, the right of audit and recomputation of any and all amounts paid under this Agreement shall always be accorded to City. Should City notify Concessionaire in writing of its desire to inspect and/or audit its financial records, Concessionaire shall be obligated to produce such records and make them available at Concessionaire's office maintained at Kofu Park within five (5) business days of such notification. 5. LICENSES, TAXES, EXPENSES—Concessionaire shall be responsible for obtaining the appropriate licenses and permits, including a City business license and building permit, and paying all taxes, including possessory interest taxes, and other expenses related to the occupation and use of the premises, except as may be specifically provided herein. 6. OPERATION—Concessionaire shall operate a properly staffed skate park, pro -shop and concession at least si�)_days a week_ The�ark shall be omen a minimum of thirty_hours per week. Concessionaire shall limit the skate park, pro -shop and concession hours of operation to 9 a.m. to 9 p.m., Sunday through Wednesday, and 8 a.m. to 10 p.m. Thursday CA/CITY/CONTRACT/LODISKATEPARK-2001 WITH SPOHN AS OF JULY 3, 2001 2 through Saturday. Concessionaire may close the skate park on a temporary basis to assist in vandalism and disciplinary control. The skate park may also be closed during and shortly after storm events during which water is stored in the Kofu Park basin. Concessionaire may charge a fee for admission, not to exceed $5.00 for a three -(3) hour session, for members, and not to exceed $10.00 for non-members. This fee may be re- negotiated on an annual basis with the Director of Parks and Recreation. Concessionaire shall operate the skate park in a safe and controlled manner with a high standard of conduct required of all participants. The operation shall include provisions for participants of varying ages and skill levels. In addition, Concessionaire shall schedule at least three (3) hours per week for free public use, beginning at 2:00 p.m. or later on a weekday. 7. UTILITIES --It is understood and agreed that City shall be responsible for the payment of all water and sewer charges for the premises located within Kofu Park. Concessionaire agrees to limit its use of such utilities to reasonable and necessary usage to avoid unnecessary consumption of such utilities. Concessionaire shall be responsible for electricity in the pro shop, solid waste, gas, and telephone services. 8. MAINTENANCE AND REPAIRS—Concessionaire shall maintain, repair and/or replace the ramps and rails at the skate park. Concessionaire has the duty to and shall inspect the ramps, rails and concrete pad weekly. Concessionaire will inspect the concrete pad and make reports to The City of Lodi regarding the condition of the slab and maintain a log detailing the findings. It is further understood and agreed that City shall be responsible for lawn mowing, irrigation system maintenance, exterior and structural maintenance, repair of the exterior of the building in which the skate park pro -shop is operated, and maintenance of the existing restrooms in the Kofu Park building. Concessionaire shall have an affirmative duty to promptly report all known or possible concerns that may require repair, to the Parks and Recreation Director, and submit a service request for the work to be performed. Concessionaire has the duty to and shall be responsible for daily cleaning and upkeep of the skate park and pro -shop. 9. MODIFICATIONS—No modification of the existing facilities will be made by Concessionaire without the written consent of City, acting through the Parks and Recreation Director. 10. ACCESS—Concessionaire shall allow City, its officers, agents or employees free access to the premises to ascertain if the premises are in a safe and sanitary condition and good repair and to make repairs to the extent required to be made by City under other sections of this Agreement. 11. PERMITTED USES—It is understood and agreed that Concessionaire shall have the use of the premises solely for the purposes of operating and managing a skate park, offering lessons and clinics, selling and/or renting skate -related items, acquiring corporate sponsorships, and selling food and beverages. Advertising is limited to that placed on printed material and on the ramp equipment enclosures below the upper deck surface and is not permitted on the fence CA/CITY/CONTRACT/LODISKATEPARK-2001 WITH SPOHN AS OF JULY 3, 2001 3 except during special events. In no case may advertising materials face the Ham Lane public right-of-way, which is located on the east side of the facility. Use of amplified music is prohibited except during special events as approved by the Parks and Recreation Director. 12. SPECIAL EVENTS—It is understood and agreed that Concessionaire may use the premises for skate -related special events. These events shall be subject to conditions similar to the conditions of this Agreement, including the payment of the corresponding percentage of gross income to City, as provided herein, and restoration of grounds and facilities to the condition in which they were received. The minimum hours of operation required in this agreement will be waived during weeks in which special events are held. During special events, the facility may be open to competitors, and to public viewing. 13. INDEMNITY AND INSURANCE— a. Disclaimer of Liability: Except to the extent caused by the negligence or intentional misconduct of City or of any employee of City, City shall not at any time be liable for injury or damage occurring to any person or property from any other cause whatsoever arising out of Concessionaire's construction, maintenance, repair, use, operation, supervision, condition or dismantling of the facility. b. Indemnification of City: Except to the extent caused by the negligence or intentional misconduct of City or of any employee of City, Concessionaire shall, at its sole cost and expense, indemnify and hold harmless City and all associated, affiliated, allied and subsidiary entities of City, now existing or hereinafter created, and their respective officers, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred to as "Indemnitees"), from and against: i. Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the Indemnities by reason of any actual or alleged act or omission of Concessionaire, its personnel, employees, agents, contractors, subcontractors, lessees and/or invitees resulting in personal injury, bodily injury, sickness, disease or death to any person, or damage to, loss of, or destruction of tangible property, or any other right of any person, firm or corporation, to the extent arising out of or resulting from the construction, installation, operation, supervision, maintenance, use or condition of the skate park by Concessionaire or Concessionaire's facilities or Concessionaire's failure to comply with any applicable federal, state or local statute, ordinance or regulation governing Concessionaire's use of the premises. ii. Any and all liabilities, obligations, damages, penalties, claims, liens costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and other consultants), which are imposed upon, incurred by or asserted against the Indemnities by reason of any claim or lien to the extent arising out of work, labor, materials or supplies provided or supplied to Concessionaire, its contractors or subcontractors, for the installation, construction, operation maintenance or use of the premises or Concessionaire's facilities, and, upon the prior written request of City, Concessionaire shall cause such claim or lien covering City's property to be discharged or bonded within thirty (30) days following such request. CA/CITY/CONTRACT/LODISKATEPARK-2001 WITH SPOHN AS OF JULY 3, 2001 4 C. Indemnification of Concessionaire: Except to the extent caused by the negligence or intentional misconduct of Concessionaire or of any agent, servant or employee of Concessionaire, City shall, at its sole cost and expense, indemnify and hold harmless Concessionaire and its officers, partners, boards, employees, agents, attorneys, and contractors (hereinafter referred to as "Indemnities"), from and against: Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the Indemnitees by reason of any act or omission of City, its personnel, or employees, on the premises, resulting in personal injury, bodily injury, sickness, disease or death to any person or damage to, loss of or destruction of tangible or intangible property. d. Defense of Indemnities: In the event any action or proceeding shall be brought against the Indemnities by reason of any matter for which the Indemnities are indemnified hereunder, Concessionaire or City, as the case may be, ("Indemnitor") shall, upon reasonable prior written notice from any of the Indemnitees, at Indemnitor's sole cost and expense, resist and defend the same with legal counsel mutually selected by Indemnitee and Indemnitor; provided however, that neither Indemnitee nor Indemnitor shall not admit liability in any such matter or behalf of the other without express written consent, which consent shall not be unreasonably withheld or delayed, nor enter into any compromise or settlement of, any claim for which they are indemnified hereunder, without prior express written consent. The indemnifying party's duty to defend shall begin upon receipt of a written notice identifying with specificity the allegations that give rise to this duty to defend and shall be co -extensive with the indemnifying party's indemnification obligations under the provisions of this Agreement. e. Notice: The parties shall give each other prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this paragraph. f. Insurance: During the term of the Agreement, Concessionaire shall maintain, or cause to be maintained, in full force and effect and at its sole cost and expense, the following types and limits of insurance: L Worker's compensation insurance meeting applicable statutory requirements and employer's liability insurance with minimum limits of One Hundred Thousand Dollars ($100,000) for each accident. ii. Comprehensive commercial general liability insurance with minimum limits of One Million Dollars ($1,000,000) as the combined single limit for each occurrence of bodily injury, personal injury and property damage. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for products and completed operations liability, independent contractor's liability. iii. Automobile liability insurance covering all owned, hired, and non -owned vehicles in use by Concessionaire, its employees and agents, with personal protection insurance and property protection insurance to comply with the provisions of state law with minimum limits of One Million Dollars ($1,000,000) as the combined single limit for each occurrence for bodily injury and property damage. This insurance will be in force during construction, maintenance of facility, and special events. CA/CITYICONTRACTILODISKATEPARK-2001 WITH SPOHN AS OF JULY 3, 2001 5 iv. Concessionaire shall maintain insurance on all skate park equipment, including contents, equipment and inventory kept in the pro-shop/office, in an amount sufficient to replace same. V. All policies, other than those for worker's compensation shall be written on an occurrence and not on a claims -made basis. vi. The coverage amounts set forth above may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. g. Named Insureds: All policies, except for worker's compensation policies, shall name City and all associated, affiliated, allied and subsidiary entities of City, now existing or hereafter created, and their respective officers, boards, commissions, employees, agents and contractors, as their respective interests may appear as additional insureds (herein referred to as the "Additional Insureds"). Each policy which is to be endorsed to add Additional Insureds hereunder, shall contain cross -liability wording, as follows: "In the event of a claim being made hereunder by one insured for which another insured is or may be liable, then this policy shall cover such insured against whom a claim is or may be made in the same manner as if separate policies had been issued to each insured hereunder." h. Evidence of Insurance: Certificates of insurance for each insurance policy required to be obtained by Concessionaire in compliance with this paragraph, along with written evidence of payment of required premiums, shall be filed and maintained with City annually during the term of the Agreement. Concessionaire shall immediately advise City of any claim or litigation that may result in liability to City. City shall immediately advise Concessionaire of any claim or litigation that may result in liability to Concessionaire. i. Cancellation of Policies of Insurance: All insurance policies maintained pursuant to this Agreement shall contain the following endorsement: Written notice shall be given to City by the insurer of any intention not to renew such policy or to cancel, replace or materially alter same, such notice to be given by mail, in an acceptable and normal time period, never less than thirty (30) days. j. Insurance Companies: All insurance shall be effected under valid and enforceable policies, insured by insurers licensed to do business by the State of California or surplus line carriers on the State of California Insurance Commissioner's approved list of companies qualified to do business in the State of California. All insurance carriers and surplus line carriers shall be rated A+ or better by A.M. Best Company. k. Deductibles: All insurance policies may be written with deductibles not to exceed $10,000. Concessionaire agrees to indemnify and save harmless City, the Indemnitees and Additional Insureds from and against the payment of any deductible and from the payment of any premium on any insurance policy required to be furnished by this Agreement. CAICITY/CONTRACT/LODISKATEPARK-2001 WITH SPOHN AS OF JULY 3, 2001 6 I. Contractors: Concessionaire shall require that each and every one of its contractors and their subcontractors who perform work on the premises to cavy, in full force and effect, worker's compensation, comprehensive public liability and automobile liability insurance coverages of the type which Concessionaire is required to obtain under the terms of this paragraph with appropriate reasonable limits of insurance. M. Review of Limits: Once during each calendar year during the term *of this Agreement, City may review the insurance coverages to be carried by Concessionaire. If City reasonably determines that higher limits of coverage are necessary to protect the interests of City or the Additional Insureds, Concessionaire shall be so notified in writing and shall obtain the reasonable additional limits of insurance at its sole cost and expense. n. Patron Waivers: Concessionaire shall require skate park patrons and/or members to sign waivers releasing City from any and all liability for injuries received as a result of their use of the skate park and indemnifying City from any liability incurred by City as a result of their use of the skate park. Such forms shall be approved by the City in advance of the park's opening. 14. TERMINATION—Either party shall have the right to terminate this Agreement by giving the other party six (6) months written notice of its intention to do so. 15. FORCE MAJEURE—Neither City nor Concessionaire shall be deemed to be in breach of this Agreement by reason of failure to perform any of its obligation under this Agreement if, and to the extent that such failure is due to embargoes, shortages of materials, acts of God, acts of the public enemy, acts of superior governmental authority, sabotage, strikes, boycotts, labor disputes, weather conditions, riots, rebellion, and any circumstances for which it is not responsible and which are not within its reasonable control. This provision shall not apply to failures by Concessionaire to make money payments required by this Agreement, except in those cases where provision is made in this Agreement for the abatement of such payments under such circumstances, and this provision shall not prevent either party from exercising its rights of termination herein granted. 16. DEFAULT—In the event Concessionaire fails to perform any of the conditions, covenants, and agreements contained herein and refuses to perform within thirty (30) days of written notice from City of such failure, City shall have the right and option to terminate this Agreement upon thirty (30) days written notice to Concessionaire. In addition, City shall have the right and option to terminate this Agreement upon thirty (30) days written notice upon the occurrence of the following events: (a) Concessionaire becomes insolvent or is adjudged a bankrupt (voluntarily or involuntarily) by actions filed in either state or federal court. CAJCITY/CONTRACT/LODISKATEPARK-2001 WITH SPOHN AS OF JULY 3, 2001 7 17. NOTICE—All notices and payments of funds required to be given hereunder by either party shall be deemed to have been sufficiently given by depositing the same in the United States Mail, certified, return receipt requested, with proper postage affixed thereto, and addressed as follows: To Concessionaire: Spohn Ranch, Inc. 15131 Clark Avenue City of Industry, CA 91745 To Cit (for matters other than the payment of rent and utilities as provided for herein): Roger Baltz Parks and Recreation Director City of Lodi 125 North Stockton Street Lodi, CA 95240 To Clit (for the payment of rent and utilities as provided for herein): Vicky McAthie Finance Director City of Lodi 212 West Pine Street (mailing address: P. O. Box 3006 Lodi, CA 95240 Lodi, CA 95241-1910) It is further understood and agreed that as an alternate method of compliance with the provisions herein of giving notice and payments of funds that the same may be hand delivered to the above -designated individuals, and the receiving party shall be required to execute an acknowledgement of receipt for said notice or payments of funds. It is agreed that this alternate method of compliance shall be as good and sufficient as if the same had been mailed to the respective party as required above. 18. ASSIGNMENT AND SUBLETTING—It is understood and agreed that no estate shall pass out of City to Concessionaire and that the premises herein provided shall not be subject to levy and sale and are not assignable by Concessionaire without the express written consent of the City. Concessionaire shall not sublease the premises, in whole or in part, except with the prior written consent of City. 19. INDEPENDENT CONTRACTOR—Concessionaire shall occupy the relationship of an independent contractor in the performance of the obligations of this Agreement, and the necessary records shall be so as to preserve such relationship between Concessionaire and City. 20. NON-DISCRIMINATION—Concessionaire further warrants and agrees that no person shall, on the grounds of race, creed, color, national origin, or sex be excluded from participating in any program or activity for which these premises are used and that Concessionaire is an equal -opportunity and affirmative -action employer and organization. CA/CITY/CONTRACT/LODISKATEPARK-2001 WITH SPOHN AS OF JULY 3. 2001 8 21. DRUG-FREE POLICY—Concessionaire shall agree to maintain a drug-free skate park, including both employees and patrons. The unlawful manufacture, distribution, dispensing, possession, use or being under the influence of controlled substances (drugs) and/or alcohol during operating hours is prohibited. 22. COMPLIANCE WITH LAWS—Concessionaire's use of the premises shall comply with all present and future laws, ordinances, codes, and regulations of federal, state, and local government. Concessionaire shall not create or permit any nuisance on the premises. 23. LIENS—Concessionaire shall not have the authority or right to create any liens for labor and material upon City's interest and premises hereby provided. All persons contracting with Concessionaire for alterations and repairs thereof and all material men, agents, lessees, contractors, mechanics and laborers are hereby charged with notice that they must look to Concessionaire for the payment of any bill for work done or materials furnished during the period of disagreement. 24. RIGHTS CUMULATIVE—All rights, powers and privileges conferred hereunder upon parties hereto shall be cumulative and not restrictive of those given by law. Nothing contained herein shall impair the right of City to exercise its governmental and legislative functions. 25. ENFORCEABILITY OF PROVISIONS—if any provision of this Agreement or the application thereof to any party or circumstances should be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to any other party or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law. 26. WAIVER OF COMPLIANCE—No failure of City to exercise any power given City hereunder, or to insist upon strict compliance by Concessionaire of any obligations hereunder, and no custom or practice of the parties at variance with the terms hereof, shall constitute a waiver of City's right to demand exact compliance with the terms hereof. 27. GOVERNING LAW This Agreement has been made under and shall be construed in accordance with the laws of the State of California. 28. DESCRIPTIVE READINGS—Descriptive headings appearing upon this lease are for convenience only and are not to be construed either as a park of the terms and conditions or as any interpretation of the parties. 29. ENTIRE AGREEMENT—it is understood and agreed that the foregoing provisions constitute the entire agreement between the parties hereto. Any amendment or changes to the terms hereof must be in writing and properly executed and attested to by both parties in order to be binding. This Agreement shall not become effective and enforceable until executed by both parties in writing. CAJCITY/CONTRACT/LODISKATEPARK-2001 WITH SPOHN AS OF JULY 3, 2001 9 IN WITNESS WHEREOF, City and Concessionaire have caused their proper officers to hereunto set their hands and affix their seals the day and year first above written. CITY OF LODI, a California municipal corporation By: Dixon F—iy6., City Ma ger Attest: Susan J. Blackston, Ci Jerk Date: Quo i- 9 . aoo I Approved as to Form: Rani all A. Hays, City Aftgffiey CA/CITY/CONTRACT/LODISKATEPARK-2001 WITH SPOHN AS OF JULY 3, 2001 10 SPOHN RANCH, INC. By: n Spohn resident/CEO EXHIBIT A CARDINAL STREET EXHIBIT B LODI, CA Item # Irguipment Skatelite Pro 1 4' Quarter Pipe $ 3,733.38 2 Quarter Pipe/ Hipped into Mini Ramp. = $ 8,801.60 3 .4' 4' Mini Ramp (With Floor) $ 27,876.13 4 41 Radiused Bank/ Hipped into Mini Kamp $ 31$01.60 5 4' to 6 Raked R.adiused Bank with Planter $ 7,294.12 6 6' R,adiused Bank $ 3,473.39 7 Launch Box $ 5,825.45 8 3' Tall Fun Box w/ Dbl.-Raped Planter &Flat Planter $ 20,561.36 9 2` Tall Fun Box w/ Raked Planter, Ziail, Filled Corners $ 13,540.68 10 5' Radiused Wedges with 42" Kicker $ 10,518.29 11 8' Quarter Pipe $ 4,046.18 12 4' to 6' Raked Quarter Pipe $ 8,092.35 18 4' Quarter Pipe $ 6,982.66, 14 .4' Quarter Pipe Hipped with Start Ramp and Raul $ 13,158.66_ 15 4' Wedge with Filled Corner . $ 7%622.12 16 Stealth Box $ i8,i58.66 17 Beginner Fun Box $ 4,227.9 18 Manual Box $ 5,760.©0 19 Free -Standing Grind Rail $ .686.00 . 20 Free-Stan&ng Free-Stan'Grind Rail S 626.00 T6ta1 Equipment Costs ; $ 164 713.84 _ .Shipping and Installation $ 39 500.00 Grand Total $ 204,213.84 ADDITIONAL OPTIONS Enclosures (items 1-6, 10-13) $ 15,090.06 Bevised Grand Total $ 219,383.89 Spohn Ranh, Inc; 15131 Clark Avenue, City of Industry, CA 91745 626-330-58031626-330-5503 fax/ www.spobnranch.com/ spohrLranch@gto.net Ear ° 3 (Z.t-Z. Parks and Recreation Department Creating community through people, parks & programs MEMORANDUM To: Roger Baltz, Parks and Recreation Director From: Susan Bjork, Management Analyst Date: June 11, 2003 Subject: Area Skate Park Information Here is the information you requested on area skate park facilities: Agency Fee Staffed City of Galt No No City of Stockton No* Yes, city staff and security City of Manteca No No City of Tracy No No City of Ripon No No City of Modesto No No City of Elk Grove Skate park shut down — being re -constructed, anticipated to open in 2004. Unknown if a fee will be charged or if it will be staffed. Prior facility was built by community and was staffed with an admission fee. * Was unable to reach anyone who had information on a proposed fee. Left message. Page 1 5:96 PM Spohn Ranch, Inc./ Alliance of Lodi, Inc. 06109103 Profit & Loss Accrual Basis June 2002 through May 2003 Jun'02-May 03 Ordinary Income/Expense Income Sales 59,649.03 Total income 59,649.03 Gross Profit 59,649.03 Expense Advertising 1,088.39 Alarm Service 380.02 Automobile Expense 887.86 Bad Debt Expense 129.98 Bank Service Charges 281.00 Equipment Rental 70.34 Filing Fees 25.00 Insurance Uability Insurance 4,834.63 Total Insurance 4,834.63 Miscellaneous 758.30 Payroll Expenses ETT 31.78 FUTA 254.25 Medicare Company 460.80 Social Security Company 1,970.32 SUI 1,080.48 Payroll Expenses - Other 31,779.38 Total Payroll Expenses 35,577.01 Postage and Delivery 14.80 Printing and Reproduction 781.54 Pro Shop Fixtures 14,634.15 Product Food/ Drinks 4,899.99 Skate/ BMX Product 14,767.17 Total Product 19,667.16 Professional Fees Legal Fees 2,121.50 Total Professional Fees 2,121.50 Rent 2,920.00 Staffing 27,08528 Supplies Marketing 734.80 Office 3,794.60 Supplies - Other 78.45 Total Supplies 4,607.85 Taxes Sales 798.00 State 800.00 Total Taxes 1,598.00 Telephone 2,758.71 Travel & Ent Meals 520.17 Travel 1,644.86 Travel & Ent - Other 429.20 Total Travel & Ent 2,594.23 Page 1 5:05 PM Spohn Ranch, Inc./ Alliance of Lodi, Inc. 06109103 Profit & Loss Accrual Basis June 2002 through May 2003 Jun'02 - May 03 Uncategorized Expenses 199.75 Total Expense 123,015.50 Net Ordinary Income -63,366.47 Net Income -63,366.47 Page 2 Parks and Recreation Department Creating community through people, parks & programs MEMORANDUM To: Roger Baltz, Parks and Recreation Director From: Susan Bjork, Management Analyst Date: June 11, 2003 Subject: Area Skate Park Information Here is the information you requested on area skate park facilities: Anency Fee Staffed City of Galt No No City of Stockton No" Yes, city staff and security City of Manteca No No City of Tracy No No City of Ripon No No City of Modesto No No City of Elk Grove Skate park shut down — being re -constructed, anticipated to open in 2004. Unknown if a fee will be charged or if it will be staffed. Prior facility was built by community and was staffed with an admission fee. Was unable to reach anyone who had information on a proposed fee. Left message.