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HomeMy WebLinkAbout13. 22-120MARCH 22, 2021 22-120 RESOLUTION (CARRIED___6-0_____LOST________LAID OVER________WITHDRAWN________) PURPOSE: APPROVE LEASE EXTENSION WITH FRATERNAL ORDER OF EAGLES / WILLIAM G. SPANBAUER FIELD CONCESSIONS OPERATIONS INITIATED BY: PARKS DEPARTMENT ADVISORY PARKS BOARD RECOMMENDATION: Approved WHEREAS, the Fraternal Order of Eagles operates the William G. Spanbauer Field concession stand under an agreement with the City of Oshkosh. The current agreement expired on December 31, 2021; and WHEREAS, the Fraternal Order of Eagles desires to enter into an updated lease for 2022 expiring on December 31, 2022. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached Concession Stand Agreement with the Fraternal Order of Eagles for lease of the concession stand at William G. Spanbauer Field is hereby approved and the proper City officials are hereby authorized to execute and deliver the agreement in substantially the same form as attached hereto, any changes in the execution copy being deemed approved by their respective signatures, and said City officials are authorized and directed to take those steps necessary to implement the terms and conditions of the Agreement. City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us TO: Honorable Mayor and Members of the Common Council FROM: Ray Maurer, Parks Director DATE: March 15, 2022 RE: Approve Lease Extension with Fraternal Order of Eagles/William G. Spanbauer Field Concessions Operations (Advisory Parks Board recommends approval) BACKGROUND On March 27, 1996, the Fraternal Order of Eagles first entered into a yearly contract with the City of Oshkosh to operate the concession stand at William G. Spanbauer Field. That agreement was extended for various periods of time through December 31, 2021. Park staff has worked with the Fraternal Order of Eagles representatives to update the agreement. A copy is attached. ANALYSIS The Fraternal Order of Eagles has provided good service to the organizations that use William G. Spanbauer Field and proceeds made from the concession operation are earmarked annually to support the Eagles’ programs. The new lease agreement will be for a one year period beginning April 1 going through December 31, 2022. A revision has been made to the payment section; in the past, payment to the city was $1,000 or 10% of gross revenues, whichever was greater. With lower use of the ball field since COVID but hopefully with an expected increase this year, both parties agreed that a flat 15% of gross revenues would be a fair approach for this year. On March 14, 2022, the Advisory Park Board discussed the lease agreement and unanimously recommended entering into the agreement. Draft meeting minutes excerpt is attached. FISCAL IMPACT The Lease Agreement includes an annual payment to the City of 15% of gross revenues for the year. RECOMMENDATION Staff recommends the Common Council approve the Lease Agreement expiring on December 31, 2022. Respectfully Submitted, Approved: Ray Maurer, Parks Director John Fitzpatrick, Assistant City Manager ADVISORY PARK BOARD MINUTES MARCH 14, 2022 2) DISCUSS AND RECOMMEND APPROVAL OF THE CONCESSION STAND AGREEMENT FOR WILLLIAM G. SPANBAUER FIELD BETWEEN THE CITY OF OSHKOSH AND FRATERNAL ORDER OF EAGLES, AERIE NO. 267 Mr. Maurer referred to the agreement that was part of the Board’s packet. The Eagles Club has been operating the concessions stand at this site as a fundraiser for many years. If the Board approves the agreement, it will move on to Council for approval. The agreement is again for a period of one year. In the past, payment to the city was $1,000 or 10% of gross revenues whichever was greater. With lower use of the ball field since COVID but hopefully with an expected increase this year, both parties agreed that a flat 15% of gross revenues would be a fair approach for this year. Staff recommends approval of the agreement. Motion by Hudak to recommend approval of the William G. Spanbauer Concession lease agreement between City of Oshkosh and Fraternal Order of Eagles. Seconded by Metz. Motion carried 7-0. 1 CONCESSION STAND AGREEMENT FOR WILLIAM G. SPANBAUER FIELD The Fraternal Order of Eagles, Aerie no. 267, Oshkosh, Wisconsin, Inc., 2217 Ashland St., Oshkosh, Wisconsin 54901, a Wisconsin Non-Stock Corporation, (Eagles/Operator), and the City of Oshkosh, 215 Church Avenue, Oshkosh, Wisconsin 54901, a Wisconsin Municipal Corporation, (CITY/Owner) enter into this Agreement on __________________, 2022. 1) Purpose: Facilities at the CITY’s William G. Spanbauer Field include a softball diamond and a nearby concession stand with restrooms. Various softball leagues use this ball diamond when the weather cooperates between April and October. The ball diamond may occasionally be used for softball tournaments that are not part of league play, for special events, or for other uses. The CITY has requested and the EAGLES has agreed to provide concession services for the various softball leagues using the ball diamond. The EAGLES may, but is not obligated to, provide concession services for non-league tournaments, for special events, or for other Park uses. 2) Location: William G. Spanbauer Field is located at 713 South Sawyer Street. During the period of this Lease, Tenant shall have the exclusive use of the concession space of the building. No outside storage or use of the immediate area around the building is included. 3) Available Space and Equipment: The concession space provided by the CITY is empty. The EAGLES will be responsible for providing everything necessary to carry out their concession operations. This includes equipment, tools, and utensils that are suitable for this space and that it believes are necessary to prepare and serve the food and drink concessions that it wishes to sell. The CITY hopes the space will be useful to raise funds for its organization, but makes no warranty that the available space is suitable for all of the concession uses that the EAGLES may intend. The EAGLES has had the opportunity to inspect the space and accepts it as-is. The CITY is responsible for building structures issues and normal wear and tear. The EAGLES is responsible for all other cleaning and maintenance. The EAGLES shall not make any changes to the concession space without the CITY’s permission. The EAGLES accepts the concession space’s locks and other security features as-is. The EAGLES will be issued one (1) key to the space and is responsible for maintaining the security of that key. The key provided shall not be duplicated. The EAGLES shall be charged for the replacement of any lost keys as well as any changes of locks if the CITY believes such change is warranted. 4) Length of Contract: This lease agreement will be for a nine (9) month period, beginning on April 1, 2022, and ending on December 31, 2022. Either party may terminate this lease for any reason by giving the other at least thirty (30) days advanced written notice before the termination date. 5) Use: The EAGLES shall sell food and beverages (concessions) for regularly scheduled softball league games. No non-food / beverage items will be allowed. The EAGLES may sell beer and/or wine during the term of this lease, provided they independently obtain all necessary licenses and approvals to do so. The CITY will cooperate with applications licenses necessary to operate the concession stand. Written lists of items sold and the prices for those items sold shall be provided to the Parks Director. The EAGLES may keep and store its equipment, tools, and utensils within the concession space after the regular league season ends over the winter until it is used the following season. All equipment shall be prepared for proper cold weather storage. Food/beverages cannot be stored over the winter in the concession space. 2 6) Hours of Operation: The Parks Department will provide the EAGLES with the schedules for regularly scheduled softball league games that the EAGLES will be required to serve concessions. The games may vary in days of the week and times over the course of the season. The concession stand shall be open at least one-half (1/2) hour before the start of games and shall remain open at least until the end of games. The EAGLES may use the concession space to provide concessions for events that are not part of normal league play. 7) Payments: As consideration for the ability to serve concessions at the City facility, the EAGLES will pay to the City 15% of gross revenues. Payment is due by November 15, 2022. 8) Books of Account and Financial Reports: The EAGLES agrees to keep the books of account and records of all operations occurring at this Park. The EAGLES shall establish a system of bookkeeping and accounts related to the CITY concession space in a manner satisfactory to the CITY, and to permit inspection of said books and records by the CITY Director of Finance as often as is necessary in the opinion of the CITY. When making payment to the CITY, the EAGLES shall submit to the CITY gross sales reports broken down by month. The EAGLES shall also submit at the end of each year, or at another time required by the CITY, unaudited profit and loss statement of operations related to the CITY concession space in a form approved by the CITY. 9) Notices: All notices and orders given to the EAGLES and the CITY may be served by email or by U.S. Mail to their addresses of record. 10) Operation: The EAGLES is solely responsible for staffing and operating the concession space. Any minors working at the concession stand shall be supervised on-site by at least one adult to whom the EAGLES has delegated full authority to make decisions and make sure the concession stand is operated in a safe and lawful manner. The EAGLES will provide the CITY with the name and contact information of the person(s) that the EAGLES has designated as being responsible for the operation of the concession stand. 11) Insurance: The EAGLES shall provide and maintain at its own cost and expense all appropriate insurance throughout the term of this Agreement to cover the EAGLES, the CITY, and others using or affected by the concessions. The CITY of Oshkosh, and its officers, council members, agents, employees, and authorized volunteers shall be named as an additional insureds on the policy. Required insurance includes worker’s compensation, and such public liability, product liability, and property damage insurance to protect against any claims for damage to property and for personal injuries, including death, which may arise from the operation of this concession by the EAGLES. The minimum insurance coverage limits shall be written on an occurrence basis and have minimum limits of $500,000 per occurrence, and a $1 million general aggregate limit. Other minimum coverages include $50,000 damage to rented premises, per occurrence, $5,000 medical expense coverage, per person, and $100,000product liability coverage. A copy of all certificates of insurance must be furnished to the CITY. 12) Risk/Hold Harmless/Indemnification: The EAGLES accepts all responsibility and liability for its actions related to its use of the concession space. The EAGLES holds the CITY harmless from all actions, claims, and damages related to the EAGLES’s use of the concession space. The EAGLES shall indemnify the CITY, its officers, council members, agents, employees, and authorized volunteers for any and all claims, suits, losses, damage, or injury to person or property of whatever 3 kind and nature, whether direct or indirect, arising out of or related to the EAGLES’s use of the concession space. 13) No Partnership / Agency: The EAGLES’s use of the concession space is not intended to create a partnership or principal/agent relationship between the CITY and the EAGLES. 14) Federal, State, and Municipal Laws: The EAGLES, its employees, agents, and volunteers, shall comply with all Federal, State, and Municipal laws, ordinances, rules, orders, and regulations for all matters related to their use of the concession space. 15) Utilities: The CITY shall not charge the EAGLES for electrical, water, and garbage service for the concession space, unless usage significantly exceeds prior usage of the concession space. The EAGLES shall make sure that faucets are turned off, and equipment and appliances are unplugged, during all times concessions are closed. The EAGLES shall use all electric and water service in strict compliance with building codes, plans, and designs as approved by the CITY. 16) Flammables: The EAGLES shall not use or permit the storage of any illuminating oils, oil lamps, benzine, naphtha or other similar substances or explosives of any kind, or any substance or things prohibited in the standard policies of fire insurance companies in the State of Wisconsin in any buildings erected or to be erected on the premises. 17) Sanitation: The EAGLES agrees to keep the concession space in a clean and sanitary condition. The EAGLES is responsible for disposal of food waste, packaging containers, eating utensils, and other waste directly attributable to its concessions within the interior of the concession space, and is also responsible for waste and litter directly attributable to its concessions throughout the William G. Spanbauer Field Softball Complex. The EAGLES may use the CITY’s dumpsters at the Park to dispose of waste and litter created by its concessions. If the concession generates more waste and refuse than can be contained within the dumpsters furnished by the CITY, then the EAGLES is responsible for removing, at its expense, the extra waste and refuse off-site to its own dumpsters. 18) Inspection/Access: The CITY may inspect the concession space at any time. The EAGLES will promptly correct any condition that is unsatisfactory to the CITY. The CITY will work with the EAGLES to ensure that concession activities continue during operational hours, the CITY reserves the right to close all or part of the concession space in the event of a dangerous circumstance affecting health or safety that the CITY observes, or that the CITY becomes aware of from other agencies such as the Health Department. 19) Advertising: The EAGLES shall display at least one sign on or in the concession space indicating that the concession is operated by the EAGLES and not the CITY. Signage must be approved by the Parks Department. One sign may be temporarily attached to the exterior of the concession space as long as: a) the exterior location and method of securing to the building is approved by the Parks Department; and, b) the exterior sign is removed at all times that concessions are closed. One or more signs may be located inside the concession space. No other signage with any other message or advertisement is allowed, except for a sponsor logo which may be on the same EAGLES sign, but must be clearly smaller than the EAGLES language and logo. No separate signs with sponsor logos will be allowed. The EAGLES shall not employ or use any persons known as “hawkers”, “spielers”, “criers” or other noisemakers or means of attracting attention to the EAGLES’s concession business 4 that is not approved by the CITY, or to the extent that any activity of the EAGLES creates a nuisance. 20) Other Business: The EAGLES shall not carry on or within or around the concession space any other business or activity except as described in this Agreement. The CITY agrees that it will not sell, rent, lease, or permit any other person, business or concessionaire to sell food and drink concessions during regularly scheduled softball league play at William G. Spanbauer Field. 21) Service to Public: The policy of the CITY is to serve the public in the most ethical and responsible manner possible, and the EAGLES agrees that both it and its employees, volunteers, and agents shall at all times undertake the same policy and cooperate with the CITY to ensure this occurs. 22) No Representations: The EAGLES acknowledges that the CITY has not made or caused to be made any representations of any nature whatsoever in connection with the subject concessions, and in particular has made no representations dealing with such matters as anticipated revenue to the EAGLES, or related issues. The EAGLES acknowledges that it will enter into this lease as the result solely of its own business judgment and not as the result of any representations whatsoever, direct or indirect, made by the CITY, its agents or employees. 23) Discrimination: During the term of this agreement the EAGLES shall not to discriminate on the basis of any protected class as defined by local, state, and federal laws. 24) Use by Others: If an event that is not part of a normal non-league tournament, or a special event, or other activity will be held at the Park, and if the EAGLES is willing to allow others to use its concession equipment, then the CITY may allow the other party to use the concession space as long as EAGLES, CITY, and other party are able to enter into a mutually agreeable written agreement. FRATERNALORDER OF EAGLES, AERIE NO. 267, OSHKOSH, WISCONSIN, INC. By: _____________________________________ By: __________________________________ _____________________________________ __________________________________ (Print name) (Print title) (Print name) (Print title) CITY OF OSHKOSH By: ______________________________________ By: __________________________________ Mark Rohloff, City Manager Jessi Balcom, City Clerk Approved as to form: _______________________________ Lynn Lorenson, City Attorney