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HomeMy WebLinkAbout05-346.doc NOVEMBER 8, 2005 05-346 RESOLUTION (CARRIED 6-1 LOST LAID OVER WITHDRAWN PURPOSE: INITIATED BY: DESIGNATE LEACH AMPHITHEATER LEASE PROCEEDS INTO SEGREGATED FUND; APPROVE AGREEMENT COUNCIL MEMBER F. TOWER WHEREAS, the Common Council desires to establish a mechanism to fund future maintenance (including but not limited to: capital improvements or scheduled maintenance or such other capital expenditures) as may be necessary from time to time to preserve the Leach Amphitheater and appurtenant structures and facilities; and WHEREAS, it is the sense of this Council that it is prudent to segregate any excess funds generated by the Leach Amphitheater lease payments from year to year for such maintenance purposes, provided however that the City is able to retain such monies to fund current year routine operations and maintenance of the Leach Amphitheater as a city park facility; and WHEREAS, it is prudent that these excess funds be deposited with and managed by the Oshkosh Area Community Foundation as per the attached agreement; NOW, THEREFORE BE IT RESOLVED by the Common Council of the City of Oshkosh that effective January 1, 2007, should there remain any funds from the Leach Amphitheater lease payments after deducting the 2006 routine, day to day expenses of the Parks Department in maintaining the facility and surrounding grounds from the 2005 lease payment, unless otherwise instructed by the Council, the proper City officials are authorized and directed to forward such surplus to the Oshkosh Area Community Foundation pursuant to an agreement with the Foundation to hold such funds on the City's behalf for the purposes outlined in this resolution. BE IT FURTHER RESOLVED that all future surpluses be likewise forwarded to the Foundation, on an annual basis unless otherwise instructed by the Council on a two- year delay basis, the intent of the Council being that the City should always have on hand the prior year's lease payments to fund current year's routine operations and maintenance expenses. (Example: 2006 lease payment retained to fund 2007 expenses associated with the Leach Amphitheater) BE IT FURTHER RESOLVED that the attached Agreement with the Oshkosh Area Community Foundation is approved and the proper City officials are 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. ," '!!!!t + OSHKOSH AREA COMMUNITY FOUNDATION City of Oshkosh Amphitheater Fund The City of Oshkosh; PMI, its assigns, successors, or other subsequent vendors; or users of the Amphitheater shall deliver to the Oshkosh Area Community Foundation, Inc. ("Foundation"), assets intended for the Leach Amphitheater Fund to be used for maintenance (including but not limited to: capital improvements or scheduled maintenance or such other capital expenditures as may be necessary from time to time to preserve the Leach Amphitheater and appurtenant structures and facilities.) It is their request that this donation, together with any additional donations, which may hereafter be made by vendors or other donors to the fund hereafter described, be used to establish and maintain a component fund (the "Fund") of the Foundation to be held and administered by the Foundation as follows: 1. The Fund shall be known as the Leach Amphitheater Fund and shall be identified as such by the Foundation in the course of the administration and distribution thereof. It shall be structured as a designated fund, a component fund of the Foundation whose beneficiaries have been. specified by a donor or a governing board. 2. The fund shall' be used for maintenance of the Leach Amphitheater as defined above. The distributions for such purposes shall be consistent with those set forth in the Foundation's Articles and Bylaws as now exist or may hereafter be amended, however, the designated purpose of the Fund is to pay for maintenance of Amphitheater as defined above. Distributions shall ordinarily be made out of income and principal of the Fund. 3. The City Council of Oshkosh shall be responsible for setting the guidelines for distributions. The Council shall advise the Foundation as to the amount and timing of such distributions for maintenance of the fund. The geographic boundaries of the fund will be kept to Phase 1 of the Riverside Park plan. The Foundation shall review the proposed distributions to ensure they are not inconsistent with the Foundation's Corporation articles and Bylaws as amended and are in compliance with the designated purpose of the Fund. If deemed appropriate, the Foundation may request evidence of authorization by the party executing this agreement to direct the amount and timing of distributions from the Fund. Forgood.Foreve~~ 404 N. Main St., Suite 205 Oshkosh, WI 54901 Phone 920A26.3993 Fax 920A26.6997 www.OshkoshAreaCEorg Serving Winnebago, Green Lake; and Waushara Counties '!!!!t + OSHKOSH AREA COMMUNITY FOUNDATION 4. Fees are determined by the Finance Committee of the Foundation. 5. Notwithstanding anything herein to the contrary, the Fund shall at all times be held and administered in accordance with the provisions of the Articles and Bylaws of the Foundation's Corporation which are hereby accepted and agreed to by the undersigned, including those provisions relating to amendment, termination and variance from donors' direction. The undersigned acknowledges that under the provisions of the Articles and Bylaws, and as required by regulations promulgated pursuant to the Internal Revenue Code of 1986, as amended, the Foundation has explicit authority to redirect the assets of any fund it administers. However, the Community Foundation does not anticipate exercising such authority unless, in the opinion of the Board of Governors, the purposes for which the fund was established become unnecessary, incapable of fulfillment, or inconsistent with the needs of the community. In the event the Foundation needs to take action they will consult with the City Council to determine the best use of the funds for recreational purposes to benefit the City of Oshkosh residents. 6. It is intended that the Fund shall be a component part of the Foundation and that nothing in this agreement shall affect the status of the Foundation as an entity that is a qualified charitable organization. This agreement shall be interpreted in a manner consistent with this intention and so far as to conform to the requirements of the Internal Revenue Code and any regulations promulgated pursuant thereto applicable to the intended status of the Foundation. If the foregoing is acceptable to you, kindly so indicate by dating and signing the enclosed copy of this letter in the space provided below and return it to the Foundation. Upon such acceptance, this letter will constitute our agreement with respect to the Fund and all prior discussions or agreements concerning the fund are merged herein and made a part hereof. For good. For ever. 8M 404 N. Main St., Suite 205 Oshkosh, WI 54901 Phone 920A26.3993 Fax 920A26.6997 www.OshkoshAreaCEorg Serving Winnebago, Green Lake, and "Waushara Counties '. '!!!!t ----- OSHKOSH AREA COMMUNITY FOUNDATION ~ccePted this - day of , 2005. By: Name I Title On behalf of the City of Oshkosh: Date: City Manager Date: City Clerk APPROVED AS TO FORM: Assistant City Attorney For good. For ever. 8M 404 N. Main St., Suite 205 Oshkosh, WI 54901 . Phone 920A26.3993 Fax 920A26.6997 www.OshkoshAreaCEorg Serving Winnebago, Green Lake, and "Waushara Counties