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HomeMy WebLinkAbout08-134APRIL 22, 2008 08 -134 RESOLUTION (CARRIED 6 -0 LOST LAID OVER WITHDRAWN PURPOSE: APPROVE AGREEMENT FOR CONCESSION OPERATIONS AT THE REETZ SOFTBALL COMPLEX (MENOMINEE PARK) BETWEEN THE CITY OF OSHKOSH AND THE BOY'S AND GIRL'S CLUB OF OSHKOSH, INC., ALUMNI ASSOCIATION INITIATED BY: DEPARTMENT OF PARKS WHEREAS, the Boy's and Girl's Club of Oshkosh, Inc., Alumni Association has operated the Menominee Park Reetz Softball Complex concession stand under an Agreement with the City of Oshkosh since 1992; and WHEREAS, the Association desires to extend the Agreement for an additional five (5) year period pursuant to the same terms and conditions of the original Agreement; NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that between the City of Oshkosh and The Boys' and Girls' Club of Oshkosh, Inc., Alumni Association, 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. LEASE FOR CONCESSION STAND AT MENOMINEE PARK REETZ SOFTBALL COMPLEX CITY OF OSHKOSH THIS AGREEMENT, made and entered into this day of April, 2008, by and between the BOYS' AND GIRLS' CLUB OF OSHKOSH, INC., ALUMNI ASSOCIATION, 501 E Parkway Avenue, Oshkosh, Wisconsin (hereinafter referred to as "Tenant'), party of the first part, and THE CITY OF OSHKOSH, a municipal corporation, located in Winnebago County, Wisconsin (hereinafter referred to as "City "), party of the second part. WHEREAS, the Boys' and Girls' Club of Oshkosh, Inc., Alumni Association wishes to assume operation of the Menominee Park Reetz Softball Complex concession stand; and WHEREAS, the Boys' and Girls' Club has operated said stand since April of 1992 and wishes to continue to do so, NOW, THEREFORE, pursuant to said resolution of the City Council of the City of Oshkosh, the parties agree as follows: 1) Location: This concession is limited to the interior portion of the restroom concession building located at the Menominee Park Reetz Softball Complex as described on the drawings found with the original contract. During the period of this Lease, Tenant shall have the exclusive use of the concession portion of the building. No outside storage or use of the immediate area around the building is included. 2) Length of Contract: The contract will be for a five (5) year period commencing on the day of May, 2008, and terminating on December 31, 2012. Tenant agrees to give City notice of at least sixty (60) days prior to the end of any contract term of its intention to exercise its option to renew. If the Tenant wishes to withdraw from the contract during the period of the Lease, it shall give the City notice in writing prior to February 1 of any year during the term of the Lease. 3) Foodstuffs: The concession will include foodstuffs, including but not limited to pre - prepared sandwiches, hot dogs, hamburgers, potato chips, candy, dispenser soft drinks, and dispenser and canned fermented malt beverages at the above described location. It is the responsibility of the Tenant to apply for and receive a Class `B" Fermented Malt License. The City agrees that it will cooperate in the application for the Class "B" Fermented Malt License and any and all other licenses that may be necessary for the operation of the concession stand. A current price list for items that are for sale shall be on file at the City Parks Director's office. 4) Hours of Operation: The concession stand shall be open during such times as there is regularly scheduled softball play at the Menominee Park Reetz Softball Complex. When there are special diamond uses (i.e. tournaments), the concession stand may be scheduled per request by tournament organizers, and if financial considerations need to be addressed, they shall be negotiated between the Tenant and organizers. In regard to special events, there shall be mutual agreement between any special event organizer and the Tenant as to the Reetz concession stand being open. The exception will be on the 4 th of July whereby the Sawdust Days Committee has agreed to support the opening of the stand for the one (1) day. 5) Lease Payments: Tenant agrees to pay to the City a minimum rent of $1,000 or 10% of gross revenues, whichever is greater for the year 2008, and the same by October 1 for every successive year thereafter. In the event the Tenant shall default in payment of the Lease and does not cure the default prior to the succeeding January 1, then the Lease shall be terminated. 6) Books of Account and Financial Reports: The tenant agrees to keep the books of account and records of all operations and to establish a system of bookkeeping and accounts in a manner satisfactory to the City and to permit inspection of said books and records by the City Comptroller as often as is deemed necessary in the opinion of the City. The Tenant shall submit at the end of each year, or as required by the City, an unaudited profit and loss statement of operations under an agreement, in a form approved by the City, itemizing payroll costs, operating and other expenses. 7) Notices: All notices and orders given to the Tenant may be served by mailing the same to the Tenant at the address hereinbefore set forth or by delivering a copy thereof to the Tenant in person. 8) Management: The concession will be managed by the Tenant and will be operated by volunteers and/or paid employees. The Board of Directors of the Boys' and Girls' Club of Oshkosh Inc., Alumni Association shall be solely responsible for determining the volunteers and/or paid employees who will be working at the concession. Tenant agrees to provide the City with the name of the President of the Boys' and Girls' Club of Oshkosh, Inc., Alumni Association and he /she or his/her designee shall serve as the liaison or manager between the Tenant and the City relative to any questions concerning the operation and/or management of the concession. 9) Insurance: The Tenant shall procure, at its own cost and expense, worker's compensation and such public liability and property damage insurance as required to protect the Tenant, the City, and it's officers and employees from any claims for damage to property and for personal injuries, including death, which may arise from the operation of this concession by the Tenant. The insurance coverage limits shall be as follows: bodily injury - $100,000 each person each occurrence; property - $50,000 each occurrence; $300,000 aggregate; product liability - $100,000. A duplicate copy of all insurance policies or certificates of insurance must be furnished to the City with full premiums paid, before the start of any operations by the Tenant. All policies shall contain an endorsement providing for furnishing the City ten (10) days' written notice of termination of insurance for any cause. 10) Risk: The Tenant assumes all risk in the operation and shall be solely responsible and answerable in damages for all accident or injuries to person or property and hereby covenants and agrees to indemnify and keep harmless the City, its officers and employees from any and all claims, suits, losses, damage, or injury to person or property of whatever kind and nature, whether direct or indirect, arising out of the operation of this Lease or the carelessness, negligence, or improper conduct of the Tenant or any servant, agent, or employee, which responsibility shall not be limited to the insurance coverage herein provided for. 11) Waiver of Damage: The Tenant will expressly waive any and all claims for compensation for any and all loss or damage sustained by the Tenant resulting from fire, water, tornado, civil commotion, or riots. The Tenant will expressly waive all rights, claims and demands, and forever release and discharge the City, its officers and employees from any and all demands, claims, actions, and causes of action arising from any cause. 12) Not an Agent: Nothing contained in this Lease shall create or be construed as creating a co- partnership between the City and the Tenant or to constitute the Tenant as an agent of the City. 13) Federal, State, and Municipal Laws: The Tenant will not use nor permit any person to use in any manner whatsoever, the said premises or any part thereof or any building for any illegal purpose, or for any purpose in violation of any Federal, State, or Municipal law, ordinance, rule, order, or regulation or of any rule or regulation of the City now in effect or enacted or adopted, and will protect, indemnify and forever save and keep harmless the City and the individual employees thereof and their agents, from and against any damage, penalty, fine, judgment, expense or charge suffered, imposed, assessed or incurred for any violation or breach of any law, ordinance, rule, order or regulation occasioned by any act, neglect or omission of the Tenant or any employee, person or occupant for the time being of said premises; and in the event of any violation, or in the case the City or its representatives shall deem any conduct on the part of the Tenant, or any person or occupant for the time being of the premises (or the operation thereof), to be objectionable or improper, the City shall have the right and power and is hereby authorized by the Tenant so to do, to at once declare the concession agreement terminated without previous notice to the Tenant. 14) Utilities: The City shall pay for all electric lights, power and gas, used and consumed in connection with the operation of the concession. Any alterations in the existing facilities for electricity, power, gas, water, sewer, drain pipes, or in other fixtures necessary for the operation of this concession, shall be made at the sole expense of the Tenant after written approval by the City. The Tenant shall use only electricity for motive power and illumination of the premises, buildings or spaces included in this specification unless otherwise permitted in writing by the City and shall use all electric lights and power in strict accordance with the plans and designs as approved by the City. Water shall be furnished by the City. 15) Inflammables: The Tenant shall not use or permit the storage of any illuminatirig 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. 16) Sanitation: Tenant agrees to keep clean and in a sanitary condition the portion of the building used by it as a concession stand. Tenant is responsible for disposal of food waste, packaging containers, eating utensils, and other waste directly attributable to the food concession in the interior of the concession portion, and is also responsible for concession stand litter throughout the Menominee Park Reetz Softball Complex. All refuse and waste material shall be stored by Tenant and shall be disposed of by the Tenant or at the option of the Tenant. The City may provide dumpsters for refuse. If the concession generates more refuse than can be contained within any City furnished dumpsters, it shall be the responsibility of the Tenant to provide additional containers. All, State and local health laws and regulations shall be strictly complied with. 17) Inspection /Access: It is agreed that the concession premises may be inspected at any time by authorized representatives of the City. The Tenant agrees that if notified by the City or its representatives, that any part of the concession premises or the facilities thereof is unsatisfactory, it will immediately remedy same. 18) Repairs: All equipment which is hereinafter stated as being the property of the City shall be maintained and kept in repair by Tenant and shall, at the expiration of this Lease or any renewal thereof, be returned to the City in as good condition as when received, reasonable wear and tear and damage by the elements excepted. Maintenance of any of the equipment covered by this section shall be done by and at the expense of Tenant. In case the Tenant does not make some needed repair within a reasonable time, the City may make the repair and charge the cost to the Tenant. Tenant shall not make any alterations in the concession premises without the written approval of the City. 19) Advertising: Tenant may place on the building an appropriate sign indicating that the concession is operated by the Boys' and Girls' Club of Oshkosh, Inc., Alumni Association and that a portion of the cost of the building was donated by the Boys' and Girls' Club of Oshkosh, Inc., Alumni Association. Tenant agrees not to advertise in any other manner or form on or about the premises, buildings, or concession space used by it or elsewhere in any newspapers or otherwise, except by means of such signs or forms of advertising as shall be approved by the City. Tenant shall not employ or use any persons known as "hawkers", "spielers", criers or other noisemakers or means of ,attracting attention to the Tenant's concession business, not approved by the City, or to the extent of creating a nuisance. 20) Other Business: Tenant shall not carry on or within or upon said concession space any other business, except as described in above Paragraph 3. The City agrees not to sell, rent, lease, or permit any other person, business or concessionaire who is in a business similar to that described in Paragraph 3 to operate within the area described. 21) Service to Public: The policy of the City is to serve the public in the best possible manner, and the Tenant agrees that both it and its employees, volunteers, and agents shall at all times cooperate to this end. 22) Interpretation of Agreement: Should any question arise as to the proper interpretation as to the terms and conditions of this Lease, both parties agree to submit to the American Arbitration Association according to their rules and conditions and'the decision made by the arbitrator or arbitrators shall be binding on both parties. Both parties agree to consent to the issuance of an order in the appropriate circuit court in Winnebago County implementing the decision of the arbitrator or arbitrators. 23) No Representations: Tenant 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 Tenant, or related issues. The Tenant 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. 24) No Discrimination: The Tenant will agree not to discriminate in its operations, under the contract on the basis of race, color, creed, age, and sex, except as otherwise prohibited by law. Breach of this covenant may be regarded as a material breach. 25) Sublet: Tenant shall have the responsibility to sublet the premises on the following terms. The City shall not unjustifiably withhold permission to sublet such premises. The Tenant may sublet only to individuals or non- profit organizations which meet the following criteria: a) non - profit, charitable, or public service organization or otherwise serving the public good; b) not for organizations or groups of individuals who would derive a profit which is not solely used for public or charitable purposes; c) the sub - tenants agree to abide by all park rules, regulations, City ordinances, and all provisions of this Lease that are applicable to the primary tenant; d) the premises should not be sublet for more than four (4) consecutive days in any one (1) calendar year without prior written approval of the City; e) any questions regarding the integrity, purpose, composition of any person, group or organization that desires to sublet the premises from the tenant shall be made by the City, whose decision shall be final; f) the sub -tenant shall take appropriate safeguards, either in a financial cash damage deposit or bond to insure protection of the tenant's property, goods, and supplies and the City property hereinafter described in Paragraph 26. 26) Equipment: The Tenant shall provide the equipment necessary to prepare foods and run the concession operations. The Tenant acknowledges "that it is familiar with the floor plan of the building and the concession area as shown on the drawings marked Exhibit "A" found with the original contract. If for any reason additions, deletions, or alterations are desired by the Tenant, then conditions of Paragraphs 8, 14, and l8 of this Lease shall apply. Trade fixtures, partitions or any other equipment installed in, on, under, or about the premises by Tenant shall always remain the property of the Tenant and shall be removed at the expiration of the term of this Lease or any renewal thereof, or any other termination thereof, provided that any such damage to the leased premises caused by the removal of such fixtures, partitions or other equipment shall be repaired by the Tenant. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this day of April, 2008. BOYS' AND GIRLS' CLUB OF OSHKOSH, INC., ALUMNI ASSOCIATION Bv: CITY OF OSHKOSH By: John M. Fitzpatrick, Acting City Manager By: Pamela R. Ubrig, City Clerk Approved as to form: Lynn Lorenson Assistant City Attorney