Loading...
HomeMy WebLinkAbout35596 / 89-335 October 19, 1g89 # 335 RESOLUTION (CARRIED LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE LAKE SHORE GOLF COURSE LEASE INITITATED BY: PARKS DEPARTMENT ADVISORY PARKS BOARD RECOMMENDATION: Approved, 4-3 WHEREAS, the City of Oshkosh has previously solicited proposals to lease management of the Lake Shore Golf Course; and WHEREAS, upon the opening and tabulation of the proposals, it appears that the proposal of the Canteen Corporation of Oshkosh is the most advantageous proposal; NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the proposal of Canteen Corporation of Oshkosh is accepted and the proper City officials are authorized and directed to enter into the attached agreement, which is hereby approved, all according to plans, specifications and proposal on file. SUBMITTED BX APPROVED - 3 3 - � Res. #335 LAKE SHORE MUNICIPAL GOLF COURSE OPERATIONAL LEASE 1990-1995 • This indenture, made and executed this day of , 1989, by and between the CITY OF OSHKOSH, a municipal corporation located in Winnebago County, Wisconsin, hereinafter referred to as "CITY" , party of the first part, and CANTEEN COMPANY, DIVISION OF TW SERVICES INC. , P.O. Box 2546, herinafter referred to as "LESSEE" , party of the second part. Whereas the City Council of the City of Oshkosh by resolution duly adopted on the 20th day of November, 1986, authorized and directed the proper City officials to enter into an appropriate agreement with the partx of the s�cond part for an operational lease at Lake Shore Municipal Golf Course for a period of three years and, whereas the Canteen Corporation requests to extend the terms of said Lease for an additional term, and whereas it is in the best interest of the City to extend said lease. NOW, THEREFORE, pursuant to said resolution of the City Council of the City of Oshkosh, the parties agree as follows: I. LOCATION: A. Cit� will lease to Lessee, under the terms and upon the conditions hereinafter set forth, those certain premises, property known as Lake Shore Municipal Golf Course, 2175 Punhoqua Street, Oshkosh, Wisconsin, and all facilities contained with and on said property, more particularly described in "Exhibit A" as attached. During the period of this contract, Lessee shall have exclusive use of the property and all improvements, excluding the parking lot and adjoining roadway. B. As used herein, the term "premises" refers to the real property above described and to any and all structures and improvements located thereon. II. TERM OF THE LEASE AGREEMENT A. The initial term of this lease shall be for five (5) years, commencing on January 1, 1990, and ending on December 31, 1995. Lessee shall have the option to renew the Lease Agreement for an additional five (5) one (1) year agreements. The renewal shall be on the same terms and conditions as the initial term of the Lease or as amended by the parties. B. If the Lessee wishes to renew the Lease Agreement, it must inform the City of Oshkosh of its desire to do so by September 1 of the preceeding year. 1 - 33a - • Res. #335 III. RENT A. Lessee shall pay to the City as the total rent for each year of the five (5) year Agreement, a minimum payment of $25, 000 per year plus five percent (5�) of gross revenue the Lessee receives from its operation of the golf course facilities in accordance with his bid. The base rent shall be renegotiated for each year of the option renewal periods. For the purpose of this Lease, "gross revenue" shall be defined as the total of all sums received from all sources derived from golf season revenue of green fees, season tickets, riding cart rentals, food and bevera�e sales, pro shop merchandise and club repair, along with any and all operations of the leased premises conducted during off-season months, but excluding sales and use taxes. Payments of the percentage of gross revenue shall be made to the City by Lessee by the twenty-fifth (25th) day of each month for services provided and sales made during the previous month. B. Payment of the fixed rental amount shall be made in six installments beginning May 1 and continuing the first day of each month culminating in the last payment on October 31 of each year. C. Lessee shall be entitled to all profits in the event that the receipts from the operation of Lessee' s services are greater than Lessee' s Cost of Business, as hereinafter described; provides, however, that in the event that receipts from the operation of Lessee' s services exceed the Cost of Business by more than four percent� (4%) annual gross receipts, such excess shall be divided between the City and the Lessee on the basis of fifty percent (50�) of such excess to the Lessee. City' s portion of these revenues shall be paid within 30 days after the close of Canteen's fiscal year. Al1 payments are to be made to the Collections Division, Room 102 , City Hall, 215 Church Avenue, Oshkosh, Wisconsin. Cost of Business shall be determined on an accrual basis in accordance with generally accepted accounting principals as consistantly applied by Lessee, and shall consist of the sum of the following items, namely: (a) the cost of all Canteen labor performing services with respect to this agreement, either on a full-time or part-time basis, including the cost of all vacation pay, holiday pay, workmen' s compensation insurance premiums or cost, unemployment insurance, F. I .C.A. , and all other regularly granted employee benefits; and (b) the cost of all products, merchandise, materials and supplies incurred with respect to this agreement; and the cost of all other operating expenses; and (c) the cost of rent, and indirect overhead charge of five percent (5�) of gross receipts. 2 - 33b - • REs. #335 D. The City will place all �e�=e�e�e�e���a °--__ LL_ -���e��-��e�ac�€ a-� receipts from the five pecent (5�) commissions of gross revenue into a Lake Shore Golf Course Ec�uipment/Improvement Fund. This fund shall be a non-lapsing, accruable account during the terms of the Lease. The revenues will be used for purchase of equipment replacement and capital improvements at the course. Said equipment will be purchased by the City after consultation and agreement by the Lessee. Needed capital improvements and schedule will also be determined by mutual consensus. The Lessee shall make written requests for equipment and capital improvements documenting the need and reasoning for purchase. All funds remaining in the account at the end of the lease period shall be held by the City and used at its discretion. The City and the Lessee may su�plement the fund at any time for projects requiring additional capital. IV. LICENSE REQUIRED A. Lessee may apply for a license to sell only beer at Lake Shore Golf Course. Licenses are also required for food, beverage and cigarette sales. Lessee must apply for such license in the normal manner and under normal procedures. By entering into this Lease, the City is not guaranteeing to Lessee that the Oshkosh City Council will, in fact, grant or issue any such licenses to Lessee. Lessee shall not at any time in the future transfer or attempt to transfer any such licenses to premises other than the golf course facilities. At such time as Lessee is no longer operating the golf course facilities, Lessee shall relinquish all such licenses to City. V. DAILY OPERATION A. The course will be operated daily, exceptinc� weather conditions, with opening and closing times consistent with past schedules. The clubhouse shall close after golf play concludes within reason. It shall not remain open for the sole purpose o€ beer concessions or social events during the golf season. VI. EXISTING PROGRAMS, LEAGUE TOURNAMENTS, SPECIAL EVENTS, AND RULES . The City desires the Lessee to continue existing programs, including junior golf activities, adult recreational leagues, and annual and s�ecial tournaments, consistent with past traditions. The Lessee shall not discontinue existing programs without justification to and approval by the City. Service to the public is utmost and the City wishes to continue the excellent golf clientelle relationships that are presently in effect. Lessee shall enforce current rules and City ordinances. Any additional rules 3 - 33c - • REs. #335 proposed by Lessee, shall be approved by the City prior to their posting. Said approval by the City shall not be unreasonably withheld. VII. USE OF LEASED PREMISES A. The leased premises will be used during the golfing season (March throu�h November) solel� for the purpose of operating a public golf course facility and providing usual services generally provided by golf courses, including regular and group golf play, golf instruction, food and beverage concessions, automobile parking facilities for patrons of the golf facility, and the operation of a golf pro shop in which only that golfing equipment and apparel customarily sold in golf pro shops throughout the Oshkosh area may be offered for sale. No amusement devices shall be allowed within the Clubhouse unless specified by a supplemental agreement. Lessee shall have knowledge and understanding of the principles and practices of golf course management and implement and utilize such principles and practices in its operation of the lease facilities. B. Lessee shall provide sufficient and competent employees to adequately manage and operate the golf courses facilites, including course and equipment maintenance, and shall be obligated to pa� all salaries for such employees including the withholding of payroll , social security taxes, workmen' s compensation, and other personnel costs which may be required. Enough employees shall be hired to adequately staff the course at all times the course is open. A list of employees names by positions shall be available to the City. Unless personally operated by Lessee only, Lessee agrees to employ a Pro/Manager who is satisfactory to the City, and who will be available at the Clubhouse at all times during operation of the Lease. If, at any time, the City notifies Lessee that the Pro/Manager is not acceptable, Lessee shall , within 48 hours meet with the City to make other arrangements or resolve the differences. Lessee will agree, at the request of the City or its authorized representative, and with the making of specific charges, forthwith to terminate or suspend the employment of any employee whom the City or such representative considers detrimental to the best interests of the Golf Course or public using same within 48 hours upon receipt of official notice. C. Lessee shall be obligated to secure and pay for all Federal, State, and local licenses and permits, and pay all sales and excise taxes required for the operation of any food or beverage concession and any other equipment and apparel sale or rental. 4 - 33d - � Res. #335 D. The leased premises shall not be used for any illegal purposes, not in violation of any valid regulation of any governmental body, nor in any manner to create any nuisance or trespass, not in any manner which may invalidate the insurance coverage of the leased premises or increase the rate of insurance coverage on the leased premises. E. City operates the irrigation system under a permit issued by the Department of Natural Resources. City will continue to apply for an receive the permit for irrigation purposes. If said permit is withheld by the Department of Natural Resources, said denial should be noticed to Lessee and effects of said denial shall be negotiated. VIII. PUBLIC GOLF COURSES A. Lessee shall o�erate the leased premises as a public golf course, charging only fees that are reasonable and competitive with other golf courses in the Oshkosh and surrounding area. Under no circumstances may Lessee charge a membership fee to golf course patrons. For the remainder of the lease, Lessee shall establish the fee schedule on or before February 1 of each year. Increases in the greens fee schedule are limited to the Consumer Price Index annual inflation index for the subsequent year. Fees over the C. P. I . shall be approved by the City. IX. MAINTENANCE, REPAIRS, DAMAGE, DESTRUCTION AND RESTORATION A. Lessee shall, throughout the term of the Lease, at its own� cost, and without any expense to the City, keep and maintain the premises, includin� all structures and improvements (including the irrigation system) of every kind which ma� be a �art of the golf course facilities, including office e�uipment, air conditioning, heating plant, sewerage in�ector pump, and the like, in as good or better a condition than said structures and all improvements thereon were in at the beginning of the initial term of the Lease, reasonable wear and tear excepted. Lessee agrees to keep clean and in a sanitary condition, all premises used by it as defined in Exhibit "A" , and more particularlx the Clubhouse' s food/beverage areas. Lessee is responsible for disposal of food wastes, �ackaging, containers, eating utensils and other wastes directly attributed to the food concessions; not only in the concession area but also in the main lounge and any other area used for servicing merchandise. All refuse and waste materials shall be stored by Lessee and shall be disposed of by the City by regular Sanitation Department pickup. All State and local health laws and regulations shall be strictly complied with, such as vacuuming, table cleaning, emptying of waste containers, and other necessary miscellaneous housekeeping duties. City can and shall without notice inspect and demand 5 - 33e - • Res. 335 that conditions, which are in its opinion unsanitary, be corrected without delay. Kitchen equipment, especially the grill and exhaust fan, SHALL NOT be allowed to be coated with grease. The exhaust filters shall be cleaned weekly. The floor behind the counter shall be mopped, regularly scrubbed, and polished occasionally, at least once a month. Lessee has no responsibility for maintaining the parking lot, except for trash and debris removal and disposal. Lessee' s responsibilities can include capital improvements to, renovation of, or major repair to the golfing infrastructure. Lessee shall further, at its own cost, and without any expenses to the City, keep and maintain the greens, fairways, and other turf in as good or better condition than they were in at the beginning of the initial term of the Lease. B. In order to determine the continuing quality and condition of the leased premises, and in order to determine the responsibility of Lessee at the termination of the Lease, the City and Lessee may jointly hire a turf consultant to evaluate the golf courses each year of the Lease near the beginning of the golfing season, each year of the Lease near the end of the golfing season, and at the termination of the Lease. Each of these times a consultant is so hired, that consultant may prepare a detailed written report containing the results of h�s evaluation. The cost of each of these evaluations and reports shall be equally shared by the City and Lessee. The recommendations made by turf consultant shall be implemented by Lessee solely at the direction of the City. C. In addition, the City has the right to hire, at its own expense, a turf consultant to evaluate the condition and quality of the golf course at any and all other times as it deems such evaluation necessary or desireable. D. Lessee shall restore and rehabilitate the structures and im�rovements which may be destroyed or damaged by vandalism, fire, or any other casualty. The damage, destruction, or partial destruction of any portion of the leased premises or any building or other improvement which is a part thereof, shall not relieve the Lessee from any obligation under the Lease Agreement, except as otherwise provided. In case of damage to or destruction of any such portion of the leased premises, including any such building or improvement, Lessee shall at its own expense promptly repair and restore the same to a condition as good or better than that which existed prior to such damage or destruction. Without limiting such obligations of Lessee by wax of enumeration, it is agreed that the proceeds of any insurance covering such damage or destruction shall be made available to the City and Lessee for such repair or replacement. The 6 - 33f - � REs. #335 City itself shall not be obligated to make any repairs, replacements, or renewals of any kind, nature, or description, whatsoever to the leased premises or to any buildings or improvements and fixtures thereon, except for major repairs, to such buildings, improvements and fixtures of the leased premises when in such cases the City shall, within such reasonable time as shall be required based upon the necessity of maintaining operable facilities, repair, replace or provide an alternative to accomplish the intended purpose of that portion of the premises. Major repairs shall be defined as structural repairs, including, but not limited to, such categories as: the building floors, walls, roofs, doors, and windows, and the plumbing, electrical, sewer, heating and air conditioning systems. Lessee shall be responsible for minor repairs. Examples of minor repairs shall include, but not be limited to: all repairs to the golf course grounds which are considered acceptable according to industry-wide standards and practices; painting the interior or exterior of buildings and shelters includin� walls, doors and trim; caulking of windows and tuck pointing of masonry; edging and adding sand to bunkers; performing basic custodial tasks includin� replacement of light bulbs, repairs to restroom and kitchen fixtures and appliances; repairs to all doors, door closures, door locks and door jams; repair and maintenance to any equipment listed in Exhibit "A" ; and removal of dead wood from trees and pruning of shrubs according to acceptable industry-wide standards and practices. In no event shall the City be required to make repairs or replacements when the damages� are a result of the negligence or neglect of the Lessee or its employees or agents. E. Should the leased premises be so damaged by fire, casualty, acts of God, vandalism or any other cause whatsoever as to render the premises untenable or unfit for the purposes of this tenancy, the parties shall negotiate reasonably and in good faith re�arding what, if any, provision of the Lease may be modified, suspended or renegotiated as a result of such damage to the premises. The parties shall meet for such negotiations within 15 days after the date of damage. F. Lessee shall make no major alterations, additions, major repairs, permanent decorations, restorations, or improvements of the leased premises without first submittin� plans and specifications therefore to the City for its written approval. A major alteration shall be defined as anx activity which changes the physical appearance, playing condition or intended pur ose of golf course grounds, buildings, bridges, shelters, parking lots, roads, cart paths, and irrigation systems. Examples of major alterations include, but are not limited to the following: any modification to the size, 7 - 3 3 g - � Res. #335 shape or number of tees, greens, fairways, and sand bunkers; the removal or planting of any existing cart paths; any modifications to the irrigation system including the pump house, controllers, water mains, laterals and sprinkler heads; any change to the buildings including the floors, walls, doors, windows, and roof which would alter its physical structure or appearance; any modification to floor treatment; any modification to the building utilities including the plumbing, electrical, sewer, heating and air conditioning systems, and fire alarm and smoke detection equipment. Lessee shall not sell, alter or modify any of the vehicles, turf, or major equipment, without City approval. G. Any agreement to make such major alterations, additions, major repairs, permanent decorations, restorations or improvements shall be submitted in advance of execution to the City for approval, and Lessee shall furnish a copy of the Lease Agreement to anx person making such major alterations, additions, ma�or repairs, permanent decorations or improvements to the premises. Specific authority must be �ranted by the City Mana�er or his designee. Such authorization shall be specifically conditioned upon Lessee's agreement that Lessee or Lessee's contractor shall supplx a performance bond or letter of credit guaranteeing satisfactory completion of such construction and pa�ment of all debts and claims arising from such construction. Any such construction permitted by the City to be made by Lessee shall be solely in furtherance of the use of the leased premises. Any such construction shall be made at the sole cost and expense of Lessee and shall become the property of the City. The Lessee may make jointly fund capital im�rovements with the City under the provisions of the Capital Improvement Fund. However, Lessee shall not have the obligation to make major repairs to any improvement or structure, including fixtures, that has reached the end of its normal life use, provided that adequate maintenance has been provided according to the terms of the Lease. H. Lessee shall be responsible for providing all labor, supplies, materials that may be necessary to assure the proper playing condition of the c�reens, tees, fairways, and buildings of the leased premises to the existing standards established. This includes replacement of water pumps, sprinkler or a part thereof because of deterioration or wearing out. I. Lessee shall be responsible, at its expense and at no expense to the City, to provide for winterizing and care during the off-season months of the golf course grounds and greens in all ways including, but not limited to, necessary preventative maintenance to the 8 - 33h - � Res. #335 course irrigation system and spraying on of fungicides. The irrigation system must be blown clear of water by compressed air. Lessee is responsible for damage to the irri�ation system by freezing or other winter conditions. The work to be done by Lessee in connection with the general maintenance of the proper playing condition of greens, tees, and fairways and with the winterizing and winter care of said golf course shall be in accordance with �enerally-accepted greens keeping methods. This provision also includes the clubhouse, maintenance buildings on Punhoqua Street, and the storage buildin� on Rath Lane, including adequate winter heat where required by the City. The golf course has traditionally been used in the winter, when weather conditions permit, for cross country skiin�. Lessee may continue this practice when weather conditions permit. Lessee shall rope off or otherwise protect greens, tees, and other structures from unauthorized use by the public during these times. J. As part of its maintenance responsibility, Lessee shall remove all leaves, trimmings, cuttings, and similar debris semi-annually from the leased �remises by means other than burning. These debris materials shall be stockpiled at several locations readily accessible to heavy equipment. It shall be picked up and removed by the City after adequate notice. K. At the termination of this Lease, Lessee shall surrender the leased premises to the City in the condition specified in the first paragraph of this section: X. LIENS A. Lessee shall kee� all of the leased premises and all buildings and other improvements at any time located thereon free and clear of any and all mechanic's materialmen' s, and other liens for or arising out of or in connection with work or labor done, services performed, or materials or appliances used or furnished for or in connection with any operations of Lessee, any alteration, improvement, or repairs or additions which Lessee may make or permit or cause to be made, or any work or construction, by, for, or permitted by Lessee on or about the premises, or any obligations of any kind incurred by Lessee. Lessee shall at all times promptly and fully �ay and discharge any and all claims on which any such lien may or could be based, and shall indemnify the City and all of the premises and all the buildings and improvements thereon against such liens and claims of liens and suits and other proceedings pertaining thereto. 9 - 33i - � REs. #335 B. If Lessee desires to contest any such lien, it shall notify the City of its intention to do so within 15 days after the filing of such lien. In such case, and provided that Lessee shall on demand protect the City by good and sufficient surety bond against such lien and any cost, liability, or damage arising out of such contest, Lessee shall not be in default of this Lease Agreement until 30 days after the final determination of the validity of the lien. Within that 30 day time period, Lessee shall satisfy and dischar�e such lien to the extent held valid; but the satisfaction and discharge of any such lien shall not, in any case, be delayed until execution is had on any judgement rendered thereon; such delay shall be a default of Lessee hereunder. In the event of any such contest, Lessee shall protect and indemnifx the City against all loss, expense, and damage resultin� therefrom, including attorney's fees that may be incurred in connection with said dispute. C. This section does not apply to liens which may arise directly from improvements or repairs made to the leased premises by the City. XI. CITY'S CAPITAL IMPROVEMENTS A. The City has the right to make whatever capital improvements it deems necessary or desirable at any time without expense to the Lessee, unless the Lessee voluntarily desires to fund or cost-share the improvements with the City. The Golf Course Improvement Fund is created for this purpose as well as equipment replacement. Before making any such improvements, the City shall meet with Lessee to discuss the effect of the improvement and the making of such improvement upon Lessee' s operation of the leased premises. Lessee shall make itself available for such discussions. If the making of the improvement will have an effect upon Lessee ' s operation of the leased premises, the City and Lessee shall negotiate reasonably and in good faith what, if any, modifications of the lease provisions may be necessary as a result of such effect. The City shall make a good faith effort to minimize or limit any adverse effect of any such improvement or the making of such improvement upon Lessee's operation of the leased premises. The parties expressly understand and agree that Lessee shall not be relieved of any of its obligations under the Lease Agreement, nor shall the City be liable to Lessee for any interruptions of, or costs or damages to, Lessee ' s operation that may result from City' s making any capital improvements. However, the parties also understand and agree that if a capital improvement is of such a nature that it substantially damages or destroys the benefit of 10 - 33j - Res. �335 the bargain for which Lessee has contracted by this Lease, then Lessee shall be entitled to such relief as may be appropriate under the circumstances. B. City agrees to give reasonable advance notice to Lessee of the date and time of any work which the City intends to do on a leased premises. XII. EASEMENTS A. This Lease Agreement is subject to all easements of record relating to the lease premises. XIII. USE, CARE AND SALE OF MACHINERY AND EQUIPMENT A. Lessee shall obtain and use from City all items of machinery and equipment that are listed on Exhibit "D" which is attached hereto and made a part of this Lease and any equipment purchased for the Golf Course during the lease period. The title to all items of the equi�ment and machinery listed on Exhibit "D" shall remain with the Cit� The City will carry property insurance on these items thereafter in addition to the liability insurance provided by the Lessee. B. Lessee shall have the exclusive right to use and operate at Lake Shore Golf Course onl�, the equipment owned by City which includes and is limited to all items listed on Exhibit "D" which is attached hereto and made a part of this Lease and any items purchased during the term of the Lease. There shall be no extra cost to Lessee for the use of such equipment. The Lessee shall document and make written request for equipment replacement to the City. After receipt, the City will evaluate and make a decision on replacement. Funds from the Lake Shore Equipment/Capital Improvement Fund will be used for City purchase. Title and ownership of the equipment will remain with the City. The request for equipment replacement will not be made more than once per year, preferably on a bi-annual schedule to allow ample time for purchasing and funding requirements. C. Lessee shall use all City-owned machinery and equipment on Exhibit "D" in a proper manner and shall, at its sole expense, maintain such equipment in good working order during the term of the Lease reasonable wear and tear only excepted. The Lessee shall keep a loc� or other similar evidence documenting the maintenance that is done on the equipment. The City shall be notified regarding an� major equipment damage or the need for any major repairs, however, the City shall not be required to make any major repairs to any of the equipment. At the termination of the Lease Agreement, Lessee shall return all items on Exhibit "D" and all pieces purchased durinc� the lease period to the City in as good or better condition than the equipment was in at the beginning of the Lease, reasonable wear and tear excepted. 11 - 33k - • Res. #335 D. The City shall have the right to inspect all City- owned equipment in Lessee' s possession at reasonable times upon reasonable notice. E. Lessee may from time to time and on an occasional basis, rent at actual cost, equipment from the CitX provided that the City has s�ch e�uipment then available for Lessee' s use. However, the City will require that the equipment be operated by a City employee and that the employee's salary be added to the rental charge. F. Lessee shall �rovide a minimum of five golf carts, in operating condition, at a.11 times the course is open. XIV. INSPECTION AND ACCOUNTING A. Lessee shall submit to the City a monthly itemized statement of gross revenue receipts from the operation of the leased facilities. This statement shall be submitted to the City bX the twenty-fifth (25th) day of each fiscal month, showing an accounting of gross revenue receipts for the previous fiscal month. The Lessee shall submit to the City an annual profit and loss statement for the entire operation of the leased facilities. This statement must be submitted to the City by February 1, immediately following the end of the lease year. The annual financial statement may be prepared by a Certified Public Accountant pursuant to generally accepted accounting principles, or in any manner prescribed by the Director of Finance for the City. The Lessee shall keep or cause to be kept such reasonable books, records, �ournals, accounts and ledgers� as may be required to properly and accurately reflect the amounts of revenues and expenses in accordance with generally accepted accounting princi�les. The cost of the preparation of the annual financial statement shall be borne by the Lessee. B. The City shall have the right, at any and all reasonable hours, and upon reasonable notice, to have an accountant inspect and verify the books of Lessee with reference to the operation of the entire leased facilities. The City shall have the right at the City� s expense, at an� and all reasonable hours, and upon reasonable notice, to have an audit performed upon the Lessee's operation of the leased facilities, as the City may deem necessary or desirable. C. Lessee shall keep and provide to the City, upon request, all cash register tapes from all gross revenue items. Any and all financial records, reports and information Lessee provides to the City must be categorized separately into information pertaining to Lake Shore Golf Course. Cash register tapes shall be retained by Lessee for each �ear during the term of this Lease plus one additional year. 12 - 33L - . Res. #335 D. The City shall have the right of access to any and all portions of the leased premises, at any and all reasonable hours, and upon reasonable notice, for the �urpose of inspecting, analyzing, and/or gathering information relating to the premises itself. XV. STATISTICAL RECORDS AND INFORMATION A. Lessee will provide to the City appropriate statistical records regarding activity at and use of the leased premises by the public. Lessee shall submit to the City weekly, records showing the number and category of golf rounds played each day of the preceeding week, and shall submit records by the 25th of each month, showin� an itemized statement of gross revenue, including food and beverage sales, a gross revenue analysis, and season tickets sold by categorx. Lessee shall maintain a copy of a daily register which shall be made available to the City upon request. Lessee shall further supply any other reasonable information requested by the City relating to the recreational use of the facilities by the public. Any and all statistical records and information Lessee provides to the Cit� must be categorized� separately into information pertaining to Lake Shore Golf Course and shall be deemed public records. XVI. PHONE SYSTEM/SECURITY SYSTEM A. The present phone system is owned by the City. The Lessee has the option of securing other telephone services other than the City-owned system. Lessee is responsible in either case for the costs incurred in providing this service. Classified advertising is also at the option of the Lessee. B. The City desires the Lessee to retain motion/heat sensitive alarms at the Clubhouse. Leesee shall make arrangements to continue this service at the Lessee 's expense. The City shall receive a photocopy of the security contract during the terms of the Lease. XVII. SECURITY DEPOSIT A. Lessee shall provide at execution of the Lease, a security deposit of Ten Thousand Dollars ($10, 000. 00) . Said Ten Thousand Dollars shall be deposited in an escrow account to be invested by the City with interest earned being added to the escrow account. This deposit shall be used by the City, at the option and in the sole discretion of the Cit�, to reimburse the City for any default of any provision(s) of the Lease. Such breach shall include, but shall not be limited to, the failure to pay rent, the failure to maintain or restore premises, failure to maintain equipment, failure to provide adequate insurance coverage, failure to pay for utilities, failure to pay any liens that may be filed against the premises or any equipment or for any other 13 - 33m - � Res. #335 violation of any term of the Lease. City shall give to Lessee ten (10) days written notice of the City's intent to withdraw funds from the escrow account. The notice shall state the amount the City intends to withdraw and the act of default by Lessee. B. The total sum of Ten Thousand Dollars ($10, 000. 00) shall be on deposit by the Lessee with the City each year of the lease. If any amount has been expended by the City from the original Ten Thousand Dollar ($10, 000. 00) security deposit for defaults, Lessee shall deposit an amount equal the sum withdrawn to the City, so that the City has available to it the total sum of Ten Thousand Dollars ($10, 000. 00) as a security deposit for the renewal year of the lease agreement. C. Any balance remaining including earned interest on the security deposit in the escrow account shall be refunded by the City to Lessee within 60 days from the date of the termination of the last year of the Lease. The City shall pay Lessee the interest on the escrow account within 30 days after the fiscal year or as otherwise determined by Lessee and the City's Director of Finance. XVIII. BOND A. In addition, a performance bond in the amount of One Hundred Thousand Dollars ($100, 000. 00) is required. Said bond shall be furnished at time of contract execution to guarantee faithful performance of the Lease and payment of all persons performin� labor and furnishing materials in connection with the Lease. Said bond(s) shall remain in effect throughout the term of the Lease and any renewal . XIX. INSURANCE A. Lessee shall obtain at its own expense fire and extended insurance coverage equal to their replacement value on those items purchased by the Lessee or Lessee's own personal property. The coverac�e shall be written on a replacement value basis and the interests of the City shall be included and made payable in the event of a loss to the City. Lessee shall supply such policies, and the City shall be named as additional insured of such policies, except when Lessee is self-insured. B. Lessee shall maintain at its own expense the following coverages: 1. Worker's Compensation and unemployment compensation covering the statutory liability of the Lessee in the operation of the golf course. 14 - 33n - • Res. #335 2 . General liability coverage including personal injury and contracted liability with limits of at least One Million Dollars ($1, 000, 000. 00) for each occurance and Three Million Dollars ($3 , 000, 000. 00) in the aggregate naming the City as additional insured under Lessee's policy. C. Lessee shall provide an excess liability umbrella form �olicy, with provisions acceptable to the City, insuring all property in the care, custody, and control of Lessee under the structures, improvements, and irrigation systems with liability limits of One Million Dollars ($1, 000, 000. 00) . Said policy shall name Lessee as the insured and the City as co-insured. XX. INDEMNITY PROVISION A. Lessee shall indemnify and save harmless the City from and against any and all losses, costs (including attornex's fees) , dama�es, expenses and liability (including statutory liability and liability under Workmen's Compensation and Unemployment Compensation) in connection with claims for damages as a result of injury or death of anx person or property damage to any property sustained by Lessee, its agents, employees, customers, invitees, contractors, subcontractors, and all other persons which may arise from and in any manner grow out of any act or neglect on or about the leased premises by Lessee, Lessee's agents, employees, customers, invitees, contractors, subcontractors, and all other persons. XXI. UTILITY' CHARGES A. The Lessee shall pay all charges for utilities servicing the leased premises. The City assures the Lessee that an adeguate water su�ply shall be provided to the leased premises at established rates. An underground well presently is located adjacent to #4 tee. Occasionally the water is contaminated by surface water. The Lessee must chlorinate the well according to City procedures acceptable to the City Health Department, or its successor. XXII. TAXES A. Lessee shall pay all taxes of whatever character that may be lawfully levied upon or charged against the leasehold estate in the leased premises or the structures, improvements, or other property on the leased premises, or upon Lessee' s operation hereunder. Lessee shall pay all license or permit fees necessary or required by law for the conduct of its operation hereunder. 15 - 330 - � Res. #335 B. The subject premises is owned by the City and as such is presently exempt from real estate assessment and taxes. If the premises is sold, assigned to a taxable entity, or State law changes the tax exempt status of the course, then this contract shall become null and void unless otherwise negotiated. XXIII. SIGNS/ADVERTISING A. Lessee shall not erect or display, or permit to be erected or displayed, on the leased premises, any permanent si�n or advertising matter of any kind without first obtaining the written consent of the City Manager or his designee. In advertising the golf course, Lessee shall not imply that the City is involved in receipt of revenue from said advertising or involved in any manner with solicitation of said advertising. XXIV. CONSULTATION WITH CITY A. Lessee is required to meet with the City's Park Director on a regular basis to discuss the operation, maintenance, and development of the golf course facilities. XXV. SCHOOL USE A. Lessee shall provide the use of the leased premises, during the term of the lease, free of charge to the Oshkosh School District and the Oshkosh Recreation Department for the purpose of instructional and recreational golf. The Recreation Department shall annually submit their requests to the Lessee for approval. XXVI . COMPLIANCE WITH LAWS A. Lessee shall comply with all applicable rules, regulations, laws, ordinances, statutes, or orders of any governmental authorit�, Federal, State, or local, lawfully exercised authority over the demised premises or over the operations carried out pursuant to the Lease. Lessee shall take such actions as may be necessary for the protection of health, safety, and welfare of the public. XXVII. DEFAULTS A. Any or all of the following shall be considered events of default of the Lease Agreement: 1. By Lessee: a. If Lessee fails to perform or defaults in any of the amounts due to the City as set forth in this Lease, or in the observance or performance of any of the covenants, agreements, commitments, or conditions contained in the �Lease, and if any such default continues unremedied for a period of 16 - 33p - Res. #335 fifteen (15) days after written notice of such default or failure to perform has been mailed to Lessee; or b. If Lessee makes an assignment of its property for the benefits of creditors; or c. If Lessee petitions any court to be adjudged a bankru�t; or d. If a petition in bankruptcy is filed in any court against Lessee; or e. If Lessee is judicially determined to be insolvent; or f. If Lessee is adjudged a bankrupt; or g. If a receiver or other officer is appointed to take charge of the whole or any part of Lessee' s property or to wind up or liquidate its affairs; or h. If Lessee seeks a reorganization under any of the terms of the Federal Bankruptcy Code, as amended, or under any insolvency laws; or i. If Lessee admits in writing its inability to pay its debts as they become due; or j . If any final judgement is rendered against Lessee and remains unsatisfied for a period of thirty (30) days from the date on which it shall become final; or k. If Lessee abandons the golfing facilities. 2 . By City: A. If the City fails to perform or defaults with regard to the observance or performance of any of the covenants, agreements, commitments � or conditions contained in the Lease, and if such default continues unremedied for a period of fifteen (15) days after written notice of such default or failure to perform has been mailed to the City, such failure shall be considered default of the Lease. In the event of such default, the Lessee may, at its option and in addition to all other rights and remedies which it max have at law or in equity against the City, including expressly the specific enforcement hereof, forthwith have the accumulative right to immediately terminate the Lease and all rights of the City hereunder. B. In the event of any or all such defaults by Lessee, the City may, at its o�tion and in addition to all other rights and remedies which it may have at law or in equity against Lessee, including expressly the s�ecific enforcement hereof, forthwith have the accumulative right to immediately terminate the Lease and all rights of Lessee hereunder and shall require payment from the escrow account and/or cancellation or waiver by the City of the remainder of the total rental amounts payable to 17 - 33q - . Res. #335 the City, or for any damages or losses for the unexpired portion of the Lease term which may be sustained by the City on account of default, assignment, insolvency, adjudication, failure to perform or other default as provided herein above in this section, including any expenses incurred by the City in exercising its rights under the Lease. XXVIII. ASSIGNMENT AND SUBLEASING A. Lessee shall not mort�age, hypothecate, pledge or otherwise encumber or assign the leasehold herein created; neither shall Lessee sublet or sublease the leased premises; in whole or in part. XXIX. OPTIONAL LEASE RENEWAL PROVISIONS A. The Lessee shall notify the City by October 1, 1995, of its intention to renew the Lease for additional one year period(s) in accordance with Section IIe XXX. MODIFICATION AMENDMENT AND TERMINATION OF LEASE A. The Lease may be modified or amended upon the mutual agreement of the parties. However, such modification or amendment must be in writing, dated, and fully executed by both parties. B. Any unforseen circumstances, problems, dispute or disagreement regarding the role of either party in this leasing arrangement or regarding the use and operation of the golf course facilities that is not addressed by the express terms of the Lease shall be subject to negotiations between the parties to reach a mutually- agreed upon resolution of the matter(s) in issue. In the event agreement cannot be reached, Lessee may, upon notice to the City on or before October 1, terminate this Lease at the conclusion of the golfing season. C. Lessee may terminate the Lease for just cause upon 30 day notice to the City. The City shall, for cause, after giving Lessee notice of any breach of the Lease and order to correct such breach within 30 days of said notice, terminate the Lease and Lessee shall forfeit its security deposit and bond to the City in the amounts necessary to pay all persons providing labor and materials and to recover all lost income resulting from such termination. Lessee shall vacate the �remises immediately upon any termination or expiration of the Lease and the City shall, in the event of Lessee's failure to timely vacate the premises, remove and store Lessee's personal property with such expenses being chargeable to the security deposit and/or bond. XXXI . DIRECT CONTACT AND MAIL NOTICES A. Direct contact regarding matters concerning the Lease and/or operation of the golf course facilities, shall be made in writing. 18 - 33r - . r Res. #335 B. All formal notices shall be sent by Certified Mail. If there is a change in address desired or necessary for one of the parties, it shall be the obligation of that party to arrange to formally amend the Lease to reflect the correct address. C. It is understood and agreed that all notices to Lessee shall be addressed to Canteen Company, Division of TW Services, Inc. , P.O. Box 2546, Oshkosh, Wisconsin, 54903-2546, and all notices to City shall be addressed to the City of Oshkosh, City Manager's Office, P.O. Box 1130, Oshkosh, Wisconsin 54902-1130. This Lease and all terms and �rovisions thereof shall be binding upon the parties, their successors, administrators, personal representatives, and assigns. IN :ti'IT:7ESS WHE�EG�', th� g�rti2s here�:a have execute� and sealed these presents as follows: Dated this day of , 1989. CANTEEN COMPANY, DIVISION OF TW SERVICES, INC. BY: BY: CITY OF OSHKOSH BY: Wi iam D. Frue , City Manager BY: Donna C. Serwas, City Clerk Approved as to form: Warren P. Kraft, Assistant City Attorney 19 - 33s - � c� � o a � Z7 —I c'� � N .Z7 r-� O � • � O �" O mz m < � o •• -z m w .. c,, r cn �o a z � � � � o -< o m m m o cn cn � �o cn -� � � �o 0 ^V ^5 �� � fi� O � fi n �' a O :,,>, C � _'S � N CD � r � m a � m ,y��; �