HomeMy WebLinkAbout34992 / 88-212 August 4 � 1988 IIZjz RESOLOTION
(CAAAIED ______ LOST ______ LAID OVER ______ WITHDRAWN ______)
PUPPOSE: AWARD CONTRACT 88-18/PARK CONSTPUCTION;
TRANSFER FUNDS; APPROVE AGAEEMENT
INITIATED BY : CITY ADMINISTAATION
WHEREAS, the City of Oshkosh has heretofore advertised for bids
for replacement and construction of the concession� restroom and
storage buildings at Span6auer Field , part of the 1988 Capitol
Improvements Pro�ram; and
WNEREAS, upon the opening and tabulation of bids , it appears
that the following is the most adva�tageous bid :
&EN B . CANTHER COMPANY
e . 0 . a0X z386
Oshkosh , WI 54903
Total Bid : $93 , 800 .00
WHEREAS, Club 13 , Inc., a non-profit softDall organization
historically servin� the public with food and concessio�s at
Spanbauer Field , desires to participate in the funding of the
construction by enteri�g i�to a long-term lease of the coneession
area , and
WHEREAS, upon awarding of this contract , it will be necessary
to transfer funds for payment of this contract ;
NOW, THEHEFORE, BE IT HESOLVED, by the Common Council of the
City of Oshkosh that the attached agreement for the food and
bevera�e service a�d the proportio�ate cost sharin� lease with Club
13 , Ine ., is approved and the proper City officials are authorized
and directed to enter into the attached agreeme�t .
BE IT FUftTHER RESOLVED that the proper City officials are
authorized and directetl to transfer the sum of $31 ,000 from Account
No. 362-550 -- Park Subdivi.sio❑ Fund Equity and the sum of $30 ,000
from Account No. 359-550 -- Trust Fund -- Fund Equity (Stei�hilber
Trust ) to Account No . 361-550 -- Park Improvement F�nd Equity .
BE IT FURTHER RESOLVED that said bid is accepted and the proper
City officials are authorized and directed to enter into an
appropriate agreement for purposes of same , all accordi�g to plans ,
epecificatio�s and bid on file .
Money for this purpose is appropriated from:
Account No . 361-876 -- Park Improvement - Spanbauer Field
Buildi�g ConsCruction
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Res. X212
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23a -
� � RESOLUTION #212
7-27-88
CONSTRUCTION LEASE
CONCESSION STAND--SPANHAUER FIELD DIAMOND
713 SOUTH SAWYER STREET
CITY OF OSHKOSH
TAIS AGREEMENT, made and entered into this _ day of �
1988, by and between CLIIH 13 ,
c/o 2303 Jackson Street, 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, CLUB 13 will pay to the City of Oshkosh the
principal sum of Thirty-three Thousand ($33, 000.00) Dollars to
be used to apply toward the construction costs of a concession
stand at Spanbauer Field; and
WHEREAS, the City Council o£ the City of Oshkosh, by
resolution duly adopted on the day of
1988, authorized and directed the proper City of£icials to enter
into an appropriate agreement with the party of the first part
for a food and beverage concession at Spanbauer Field area for a
term of eleven (11) years, with party of the Pirst part paying
consideration according to Exhibit ��B" to the party of the second
part during the rental period. At the end of this period, this
contract is open to negotiation for renewal. No moral or legal
obligation of either party shall exist aEter the agreement except
as� noted to raturn City property in good condition, normal wear
and tear excepted. In the event the Tenant wishes to withdraw
from the contract and cease operation at any time, there will be
no legal or financial obligation on behalf of the City to repay
or reimburse Tenant Por the remaining period of this contract.
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 713
South Sawyer Street as described on tha attached drawings
marked Exhibit "A". During the period ot 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 . Lenath of Contract: The contract will be £or an eleven (11)
year period commencing on the day of
1988, and terminating on December 31, 1999. 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 lst of any year during the term of the Lease. Such
withdrawal shall not relieve Club 13 of its financial
obligation as set forth in Exhibit ��B" .
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� - . RESOLUTION N212
3 . Foodstuffs: The concession will include � foodstuffs,
including but not limited to pre-prepared sandwiches, hot
dogs, hamburgers, potato chips, candy, dispenser soft
drinks, dispenser and canned fermented malt beverages, and
tobacco items at the above described location. It is the
responsibility of the Tenant to apply for and receive a
"Class B" Feiminted Malt License. The City agrees that it
will cooperate in the application for the ��Class B"
Fermented Ma1t License and any and all other licenses that
may be nacessary for the operation o£ the concession stand.
4. Hours of Oneration: The hours the concession will be
operatad shall be determined solely by the Tenant. However,
the primary objective is to have the concession stand open
during such times as there is regularly scheduled softball
play at the softball diamond, during special events, and at
such other times as there wocld be su£ficient potential
business to justi£y its operation. The Tenant shall provide
the City with a schedule of opening and closing times in
advanca if required.
This lease shall be non-exclusive and the City reserves the
right to schedula the ball diamond at any time it sees fit.
The Recreation Director or his desiqnee of the Oshkosh
Area School District and the Parks Director of the City of
Oshkosh shall have total authority in scheduling events at
Spanbauer Field and they shall adopt policies £or the use
of said ball diamond. Said policies shall include, but not
be limited to the £ollowing: admission charges, use of
other concession facilities, ampliEication systems and such
other matters as the Recreation Director, in conjunction
with the Director of Parks, deem necessary for the efficient
operation oP Spanbauer Field. The City Council shall
approve all admission charges and if said charges are
required for admission to the park.
� 5. Revenue Due Citv: The revenua due the City shall be as set
forth on Exhibit ��B�� attached hereto. Payments shall be
payable at the Coilections D�partment, Room 102 ,- City xall
on November 1, for each year as specified in Exhibit "8. ��
6. Books oP Account and Financia� Reoorts: 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 o£ the City. The Tenant
shall submit at tha 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, operatinq 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. �
- 23c -
- RESOLUTION #212
8. Manaaement: The concession will be managed by ,. the Tenant
and will ba operated by volunteera and/or paid � employees.
The Hoard of Directors of Club 13 shall be solely
responsible for determining tha 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
Club 13 the liaison or manager between the Tenant and the
City relative to any questions concerning the operation
and/or management oP 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 its officers and employees from any claims for
damaga to proparty and for personal injuries, including
death, which may arise from the operation of this concession
by the Tenant. The insuranca coverage limits shall be as
followe: Bodily injury - $500,000.00 each person each
occurrence; proparty $5o,000.00 each occurence; $300,000.00
aggraqate; product liability - $100, 000. 00. A duplicate
copy oE all insurance policies or certificates oP insurance
must Se 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� writtan notice of
termination oP 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 indemni£y and keep harmless the
City, its officers and employees £rom any and all claims,
suits, losses, damage, or injury to person or property of
whatever kind and nature, whather direct or indirect,
arisinq out of the operation of this agreement 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.
Tenant agrees to provide ample supervision of the premises
wherein his concession is being operated as well as oP his
patrons and to usa all reaeonable effort to prevent
vandalism or damage to City property, and agrees to leave
any premises which he occupies at the end of the term in
good condition.
Tenant further agrees to hold the City of Oshkosh harmless
from any claims, damages or otherwise, which may result
from the granting of the privilege of operating said
concession.
11. Waiver of Damaae: 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
- 23d -
� � RESOLUTION #212
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 Aaent: Nothing contained in this agreement 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 Municinal Laws: The Tenant will not use
nor permit any person to use in any manner whatsoever the
said premises or any part thereoP or any building for any
illegal purposa, 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 thereoP and their agents, Prom and
against any damage, penalty, fine, judgment, expense or
charge auffered, imposed, assessed or incurred for any
violation or breach of any law, ordinance, rule, order or
requlation occasioned by any act, neglect or omission of the
Tenant or any employee, person or occupant Por the time being
of the premises (or tha 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 aqreement terminated
without previous notice to the Tenant.
14. Utilities: Club 13 shall pay for all electric lights,
power and gas, used and comsumed in connection with the
operation oE the concession. Any alterations in the
exiating facilities for fixtures necessary for the operation
of this concession, shall be made at the sole e�cpense of the
Tenant a£ter written approval by the City. The Tenant sha11
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 z�d designs as approved by the
City. Water shall ba £urnished by tha City.
15. Inflammables: The Tenant shall not use or permit the
storage of any illuminating oils, oil lasps, benzina, naptha
or other similar substances or explosives oE 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 Por disposal of
food waste, packaging containers, eating utensils and other
waste directly attributable to the food and beverage
concession in the interior of the concession portion, and is
also responsible for other general clean-up of the area, as .
shown in Exhibit "A" . All refuse and waste material shall
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' � RESOLUTIGN #212
be stored � by Tenant and shall be disposed of by the City.
All state and local health laws and regulations shall be
strictly complied with.
17. Protection from Club Debts: That Club 13 agrees that it is
solely responsible for its on-site personal property,
materials, merchandise, Eoodstuffs, and liquids; that Club
13 agrees that ft is solely responsible for payment and any
other obligations to any person, partnership, corporation,
or other entity from whom or which it purchases or obtains
matarials, merchandise, food and drink; and that Club 13
agrees to indemni£y and forever save and keep harmless the
City and its employees and agents from any damages,
penalties, £ines, judgments, expenses, or charges, imposed,
assessed, or incurred in any way, occasioned by any actions
or omissions of Club 13 or its agents, employees, or with
its suppliers, of whatever type. .
18. Insoection/ACCess: It is agreed that the concession
premises may be inspected at any time by authorized
representatives o£ the City. The Tenant agrees that if
notiEied by the City or its representatives, that any part
of the concession premises or the facilities thereof is
unsatisPactory, it will immediately remady same.
19. Renairs: 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 tha 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 oE Tenant. In case the Tenant does not make
some needed repair within a reasonable time, the City may
maka the repair and charge tha cost to the Tenant. Tenant
ahall not make any alterations in the conceasion premises
without the written approval of the City.
As a further consideration, Lessee promises that he will
. take care o£ the diamond which ir.cludes:
a. Turning the lights on and off,
b. Placing and removing bases,
c. Keepinq tha place looking neat and clean, and
d. other work incidental to keeping the ball diamonds in
condition for actual play.
20. Advertisina: Tenant may place on the building an
appropriate sign indicating that the concession is operated
by Club 13 and that a portion of the cost of the buildinq
was donated by Club 13 . 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.
- 23f -
RESOLUTION N212
21. other Business: Tenant shall not carry on or within or upon
said concession space any other business, except that
described in 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
known as Spanbauar Field, which is located at 713 South
Sawyer Street.
22 . Service To Pub� ic: The policy of the City is to serve the
public in tha best possible manner, and the Tenant agrees
that both it and its employees, volunteers, and agents shall
at all times cooperate to this end.
Lessee agrees to publicly aupport youth athletic programs
and submit an annual report of incoma and expenses
pertaining to such programs to the city.
23 . Internretation OP Aareement: Should any question arise as
to the proper intarpretation as to the terms and conditions
of this agreement, 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. Hoth parties
agree to consent to the issuanca of an order in the
appropriate circuit court in Winnebago County implementing
tha decision of the arbitrator or arbitrators.
24 . No Reoresentations: 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 suoh matters as anticipated revenue to the
Tenant, or related issues. Tha Tenant acknowledges that it
will antar into thia lease as the result solely of its own
businesa judgment and not as the result of any
representations whatsoever, direct or indirect, made by the
City, its agents or employees.
a5. 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.
26. Sublet: Tenant has the option to sublat the premises on the
Eollowing terms. The City shall not injustiPiably withhold
permission to sublet such premises. The Tenant may sublet
only to individuals or non-profit organizations which meet
the £ollowing 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-tenant agrees to abide by
all park rules, regulations, City ordinances and all
provisions of this agreement that are applicable to the
primary tenant; (dJ the premises should not be sublet for
' 239 -
� � RESOLUTION #212
more than four (4) consecutive days in any one calendar
year without the prior approval of the City, (e) any
questions regarding the integrity, purpose, composition of
any person, group or organization that desires to sublet the
premises Prom tha Tenant shall be made by the City, whose
decisions shall be final; (£) the sub-tenant shall take
appropriate safeguards, either in a financial cash damage
deposit or bond to ensure protection of the tenant's
property, goods and supplies and tha City property,
hereinaEter described in Paragraph 26.
27. Eauioment: The Tenant and the City shall each respectively
provide the equipment as shown on the attached schedule
marked Exhibit "A". The Tenant acknowledges that it is
familiar with tha Eloor plan of the building and the
concession area as shown on the attached drawings marked
Exhibit ��A�� . I£ for any reason additions, deletions, or
alterations are desired by the Tenant, then conditions of
Paragraphs e, 14, and 18 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 o£ 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.
28. Removal oP Eauioment: In the event that the tenant fails to
complete the £inancial obligation as shown in Exhibit ��B",
Club 13 shall remove, within five days notice, cause to be
removed from the concession stand any and all of their on-
site materials, including personal property and any
merchandise.
IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals this _ day of � lggg.
CLUB 13
BY•
BY•
CITY OF OSHROSH
BY•
BY:
Approved as to form:
Warren P. Rraft
Assistant city Attorney �
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� RESOL�TION #212
EXHIBIT "B"
8/4/88
CLUB 13 LOAN - 10$
NOV. 1
BALANCE BALANCE
_DATE B/4 PAYMENT PRINCIPAL AFTER PAYMENT
__________________
__________________ .
1989 33� 000. 00 3 � 000. 00 30� 000.00
1490 30, 000. 00 3 � OOO. CO 27� 0OO. OG
1991 27� 000. 00 3 , 000. 00 24, 000.00
1992 24 , 000. 00 3, 000. 00 21, 000.00
. 1993 21� 000. 00 3 , 000. 00 18� 000. 00
1994 18, 000. 00 3 , 000. 00 15, 000. 00
1995 15� 000. 00 3 �000. 00 12 � 000. 00
1996 12� 000. 00 3� 000. 00 9,000. 00
1997 9� 000.00 3� 000.00 6 000.00
1998 6, 000. 00 3, 000. 00 3� 000.00
1999 3�000. 00 3, 000. 00 0. 00
33 � 000. 00
Tenant agrees to pay to the City a total of Thirty-three
Thousand ($33 , 000. 00) Dollars in annual installments of Shree
Thousand (53 , 000.00) Dollars. The first installment shall be
paid on November 1, 1989, and each succeeding year therea£ter o,n
November 1.
In the event the tenant shall default in payment of the
lease and does not cure the default prior to the succeeding May
1, then the lease shall be terminated.
It is further agreed that it is the duty of Club 13 to
discharge this debt prior to funding any major improvements to
the field or undertaking financial support for any new programs.
The City shall be kept informed of any decision to expend funds
for capital improvements and approval secured prior to initiating
any financial obligation which would jeopardize Club 13 's ability
to repay this debt.
SUH�EITTED BY
- 23i - APPROVED �� � .
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