HomeMy WebLinkAbout34334 / 87-564 March 19 , 1987 # 564 RESOLUTION
(CARRIED LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE CONCESSION CONTRACT WITH LAKE SHORE KIWANIS
CLUB/REETZ COMPLEX MENOMINEE PARK
INITIATED BY: PARICS DEPARTMENT
BE IT RESOLVED by the Common Council of the City of Oshkosh
that the attached Lease for Concession Stand at Menominee Park
Reetz Softball Complex is hereby approved and the proper City officials
are hereby authorized and directed to enter into same.
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SUHYITTED BY
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h Resol. /1564
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`��" � , City of Oshkosh
March 9, 1987
� M E M O A A N D U M
OlHK�7lH
ON LXE WFiEP
T0: William D. Frueh, City Manager
FROM: Boyd A. Kraemer, Asst. City Manager/Parks Director
SUBJECT: Renewal of Concession Contract:
Lake Shore Kiwanis Club/Reetz Complex
Menominee Park
Since 1981, the City has had a formal concession
agreement with the Lake Shore Kiwanis Club for use
of the City building and sale of food and beverages
at the Reetz Complex in Menominee Park. The original
contract called for a $25,000 payment schedule, with
a repayment term of ten years. Thus far, $15,000
has been paid. The original payment schedule was
modified at the request of the Lake Shore Kiwanis Club
and was enacted by addendum in 1982, calling for
annual payments of $2,000.00.
The original five-year agreement expired on December
31, 1986. I have met with representatives of Lake
Shore Riwanis Club who wish to renew the contract for
� an additional five year period with an option to renew
for another five years, This will facilitate the payment
of the remaining $10,000. If the Kiwanis and the City
wish to renew for another £ive years after the expiration
of the initial five year lease, an appropriate revenue
schedule can be negotiated.
I enclose a copy of the agreement, which according to the
City Attorney' s office, must be approved by the City
Council. I ask your review and action at the City Council
meeting of March 19 , 1987.
Enc: Draft o£ Lake Shore Kiwanis Club Contract
pc: Dg�na Serwas, City Clerk
� �.i4arren Rraft, Asst. City Attorney.
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Resol. il564
LEASE
FOR CONCESSION STAND AT MENOMINEE PARR REETZ SOFTBALL COMPLEX
CITY OF OSHROSH
THIS AGREEMENT, made and entered into this day of
. 1987, by and between the KIWANIS CLUB oF
LAKESHORE OSHKOSH, P. 0. BOX 761, 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 Kiwanis Club of Lakeshore Oshkosh will pay to
the City of Oshkosh the sum of Ten Thousand ($10, 000. 00) Dollars,
to be used to apply toward the construction costs of a restroom
and concession stan3 i^ the Yer.ominee Park softball complex and
boat landing area; and
WHEREAS, the City Council of the City of Oshkosh, by
resolution duly adopted on the day of
1987, authorized and directed the proper City o££icials to enter
into an appropriate agreement with the party of the first part for
a food and beverage concession at the Menominee Park softball
complex and boat landing area £or a renewal term of five (5)
years, with party of the £irst part paying consideration according
to Exhibit "B" to the party of the second part during the rental
period and any renewal of that rental period. At the end of the
second five (5) year period, this contract is open to negotiation
for renewal. No moral or legal obligation of either party shall
exist after the second five (5) year renewal except as noted to
return 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 for the remaining period of this contract.
NOW, THEREFORE, pursuant to said resolution oP the City
Council of the City of Oshkosh, the parties agree as follows:
1. Location: This concee�ion i=_ 1zr..it_3 *_o *_.*.e ir.terior
portion of the restroom concession building located at the
Menominee Park Reetz Softball complex as a described on the
attached drawings marked Exhibit "A" . 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 . Lenath of Contract: The contract will be £or a five (5)
year period commencing on the day of ,
1987, and terminating on December 31, 1991. Tenant shall have the
option to renew for one (1) subsequent period of five (5) years
under the same terms and conditions as exist during the initial
five (5) year period, except for re-negotiation for financial
consideration due to the City for the second five (5) year term.
Tenant agrees to give City notice o£ at least sixty (60) days
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Resol. II564
� 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 lst of any year during the
term of the Lease.
3 . Foodstuf£s. 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 Por and receive a Class "B" Fermented Malt License. The
City agrees that it will cooperate in the applicatoin 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 Office.
4 . Hours of Oneration: The hours the concession will be
operated 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 diamonds, during special events, and at such other times
as there would be suf£icient potential business to justify its
operation. The Tenant shall provide the City with a schedule of
opening and closing times in advance.
5. Revenue Due Citv: The revenue due the City shall be as
set forth on Exhibit "B" attached hereto.
6. Books of Account and Financial 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
satis£actory to the City and to permit inspection of said books
and records by the City Comptroller as o£ten 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. Manaaement: The concession will be managed by the Tenant
and will be operated by volunteers and/or paid employees. The
Board of Directors of the Kiwanis Club of Lakeshore Oshkosh 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 Kiwanis
Club of Lakeshore Oshkosh and he or his designee shall serve as
the liasion or manager between the Tenant and the City relative to
any questions concerning the operation and/or management of the
concession.
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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 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. 00 each person each occurance: property - $50, 000.00
each occurrence; $300,000. 00 aggregate; product liability -
$100, 000.00. A duplicate copy of all insurance policies or
certificates of insurance must be furnished to the City with full
premiums paid, be£ore 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. isk: 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 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.
11. Waiver of Damaae: The Tenant will eacpressly 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 £orever release and discharge the City, its
officers and employees from any and all demands, claims actions
and causes of action arisinq from any cause.
12 . � 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 Municioal 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 an keep
harmless the City and the individual employees thereof and their
agents, £rom and against any damage, penalty, fine, judgement,
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
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Resol. {�564
� said premises; and in the event of any violation, or in 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.
l4 . 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 epecification 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 illuminating oils, oil lamps, ben2ine, naptha 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 other general
clean-up of the area 75 feet in circum£erence around the Tenant's
portion of the building. 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, by the City. All state and local health
laws and regulations shall be strictly complied with.
17. Insoection/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 . Reoairs: All requipment 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
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Resol. I1564
. 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. Advertisina: Tenant may place on the building an
appropriate sign indicating that the concession in operated by the
Kiwanis Club of Lakeshore Oshkosh and that a portion of the cost
of the building was donated by the Kiwanis Club of Lakeshore
oshkosh. 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 concesaion 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 described and shown in Exhibit "C" .
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. Intexpretation of Aareement: Should any question arise
as to the proper interpretation 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
issueance of an order in the appropriate circuit court in
Winnebago County implementing the decision of the arbitrator or
arbitrators.
23 . No Renresentations: 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 o£ its own business judgement and not as the result
of any representations whatsoever, direct or indirect, made by te
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.
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Resol. /f564
- 25. Sublet: Tenant shall have the responsibility to sublet
the premises on the following terms. The City shall not
injustiEiably 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 agreement
that are applicable to the primary tenant; (d) the premises should
not be sublet for 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
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 tenants property, goods and supplies and the
City property hereinafter described in Paragraph 26.
26. Eauinment: 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 the floor plan of the building and the concession
area as shown on the attached drawings marked Exhibit ��A" . Zf for
any reason additions, deletions, or alterations are desired by the
Tenant, then conditions of Paragraphs 8, 14, 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 e�cpiration 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 £ixtures, partitions or
other equipment shall be repaired by the Tenant.
IN WITNESS WFIEREOF, the parties have hereunto set their hands
and seals this day of , 1987.
KIWANIS CLUB OF LAKESHORE OSHKOSH
BY:
BY:
CITY OF OSHROSH
BY:
APPROVED AS TO FORM: $Y'
Warren P. Kraft,
Assistant City Attorney
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�^� 01 � � �x� Resol. II564
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EXHIBIT "B"
Tenant agrees to pay to the City a total of Ten
Thousand Dollars, ($10 ,000.00) in annual installments of
Two Thousand Dollars ($2,000. 00) . The payment shall be
made annually on or before September 30 of each year o£
this lease.
In the event the Tenant shall default in payment of the
Lease and does not cure the default prior to the succeeding
January lst, then the Lease shall be terminated.
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� RES. #564
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