The Petoskey City Council delayed action Monday on two proposals for having private vendors operate city park concessions after a member voiced doubts as to whether the city charter would allow for the proposals.
City staff has sought council authorization to arrange vendors' operation of a food concession in Bayfront Park and a whitewater kayak concession in the Bear River Valley Recreation Area.
During discussion of the food concession proposal, council member Bill Atkins noted a provision in Petoskey's charter concerning city park lands. This provision forbids the council to "sell, lease, encumber, trade, or divert to another public use any public park grounds" without first securing approval from city voters through a ballot question. Atkins said he believes this would preclude the city from entering leases for the park concessions without approaching the voters.
The Bayfront Park concession stand, located near Ed White Field, has long been operated by the local Fast Pitch Softball Association. The association has indicated that it no longer wishes to handle that task.
City staff sought proposals from vendors interested in operating the concession, and received proposals from three Petoskey businesses: Johan's Pastry Shop, The Bob-in Again and Big Apple Bagels.
Petoskey parks and recreation commissioners agreed with staff that they should pursue council's go-ahead for an agreement with Johan's. Staff requested council's authorization to arrange a two-year lease of the stand for Johan's, with an option to extend it for an additional two years.
For the two years, Johan's would compensate the city with a $1,000 base lease fee and 2 percent of gross sales. Staff noted that Johan's planned to expand the concession beyond typical ballgame fare such as hot dogs and popcorn, likely offering park users some breakfast items and sandwiches at lunchtime.
Atkins asked Jim Murray, an attorney with city legal counsel Plunkett & Cooney, whether the charter provision had been considered in relation to the concession.
Murray said he initially hadn't thought the provision would be applicable because the concession would not be occupying the entire park. But the attorney added that he would consider the matter further and provide the council with a legal opinion at a later date.
Atkins said he would like to find out from the charter provision's author, former city attorney Richard Smith, what its intent was.
Murray noted that under the charter, the current city legal counsel is given responsibility for rendering legal opinions, and following this approach may provide the city with more accountability than asking an outside attorney.
Ultimately, the council voted 3-2 to seek Smith's input as part of the legal review of the charter provision. Atkins and council members Tom Postelnick and Bob Johnson supported this proposal, while mayor Ted Pall and council member Ron Marshall opposed it.
Johnson said his support for the proposal shouldn't be construed as a show of distrust toward Plunkett & Cooney, and that he expected to see that law firm weigh in as well.
"The more opinions, the better," he said. "Bring them on."
Pall said he preferred to approach the current city legal counsel first to obtain an opinion.
City parks and recreation director Al Hansen said Tuesday that the city's concession arrangement with the softball association has taken the form of a "license agreement." The softball group, a voluntary, unincorporated association, paid the city a flat fee -- recently $900 per year -- for the ability to operate the stand.
Hansen said he anticipated the arrangement with Johan's would have some similarities to this. But before legal counsel weighs in, Hansen declined to comment on whether the arrangement would be the type of lease referred to in the city charter.
Atkins said the new food concession arrangement seemed to be somewhat different in nature than the previous one. He noted that the operation would expand, likely presenting more competition for nearby businesses that pay taxes and other government fees.
"I don't see the equity in that," he said.
Marshall said he tended to view the agreement with Johan's as a means to have a private company offer a public service rather than as a property matter.
With the questions raised about acceptability of the concession agreements under the charter, council members agreed to defer their consideration of a proposal for Big Bear Adventures of Indian River to operate the proposed Bear River Valley kayak concession.