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HomeMy WebLinkAbout42. 20-267 JUNE 9, 2020 20-267 RESOLUTION (CARRIED 7-0 LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE RENEWAL OF THE LEASE AND OPERATING AGREEMENT WITH THE GRAND OSHKOSH, INC. FOR THE GRAND OPERA HOUSE (2020-2030) INITIATED BY: CITY ADMINISTRATION WHEREAS, the City is the owner of the Grand Opera House located at 100 High Avenue, Oshkosh, WI; and WHEREAS,The Grand Oshkosh, Inc, is a not-for-profit corporation created for the purposes of preserving and expanding the significance of the historic Grand Opera House by maintaining a financially secure organization that serves the community by promoting and enhancing the performing arts, social and related educational opportunities; and WHEREAS, the City and The Grand Oshkosh, Inc. have a mutual interest in the preservation and successful operation of the Grand Opera House and both desire to benefit the Community by operating the Opera House as an arts, culture and entertainment venue; and WHEREAS, the City and The Grand Oshkosh, Inc. have previously entered into an agreement for the lease and operation of the Grand Opera House which will expire on June 301h of this year. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the proper City officials are hereby authorized to enter into and take those steps necessary to implement the attached renewal of the Lease and Operating Agreement with The Grand Oshkosh, Inc. for operation of the Grand Opera House for 2020-2030. BE IT FURTHER RESOLVED that money for this purpose is hereby appropriated from: Acct No. 503-1040-6468-00000 Reimbursable Revenue - Grand TO: Honorable Mayor and Members of the Common Council FROM: Jon G. Urben, General Services Manager DATE: June 3, 2020 RE: Approve Renewal of the Lease and Operating Agreement with The Grand Oshkosh, Inc. for the Grand Opera House (2020-2030) BACKGROUND Since 1989 the Oshkosh Opera House Foundation (now known as The Grand Oshkosh, Inc.) has leased the Grand Opera House from the City of Oshkosh and has managed the operation of the facility. The current three-year lease was approved March 28, 2017 and expires June 30, 2020. Prior to 2015, the City and The Grand had five year agreements, with 5 year renewals. ANALYSIS With the pending expiration of the current lease, staff met with representatives of The Grand Oshkosh, Inc. (TGO) for the purpose of identifying if any additional changes to the lease were necessary or desirable for a subsequent renewal. Staff has sought to find ways in which this agreement may more closely mirror that of the successful agreement that we have between the Best Western Premier Hotel and the City for the management and operations of the Convention Center. The TGO had similar thoughts, particularly the ability to enter into a longer-term agreement. A long-term agreement would allow TGO to improve their fundraising capability, particularly for sponsorships and/or naming opportunities for The Grand, similar to the Fox Cities Performing Arts Center. A current example illustrates this concept, whereby the TGO is able to secure a sponsor for replacement of their outdoor marquee sign, with the understanding that they would receive a long-term acknowledgment for their sponsorship. Staff has experienced success working with the operators of the Convention Center by providing them with a longer-term lease to help them secure financing for the Best Western Premier Hotel. Along these same lines, a longer-term agreement would enable TGO to raise funds for both operating and capital costs. It would be in our mutual interests to enter into a longer term agreement so that the TGO may secure these long-term sponsorships and achieve greater financial stability. Correspondingly, staff is pleased to report that TGO has made significant improvements in regard to compliance issues related to the management of the facility, financial reporting, and compliance with various rules and regulations that were in the previous agreement. With this background, the following, is a brief description of the proposed updated provisions in the lease agreement as a result of these meetings. City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 http://v v.ci.oshkosh.w1.u5 ARTICLE II. TERM This Article sets forth the term of the Agreement. The proposed renewal of the Agreement is for a ten (10) year renewal beginning on July 1, 2020 and ending on June 30, 2030. The proposed renewal for this article removes the former Section iv that allowed either party to terminate the agreement at any time by giving written notice to the either party of the desire to terminate the Agreement at least 120 calendar days prior to the date of termination. Removing this section gives TGO greater ability to secure long term agreements. ARTICLE III. MANAGEMENT FEE l OTHER FUNDS TO BE MADE AVAILABLE TO TGO This Article sets forth all moneys to be paid to TGO. The proposed renewal for this article features a change in the management fee the City pays to the TGO for each operating year of this Agreement from $183,500.00 per year to $180,000.00 per year. This Article proposes that once the total room tax for the City reaches $2,000,000 annually, the management fee the City pays the TGO for each operating year will increase to $200,000.00 per year, with a 2% increase in this fee every year thereafter. Although the management fee is not tied directly to Room Tax revenues, it is the source of this funding and staff believes this provision is needed. The proposed renewal for this article also proposes to eliminate the $25,000 per year that was withheld from the annual management fee payments from the City. That amount was withheld because TGO was fulfilling its 2010 Pledge Commitment to help fund the roof improvements. TGO has asked that its funding of other improvements to The Grand be credited towards this pledge. The final proposed renewal for this article also proposes the TGO will contribute 25% of donations secured for naming considerations to a fund at the Oshkosh Area Community Foundation for Grand building improvement projects. The proposed renewal for this article also proposes that City administration will review, in a timely manner, any proposed naming agreements. ARTICLE V. GENERAL OBLIGATIONS AND DUTIES OF TGO Management, Marketing, Promotion and Operation. The proposed renewal for this article updates that the TGO shall adopt general rental policies, procedures and rates, all of which shall be approved on an annual basis by the TGO Board and reported to the City. If any person or entity is provided any booking, rates, or treatment not consistent with policies, they shall be reported to the TGO Board. Non -Discrimination. The proposed renewal for this article replaces the human resource guidelines in the prior Agreement with a Non -Discrimination section stating the TGO agrees not to discriminate in its operations under this agreement on the basis of race, color, creed, age, gender or as otherwise prohibited by law. Offering Discounted or Complimentary Services. The proposed renewal for this article updates that the TGO shall report to the City any discounted or complimentary food or beverages, tickets, facility rentals, or other services. Maintenance and Upkeep. The proposed renewal for this article updates that TGO will have the facility carpets professionally cleaned at least twice per year and removes the discretionary option of the TGO to complete incidental building repairs less than $1,000. Permission Required for Contract/Agreement that may extend beyond Termination of this Agreement. The proposed renewal for this article removes this section. ARTICLE VII. FURNISHINGS, FIXTURES AND EQUIPMENT Operating Systems and Equipment. The proposed renewal for this article updates that the TGO will regularly inspect items listed in Exhibit A (equipment owned by the City) and will notify the City of any equipment, furniture, furnishings and apparatus that need to be repaired or replaced. If the City determines any request for repair or replacement is a result of negligent care of use, the City may defer the repair or replacement to TGO. ARTICLE IX. REPORTS, FINANCIAL STATEMENTS AND AUDITS Quarterly Reports. The proposed renewal for this article updates that TGO shall provide quarterly reports to the City no later than the end of the month following the quarter being reported upon. Audit. The proposed renewal for this article updates that TGO shall provide an audited financial report to the City within 180 days following the end of each operating year. FISCAL IMPACT The proposed renewal updates that TGO will contribute 25% of any donations from naming right considerations to an Oshkosh Area Community Foundation fund to be used toward Grand building improvement projects. The proposed renewal eliminates the annual $25,000 offset deduction for the TGO's pledge for the 2009 Grand roof repairs project, and decreases the fixed management fee from $183,500.00 to $180,000.00 annually to the TGO for the operation of the Grand. The proposed renewal updates that should the City's total room tax collections exceed $2,000,000, the management fee will increase to $200,000.00 annually, with a 2% increase each year thereafter. Beyond the management fee paid to the Foundation, the City allocates approximately $20,000.00-$30,000.00 annually in the Grand Opera House Operating Budget for expenses related to the Grand building including certain maintenance expenses such as elevator maintenance/inspections, life safety system maintenance/monitoring, insurance, minor repairs, and certain supplies. Additionally, the City may also submit various capital improvement projects for the Grand for Council consideration. RECOMMENDATION Staff recommends approval of the renewal of the Lease and Operations Agreement with the Oshkosh Opera House Foundation. Respectfully Submitted, Jon G. Urben General Services Manager Approved, Mark A. Rohloff City Manager LEASE AND OPERATING AGREEMENT This Agreement is made this 1st day of July, 2020, between the CITY OF OSHKOSH, a municipal corporation located in Winnebago County, Wisconsin ("City") and the THE GRAND OSHKOSH, INC a Wisconsin not-for-profit corporation (referred to as "TGO" in this document as follows: RECITALS WHEREAS, the City is the owner of certain property within its municipal boundaries identified as the Grand Opera House located at 100 High Avenue, Oshkosh, WI; and WHEREAS, The Grand Oshkosh, Inc, is a not-for-profit corporation created for the purposes: To preserve and expand the significance of the historic Grand Opera House by maintaining a financially secure organization that serves the community by promoting and enhancing the performing arts, social and related educational opportunities. WHEREAS, the City and TGO have a mutual interest in the preservation and successful operation of the Grand Opera House and both desire to benefit the Community by operating the Opera House as an arts, culture and entertainment venue; and WHEREAS, the Common Council for the City of Oshkosh via Resolution 20-267 adopted on June 9, 2020, City officials to enter into this Agreement with TGO for the Lease and Operation of the Grand Opera House. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency whereof is acknowledged, the parties enter into the following Agreement. AGREEMENT ARTICLE I. PREMISES Premises. The City shall lease to TGO and TGO shall operate according to the terms and conditions set forth herein, the Grand Opera House, located at 100 High Avenue, Oshkosh, Wisconsin. ARTICLE II. TERM The initial term of this Agreement shall be ten (10) years beginning at 12:01 a.m. on July 1, 2020, and ending at 11:59 p.m. on June 30, 2030, for a rental fee of One Dollar ($1 .00) per year payable on or before the first day of each year of the lease term or subsequent renewal. TGO may renew the Agreement for one additional five (5) year term; provided that TGO is not in default with respect to this Agreement. TGO shall submit to the City notification of desire to renew not less than one hundred eighty (180) days prior to the expiration of the then current term. The City and TGO may renew this Agreement with such amendments and modifications that the parties may agree to in writing including the length of term for each renewal period. This Agreement is subject to termination before the expiration of the original term or any extension term under the following circumstances: i. By mutual agreement of the parties, at any time. ii. At the sole discretion of the City, if TGO fails to perform any of TGO's obligations under this Agreement or breaches the terms of this Agreement and such failure is not cured within a reasonable time after written notice from the City. iii. At the sole discretion of TGO, if the City materially fails to perform any of the City's obligations under this Agreement or breaches the terms of this Agreement and such failure is not cured within a reasonable time after written notice from TGO. iv. At the sole discretion of the City, in the event of bankruptcy, insolvency, or receivership of TGO. In the event this Agreement is terminated, with or without cause, the City and TGO shall each be obligated to take such actions as may be reasonably necessary to ensure smooth transition to a new operator for the premises. ARTICLE III. MANAGEMENT FEE / OTHER FUNDS TO BE MADE AVAILABLE TO TGO Management Fee. The City shall pay to TGO a Management Fee for each operating year of this Agreement. Until the total room tax for the city is at least $2,000,000 the fee shall be one hundred eighty thousand and no/100 dollars ($180,000.00). The first year reaching the $2,000,000 threshold the annual fee will be $200,000. For each of the years following that the Management Fee will be increased 2% from the prior year. TGO will contribute 25% of donations for which there is a naming consideration to a fund at the Oshkosh Area Community Foundation. These funds will be used for building improvements. TGO Income. TGO shall be entitled to all income from the following sources: A. All performance and rental income. B. All concession income. C. Equipment rentals. D. Advertising revenue. E. Donations and grants given to TGO directly or to a fund established on behalf of the The Grand Oshkosh at the Oshkosh Area Community Foundation. The Grand Oshkosh Funds. All funds received by the City from third parties for the benefit of operating the Grand Opera House or performances shall be timely transferred to TGO. This provision shall not apply to funds which are given to the City in trust for the benefit of the Grand Opera House building, but only to funds which are received by the City for operations, performances, ordinary maintenance or other purposes which TGO is undertaking to provide as a result of the Lease Agreement. Naming of Parts of the Building. A ten year lease provides the opportunity to offer donors naming recognition. The City Administration will review, in a timely manner, any proposed naming agreements. The City will honor all naming agreements should TGO not hold the lease. ARTICLE IV. PARTIES REPRESENTATIVES / NOTICES City's Representative. The City's Representative for day to day management of this Agreement shall be the General Services Manager for the City of Oshkosh, or any other person designated by the City Manager. TGO Representative. TGO's representative for day to day management of this Agreement shall be the CEO of The Grand Oshkosh, Inc. Notices. All communications or notices required or permitted by this Agreement shall be in writing and shall be deemed to have been given: (i) upon delivery to the person entitled to such notice, if hand delivered, or (ii) two business days following deposit in the United States Mail, postage prepaid, or with a nationally recognized overnight commercial carrier that will certify as to the date and time of delivery, air bill prepaid, or (iii) upon transmission if by facsimile, any such communication or notice shall be addressed as follows, unless and until any such party notifies the other in accordance with this section of any change of address: If to the City: City of Oshkosh 215 Church Avenue Post Office Box 1130 Oshkosh, WI, 54903-1130 Attn: City Clerk Facsimile No. 920-236-5039 With a copy to: City of Oshkosh 215 Church Avenue Post Office Box 1130 Oshkosh, WI, 54903-1130 Attn: City Manager If to TGO: The Grand Oshkosh, Inc. 222 Pearl Avenue Oshkosh, WI, 54901 Attn: Joseph Ferlo Facsimile: 920-424-2357 With a copy to: The Grand Oshkosh, Inc 222 Pearl Avenue Oshkosh, WI, 54901 Attn: Chair of the Board of Directors ARTICLE V. GENERAL OBLIGATIONS AND DUTIES OF TGO Management, Marketing, Promotion and Operation. TGO shall have the exclusive right and obligation to manage, market, promote and operate the Grand Opera House. Subject to the terms and conditions of this Agreement, TGO shall have full discretion and control in all matters relating to the management and operation of the Grand Opera House. TGO shall have the sole responsibility for booking performances and other events at the Grand Opera House during the term of this Agreement, or any renewal thereof. TGO shall adopt general rental policies, procedures and rates, all of which shall be approved on an annual basis by TGO Board and reported to the City. If any person or entity is given any booking, rates or treatment not consistent with policies, those shall be reported to The Grand Oshkosh, Inc. Board, including the reasons for or consideration given for such deviation and included in the next quarterly report to the City under Article IX of this agreement. Reciprocal agreements between TGO and the partner arts organization(s) shall be set forth in a written agreement between the organizations, and the terms of the agreement(s) shall be approved by TGO Board of Directors and provided to the City. Any dates booked by TGO during the lease term or any extension thereof shall be honored by City even in the event this Agreement is terminated prior to the normal termination date of the Agreement or any subsequent term hereof. Required Permits and Licenses. TGO shall obtain all necessary permits and licenses required for the operation of the Grand Opera House. Employees and staff. In connection with these rights and obligations, TGO shall hire an individual with experience in similar facilities to serve as a full-time general manager / director of The Grand Oshkosh, Inc and such other support staff, including janitorial or private cleaning services to maintain the facility, box office personnel, marketing and promotions personnel and such other personnel or contractors as may be necessary to manage the responsibilities of TGO under this Agreement. Non-Discrimination. TGO agrees not to discriminate it is operations under this agreement on the basis of race, color, creed, age, gender or as otherwise prohibited by law. Breach of this covenant may be considered a material breach of this Agreement. Offering Discounted or Complimentary Services. Each year TGO shall report to the City any discounted or complimentary food or beverages, tickets, facility rentals, or other services. Payment of Operating Expenses. TGO shall operate the Grand Opera House and pay all of the expenses related to the operation of the facility, including utility expenses. Maintenance and Upkeep. TGO shall provide for normal cleaning/care and upkeep of the facility which shall generally include: cleaning of floors, shampooing of carpet at least twice a year by a professional carpet cleaning service, window cleaning (interior and exterior); cleaning of other exterior surfaces (eg. powerwashing, spider treatment); cleaning of other interior surfaces; removal of interior waste, rubbish and recyclables; replacing lights as needed; and day to day operation of HVAC system. TGO shall be responsible to keep the building secure. Rubbish / Sweeping of Sidewalks. TGO shall be responsible for the removal of dust, debris, and rubbish from exterior walkways and sidewalks adjacent to the facility. Changes or alterations to the Building by TGO. TGO shall not make structural changes or alterations to the exterior of the building or to the interior designs, furnishings, fixtures and/or decorating without first obtaining approval of the Landmarks Commission and then the written consent of the City, whose consents shall not be unreasonably withheld. TGO shall not install or cause to be installed or erected on the premises any signs, antennas or other equipment or device that is affixed to the structure or visible to the public (excepting such equipment, props, or other temporary structures which are normal and customary for performances/events and which are designed for installation and use in such a facility and which cause no damage to such facility) without the prior written consent of the City, which consent shall not be unreasonably withheld. No liens or encumbrances to be created. TGO shall not allow any liens or encumbrances to be created upon the premises without the express consent of the City. Ownership of Fixtures and Improvements made to Premises by TGO. Any structural additions, mechanical systems or fixtures to the premises previously made or made at any time in the future shall become a part of the premises and the property of the City upon Termination of this Agreement. Responsibilities for care and maintenance of any additions or fixtures shall be the same as for other property and fixtures provided herein, that is, generally TGO shall be responsible for routine maintenance and cleaning and the City shall become responsible for repair and replacement as specified in Article VI below. ARTICLE VI. GENERAL OBLIGATIONS AND DUTIES OF THE CITY Structural and Mechanical Systems Repairs. Except for those items identified above as the responsibility of TGO, the City shall be responsible for all maintenance and repairs of the Grand Opera House structure and building mechanical systems, including: maintenance, repair and replacement of the structure, HVAC equipment and building mechanical systems; maintenance/repair/replacement of emergency generator; repair of floors, recarpeting (based upon need relative to wear and tear); repair of broken windows; repair/replacement of wall coverings, ceiling panels, and repainting of walls (based upon need relative to wear and tear); HVAC system maintenance and care, including inspections and preventative maintenance; Elevator maintenance, repair and replacement, including inspections and preventative maintenance; maintenance, repair and replacement of the building fire suppression systems, including inspections and preventative maintenance and fire extinguisher inspection and maintenance; maintenance, repair and replacement of hardware/fixtures attached to the premises, including plumbing and lighting fixtures. Snow Shoveling and Ice Removal. The City shall be responsible for the removal of snow and ice from exterior walkways and sidewalks adjacent to the facility. Right of Inspection. The City shall have the right to enter the premises for the purpose of inspection at any reasonable time or times during the term of this Agreement, provided however, that such inspections shall not unreasonably interfere with TGO's use and occupancy of the premises. ARTICLE VII. FURNISHINGS, FIXTURES AND EQUIPMENT Operating Systems and Equipment. All equipment, furniture, furnishings and apparatus presently located in the Grand Opera House constitutes property of TGO or its contractors, except for the equipment which is owned by the City of Oshkosh and is included under this Lease Agreement to TGO as described in Exhibit A. The TGO will regularly inspect items listed in Exhibit A and will notify the City of any equipment, furniture, furnishings and apparatus that need to be repaired or replaced. If the City determines any requests for repair or replacement of equipment, furniture, furnishings or apparatus is a result of negligent care or use, the City may defer the repair or replacement to the TGO. Any City property or equipment which is no longer necessary for the operation of the facility shall be disposed of in accordance with the City's ordinances and policies governing the disposal of surplus property. TGO shall follow City procedures and timelines for requesting any system or equipment replacement for the benefit of the Grand Opera House. Annual Inventory. TGO shall provide a facility inspection report and inventory report to the City by June 30t" of each year detailing the condition of the facility and any fixtures, any recommended capital projects and the inventory of any city equipment and materials. ARTICLE VIII. INSURANCE, HOLD HARMLESS AND INDEMNIFICATION Property Insurance. The City shall provide property insurance covering the building and City owned contents. TGO shall be responsible to provide property insurance on property owned by TGO and shall provide property insurance or shall ensure that appropriate insurance is provided covering any equipment leased by TGO. Liability Insurance. The City shall provide commercial general liability insurance covering the City, its officers, council members, agents, employees and authorized volunteers. TGO shall provide commercial general liability insurance in at least the amount of $1,000,000 per occurrence covering its officers, employees, volunteers and agents, and listing the City of Oshkosh, and its officers, council members, agents, employees and authorized volunteers as additional insureds under the policy. Intellectual Property Rights -- Hold Harmless and Indemnification. TGO shall comply and shall ensure that any person or entity it contracts with shall comply fully with any and all local, state, and federal laws, regulations, rules, constitutional provisions, common laws, and rights of others applicable to the reproduction or performance of proprietary or copyrighted materials and works of third parties (the "Works"), and to the protection of the intellectual property rights associated with such Works. TGO shall indemnify, defend, protect and hold harmless the City, its officers, council members, agents, employees and authorized volunteers from all and any manner of Losses arising from the use of proprietary intellectual property of third parties (whether such claims are actual or threatened) under the copyright or other laws of the United States. The foregoing indemnity shall apply regardless of the means of publication or performance, and shall include specifically and without limitation the use of recordings, audio broadcasts, video broadcasts, Works on other magnetic media, sounds or images transmitted via the worldwide web, chat rooms, webcast, or on-line service providers, satellite or cable, and all other publication or performance means whatsoever, whether now known or developed after the date of this Agreement. Hold Harmless and Indemnification. Subject to any limitations contained in Secs. 893.80, 893.83, 345.05, and any similar statute, of the Wisconsin Statutes, the City of Oshkosh agrees to hold TGO, its officers, officials, employees and agents harmless from any and all liability, including claims, demands, losses, costs, damages, and expenses of every kind and description (including death), or damages to person or property arising out of the terms of this Agreement where such liability is founded upon or grows out of the acts or omission of any of the City's officers, employees, volunteers or agents while acting within the scope of their employment. TGO agrees to hold the City of Oshkosh, its officers, officials, employees and agents harmless from any and all liability, including claims, demands, losses, costs, damages, and expenses of every kind and description (including death), or damages to person or property arising out of the terms of this Agreement where such liability is founded upon or grows out of the acts or omission of any of TGO's officers, employees, volunteers or agents while acting within the scope of their employment. Nothing contained within this agreement is intended to be a waiver or estoppel of the ability of the contracting municipality or its insurer to rely upon the limitations, defenses, and immunities contained within Wisconsin law, including those contained within Wisconsin Statues §§ 893.80, 895.52, and 345.05 and that such damage limits, caps and immunities shall be used to govern all disputes, contractual or otherwise, as they apply to the parties, their agents, officers and employees. To the extent that indemnification is available and enforceable, the municipality or its insurer shall not be liable in indemnity or contribution for an amount greater than the limits of liability for municipal claims established by Wisconsin Law. It is the intention of the parties to this Agreement that each party shall be solely responsible for its own actions and activities and the actions and activities of its own officers, employees and agents while acting within the scope of their employment. ARTICLE IX. REPORTS, FINANCIAL STATEMENTS AND AUDITS TGO shall keep and maintain, at the Grand Opera House facility or its business offices, separate and independent records, in accordance with generally accepted accounting principles, devoted exclusively to its operations in connection with its management of the premises. Such records, including books, ledgers, journals and accounts, whether kept in written format or electronically, shall contain all entries reflecting the business operations of TGO under this Agreement. The City shall have the right to audit and inspect all such records upon reasonable notice. Quarterly Reports. TGO shall provide to the City no later than the end of the month following the quarter being reported upon. The format of the report will be consistent with reports the The Grand Oshkosh, Inc. Board uses to manage the operation. Audit. TGO shall provide to the City one hundred eighty (180) days following the end of each operating year an audited financial report and management communications, prepared by a certified public accountant, on the accounts and records as kept by TGO. Costs associated with providing the audit shall be the responsibility of TGO. Such audit shall be performed by an external auditor approved by the City Director of Finance and shall be conducted in accordance with generally accepted auditing standards. Cooperation with City Audit and/or Litigation. TGO shall fully and completely cooperate with the City, the City's insurer, the City's attorneys, the City's Auditors or other representative of the City (collectively, the "City" for purposes of this Article) in connection with (a) any internal or governmental investigation or administrative, regulatory, arbitral or judicial proceeding (collectively "Litigation") or internal or governmental Audit, with respect to matters relating to this Agreement; other than a third party proceeding in which TGO is a named party and TGO and the City have not entered into a mutually acceptable joint defense agreement. Such cooperation may include, but shall not be limited to, responding to requests for documents and/or other records, and making TGO's employees available to the City (or their respective insurers, attorneys or auditors) upon reasonable notice for: (i) interviews, factual investigations, and providing declarations or affidavits that provide truthful information in connection with any Litigation or Audit; (ii) appearing at the request of the City to give testimony without requiring service of a subpoena or other legal process; (iii) volunteering to the City all pertinent information related to any Litigation or Audit; and (iv) providing information and legal representations to auditors in a form and within a timeframe requested. The City shall reimburse TGO for reasonable direct expenses incurred in connection with providing documents and records required under this paragraph and may require, at the City's sole discretion, such expenses to be documented by receipts or other appropriate documentation. Reasonable direct expenses include costs, such as copying, postage and similar costs; but do not include wages, salaries, benefits and other employee compensation. ARTICLE X. RECORDS All records of TGO pertaining to the management and operation of the Grand Opera House including any document related to this agreement, whether in electronic or paper form, is considered a public record and shall be provided to the City upon request. Records shall be maintained for a minimum of seven (7) years. Upon termination all records shall be turned over to the City. In the event of a public records request pertaining to this Agreement or TGO's operations hereunder, TGO shall provide the requested records and may provide the City with an explanation of why they believe any document should not be released to the public. The City shall make all final determinations regarding the existence or release of any document related to this agreement. ARTICLE XI. USE OF NAMES/LOGOS TGO shall include or cause to be included in all programs and brochures an acknowledgment that the Grand Opera House Facility is owned by and receives financial support from the City of Oshkosh. TGO shall have the right to use and permit others to use for no charge, the name and any logos owned by the City of Oshkosh pertaining to the Grand Opera House Facility, as well as the official logo of the City of Oshkosh for this purpose. TGO shall take all prudent and appropriate measures to protect the intellectual property rights of the City relating to such logos and to be consistent with the City's visual identity guidelines. ARTICLE XII. USE BY THE CITY Subject to availability, the City shall have the right to use the Grand Opera House or any part thereof rent-free for meetings, seminars, training or other non-commercial uses, provided that the City shall reimburse TGO for any out-of-pocket expenses incurred by TGO (such as the cost of support personnel, any additional costs for maintenance or janitorial staff, et-up or take- down expenses, equipment rental, etc...) in connection with such use. Upon request of the City, TGO shall provide to the City a list of available dates for City use. ARTICLE XIII. MISCELLANEOUS PROVISIONS Authority to Enter into Agreement. TGO hereby represents, warrants and covenants that it has the full legal right, power and authority to enter into this Agreement and to grant the rights and perform the obligations of TGO as herein enumerated. Entire Agreement. This Agreement constitutes all of the agreements and understandings of whatsoever nature or kind existing between the parties with respect to the subject matter hereof. Modifications to Agreement. This agreement cannot be changed or modified except in writing and signed by the duly authorized agents of the parties. Successors Bound. The Agreement shall be binding upon and inure to the benefit of the City, its successors and assigns, and shall be binding upon and inure to the benefit of TGO, its successors and assigns; provided, however, any assignment by TGO shall be subject to the written consent of the City. Any sale or transfer of the Grand Opera House by the City shall be made subject to the terms of this agreement. No third party beneficiaries. Notwithstanding any provision to the contrary, it is agreed that none of the obligations contained in the Agreement shall run to or be enforceable by any other party than the parties to this Agreement. No partnership or joint venture. Nothing contained in this Agreement shall constitute or be construed to be or create a partnership or joint venture among the parties. Headings. Headings contained in this Agreement are for convenience of reference only and are not intended to define, limit or describe the scope or intent of any provisions of this Agreement. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but such counterparts shall together constitute but one in the same Agreement. Facsimile signatures shall be deemed original signatures for all purposes of this Agreement. Severability. If any term, covenant, condition or provisions of this Agreement shall be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each term, covenant, condition and provision shall be valid and be enforced to the fullest extent permitted by law. No Waiver. Failure of either party to insist upon the strict performance of the terms and provisions of this agreement, or any of them, shall not constitute or be construed as a waiver or relinquish of that party's right to thereafter enforce such term or provision, and that term or provision shall continue in full force and effect. Non-Discrimination. The Operator agrees not to discriminate in its operations under this Agreement on the basis of race, color, national origin, religion, creed, age, disability, gender, or on any other basis prohibited by law. A breach of this covenant may be regarded as a material breach of this Agreement Force Majeure. Neither party shall be liable or responsible to the other party for any delay, loss, damage, failure or inability to perform under this Agreement due to an event of Force Majeure, including but not limited to by reason of fire, earthquake, war, terrorist act, flood, riot, strikes, labor disputes or shortages, government restrictions, judicial order, public emergency, or other causes beyond the reasonable control of the party, provided that the party claiming failure or inability to perform provides written notice to the other party within ten (10) days of the date on which the party gains actual knowledge of such event of force majeure. Governing Law. The laws of the State of Wisconsin shall govern the interpretation and construction of this Agreement. Winnebago County shall be the venue for all disputes arising under this Agreement. Joint Drafting. This Agreement is the product of negotiation between the parties hereto and no term, covenant or provision herein or the failure to include a term, covenant or provision shall be construed against any party hereto solely on the basis that one party or the other drafted this Agreement or any term, covenant or condition contained herein. Option for Alternative Dispute Resolution. Upon mutual consent of the parties to this Agreement, which consent any party can withhold in its sole discretion, the parties can agree to submit disputes arising under this Agreement to alternative dispute resolution. IN WITNESS WHEREOF, the parties hereto have executed or caused this Agreement to be executed by their officers thereunto duly authorized, all as of the day and year first written above. CITY OF OSHKOSH THE GRAND OSHKOSH, INC. By: By: Mark A. Rohloff, City Manager Rob Chartier, Chair By: By: Pamela R. Ubrig, City Clerk Rick Hearden, Secretary Certification: By: Russ Van Gompel, Finance Director Approved: By: Lynn A. Lorenson, City Attorney