HomeMy WebLinkAboutAgreement for tourism services 11.2.2023AGREEMENT FOR TOURISM SERVICES
WHEREAS, the City of Oshkosh previously established a convention and visitors'
bureau, pursuant to Section 8-1.1(2) of the Oshkosh Municipal Code, for the purposes of
promoting convention and tourism business in the City; and
WHEREAS, the Oshkosh Convention & Visitors Bureau, Inc. was formed as a non -
stock, not -for -profit, private corporation pursuant to Chapter 181 of the Wisconsin
Statutes, to perform the functions of a tourism entity, pursuant to Section
66.0615(1m)(b)1., Wis. Stats.; and
WHEREAS, the City of Oshkosh and the Oshkosh Convention & Visitors Bureau,
Inc. have previously entered into Agreements for Tourism Services beginning in May 1,
1996 and continuing through the present date; and
WHEREAS, it is necessary to renew the existing Agreement for Tourism Services;
and
WHEREAS, the City of Oshkosh and the Oshkosh Convention & Visitors Bureau,
Inc. have agreed that the Oshkosh Convention & Visitors Bureau, Inc. will continue to
function as the designated tourism entity, pursuant to Section 66.0615(1m)(b)1., Wis.
Stats. and the designated direct marketing organization for tourism promotion; and
WHEREAS, it is necessary to renew and amend the current agreement to update
language within the prior agreement to remove references related to a prior loan related
to the Convention Center which has now been paid; and
WHEREAS, the parties intend that the foregoing provisions are contractual in
nature and are not to be construed as mere recitals to this Agreement;
NOW, THEREFORE, IT IS AGREED by and between the City of Oshkosh, a Wisconsin
municipality with its principal offices located at 215 Church Avenue, Oshkosh,
Winnebago County, Wisconsin 54901 ("City") and the Oshkosh Convention & Visitors
Bureau, Inc., Wisconsin, a non -stock, not -for -profit private corporation, with its principal
offices located at 100 North Main Street, Suite 112, Oshkosh, Winnebago County,
Wisconsin 54901 (the "Bureau"), as follows:
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1. DESIGNATION. The City hereby designates the Bureau as its "tourism
entity", pursuant to Section 66.0615 of the Wisconsin Statutes.
2. PURPOSE. The Bureau shall promote convention, tourism and visitor
business for the City, shall provide "tourism" services to and for the City as that term is
defined in Sec. 66.0615(1)(e), Wis. Stats., and shall operate a tourism promotional
program for the City.
3. TERM. The term of this Agreement is five (5) years, first commencing on
May 1, 2023 and ending April 30, 2028, unless sooner terminated as hereinafter provided.
The Bureau may request renewal of this Agreement for additional terms by providing
written notice to the City of the request to renew not less than one hundred eighty (180)
days prior to the expiration of the then current term. The City and the Bureau may
renew this Agreement with such amendments and modifications that the parties may
agree to in writing to include the length of term for each renewal period.
4. EARLY TERMINATION. Either party shall have the right to terminate
this Agreement without cause upon six (6) months prior written notice to the other party.
In the event the party has Good Cause for termination, it shall give written notice thereof
to the other party who shall have fifteen (15) calendar days from receipt of said notice to
take such actions as may be reasonably necessary so as to cure the deficiency as soon as
is reasonably practicable depending on the nature of the deficiency, as described in said
notice. Notice of termination shall be in writing and delivered to the other party. In the
event the party receiving the notice fails to take such actions as may be reasonably
necessary to cure the deficiency within fifteen (15) days from the receipt of said notice or
fails to diligently pursue said actions thereafter, the party giving the notice shall have the
right to terminate this Agreement.
For purposes of this Agreement "Good Cause" shall mean: (i) any intentional act of fraud,
theft, misappropriation or any other material violation of law relating to the performance
of duties under this Agreement; (ii) breach of any material provision of this Agreement;
(iii) the willful or continued failure to substantially perform the obligations of this
Agreement; or (iv) conduct that is demonstrably and materially injurious to the
promotion of tourism in the City of Oshkosh, monetarily or otherwise.
5. COMPENSATION. The City shall be solely responsible for the collection
of all Room Tax as permitted by Section 66.0615 of the Wisconsin Statutes. The City shall
pay to the Bureau on a monthly basis that portion of the Room Tax designated under
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Oshkosh Municipal Code Sec. 8-1.1(B)(1); provided however, the City shall have the right
to adjust the Bureau's share of the Room Tax collections based upon the obligation of the
City to pay the operating costs of the Oshkosh Convention Center and any projected
shortfall in debt payment for the Oshkosh Convention Center. In the event that the City
adjusts the Bureau's share due to these circumstances, the City shall keep an accounting
of the funds withheld from the Bureau and restore the share when the City determines
that it is economically feasible to do so. Nothing contained in this Agreement is intended
to prohibit the Bureau from seeking additional funding from sources other than the City.
6. REPORTS AND AUDITS. The Bureau shall, upon request, provide
written monthly reports to the City Director of Finance of its activities performed under
the terms of this Agreement. The reports shall include an accounting of the Bureau's
income and expenses in a manner and form agreeable to the parties as approved by the
Director of Finance. In addition, the Bureau shall provide to the City an annual report of
the Bureau's activities for the previous year and an annual audit, consistent with
acceptable accounting practices, of its finances, to be delivered within ninety (90) days
after the end of the fiscal year.
7. LOGOS AND INSIGNIAS. The City of Oshkosh shall retain full
ownership, and full use rights, of any logo, slogan or insignia, such as the "Oshkosh on
the Water" Insignia. Notwithstanding the foregoing, the Bureau shall have a non-
exclusive license to use such indicia in the ordinary course of its activities on such terms
and conditions as the parties may agree.
The Bureau shall retain full ownership, and full use rights, of any logo and related slogans
or insignia created by or under the direction of the Bureau. Notwithstanding the
foregoing, the Bureau hereby grants the City a non-exclusive license to use such indicia
in the ordinary course of its activities on such terms and conditions as the parties may
agree.
8. INSURANCE. The Bureau shall maintain all insurance coverage, such as
general liability, worker's and unemployment compensation, directors and officials, fire
and extended, necessary to carry out its duties under this Agreement. Copies of the
current policies shall be provided to the City upon written request.
9. INDEMNIFICATION. Subject to any limitations contained in Secs. 893.80,
893.83, 345.05, and any similar statute, of the Wisconsin Statutes, the City agrees to hold
the Bureau, its officers, officials, employees and agents harmless from any and all liability,
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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
omissions of any of the City'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.
The Bureau agrees to indemnify and hold harmless the City including its council
members, committee and board members, directors, officers, employees, agents,
shareholders, insurers, successors and assigns, from and against any and all claims,
demands, penalties, fines, causes of action, liabilities, settlements, damages, costs and
expenses, including without limitation, attorneys' and consultants' fees, investigation
fees, court costs and litigation expenses, and other costs of defense, known or unknown,
contingent or otherwise, arising out of or in any way related to the negligence or
intentional acts of any employee or agent of the Bureau where such liability is founded
upon or grows out of the acts or omission of any of the Bureau's officers, employees,
volunteers or agents while acting within the scope of their employment, including, but
not limited to liability for:
A. Any personal injury or bodily injury (including wrongful death) or
property damage (real or personal);
B. Any lawsuit brought or threatened, settlement reached, or local, state or
federal government or agency order, including, but not limited to claims
costs, liabilities, or expenses, arising under federal, state or local law;
C. Any violation of laws, orders, regulations, requirements or demands of any
governmental authorities; and
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D. Any breach or violation of any contractual provision of whatever kind with
any third party.
10. DISPUTES AND RESOLUTION. This Agreement shall be construed
pursuant to Wisconsin law.
11. NATURE OF RELATIONSHIP. The Bureau shall be deemed an
independent contractor and shall not indicate or imply that the City has any supervisory
control over the Bureau except as outlined in this Agreement. Nothing in this Agreement
shall constitute or be construed to be or create a partnership or joint venture among the
parties.
12. MEETINGS AND RECORDS POLICY. The Bureau shall conduct its
meetings and allow public access to its records as required by the Policy Statement
attached as Exhibit 1 of this Agreement. The policies set forth in the Policy Statement
may be amended or modified, from time -to -time, by mutual agreement of the City and
the Bureau.
13. NOTICES. Except as otherwise provided for in this Agreement, all notices
shall be in writing and shall be effective when delivered in person to the other party or if
delivered by first class mail, the next business day after the postmark thereof. Notices
shall be delivered as follows:
To the City:
City of Oshkosh
ATTN: City Manager
215 Church Avenue
Oshkosh, WI 54901
To the Bureau:
Director, Oshkosh Convention
& Visitors Bureau
100 North Main Street,
Suite 112
Oshkosh, WI 54901
14. MISCELLANEOUS. This Agreement may not be assigned without the
express written consent of the other party, such consent shall not be unreasonably
withheld. Notwithstanding any provision to the contrary, none of the obligations or
benefits contained within this Agreement shall run to or be enforceable by any party other
than the parties to this Agreement. This Agreement constitutes all of the agreements and
understandings of whatever nature or kind existing between the parties, and shall not be
changed or modified except in writing and signed by the duly authorized agents of the
parties. If any provision shall become invalid or unenforceable, the remainder of this
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Agreement shall not be affected thereby, and each remaining provision shall be valid and
enforced to the fullest extent permitted by law.
Dated at Oshkosh, Wisconsin, this -Z day of eve nn 4 D 2 2023.
CITY OF OSHKOSH
Mark A. Rohloff, City Manager
Diane Bartlett, City Clerk
APPROVED AS TO FUNDING:
Russ Van Gompe , Finance Director
APMOVED TO FORM:
Lynn A. Lorenson, City Attorney
OSHKOSH CONVENTION AND
VISITORS BUREAU, INC.
Elizabeth A. Hartman, Chairperson
Secretary-T easurer
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Policy on Open Meetings
The Oshkosh Area Convention and Visitors' Board is committed to the policy of open
meetings, except under limited and specific circumstances. It believes that information
about the activities of the Bureau and the decisions of the Bureau's Board should be
available to the public.
The circumstances where the Board believes that it may not be able to conduct open
meetings are (1) personnel matters, and (2) issues related to complaints by specific private
groups against private businesses or (3) any other reason permitted by the Wisconsin
Open Meetings Law, Wis. Stats. 19.81, et seq.. In these circumstances, rights of privacy,
risks of liability, and issues of proprietary information may outweigh the benefit of full
public disclosure.
Exhibit 1
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