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HomeMy WebLinkAbout05-89.doc APRIL 12, 2005 05-89 RESOLUTION (CARRIED 7 -0 LOST LAID OVER WITHDRAWN PURPOSE: APPROVE LEASE AGREEMENT I AMPHITHEATER INITIATED BY: CITY ADMINISTRATION BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached Lease Agreement with and PMI, a nonstock, not-far-profit Wisconsin corporation for the amphitheater at Riverside Park (copy on file in the City Clerk's office) is hereby approved and the proper City officials are hereby authorized to execute and deliver the lease agreement in substantially the same form as attached hereto, any changes in the execution copy being deemed approved by their respective signatures, and said City officials are authorized and directed to take those steps necessary to implement the terms and conditions of the Lease Agreement. Lease Agreement/Amphitheater at Riverside Park This LEASE (the "Agreement"), is made and entered into this - day of April 2005,. The two parties are the CITY OF OSHKOSH, a Wisconsin municipality with its principal offices located at 215 Church Ave., P.O. Box 1130, Oshkosh, WI 54903-1130, ("Lessor" or "City") and PMI, a nonstock, oot- for-profit Wisconsin corporation, with its principal offices located at 1901 S. Oneida St., P.O. Box 10567, Green Bay, WI 54307- 0567 ("Lessee" or "PMI"): WITNESSETH: WHEREAS, the City is the owner of certain real property known containing the amphitheater, described below and shown on the map attached for informational purposes only, located within Riverside Park in the City of Oshkosh, Winnebago County, Wisconsin: and WHEREAS, by resolution 05-73, the Common Council for the City of Oshkosh authorized city official to enter into negotiations with PMI as the exclusive entity to lease and manage the amphitheater; and WHEREAS, in exchange for payment by PMI to the City and on the terms and conditions as described herein, the City agrees to lease exclusively to PMI, and PMI agrees to lease and manage the amphitheater for use as an entertainment, recreational and activity venue in downtown Oshkosh; and WHEREAS, to preserve the purpose of the amphitheater, the City will consult with PMI before approving non-hotel/convention center activities in the remainder of Riverside Park; and WHEREAS, the parties to this Agreement intend that the foregoing provisions are contractual in nature and are not to be interpreted as mere recitals to this Agreement; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Purpose of Amphitheater a. The general mission of the amphitheater is to have a schedule that reflects a variety of entertainment and activities, from the weekly Thursday night WATERFEST concert series, to major top-100 touring acts, symphonies, graduations, special convention events, and low cost or free community events. 2. Term of AGreement and Termination a. The term of this Lease shall be from the date first written above through 11 :59 PM on December 31,2009. i. The parties may renew for three-year periods on such terms and conditions as they then may agree. However a new agreement must be concluded at 4. 5. ,. . '.r least 270 days prior to the expiration of the current lease period. Otherwise, this current agreement is presumed to terminate on the expiration date above. b. If PMI intends not to renew this agreement, it must provide written notice of its intent to the City at least 12 months before the lease's termination date. c. The City may terminate this agreement upon 270 days written notice to PM!. 3. Description of the Property a. The property subject to this agreement is the area contained within the fence lines on the east, south and west, and the Ceape Avenue right-of-way on the north, including restroom facilities, concession buildings, VIP areas, front of house structure and performance building. i. A map is attached to this lease as exhibit "A" and is shown for informational purposes only. b. When no PM I-managed events are occurring, grounds (but not structures except amphitheater stage) are open to the public as a public park i. At all times, the City shall have access to the property for all municipal purposes and including any environmental activities. Payments. a. PMI shall pay as rent for the term of this lease, the sum of THIRTY THOUSAND and no/100 DOLLARS ($30,000.00) or TEN PERCENT (10%) of PMI gross event revenue and PMl's sponsorship and signage sales, whichever sum is greater, on or before November 1 of each year of the lease term. i.. EXCEPTION FOR THE 2005 SEASON, defined as the time between May 13 and September 19, 2005: the sum shall be the greater of TEN PERCENT (10%) of gross revenue as stated above, or a fraction of the sum of THIRTY THOUSAND and no/100 DOLLARS ($30,000.00) based on the number of days between the date the City turns over the facility to PMI for lease and management and September 19, 2005 b. All payments shall be made to COLLECTIONS, City of Oshkosh, P.O. Box 1130, Oshkosh, WI 54903-1130. A financial report showing revenues and expenses shall accompany these payments. i. The City may inspect the financial records to verify the accuracy of any payment under this Agreement. PMI shall produce such records for inspection at its offices during normal business hours, or as such other place as the parties may then agree. c. City has right to conduct an independent audit at its own cost, except PMI shall reimburse if audit indicates underpayment i. PMI shall pay any underpayment and shall reimburse the city for its audit expenses within 30 days of invoicing by City. Utilities and Taxes a. In the event that the City adopts a facility charge for all events sponsored 2 last revised: April 12, 2005 "",." ~ by or managed by PMI, PMI shall collect and pay over to the City such charge, net of sales tax. For all events where the top ticl~et 3Fi@9 is $7.00 or greater, PMI g qall eelleet 0 faeility @ qaf§e of $1 per ¡:;Joie aemis8iøn that sholl bo payaBle to the €ity, net øf 861les tmL b. PMI shall pay all charges for electrical, sanitary sewer and water services to the restrooms, concession stands, performance buildings, front of house structure and for event-related clean-up. c. The City shall pay all charges for stormwater utility, and electrical service for nonbuidling lighting, and water for routine maintenance . d. PMI shall pay all property taxes, sales and use taxes and other taxes, assessments, and fees levied or charged to the premises as a result of its activities under lease. i. If PMI's activities under this agreement subject the property (whether all of it or part of it) to real estate taxation, in its sole discretion, PMI may pursue all rights and remedies provided by, and is subject to all provisions of Chapter 70 of the Wisconsin Statutes, or may terminate this agreement upon 30 calendar days' written notice to the City. 6. Operation and Maintenance a. During event days, PMI shall have complete responsibility for all management services and labor deemed necessary to operate, supervise, manage and maintain premises and activities under this lease, including but not limited to: i. Housekeeping, preventative maintenance, graffiti removal occurring during event-related activities, pest control, customary repairs to keep structures, related lighting and premises under its control in sound operating condition. 1. PMI shall maintain structures and facilities under its control in good condition. 2. If the City has to perform any of these activities, PMI shall pay the City's expenses within 30 days of invoicing. ii. Trash, litter and refuse clean-up after each event, restoring the premises to its pre-event condition by noon the next day 1. If the City has to perform any of these activities, PMI shall pay the City's expenses within 30 days of invoicing. iii. Minor alterations and repairs at PMl's own expense as each event may require, restoring to the premises to its pre-event condition unless such modifications are intended to be made available for future events. 1. Any fixtures, which are installed under this subparagraph but are not removed at lease end, shall become city property. 2. If the City has to perform any of these activities, PMI shall pay the City's expenses within 30 days of invoicing. b. The City shall have complete responsibility for all lawn care, landscaping and snow removal, non-building lighting, and non-event-related walkway cleaning, graffiti cleaning and litter pick-up. i. If the City has not met its obligations under this subparagraph, PMI shall notify the City in writing and the City shall complete such tasks within 30 days 3 last revised: April 12, 2005 .; - ',Þ< of such written notice. 7. Capital Improvements and Repairs a. From time to time, PMI may recommend to the City capital improvements and repairs. In its sole discretion, the Common Council for the City of Oshkosh may review and approve funding and implementing such recommendations. b. The City shall repair structural defects and make any alterations necessary for compliance with codes subject to further Council approval. 8. Insurance and Indemnification a. During the term of the Lease, PMI, at its sole expense, shall procure and maintain commercial general liability insurance, including bodily injury, property damage and personal injury; business automobile liability insurance covering use of owned, hired or non-owned vehicles; liquor liability; workers compensation including employer's liability and unemployment compensation as may be required by the State of Wisconsin; and, excess liability or umbrella liability. Should PMI subcontract any activity contemplated by this lease, PMI shall require the subcontractor to provide workers compensation including employer's liability. All insurance, which this lease requires: (a) shall be issued by a company, or companies, licensed to do business in Wisconsin with an AM Best rating of A- or better, (b) shall include a provision prohibiting cancellation of such policies except upon 30 days prior written notice to PMI, and (c) shall insure the City and PMI against liability for injury to persons or property occurring in or about the demised premises or arising out of the parties' ownership, maintenance, use or occupancy whether or not such occurrences take place on or away from the demised premises except for workers compensation. PMI shall provide proof of insurance to the City within 30 days of any written request. The minimum amounts of each coverage shall be: i. Worker's Compensation including employer's liability: as Wisconsin law require; ii. Unemployment Compensation: as required by state law; iii. Commercial General Liability: $1,000,000 per occurrence, $1,000,000 personal injury and advertising injury, $2,000,000 products aggregate, and $2,000,000 general aggregate (per location); iv. Business Automobile Liability: $1,000,000 per occurrence for bodily injury and property damage (per location); v. Excess Liability or Umbrella Liability: $5,000,000 per occurrence and in aggregate over the Commercial General Liability and Business Automobile Liability coverages, and employers liability b. During the term of this Lease, PMI shall procure and maintain at its own expense personal property (contents) insurance for all personal property, regardless of actual ownership, used in the performance of all activities under this Lease, to protect itself against losses by fire, theft, and special perils. This coverage shall be on a full replacement cost basis. On the 4 last revised: April 12, 2005 . ',~ commencement date of this Lease, PMI shall furnish to the City a certificate of property insurance, issued by a company licensed to do business in Wisconsin with an AM Best rating of A- or better, together with proof of payment of premium. Thereafter, PMI shall furnish such proof of insurance to the City within 30 days of any written request. The policy and each renewal shall provide that it may not be cancelled by the insurer without 30 days prior written notice to PM!. i. No later than November 15 of each year, the parties shall exchange lists of personal property, which each party uses to perform its activities under this agreement, for the purpose of insurance renewals. c. During the term of this Lease, the City shall insure the buildings and city- owned contents for special perils to the full replacement costs. The City shall provide proof of insurance to PMI within 30 days of any written request. d. PMI agrees to protect and hold the City harmless against all actions, claims and demands of any kind or character whatsoever to the extent arising from PMl's use of the premises, and shall indemnify the City for all sums which it may be obliged or adjudged to pay therefor, for all liability to the extent it may arise, including attorney fees, within thirty (30) days of demand. Further, the City agrees to protect and hold the PMI harmless against all actions, claims and demands of any kind or character whatsoever to the extent arising from PMl's use of the premises, and shall indemnify PMI for all sums which it may be obliged or adjudged to pay therefor, for all liability to the extent it may arise, including attorney fees, within thirty (30) days of demand. i. PMI and the City intend by this indemnification, that each partywill be responsible for the acts and omissions of its own officers, employees, agents, contractors, subcontractor and invitees to the extent not caused by, aggravated by, or enhanced by the other party's.officers, employees, agents, contractors, subcontractor and invitees. ii. PMI shall be responsible for the removal or other suitable remediation of any and all toxic or hazardous materials which PMI introduces on to the premises to the extent such materials arose from its use of the property and shall remove or otherwise suitably remediate all such substances upon expiration of this lease. iii. The City's obligations under this subparagraph (d) shall not include matters to the extent they have been caused by, affected by or exacerbated by PMI's occupancy of the subject property or the conduct or actions of PMI or its employees, agents, contractors, subcontractors, invitees (excluding City personnel and users of the park grounds during non-event times) or licensees or any other third parties not associated with the City 9. Damaqe by Fire or Other Casualty a. If the front of house structure or the performance building is materially damaged or rendered materially unusable for its tended purposes by fire or other casualty 5 last revised: April 12, 2005 10. 11. -.¡. ,. þ-' that its repair, restoration, or rebuilding would require more than sixty (60) calendar days from the date of the loss, PMI may, by giving written notice to the City within forty-five (45) calendar days after the day the fire or other casualty occurs, terminate this agreement upon a date specified in the notice. This date shall be not less than five (5) nor more than ten (10) calendar days after the notice is given. In such event, the term of this agreement shall expire on such date in the same manner as if the term of this Lease had expired. i. If the restrooms or concession building$ are so materially damaged, the parties shall meet and confer to discuss, among other matters, the target date(s) for completion of needed repairs and the need for any temporary modifications to the provisions of this Agreement. Default a. Each of the following events shall constitute a default of this Lease: i. If PMI shall file a petition in bankruptcy or insolvency or for organization under any bankruptcy act, or shall make an assignment for the benefit of creditors; or ii. If an involuntary proceeding under any bankruptcy law or insolvency act shall be instituted against either party; or iii. Failure of either party to comply with any provision of this Agreement. Notices a. Any notice required or communication under this Agreement shall be given in writing, signed by the party giving notice, personally delivered or mailed by first class mail or by facsimile transmission to the parties' representative as noted below. Notice shall be deemed delivered: (a) in the case of personal delivery, on the date when personally delivered; or (b) in the case of first class mail, on the postmark date when deposited in the United States mail with sufficient postage to effect such delivery provided a return address is clearly on the face of the envelope; or (c) in the case of facsimile, on the date when received. Facsimile signatures shall be deemed to be originals in all respects. All such notices shall be addressed as follows: i. To PMI: President PMI P. O. Box 10567 Green Bay WI 54307-0567 ii. To the City: City Manager P.O. Box 1130 Oshkosh WU 54903-1130 b. Any party may change its address for purposes of this paragraph by giving the other party written notice with a new address in the manner set forth above. 6 last revised: April 12, 2005 ..,..;-, ," 12. General Provisions a. Alcohol License. PMI shàll use its best efforts to secure a license from the State of Wisconsin governing its Chapter 125 activities at the amphitheater. In the event, PMI is unable to obtain such license, the City shall use its best efforts to grant and issue to PMI a similar license consistent with Chapter 4 of the City of Oshkosh Municipal Code. b. Independent Contractor. The parties agree that the only relationship created by this Agreement is that between the City, as owner, and PMI, as an independent contractor, for certain management and operation services assigned to PMI by the City and that PMI is an independent contractor, not an agent, employee, joint venturer or partner of the City. c. Complete Agreement. This Agreement supersedes all other agreements or other understandings between the parties, whether verbal or written, and contains the entire understanding between the parties, and it shall inure to the benefit of and shall bind the parties hereto, their respective heirs, executors, successors or assigns. This Agreement may be amended or modified only by written instrument duly executed by, and delivered to both of the parties hereto. d. Assignment. PMI shall not assign this agreement without the City's written consent. e. Severability of Provisions. In case anyone or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if the invalid, illegal or unenforceable provision had never been contained herein. f. Compliance with Laws. PMI shall conform all activities under this agreement to all applicable state, local and federal laws, rules, and regulations. PMI shall secure all necessary licenses and permits. PMI shall not use the Leach Amphitheater and the subject premises for any unlawful or extrahazardous activity or purpose nor shall it permit others to use the premises for such purposes or activities. i. Notwithstanding anything in this Agreement to the contrary, the park curfew for all events and activities is 11 :00 PM, unless waived with the approval of the Common Councilor the City of Oshkosh g. Quiet Use and Enjoyment. During events and other activities conducted under this Agreement, PMI shall have the quiet use and enjoyment of the Leach Amphitheater and the subject premises including the right to restrict entry to the subject premises h. Governing Law. The laws of the State of Wisconsin shall govern the interpretation and the construction of this Agreement. Winnebago County shall be the venue for all disputes arising under this Agreement. 7 last revised: April 12, 2005 ~.i ~ " ... IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. CITY OF OSHKOSH Richard A. Wollangk, City Manager Pamela R. Ubrig, City Clerk APPROVED AS TO FORM: Assistant City Attorney This Agreement was drafted by: Attorney Warren P. Kraft Oshkosh, Wisconsin 54903-1130 PMI 8 last revised: April 12, 2005