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HomeMy WebLinkAboutGrand Opera House Foundation ". LEASE AGREEMENT This is made this IS-ti day of ~~ , 2004, between the CITY OF OSHKOSH, a municipal corporation located in Winnebago County, Wisconsin ("City") and the OSHKOSH OPERA HOUSE FOUNDATION, INC., a Wisconsin not-for-profit corporation ("Foundation"), as follows: 1. Lease and Term. The City shall lease to the Foundation the Grand Opera House, located at 100 High Avenue, Oshkosh, Wisconsin, for an initial term of five (5) years beginning at 12:01 a.m. on January 1, 2005, and ending at 11 :59 p.m. on December 31, 2009, 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. This agreement shall be automatically renewable for subsequent five (5) year terms unless a written, six-month notice of intent not to renew is given to the other party. - 2. General Operations. The Foundation shall hire a manager on a full time basis to manager the Grand Opera House and such other support staff, including janitorial or private cleaning services to maintain the facility, as may be necessary. 3. Operatinq Systems and Equipment. All equipment, furniture, furnishings and apparatus presently located in the Grand Opera House constitutes property of the Foundation except for the equipment which is owned by the City of Oshkosh and is included under this Lease Agreement to the Foundation as described in Exhibit A. 4. Grand Opera House Funds. All funds received by the City from third parties for the benefit of the Grand Opera House operations or performances shall be timely transferred to the Foundation. 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 the Foundation is undertaking to provide as a result of the Lease Agreement. 5. Income. All income designated for operation of the Grand Opera House shall be distributed to the Foundation for operations. The sources of the Foundation's income are as follows: A. The City shall pay to the Foundation that portion of the room tax, equal to nineteen percent (19%) of the seven percent (7%) room tax imposed per Sec. 66.0615, Wis. Stats., paid to the city, except for the amount attributed to room tax collections from the hotel located at 1 N. Main St., Oshkosh; provided, however, that the City shall have the right to adjust the Foundation's share of said room tax collections based upon any projected shortfall in debt payment for the Oshkosh Convention Center TIF District #4. The amount of the deduction of the room tax payable to the Foundation shall be proportionate to the room tax adjustment made to the Oshkosh Convention and Visitors Bureau under its Agreement with the City dated in April 28, 2004. The amount payable to the Foundation shall be made on a monthly basis not later than thirty-one (31) days after the conclusion of the month in which the tax was paid to the city, into an account designated in writing by the foundation. - ~, B. All performance and rehearsal income. C. All concession income. D. Equipment rentals. E. Advertising revenue. F. Donations and grants. G. Miscellaneous income as previously designated for Grand Opera House use. 6. Written Report. The Foundation shall provide to the City an annual written report that details the programs and activities for the Grand Opera House as well as for local theatrical groups, business uses and for tourism for the preceding year, and may include similar information for the next succeeding year. 7. Maintenance. The maintenance responsibilities of the Grand Opera House shall be allocated as follows: A. The Foundation shall be responsible for all routine maintenance and minor repairs, defined as a repair that does not exceed One Thousand Dollars ($1,000.00); and, for payment of all utility expenses to the extent not reimbursed by the City through the Grand Opera House budget. B. The City shall be responsible for repair, replacement or capital improvements of all building structural or mechanical systems, and any major repairs defined as a repair that exceeds which exceed One Thousand and 01/100 Dollars ($1,000.01); and, for snow removal and sidewalk maintenance. C. The Foundation 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 the written consent of the City, whose consent shall not be unreasonably withheld. 8. Insurance. The City shall provide and pay for all general liability coverage, fire and extended insurance coverage related to its ownership of the facility, and the operating systems and equipment as listed on Exhibit A. A copy of such insurance shall be provided upon written request. It shall be the Foundation's sole responsibility to provide all necessary insurance coverages for its activities related to this agreement, such liability insurance from promoters and/or sponsors of events scheduled or held at the Grand Opera House or to provide at its own expense such insurance for a promoter or sponsor, and such other coverage as is necessary to insure other personal property located on the premises. 9. Operations. The Foundation shall operate the Grand Opera House as provided in this Agreement, subject to the following: , , A. The rental rates for the Grand Opera House shall be set forth in a rate schedule to be periodically adopted by the Foundation, and reported to and filed with the Common Council which shall have sixty (60) days to reject the rate schedule. B. The Foundation 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. The Foundation shall make the Grand Opera House available on a first come, first served basis and shall not discriminate between presenters. When the Foundation is a presenter, it shall be subject to the same rules as any other presenter. Any dates booked by the Foundation during the lease terms shall be honored by the city even in the event this Agreement is terminated prior to the normal termination date of the lease. C. The Foundation shall provide the City, upon request, copies of all financial review reports as the Foundation receives. The Foundation shall make available to the Grand Opera House Advisory Board accounting reports on a quarterly basis concerning the Foundation's operation of the Grand Opera House. D. The City Manger or designee and the designee of the Foundation may conduct monthly inspections of the Grand Opera House facility to monitor its condition. 10. Standard Lease Provisions. A. The Foundation shall comply with all rules and regulations for operation of a public facility. Provided that either the City or Foundation shall have the right to contest the applicability of such rules and regulations. B. All records of the Grand Opera House shall be maintained at the office located in that hall. 11. Early Termination. The Foundation and the City shall have the right to terminate this agreement without cause upon six (6) month prior written notice to the other party. In the event either party shows good cause for termination, the termination shall be after either party has the opportunity to correct any deficiency within fifteen (15) calendar days of written notice thereof. If such deficiency is not cured within those fifteen (15) days, this Agreement may be terminated on fifteen (15) day written notice by either party to the other. 12. 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 the Foundation, its successors and assigns; provided, however, any assignment by the Foundation shall be subject to the written consent of the City, which shall not be unreasonably withheld. Any sale or transfer of the Grand Opera House by the City shall be made subject to the terms of this agreement. " 13. Miscellaneous Provisions. A. Nothing contained in this Agreement shall constitute or be construed to be or create a partnership or joint venture among the parties. B. This agreement cannot be changed or modified except in writing and signed by the duly authorized agents of the parties. C. 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. D. 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. E. 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. F. 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. G. 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. H. Any dispute between the parties shall be settled by arbitration under the Commercial Arbitration Rules of the American Arbitration Association at a hearing to be held in Oshkosh, Wisconsin. n " ... 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 By: Warren P. Kraft, City Attorney This Instrument Drafted By: Attorney Gary R. Yakes 141 North Sawyer Street P.O. Box 1338 Oshkosh, WI 54902 920-231-1500