Loading...
HomeMy WebLinkAbout08-504DECEMBER 23, 2008 08 -504 RESOLUTION (CARRIED 7 -0 LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE TERM SHEET FOR OPERATIONS AGREEMENT CONVENTION CENTER / OSHKOSH CONVENTION CENTER MANAGEMENT, INC INITIATED BY: CITY ADMINISTRATION BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached Term Sheet between the City of Oshkosh and Oshkosh Convention and Visitors Bureau, Inc. for the operation of the Oshkosh Convention Center is hereby approved and the proper City officials are hereby authorized and directed to enter into an agreement in accordance with the terms set forth in the attached term sheet and to carry out all actions necessary to implement the City's obligations under the term sheet and agreement. Proposed Term Sheet for Operation of Convention Center Submitted by: Oshkosh Convention & Visitors Bureau, Inc. (December 23, 2008) 1. Parties (official names and addresses): "City ": City of Oshkosh 215 Church Avenue PO Box 1130 Oshkosh, WI 54903 -1130 "Operator ": Oshkosh Convention Center Management, Inc. 2401 W. Waukau Avenue Oshkosh, WI 54904 2. Management Paragraph. a. The Operator shall have the exclusive right to manage, market, promote and operate the Oshkosh Convention Center (the "Convention Center "). b. The premises of the Convention Center shall consist of the Convention Center building, skywalk, and attached patio (the "Convention Center "). • Alcohol license shall cover the entire Convention Center, including the patio. • The patio shall be available for park related uses when not in use by the Operator. 3. Term of Agreement. a. The Agreement shall be for an initial term of two (2) years, subject to earlier termination as follows: • By mutual agreement of the parties, at any time. • By the City, if the Operator materially fails to perform any of the Operator's obligations under the Agreement and such failure is not cured within a reasonable time after the Operator's receipt of a written notice from the City. • By the City, in the event of the bankruptcy and insolvency or receivership of the Operator. By the Operator, if the City fails to perform any of the City's obligations under the Agreement and such failure is not cured within a reasonable time after receipt of a written notice from the Operator. By the Operator, in the event the Operator has sustained a cumulative loss of One Hundred Fifty Thousand and no /100 Dollars ($150,000.00) or more as a result of its operation of the Convention Center. b. The City shall have the additional right to terminate this Agreement at any time without cause upon not less than sixty (60) days written notice to the Operator. In the event the City exercises this early termination right, the Operator shall continue to be entitled to all rental income that has been received for future events at the Convention Center booked by the Operator prior to the effective date of the termination, regardless of when the event occurs. The City agrees to consider any recommendations of the Operator related to the selection of a new operator. C. In the event the Agreement is terminated for any reason, the Operator and the City shall each be obligated to take such actions as may be reasonably necessary to ensure a smooth transition to the new operator. d. The Agreement shall be automatically renewed for successive two (2) year terms unless either party gives the other party at least ninety (90) days written notice of its election not to renew. 4. Payments to the City of Oshkosh. The Operator shall be entitled to receive all rent and other payments for the use of the Convention Center until such time as the cumulative rental income received by the Operator exceeds the cumulative direct expenses incurred by the Operator for the operation of the Convention Center as those expenses are reported in the monthly or quarterly profit and loss statements. Thereafter, the Operator shall pay to the City, twenty -five percent (25 %) of the amount by which the income from rent, food and beverage revenue and any other income received exceeds the amount of the expenses incurred by the Operator for the operation of the Convention Center. Any payment due to the City shall be paid at the time Operator provides its annual activities report for the previous calendar year. 5. Payment to Oshkosh Area Community Foundation. The caterer shall be required to pay one percent (1 %) of the gross food and beverage /concession revenue for each event to the OACF. This payment shall be made to the Operator and transmitted by the Operator to OACF. The Operator shall not, however, be responsible for the collection of any delinquent payments. -2- 6. General Duties and Obligations of the Operator. a. The Operator shall operate the Convention Center and pay all of the Operator's expenses related to operation of the Convention Center. b. The Operator shall act as an independent contractor and not as an agent or representative of the City. C. The Operator shall provide all services necessary to promote and operate the Convention Center as a first class convention and event facility. d. The Operator shall comply with applicable laws and secure required permits. The Operator shall have exclusive booking rights for events during the term of the agreement. The Operator shall be responsible for marketing the Convention Center, booking events, working with caterers and other service providers, working with event sponsors, and providing other support for all events. f. The Operator shall be responsible for operation of message sign (posting and changing messages). g. The Operator shall cooperate and coordinate with the City on messaging specific announcements and events on the message sign. h. The Operator shall be responsible for the day to day operation of the building security system in accordance with the City's security plan for the Center. i. The Operator shall provide for normal cleaning/care and upkeep of the Convention Center (including skywalk), which shall generally include: cleaning of floors, carpeting (shampooing on a regular basis, at least quarterly) and windows (interior and exterior); cleaning of other interior surfaces; removal of interior waste, rubbish and recyclables from center; replacing lights as needed; operation and care of audio /visual equipment /systems; and day to day operation of HVAC system (e.g. thermostat adjustments). All records relating to or reflecting the Operation of the Convention Center by the Operator shall be available to the City and OACF, and their representatives at all reasonable times for examination, audit, inspection and transcription. 7. General Duties and Obligations of the City. a. The City shall upgrade the Convention Center in accordance with the proposed plans provided to the Operator. -3- b. The City shall use its best efforts to ensure that the Operator obtains all licenses and permits necessary for the operation of the Convention Center, including without limitation, a liquor license. C. The City shall be responsible for the external removal and emptying of dumpsters and recyclables from a designated collection area. d. The City shall be responsible for snow removal/shoveling of all exterior walks to the Convention Center And maintenance /replacement of all exterior landscaping base materials. C. Except as otherwise expressly provided, the City shall be responsible for all maintenance and repairs of the Convention Center and the skywalk, including without limitation: maintenance, repair and replacement of the structures, HVAC equipment and mechanical systems; repair of floors, recarpeting (based on need relative to wear and tear); repair of broken windows; repair /replacement of wall coverings, repainting of walls (based on need relative to wear and tear, and general upgrades in long term); HVAC system care & maintenance (dealing with any problems of system, preventive maintenance); care and related maintenance of sprinkler /fire alarm system; fire extinguishers; repair and/or replacement of hardware /fixtures attached to premises, plumbing and lighting fixtures; provision of light bulbs; maintenance/ repair/ replacement of message sign; and the maintenance /repair /replacement of other exterior signage. f. The City shall be responsible for all utility costs for the Convention Center. g. The City shall coordinate all activities related to the maintenance and repair of the Convention Center with the Operator. h. The City shall be responsible for Convention Center security and shall coordinate with the Operator for the implementation of a security plan for the building. 8. Furniture, Fixtures and Equipment. a. The City shall supply all tables; chairs; furniture; audio /visual equipment; stoves, refrigerators, freezers and other major appliances; major kitchen equipment and other furniture, fixtures and equipment of a similar nature ( "City, Furniture, Fixtures and Equipment ") necessary to properly equip the Convention Center. The items to be supplied by the City shall be agreed upon by the parties prior to the execution of the Agreement. b. An inventory of the City Furniture, Fixtures and Equipment shall be prepared and agreed upon by the parties prior to the Operator taking possession of the Convention Center. In C. All City Furniture, Fixtures and Equipment shall remain the property of the City and shall be returned to the City upon the termination of the operation of the Convention Center by the Operator in the same condition as at the commencement of operations except for reasonable wear and tear and other loss or damage beyond the reasonable control of the Operator. d. The Operator shall be responsible for routine maintenance of the City Furniture, Fixtures and Equipment and repairs to the City Furniture, Fixtures and Equipment whose reasonable cost does not exceed $1,000 per occurrence. e. The City shall be responsible for the replacement of any City Furniture, Fixtures or Equipment requiring replacement during the term of the Agreement, unless the replacement is required as a result of the gross negligence or intentional acts of the Operator. f. The Operator shall supply the equipment necessary to properly equip the Operator's office at the Convention Center. g. The Operator shall work with the event caterer to insure that the caterer supplies all plates, dishes, silverware, linens, serving equipment, kitchen tools, small appliances and other items of a similar nature necessary to provide first class food and beverage service for the event. h. The Operator shall retain ownership of all equipment provided by the Operator upon the termination of the operation of the Convention Center by the Operator. i. The Operator shall be responsible for the replacement of any equipment provided by the Operator, unless the replacement is required as the result of the negligence or intentional acts of the City. 9. Insurance. a. The City shall provide casualty and liability insurance for the Convention Center and the skywalk. b. The Operator shall carry the following limited liability insurance coverages: general liability (occurrence form); personal injury & advertising injury general aggregate; product /completed operations aggregate, liquor liability; umbrella; business and automobile; statutory workers compensation; and employer liability coverage. The City and its council members, employees and agents shall be designated as additional insureds on the liability insurance coverage carried by the Operator. -5- d. The Operator shall provide certificates of insurance for all insurance coverage required to be carried by the Operator. e. The Operator shall indemnify and hold the City harmless from any liability arising out of the failure of the Operator to perform its obligations under this Agreement or the negligent or intentional acts or omissions of the Operator or of its employees, contractors or agents. f. The City shall indemnify and hold the Operator harmless from any liability arising out of the failure of the City to perform its obligations under the Agreement or the negligent or intentional acts or omissions of the City or its employees, contractors or agents. 10. Reports to the City. a. The Operator shall provide an annual facilities inspection and inventory report to the City by the June 30 following the end of the previous calendar year for which the report is provided. b. The Operator shall provide an annual activities report by the February 15 following the end of the previous calendar year for which the report is provided. 11. Use and Access by the City. a. The Convention Center shall be available for use by the City and for mutually agreed upon civic activities when it is not booked for other events. b. No rent shall be charged for City or mutually acceptable civic activities, but the Operator shall have the right to charge the event sponsor for the reasonable cost of any services provided by the Operator. C. The City shall have access to the Convention Center for use as the emergency shelter for the Leach Amphitheater and Riverside Park area. d. The City shall have access to the Convention Center at reasonable times upon reasonable notice for inspections and other legitimate purposes. 12. Assignment. a. The Operator shall not have the right to assign this Agreement or delegate the duties of the Operator without the written prior consent of the City. b. The City shall not have the right to assign this Agreement without the prior written consent of the Operator. W 13. Contingencies. The Agreement shall be subject to the following contingencies: a. The successful completion of the proposed renovations to the Convention Center. b. The performance by the City of all other obligations to be performed by the City prior to the commencement of the operation of the Convention Center. The ability of the Operator to secure all licenses and permits necessary for the operation of the Convention Center, including without limitation, the liquor license. 14. Damage or Destruction. In the event the Convention Center is damaged or destroyed by fire or other casualty, the City shall be obligated to repair or rebuild the Convention Center in its current location as soon as reasonably possible. 15. Miscellaneous Provisions. The Agreement shall contain the following miscellaneous provisions: a. The Operator shall not have the authority to bind the City without the prior written consent of the City. b. The Operator shall not make any structural changes to the Convention Center or skywalk without the prior written consent of the City. C. The Operator shall not place any liens or encumbrances of any kind on the Convention Center or the Furniture, Fixtures and Equipment furnished by the City. d. Any notice authorized or required to be given to a party shall be given to the party at the current address of the party. The Agreement shall include the City's standard nondiscrimination provisions. f. The forum for all disputes related to the Agreement shall be Winnebago County, Wisconsin. 16. Standard Provisions. The Agreement shall contain the following standard provisions: a. Enforcement. b. Severability. C. Non - waiver. d. Entire agreement. -7- IN WITNESS WHEREOF, the City and Oshkosh Convention Center Management, Inc. have executed this Agreement as of the date set forth above. �0 By: Its: CITY OF OSHKOSH, WISCONSIN Mark A. Rohloff, City Manager Pamela R. Ubrig, City Clerk Approved as to form: Lynn A. Lorenson, City Attorney OSHKOSH CONVENTION CENTER MANAGEMENT, INC.