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HomeMy WebLinkAbout09-174MAY 12, 2009 09 -174 RESOLUTION (CARRIED 6 -0 LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE 2009/2010/2011 POLLOCK COMMUNITY WATER PARK AGREEMENT WITH OSHKOSH AREA SCHOOL DISTRICT / LIFEGUARD SERVICES / USE OF OSHKOSH WEST HIGH SCHOOL PARKING LOT INITIATED BY: DEPARTMENT OF PARKS BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached Intergovernmental Cooperation Agreement between the City of Oshkosh and the Oshkosh Area School District for lifeguard services and the use of Oshkosh West High School Parking Lot for Pollock Community Water Park for the years 2009, 2010 and 2011 is hereby approved and the proper City officials are hereby authorized to execute and deliver the 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 Agreement. City of Oshkosh Parks Department 215 Church Ave., PO Box 1130 Oshkosh, WI 5 O.l"AKW r u n (920) 236-5080 4903-1130 36- 080 (920) 236 -5039 FAX ON THE WATER MEMORANDUM TO: Honorable Mayor and Members of the Common Council FROM: Tom Stephany, Director of Parks DATE: May 6, 2009 RE: Water Park Agreement with School District for Lifeguarding Services BACKGROUND Thomas Stephany Director The Pollock Community Water Park opened during the summer of 2006. Before that opening, it was decided that the City Parks Department would manage the facility. It was also decided that, through an annual agreement, lifeguard services would be provided by the Oshkosh Area School District's Recreation Department. The language in the agreements for the first three (3) years of water park operations noted that the School District would pay one -half of the annual operating deficit, not to exceed $60,000. As noted in the February 20, 2009 memo from Al Wenig (Director of Recreation), the School District paid the following to the city to cover one -half of water park deficits: $17,923.90 —2006; $31,238.97 —2007; and, $59,689.78 —2008. As many Council Members may recall, the 2008 water park deficit was high because of flooding issues at the park (the park was closed for nine (9) straight days because of mechanical issues), plus the overall summer weather was not conducive for patrons to have quality swimming experiences. A final water park report is submitted to Mr. Wenig in January or February after all year -end water park financial details are finalized by the Parks Department. Upon receipt of this year's report, Mr. Wenig forwarded it to the School District's Facility and Finance Committee on February 12, 2009. On February 20, 2009, Mr. Wenig forwarded a letter to the Parks Department with a proposal from the Committee that stated that the School District would like to pay the City "a flat rate of $40,000 annually to offset the City's cost of operation of the water park whether or not Pollock operated at a profit or a loss for the season ". Following internal staff discussions, the City suggested a new, three (3) year agreement with an escalating fee structure over those three (3) years (see the memo dated April 6, 2009). The School District responded that they wanted to stay with their initial proposal of paying a flat $40,000 annually. Mr. Wenig indicated that the Facility and Finance Committee made their decisions about the $40,000 based upon the three (3) year average (which includes the high deficit of 2008) and thoughts that having a flat rate would be easier to budget for each year. It was suggested that the flat rate will provide the School District with a consistent, known budget. It was also suggested that a highlight of the agreement is that the $40,000 will be paid to the City, no matter if there is a profit or loss for the water park season. The District would like to resolve this issue in May before the pool season begins. ANALYSIS — FISCAL IMPACT As previously noted, the three (3) year average for School District's financial involvement has been $36,284.22 — which includes the 2008 payment of $59,689.78. There is a belief that annual averages may be closer to the 2007 deficit numbers of $60,000 - $65,000 and that the School District's annual portion will be $30,000 to $35,000. The $40,000 should cover any portion of the deficit that the School District should be involved with. However, should the deficit be the same as 2008, the City would assume the additional deficit. Memorandum Page -2- May 6, 2009 RECOMMENDATION There has not been an opportunity for the Advisory Parks Board to review the proposal noted above although the topic will be discussed at the Board's May 1 l th meeting. The recommendation from the Parks Director is to accept the School District's Facility and Finance Committee's $40,000 per year proposal based upon the belief that the amount will cover one -half of the average deficit. If by chance the water park experiences a higher deficit in 2009, any future agreement may need to be re- negotiated. It is also being recommended that the agreement is approved for a three (3) year period instead of on an annual basis. Respectfully Sub itted, Approved: Tom Ste han P Y Mark A. Rohloff Director of Parks City Manager Attachments: January 29, 2009 Letter to Al Wenig, Director of Recreation, to request the 2008 water park deficit payment from the School District. February 12, 2009 Memo from Mr. Wenig to the School District's Facility & Finance Committee to approve the annual agreement for the 2009 water park season. February 20, 2009 Memo from Mr. Wenig to the Parks Director to note a revised proposal by the Facility & Finance Committee. April 6, 2009 Memo from the Parks Director, to the Recreation Director, that notes a counter proposal (as recommended by the City Manager) for the Facility & Finance Committee to consider. April 28, 2009 Memo from the Recreation Director to notify the city that the Facility & Finance Committee desires to stay with their proposal submitted in the February 20, 2009 memo. Included is the water park agreement with proposed language changes. The Exceptional Parks Experience — Committed to Purpose and People Visit our website at http: //www.ci.oshkosh.wi.us _ ON THE WATER January 29, 2009 City of Oshkosh Parks Department 215 Church Ave., PO Box 1130 Oshkosh, WI 54903 -1130 (920) 236 -5080 (920) 236 -5039 FAX Al Wenig, Director of Recreation Oshkosh Recreation Department 425 Division Street Oshkosh, WI 54901 Dear Mr. Wenig: Please fmd the Pollock Community Water Park Final Report for 2008. Thomas Stephany Director As you are aware there is an Agreement between the City of Oshkosh and Oshkosh Area School District which stipulates that the District will pay one -half of the 2008 water park's operational deficit, up to $60,000. The total water park deficit for 2008 is $1.19,379.56. I am writing to request a payment of $59,689.78. As I am sure that you are aware the 2008 season was a challenging year for the water park, and weather was the reason for a decrease in revenues and higher costs of operation. One prime example is the month of June. In 2007, the attendance for the month was 20,873, and in 2008 the attendance dropped to 6,383, which is a 14,490 difference (see the spreadsheet titled 2 Year Attendance and Weather Comparison). In total, the water park was down in 2008 by 9,073 visitors from 2007. On a second spreadsheet (titled 2 Year Comparison) you should note that of 86 possible total days of being open there were 11 full days where the park was shut down (9 days because of flooding issues); there were 25 days of closing early due to weather and low attendance; there were only 13 days where the temperature made it over 80 degrees (compared to 44 days in 2007); and there were zero days of hitting the 90 degree mark (there were 5 days in 07). In essence, attendance and revenues decreased in 2008 due to weather, and some costs went up, like gas costs to heat the water during the cooler summer. Based on the above information, and the information in the reports, I hope that you and the School District have a strong understanding for the higher deficit in 2008. With the above, I would like to ask that a check for $59,689.78 be made payable to the City of Oshkosh — Pollock Community Water Park. If there are any questions or concerns please call me at 236 -5080. Thanks again for being a partner in providing an outstanding recreational. service to the City of Oshkosh. Sincerely, CITY OF OSHKOSH ra �!� G Tom Ste han P Y . Park Director Attachments: 2008 Annual Financial & Statistical Report 2 Year Attendance and Weather Comparison 2 Year Comparison The Exceptional Parks Experience — Com clued to Purpose and People {quit our website at http.11www.cf.oshkosh.wius J 425 DIVISION STREET OSHKOSH, WI 54901 PHONE 9201424 -0150 FAX 920/424 -7519 OSHKOSH RECREATION DEPARTMENT AL WENIG, DIRECTOR (920) 424 -0248 PROGRAM SUPERVISORS LORI GENTRY (920) 424 -0243 VERONICA ROBINSON (920) 424 -0242 TO: Tom Stephany, City Parks Director FROM: Al Wenig, Director of Recreation DATE: February 20, 2009 RE: Proposed Revised 2009 Water Park Agreement Attached please find a proposed revised 2009 Pollock Community Water Park Agreement. The proposed revisions reflect the recommendations made by the Oshkosh Area School District Facility and Finance Committee during its February 17 meeting. The revisions may be found on Page 2 of the Agreement under Section 3, Cost Associated with Lifeguard Services. The District Facility and Finance Committee is proposing that the District pay the City of Oshkosh a flat rate of $40,000 annually to offset the City's cost of operation of the water park whether or not Pollock operated at a profit or a loss for the season. Further, the $40,000 will be deducted from the invoice annually sent to the City for the cost of the lifeguard services provided by the Recreation Department. This proposed language replaces the existing language in the agreement in which the District shall discount the cost of lifeguard services to the City in an amount equal to fifty percent (50 %) of the loss to a maximum of sixty thousand dollars ($60,000) The other proposed revision changes the due date of payment for the City from ninety (90) calendar days to thirty (30) calendar days of the invoice provided by the District for the lifeguard services. As you are aware, per the agreement, the District has paid the City the following amounts to assist in the deficit of the cost of operation of the water park: 2006: $17,923.90 2007: $31,238.97 2008: $59,689.78 Three year average: $36,284.22 City of Oshkosh Parks Department 215 Church Ave., PO Box 1130 Oshkosh, WI 54903 -1130 OY (920) 236 -5080 (920) 236 -5039 FAX ON THE WATER MEMORANDUM TO: Al Wenig, Director of Recreation FROM: Tom Stephany, Director of Parks DATE: April 6, 2009 RE: 2009 Pollock Community Water Park Agreement Thomas Stephany Director The proposal to "pay the City of Oshkosh a flat rate of $40,000 annually to offset the City's cost of operation of the water park" was reviewed by the City of Oshkosh's City Manager, Finance Director, City Attorney, and Parks Director. The City Manager asked me to write to counter the $40,000 proposal and request that consideration be given to the following: 1) that a three (3) year agreement is approved with the School District for water park services and, 2) that there is an escalating fee structure associated with those three (3) years. The escalating fee structure would start with a fee of $50,000 for 2009, $51,000 for 2010 and, $52,000 for 2011. As part of the discussions in City Hall, there was a belief that starting with the $50,000 in 2009 is a good compromise between the original $60,000 that has been budgeted by the School District in the past, and the current School District's proposal of $40,000. If you have any questions or concerns with regard to the counter proposal, please contact me at 236 -5080 or tstephany(a)-ci.oshkosh.wi.us The Exceptional Parks Experience — Committed to Purpose and People Visit our website at hap. 11www. cLoshkosh.wLus INTERGOVERNMENTAL COOPERATION AGREEMENT BETWEEN THE CITY OF OSHKOSH and THE OSHKOSH AREA SCHOOL DISTRICT THIS INTERGOVERNMENTAL COOPERATION AGREEMENT (the "Agreement ") is entered into this _ day of , 2009, by and between the CITY OF OSHKOSH (the "City") and the OSHKOSH AREA SCHOOL DISTRICT (the "District "). RECITALS WHEREAS, the City is the owner of a municipal water park known as Pollock Community Water Park ( "Pollock "); and WHEREAS, the City wishes to contract for services with the District to provide lifeguard services during the 2009, 2010 and 2011 seasons (Mid -May through September 1 of each year); and WHEREAS, the District is willing to provide lifeguard services for Pollock through the District's Recreation Department as well as the use of the Oshkosh West High School parking lot; and WHEREAS, the City and the District (the "Parties ") recognize that intergovernmental cooperation is necessary to ensure the efficacy of this joint endeavor. NOW, THEREFORE, in exchange for mutual consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Authority This Agreement is made pursuant to the authority granted to the Parties under Sections 66.0301 and 66.0305, Wis. Stats. The enforceability of this Agreement will not be affected by changes in the forms of the City or District government or changes in elected officials. The Parties agree that this Agreement shall be construed so as to be binding on their respective successors, agents and employees. The Parties hereby acknowledge that this Agreement imposes on them a duty of good faith and fair dealing. 2. Life Guard Services For Pollock The Parties agree that the District, through its Recreation Department, shall provide lifeguard services for Pollock during the 2009, 2010 and 2011 seasons (Mid -May through September 1 of each year). The District is obligated to provide only the following: A. The District shall provide all lifeguard staff necessary to operate Pollock as mandated by Wis. Admin. Code Section HFS 172. B. The District shall provide materials incidental to providing the lifeguard staff and services such as staff clothing and first aid supplies for lifeguard staff. 3. Cost Associated With Lifeguard Services The District shall provide the City with an Invoice for the cost of providing lifeguard services for Pollock within Fifteen (15) calendar days of the end of each season at one hundred percent (100 %) of the cost to the District of providing said services (based upon the rates set forth in Exhibit A, attached hereto and incorporated herein by this reference (said rates cannot be increased by the District without the written consent of the City). The District shall further provide the City with a discount of $40,000 to assist the City in the cost of the annual operation of Pollock Community Water Park whether or not Pollock operated at a profit or a loss for each season. The City shall pay to the District the cost of the lifeguard services (to the extent any amount is due) within Thirty (30) calendar days of the Invoice provided by the District. 4. Oshkosh West High School Parking Lot The District agrees to allow the City to use the Oshkosh West High School Parking Lot (only the north lot bordered by Eagle Street and Taft Avenue) solely for Pollock patron parking, subject to the following conditions: A. The Parking Lot may only be used during the pool season (Mid -May through September 1 of each year of this agreement). B. The District reserves the right to preclude use of the Parking Lot when the District deems that it may interfere with events scheduled at Oshkosh West High School and/or Alberta Kimball Auditorium (e.g., the Miss Wisconsin Pageant, Richards School of Dance Recital, etc.) 2 C. The City shall be responsible for cleaning the Parking Lot on a daily basis. D. The City will reimburse the District for any costs incurred by the District for any clean -up of the parking lot when the District determines that the City has failed to clean the Parking Lot. E. The City shall be liable for any damages to property or persons that result from patrons of Pollock who use the Parking Lot. 5. Insurance and Liability The lifeguard staff provided by the District shall be employees of the District and the District shall have sole responsibility, at its expense, for providing workers compensation and all other insurance that is customarily maintained by the District for similarly situated employees of the District. The District shall indemnify and hold the City harmless from any and all claims, damages, losses or expenses, including reasonable attorneys' fees, incurred by the City as a result of the acts or omissions of the District's lifeguards. The City shall have sole responsibility, at its expense, to carry insurance with respect to the improvements at Pollock (e.g., buildings, etc) as well as the Parking Lot for fire, vandalism, malicious mischief and such other perils as are from time to time included in liability coverage for an owner of a public facility. The City shall indemnify and hold the District harmless from any and all claims, damages, losses or expenses, including reasonable attorneys' fees, incurred by the District as a result of the acts or omissions City employees, including the failure to supervise the Parking Lot. The Parties hereby mutually release each other from liability and waive all right of recovery against each other for any loss from perils insured against under a standard liability policy with extended coverage endorsement; provided, that this Paragraph shall be inapplicable if it would have the effect, but only to the extent that it would have the effect, of invalidating any insurance coverage of the parties. 6. Term The Term of this Agreement shall coincide with the 2009, 2010 and 2011 seasons (Mid -May through September 1 of each year). The Parties acknowledge that this Agreement is inapplicable to future years or to facilities other than Pollock. Separate agreements are necessary for services or facilities not expressly referenced in this Agreement. The Parties reserve all rights with respect to other agreements between them. 7. Notices All notices or other communications under this Agreement shall be sufficiently given and shall be deemed given when hand delivered or mailed by first class mail, postage prepaid, with proper address as indicated below: To the City: Parks Director City of Oshkosh P.O. Box 1130 215 Church Avenue -Room 106 Oshkosh, WI 54903 To the District: Director of Recreation Oshkosh Area School District 425 Division Street Oshkosh, WI 54901 8. Governing Law This Agreement shall be governed by the laws of the State of Wisconsin as to all matters including, but not limited to, matters of validity, construction, effect and performance. 9. Amendment. Modification and Waiver This Agreement may not be amended, modified or supplemented except by mutual written agreement of the Parties. Any party may waive in writing any term or condition contained in this Agreement and intended to be for its benefit; provided, however, that no waiver by any party, whether by conduct or otherwise, in any one or more instances, shall be deemed or construed as a continuing waiver of any such term or condition. Each amendment, modification, supplement or waiver shall be in writing signed by each of the Parties. 10. Counterparts This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together constitute one and the same instrument. 11. Entire Agreement This Agreement embodies the entire agreement and understanding of the Parties. There are no restrictions, promises or representations other than those expressly set forth or referred to herein. This Agreement supersedes all prior agreements or understandings between the Parties. 12. Headings All headings are inserted for convenience only and shall not modify or affect the construction or interpretation of any provision of this Agreement. 19 13. No Third Party Beneficiary This Agreement is intended to be solely between the Parties. Nothing in this Agreement accords any third party any legal or equitable rights whatsoever that may be enforced by any nonparty to this Agreement. 14. Approvals This Agreement has been approved by the Common Council of the City of Oshkosh and the Board of Education of the Oshkosh Area School District. The City Manager, City Clerk, Superintendent of Schools and Board Secretary have been duly authorized to execute this Agreement on behalf of their respective entities. CITY OF OSHKOSH OSHKOSH AREA SCHOOL DISTRICT Mark A. Rohloff, City Manager Pamela R. Ubrig, City Clerk Peggy Steeno, Finance Director Lynn A. 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