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HomeMy WebLinkAbout09-418OCTOBER 27, 2009 09 -418 RESOLUTION (CARRIED 6 -1 LOST LAID OVER WITHDRAWN ) AS AMENDED PURPOSE: APPROVE AGREEMENT WITH OSHKOSH CONVENTION & VISITORS BUREAU, INC. FOR TOURISM SERVICES INITIATED BY: CITY ADMINISTRATION BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached Agreement for Tourism Services between the City of Oshkosh and the Oshkosh Convention & Visitors Bureau, Inc. 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. AMENDMENT: Agreement term — 3 years CITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh, Wisconsin 54902 -1130 City of Oshkosh — 0- /HK01H TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: October 22, 2009 RE: Approve Agreement for Tourism Services with Oshkosh Convention & Visitors Bureau, Inc. BACKGROUND The Common Council is being asked to approve an Agreement for Tourism Services with the Oshkosh Convention and Visitors Bureau, Inc. The Oshkosh Convention and Visitors Bureau, Inc. has been the City's designated tourism entity since 1996. ANALYSIS The proposed Resolution would continue the City's relationship with the Oshkosh Convention and Visitors Bureau, Inc. as the City of Oshkosh's designated tourism entity for tourism promotion and development. The State of Wisconsin authorizes municipalities to adopt a room tax on the renting of sleeping rooms at hotels, motels, bed & breakfast, resorts and other lodging facilities within the municipality. In general, State law requires that municipalities that impose a room tax either contract with a "tourism entity" or directly spend the room tax revenue on tourism promotion and development. In 1996 the Oshkosh Convention and Visitors Bureau Inc. was created as a non - profit private corporation for the purpose of performing the functions of a tourism entity under the Wisconsin Statutes. The City of Oshkosh has had an Agreement with the OCVB since that time and the proposed Agreement carries forward that existing relationship. As noted in a previous report to Council, all but approximately two cities in the state contract with a non - profit agency to be their tourism entity. FISCAL IMPACT This Agreement carries forward the existing relationship between the City and the OCVB, therefore there is no change in the existing financial relationship. RECOMMENDATION Staff recommends approval of the Resolution and Agreement. Re ctfully Submitt Approved: (Inr,. orenson Mark A. Rohloff City ey City Manager W AGREEMENT 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 Common Council of the City of Oshkosh previously created a convention center utility for the purpose of financing the construction of the Oshkosh Convention Centre and appurtenant facilities and has previously entered into agreements for management services for the Oshkosh Convention Centre and with the Oshkosh Opera House Foundation for the leasing of those premises. WHEREAS, the Oshkosh Convention & Visitors Bureau, Inc. was formed as a not-for-profit,. private corporation, to perform the functions of a tourism entity, pursuant to Section 66.0615(lm)(b)l.,Wis. Stats.; and WHEREAS, the City of Oshkosh and the Oshkosh Convention & Visitors Bureau, Inc. entered into an Agreement for Tourism Services dated May 1, 1996; a Renewal Agreement for Tourism Services dated April 27, 1999 and an Agreement for Tourism Services dated April 28, 2004; and WHEREAS, the term of the previous Agreement for Tourism Services expired on April 30, 2009; 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(lm)(b)2., Wis. Stats. and the designated direct marketing organization for tourism promotion under certain legislation. WHEREAS, the City of Oshkosh and the Oshkosh Convention & Visitors Bureau, Inc. desire to enter into a new Agreement for Tourism Services more accurately setting forth the terms of their current relationship; 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, not - for - profit private corporation, with its principal offices located at 2401 W. Waukau Avenue, Oshkosh, Winnebago County, Wisconsin 54904 (the "Bureau "), as follows: 1. 1. DESIGNATION. The City hereby designates the Bureau a 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 of Oshkosh, shall provide "tourism" services to and for the City of Oshkosh as that 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, 2009 and ending five (5) years thereafter, unless sooner terminated as hereinafter provided. 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 correct the deficiency 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. 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 that portion of the Room Tax dictated by 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. The amount of the deduction of the Room Tax payable to the Bureau shall be proportionate to the Room Tax adjustment made to the Oshkosh Opera House Foundation, Inc. under its Lease with the City dated December 30, 1999. The amount payable to the Bureau shall be re- determined prior to March 1 st of each year on the basis of the actual amount of Room Tax received by the City for the previous calendar year. The re- determined amount shall be paid to the Bureau in equal monthly installments, commencing March and ending in February of the following year. Nothing contained in this agreement is intended to prohibit the Bureau from seeking additional funding from sources other than the City. M 6. REPORTS AND AUDITS. The Bureau shall, upon request, provide written monthly reports to the City of its activities performed under the terms of the Agreement. The reports shall also include an accounting of the Bureau's income and expenses in a manner and form agreeable to the parties. 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 thirty (30) days after they are received by the Bureau. 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. 8. INSURANCE. The City shall maintain general liability, and fire and extended insurance coverage on the Oshkosh Convention Centre, in substantially the same manner as currently provided. 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 upon written request by the other party. 9. INDEMNIFICATION. The City agrees to indemnify and hold harmless the Bureau (including its 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 of any employee of the City of Oshkosh in the performance of his/her duties under the terms of this Agreement, 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 D. Any breach or violation of any contractual provision of whatever kind with any third parry. 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 in the performance of his/her duties under the terms of the Agreement, including, but not Iimited 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 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. Any dispute between the parties shall be settled by arbitration at a hearing to be held in Oshkosh, Wisconsin, pursuant to Chapter 788, of the Wisconsin Statutes, and any award may be entered as a judgment in any court having jurisdiction. 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: 10 To the City: To the Bureau: City of Oshkosh Director ATTN: City Manager Oshkosh Convention Centre 215 Church Avenue 2401 W. Waukau Avenue Oshkosh, WI 54901 Oshkosh, WI 54904 14. MISCELLANEOUS. This Agreement may not be assigned without the express written consent of the other parry, 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 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 enforceable, the remainder of this 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, as of the 1 day of May, 2009. CITY OF OSHKOSH OSHKOSH CONVENTION AND VISITORS BUREAU, INC. Mark A. Rohloff, City Manger Pamela R. Ubrig, City Clerk Chairperson Secretary - Treasurer APPROVED AS TO FUNDING: Peggy A. Steeno, Finance Director APPROVED AS TO FORM: Lynn A. Lorenson, City Attorney 5.