HomeMy WebLinkAbout41. 15-200 APRIL 14, 2015 15-200 RESOLUTION
(CARRIED 4-2-1P LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE AGREEMENT WITH THE OSHKOSH OPERA HOUSE
FOUNDATION, INC. FOR LEASE AND OPERATION OF THE
GRAND OPERA HOUSE ($158,500 per year for 2 years)
INITIATED BY: CITY ADMINISTRATION
WHEREAS, the City is the owner of certain property within its municipal boundaries
identified as the Grand Opera House located at 100 High Avenue, Oshkosh, WI; and
WHEREAS, the Oshkosh Opera House Foundation, Inc, is a not-for-profit
corporation created for the purposes of preserving and expanding the significance of the
historic Grand Opera House by maintaining a financially secure organization that serves
the community by promoting and enhancing the performing arts, social and related
educational opportunities; and
WHEREAS, the City and the Foundation have a mutual interest in the preservation
and successful operation of the Grand Opera House and both desire to benefit the
Community by operating the Opera House as an arts, culture and entertainment venue.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the proper City officials are hereby authorized to enter into and take those
steps necessary to implement the attached lease and operating agreement with the
Oshkosh Opera House Foundation, Inc. for operation of the Grand Opera House in the
amount of one hundred fifty-eight thousand five hundred dollars($158,000.00)peryearfor
2 years.
Acct. No. 501-1020-6466-00000 Grand Opera House Fund — Misc. Contractual
Services
CITY HALL
215 Church Avenue
P.O Box 1130
Oshkos 5 903-1130 City of Oshkosh
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TO: Honorable Mayor and Members of the Common Council
FROM: Lynn A. Lorenson, City Attorney
Trena Larson, Finance Director
Jon Urben, General Services Manager
DATE: April 1, 2015
RE: Approve Agreement Oshkosh Opera House Foundation, Inc. for Lease
and Operation of the Grand Opera House ($158,500 per year for 2 years)
BACKGROUND
On October 4, 1979, the Common Council established a task force to study the
feasibility of restoring the Grand Opera House located at the corner of High Avenue and
Market Street in the City of Oshkosh. The task force concluded that restoration of the
opera house was feasible and recommended that an advisory referendum be conducted
to gauge citizen support for the purchase and proposed renovation of the Grand Opera
House building. On November 4, 1980 the City of Oshkosh conducted an advisory
referendum on the question of whether the City should acquire, restore and engage in
the operation of the Grand Opera House. The advisory referendum was approved and
the City proceeded to acquire the Grand Opera House property. Initially, the City
operated the facility as a rental facility. In November 1989, the Oshkosh Opera House
Foundation leased the facility from the City of Oshkosh and took over the operation of
the facility. The Foundation has operated the property under a lease with the City of
Oshkosh since that time.
ANALYSIS
The Lease under which the City and Foundation had been operating was quite basic.
Based upon staff experience generally and work with the Grand Opera House and other
facilities, such as the Oshkosh Convention Center, staff made a number of
recommendations for updating the previous agreement between the City and the
Foundation. Staff and Council met with representatives of the Foundation in a
workshop and pursuant to Council direction, staff met with the Foundation for the
purpose of gathering additional information pertaining to the operation of the facility and
to the costs and expenses associated with the operation of the facility. Following, is a
brief description of the various provisions in the agreement.
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ARTICLE l. PREMISES
This Article simply defines the premises subject to the Agreement, being the Grand
Opera House building.
ARTICLE ll. TERM
This Article sets forth the term of the Agreement. Previous agreements between the
parties were for five (5) year terms and included automatic renewals unless notices of
nonrenewal were given at least 6 months in advance. The proposed Agreement is for
two (2) years and renewals are no longer automatic. The shorter term will allow the
parties to work with the proposed changes to the agreement, such as the modified
reporting requirements, for at least one year and then evaluate whether additional
changes are necessary or desirable. The agreement would now also coincide with the
typical perFormance year for the Grand rather than the calendar year and would include
the ability for either party to terminate short of the end of the term upon sufficient notice
to the other party.
ARTICLE lll. MANAGEMENT FEE / OTHER FUNDS TO BE MADE AVAILABLE TO
FOUNDATION
This Article sets forth all the moneys to be paid to the Foundation. The current
Agreement contained a provision providing a payment to the Foundation based upon a
percentage of the room tax collected by the City. In addition, the City had been paying
an amount to the Foundation from the General Fund which was not specifically provided
for within the current Agreement. It appears that this amount was budgeted in or
around 2005 to replace payments for utilities and certain other expenses such as
maintenance and custodial expenses that had historically been reimbursed by the City
upon invoice from the Foundation.
The draft agreement proposes payment of a fixed management fee. The fixed
management fee uncouples the payment from the room tax revenue and gives the City
and the Foundation certainty in the amount of payments to be made.
The management fee is $158,500. This amount was calculated by reviewing the
financial records of the Foundation and isolating those expenses pertaining to the
facility maintenance and operation and to the operation of the box office, which supports
many of the community programming functions of the Foundation. These two areas
were estimated at $183,500 annually. The final management fee amount of $158,500
includes a $25,000 offset amount in repayment to the City of the pledge by the
Foundation made in August 2009 in support of the needed roof repairs.
The current agreement provided that the Foundation was entitled to all perFormance and
rehearsal income, all concession income, equipment rentals, advertising revenue and
donations and grants given for the purpose of operations of the facility. This language
was largely retained with minor changes regarding donations and grants given to the
Foundation directly or to the fund they have established at the Oshkosh Area
Community Foundation and removing a reference to miscellaneous income that staff
was unable to identify.
ARTICLE IV. PARTIES REPRESENTATIVES/NOT/CES
This article is new however, is standard language simply identifying the points of contact
for each party to the Agreement.
ARTICLE V. GENERAL OBLIGAT/ONS AND DUTIES OF THE FOUNDATION
Management, Marketinq, Promotion and Operation. This section is new, although it
incorporates some concepts from the previous agreement between the parties. This
article establishes the Foundation's role in operating and managing the facility subject to
the terms and conditions contained in the Agreement and requires certain information to
be provided to the City related to policies and agreements.
The final paragraph in this section is currently included in the Agreement and is fairly
standard in this type of Agreement. It provides that any dates booked by the
Foundation shall be honored in the event that the Agreement would be terminated for
any reason.
Required Permits and Licenses.
This provision is new to this Agreement but is standard for this type of Agreement,
requiring the Foundation to obtain all appropriate licenses and permits required for
operation.
Employees and staff.
The current agreement contained a very brief paragraph pertaining to the hiring of a full
time manager and support staff as may be necessary. The proposed agreement
contains more detailed language pertaining to the responsibility to hire staff and
requiring the Foundation to adopt personnel policies and procedures in recognition of
the public nature of this facility.
Limitations on Offering Discounted or Complimentary Services.
This is a new provision that again reflects the public nature of the facility.
Pavment of Operating Expenses.
This provision is new and mirrors that in the convention center agreement. It is also
consistent with the practices under the current agreement.
Maintenance and Uqkeep and Rubbish / Sweepinq of Sidewalks.
Although there was some language in the current agreement pertaining to these issues,
staff is proposing new language in the draft agreement which is based in part upon the
language contained in the convention center agreement and upon the current working
relationship with the Foundation on these issues.
Chanqes or alterations to the Buildinq by the Foundation.
There is language in the current agreement pertaining to this issue, staff is proposing
updated language including provisions allowing for equipment, props and other
temporary structures common to performances and events.
No liens or encumbrances to be created.
This is a new provision but is standard language, and is particularly important in a case
such as this, where the tenant is allowed some right to make improvements upon the
property.
Ownership of Fixtures and Improvements made to Premises by Foundation.
This is a new provision. It is proposed because of the ability to make improvements to
the property by the Foundation. It is important for all the parties to know and
understand if improvements are made who will be responsible for maintenance of what
will become a fixture on the property and who will own the fixture when it becomes
attached to the property. As the provision is drafted, any improvements that become
fixtures on the property would become the responsibility of the City to maintain. This
should then be taken into consideration in the approval process. As drafted, any
improvements that become fixtures on the property become the property of the City
upon termination of the Agreement. There is no provision for payment for these
improvements, thus they would be considered gifts to the City.
Permission Reauired for Contract/Aqreement that mav extend bevond Termination of
this Aqreement.
This provision is new to the Agreement. Particularly in light of the shortened term for
the agreement, if the Foundation is entering into any contract or agreement that extends
beyond the term of their agreement with the City, they must either ensure that the City
can terminate the agreement or that the City agrees to the agreement in advance.
ARTICLE Vl. GENERAL OBLIGATIONS AND DUTIES OF THE CITY
Structural and Mechanical Systems Repairs and Snow Shoveling and Ice Removal.
The current agreement contains some language relative to the City's responsibilities but
the language is not extensive and does not necessarily reflect current practices. The
draft agreement contains language modeled after the language in the convention center
operations agreement and takes into consideration the current working relationship that
has been developed between City staff and the Foundation.
Riqht of Inspection. The current agreement provides for a monthly inspection by the
City. The proposed draft provides for inspection at any reasonable time and reflects
current practices.
ARTICLE Vll. FURN/SH/NGS, FIXTURES AND EQU/PMENT
Operatinq Svstems and Equipment and Annual Inventory.
While there was language in the current agreement pertaining to furnishing and fixtures,
ownership and inventory, staff proposes more detailed language in this regard and an
annual inventory of city property similar to the process that has been developed at the
convention center. The proposed language more accurately reflects current processes
and best practices for management of City property in the facility.
ARTICLE Vlll. INSURANCE, HOLD HARMLESS AND /NDEMN/F/CATION
While the current agreement contains some language regarding insurance and liability,
the language is not consistent with current terminology and staff review reveals that
there may be gaps within current coverage. Staff proposes language pertaining to
property insurance, liability insurance hold harmless clauses and indemnification and
intellectual property issues based upon the city's current standard language and
practices with regard to contractors.
ARTICLE IX. REPORTS, FINANCIAL STATEMENTS AND AUDITS
Quarterly Reports and Audit.
The current agreement contains some provisions for financial and other reports, but
both parties recognized issues with the types of reports currently called for and the
specific language of the current agreement pertaining to reports. Finance Director
Trena Larson reviewed the current reports and has recommended language pertaining
to reports and audits that she believes will provide useful information for staff and the
council to review regarding the operations of this facility. In addition to the financial
reports, a quarterly summary is required that summarizes the number and types of
events, the actual and anticipated attendance for each event and separate cash
disbursements and details for each event to coincide with the same period of time
covered by the financial reports.
Cooperation with City Audit and/or Litiqation.
This is a new provision although one that is now standard within City agreements with
contractors requiring contractors to cooperate in audits and litigation and providing the
terms and conditions for additional payments for these services.
ARTICLE X. RECORDS
These are new provisions that reflect state law governing public records and are
standard for City agreements of this nature.
ARTICLEXI. USE OF NAMES/LOGOS
Previous agreements did not address the issue of the use or non-use of the City's logo
related to operation of the Grand Opera House. The proposed agreement contains
language that was drafted to specifically grant permission for the use of the City logo
and the name and any other logos that may become associated with the Grand Opera
House during the term of the Agreement.
ARTICLEXII. USE BY THE C/TY
This is a new provision but one that is fairly common for municipal facilities. It provides
that the City may use the facility rent-free but must pay expenses associated with its
use.
ARTICLE Xlll. MISCELLANEOUS PROVISIONS
Finally the agreement contains a number of miscellaneous provisions which are
common provisions within this type of agreement. Some of the provisions were
included in the current agreement, some are new and some of the provisions have been
updated in the proposed draft. The only substantive change proposed in this section is
to eliminate the provision for mandatory arbitration of disputes and replace this with an
option for alternative dispute resolution. In general, the City has moved away from
mandatory arbitration provisions. While we recognize the value of inediation and
arbitration, staff recommends leaving these options open so that a determination of the
best forum for any particular dispute can be made at the time of the dispute, considering
all factors that may be relevant at that point.
FISCAL IMPACT
The proposed Agreement provides for a fixed management fee in the amount of
$158,500.00 annually to the Oshkosh Opera House Foundation, Inc. for the operation of
the Grand based on the Foundation's fiscal year which runs from July 1 to June 30t" of
the next year.
In 2014, the City of Oshkosh expended a total amount of $243,876.80 for the operation
of the Grand; $217,235.00 paid to the Foundation and $26,641.80 paid directly by the
City of Oshkosh for expenses related to the Grand Opera House building including
certain maintenance expenses, such as elevator inspection and maintenance,
insurance and certain supplies.
For 2015, the City budgeted $72,300.00 and anticipated $165,000.00 in the form of an
established percentage of the room tax collected by the City allocated to the support of
the Grand Opera House. Of those amounts, it was anticipated during the budget
process that there would be an estimated total payment to the Foundation of
$214,900.00 for all of calendar year 2015 and $22,400.00 for expenses to be paid
directly by the City. By resolution 14-545 adopted On December 9, 2014, the Council
limited the anticipated payment of room tax to the Foundation to $148,000.00 for 2014-
2015, which would reduce the total anticipated payment to the Foundation for 2015 to
$197,900.00 under the terms of the current agreement.
The current agreement was extended through June 30th and placed a cap on the room
tax amount to be paid to the Grand. Room tax payments are paid two months after they
are collected, so that the room tax collected for January is not paid until March. Thus,
payments for May and June will be made in July and August, after the term of the
current agreement is complete and the new agreement is in place. Taking into
consideration the cap imposed by Resolution 14-545, the remaining portion of the room
tax payment to the Foundation for the 2014-2015 fiscal year was calculated to be
$10,419.00 per month. From January through June this amount equals $62,514.00. In
addition to the room tax payment, $49,900.00 was budgeted for miscellaneous
contractual services for 2015. This $49,900.00 was paid to the Foundation under the
current agreement. Through June when the current agreement will terminate, the City
will have paid to the Grand $24,950.00 from this miscellaneous contractual services line.
In total for the first 6 months of 2015, under the current agreement, the City will pay to
the Foundation $87,464.00. For the remainder of 2015, the new agreement would be in
place and the City will pay $79,250.00, for a total paid to the Foundation of $166,714.00
for all of 2015.
In future budgets, the Council may expect to see the fixed management fee of
$158,500.00 together with an amount for the City direct operational costs, typically
$20,000.00 - $30,000.00, depending upon anticipated expenses each year. Any capital
expenditures would be submitted with the Capital Improvements Program for Council
consideration.
RECOMMENDATION
Staff recommends approval of the new Lease and Operations Agreement with the
Oshkosh Opera House Foundation.
Respectfully Submitted,
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n . Lorenson Trena Larson
City Attorney Finance Director
Approved:
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Jon Urben Mark A. Rohloff
General Services Manager City Manager
LEASE AND OPERATING AGREEMENT
This Agreement is made this day of April, 2015, 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:
RECITALS
WHEREAS, the City is the owner of certain property within its municipal boundaries
identified as the Grand Opera House located at 100 High Avenue, Oshkosh, WI; and
WHEREAS, the Oshkosh Opera House Foundation, Inc, is a not-for-profit corporation
created for the purposes: To preserve and expand the significance of the historic Grand
Opera House by maintaining a financially secure organization that serves the community by
promoting and enhancing the performing arts, social and related educational opportunities.
WHEREAS, the City and the Foundation have a mutual interest in the preservation
and successful operation of the Grand Opera House and both desire to benefit the
Community by operating the Opera House as an arts, culture and entertainment venue; and
WHEREAS, the Common Council for the City of Oshkosh via Resolution 15-
adopted on , 2015 City officials to enter into this Agreement with the
Foundation for the Lease and Operation of the Grand Opera House.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt and sufficiency
whereof is acknowledged, the parties enter into the following Agreement.
AGREEMENT
ARTICLE I. PREMISES
Premises. The City shall lease to the Foundation and The Foundation shall operate according
to the terms and conditions set forth herein, the Grand Opera House, located at 100 High
Avenue, Oshkosh, Wisconsin.
ARTICLE II. TERM
The initial term of this Agreement shall be two (2) years beginning at 12:01 a.m. on July 1,
2015, and ending at 11:59 p.m. on June 30, 2017, 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.
The Foundation may request renewal of this Agreement for additional terms by providing
written notice to the City of the request to renew not less than one hundred eighty (180) days
prior to the expiration of the then current term. The City and the Foundation may renew this
Agreement with such amendments and modifications that the parties may agree to in writing
including the length of term for each renewal period.
This Agreement is subject to termination before the expiration of the original term or any
extension term under the following circumstances:
i. By mutual agreement of the parties, at any time.
ii. At the sole discretion of the City, if the Foundation fails to perform any of
the Foundation's obligations under this Agreement or breaches the terms
. of this Agreement and such failure is not cured within a reasonable time
after written notice from the City.
iii. At the sole discretion of the Foundation, if the City materially fails to
perform any of the City's obligations under this Agreement or breaches the
terms of this Agreement and such failure is not cured within a reasonable
time after written notice from the Foundation.
iv. At the sole discretion of the City, in the event of bankruptcy, insolvency, or
receivership of the Foundation.
v. Either Party may terminate this Agreement at any time by giving written
notice to the either party of the desire to terminate the Agreement at least
120 calendar days prior to the date of termination.
In the event this Agreement is terminated, with or without cause, the City and Foundation
shall each be obligated to take such actions as may be reasonably necessary to ensure
smooth transition to a new operator for the premises.
ARTICLE III. MANAGEMENT FEE / OTHER FUNDS
TO BE MADE AVAILABLE TO FOUNDATION
Management Fee. The City shall pay to the Foundation a Fixed Management Fee for each
operating year of this Agreement. For the Initial Term of this Agreement such fee shall be
one hundred fifty-eight thousand five hundred and no/100 dollars ($158,500.00) (this amount
is less $25,000 per year, an amount offset against the amount pledged by the Foundation in
support of the Grand Opera House Roof Project as identified in support of Resolution 09-343
adopted on August 25, 2009) paid in quarterly installments of thirty-nine thousand six
hundred twenty-five and no/100 dollars ($39,625.00).
Foundation Income. The Foundation shall be entitled to all income from the following
sources:
A. All perFormance and rehearsal income.
B. All concession income.
C. Equipment rentals.
D. Advertising revenue.
E. Donations and grants given to the Foundation directly or to a fund established on
behalf of the Grand Opera House Foundation at the Oshkosh Area Community
Foundation.
Other 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.
ARTICLE IV. PARTIES REPRESENTATIVES / NOTICES
City's Representative. The City's Representative for day to day management of this
Agreement shall be the General Services Manager for the City of Oshkosh, or any other
person designated by the City Manager.
Foundation's Representative. The Foundation's representative for day to day management
of this Agreement shall be the Executive Director of the Grand Opera House Foundation.
Notices. All communications or notices required or permitted by this Agreement shall be in
writing and shall be deemed to have been given: (i) upon delivery to the person entitled to
such notice, if hand delivered, or (ii) two business days following deposit in the United States
Mail, postage prepaid, or with a nationally recognized overnight commercial carrier that will
certify as to the date and time of delivery, air bill prepaid, or (iii) upon transmission if by
facsimile, any such communication or notice shall be addressed as follows, unless and until
any such party notifies the other in accordance with this section of any change of address:
. If to the Citv: City of Oshkosh
215 Church Avenue
Post Office Box 1130
Oshkosh, WI, 54903-1130
Attn: City Clerk
Facsimile No. 920-236-5039
With a copy to: City of Oshkosh
215 Church Avenue
Post Office Box 1130
Oshkosh, WI, 54903-1130
Attn: City Manager
If to the Foundation:Oshkosh Opera House Foundation
222 Pearl Avenue
Oshkosh, WI 54901
Attn: Joe Ferlo
Facsimile: 920-424-2357
With a coqy to: Oshkosh Opera House Foundation
222 Pearl Avenue
Oshkosh, WI 54901
Attn: Chair of the Board of Directors
ARTICLE V. GENERAL OBLIGATIONS AND DUTIES OF THE FOUNDATION
Manaqement, Marketinq, Promotion and Operation. The Foundation shall have the exclusive
right and obligation to manage, market, promote and operate the Grand Opera House.
Subject to the terms and conditions of this Agreement, the Foundation shall have full
discretion and control in all matters relating to the management and operation of the Grand
Opera House.
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 adopt general rental policies, procedures and rates, all of which shall be
approved on an annual basis by the Foundation Board and reported to the City. If any
person or entity is given any booking, rates or treatment not consistent with policies, those
shall be approved by the GOHF Board, including the reasons for or consideration given for
such deviation and included in the next quarterly report to the City under Article IX of this
agreement. Reciprocal agreements between the Foundation and the partner arts
organization(s) shall be set forth in a written agreement between the organizations, and the
terms of the agreement(s) shall be approved by the Foundation Board of Directors and
provided to the City.
Any dates booked by the Foundation during the lease term or any extension thereof shall be
honored by City even in the event this Agreement is terminated prior to the normal
termination date of the Agreement or any subsequent term hereof.
Required Permits and Licenses. The Foundation shall obtain all necessary permits and
licenses required for the operation of the Grand Opera House.
Emplovees and staff. In connection with these rights and obligations, the Foundation shall
hire an individual with experience in similar facilities to serve as a full-time general manager/
director of the Grand Opera House and such other support staff, including janitorial or private
cleaning services to maintain the facility, box office personnel, marketing and promotions
personnel and such other personnel or contractors as may be necessary to manage the
responsibilities of the Foundation under this Agreement.
The Foundation shall adopt Human Resources guidelines substantially consistent with City
policies including recruitment and selection of relatives, rejection of applications related to
immediate relatives, and conflict of interest. The policies as they relate to recruitment and
selection of relatives and rejection of applications related to immediate relatives shall apply to
the Grand Opera House Foundation Board and the general manager/director and shall apply
whether the persons are hired directly or indirectly as employees of the Grand Opera House
Foundation, independent contractors, or other contractual arrangement. The City does not
have the right to control work processes, however, in the event that the City notifies the
Foundation of any issues or concerns, or that the City desires the removal of any employee
or contractor and sets forth in such notice the reasons for such request, then the Foundation
agrees to meet with representatives of the City to discuss this matter and to attempt to
resolve the matter in a mutually acceptable fashion. Any decision to remove any employee
or contractor shall be made by the Foundation, however in making such decision the
Foundation agrees to act reasonably and to take into consideration the views expressed by
the City as partners responsible for preserving the public trust. �
Limitations on Offerinq Discounted or Complimentarv Services. The Foundation shall not
offer or provide discounted or complimentary food or beverages, tickets, facility rentals, or
other services, that are not offered generally to the public or other donors or sponsors
similarly situated to the recipient, to any of its employees, board members, contractors or
their immediate family members.
Payment of Operatinq Expenses. The Foundation shall operate the Grand Opera House and
pay all of the expenses related to the operation of the facifity, including utility expenses.
Maintenance and Upkeep. The Foundation shall provide for normal cleaning/care and
upkeep of the facility which shall generally include: cleaning of floors, shampooing of carpet
on a regular basis, window cleaning (interior and exterior); cleaning of other exterior surFaces
(eg. powerwashing, spider treatment); cleaning of other interior surFaces; removal of interior
waste, rubbish and recyclables; replacing lights as needed; and day to day operation of
HVAC system. The Foundation shall be responsible to keep the building secure.
Rubbish / Sweeqing of Sidewalks. The Foundation shall be responsible for the removal of
dust, debris, and rubbish from exterior walkways and sidewalks adjacent to the facility.
Chanqes or alterations to the Buildinq by the Foundation. 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. The Foundation shall not install or cause
to be installed or erected on the premises any signs, antennas or other equipment or device
that is affixed to the structure or visible to the public (excepting such equipment, props, or
other temporary structures which are normal and customary for performances/events and
which are designed for installation and use in such a facility and which cause no damage to
such facility) without the prior written consent of the City, which consent shal� not be
unreasonably withheld.
No liens or encumbrances to be created. The Foundation shall not allow any liens or
encumbrances to be created upon the premises without the express consent of the City.
Ownership of Fixtures and Improvements made to Premises bv Foundation. Any structural
additions, mechanical systems or fixtures to the premises previously made or made at any
time in the future shall become a part of the premises and the property of the City upon
Termination of this Agreement. Responsibilities for care and maintenance of any additions or
fixtures shall be the same as for other property and fixtures provided herein, that is, generally
the Foundation shall be responsible for routine maintenance and cleaning and the City shall
become responsible for repair and replacement as specified in Article VI betow.
Permission Required for Contract/Aqreement that may extend bevond Termination of this
Aqreement. The Foundation shall obtain prior approval of the City before entering into any
contract, except for bookings as provided above, with a term that extends beyond the Term of
this Agreement, unless such contract, by its express terms, can be terminated by the City
following the expiration of this Agreement without penalty to the City.
ARTICLE VI. GENERAL OBLIGATIONS AND DUTIES OF THE CITY
Structural and Mechanical Svstems Repairs. Except for those items identified above as the
responsibility of the Foundation, the City shall be responsible for all maintenance and repairs
of the Grand Opera House structure and building mechanical systems, including:
maintenance, repair and replacement of the structure, HVAC equipment and building
mechanical systems; maintenance/repair/replacement of emergency generator; repair of
floors, recarpeting (based upon need relative to wear and tear); repair of broken windows;
repair/replacement of wall coverings, ceiling panels, and repainting of walls (based upon
need relative to wear and tear); HVAC system maintenance and care, including inspections
and preventative maintenance; Elevator maintenance, repair and replacement, including
inspections and preventative maintenance; maintenance, repair and replacement of the
building fire suppression systems, including inspections and preventative maintenance and
fire extinguisher inspection and maintenance; maintenance, repair and replacement of
hardware/fixtures attached to the premises, including plumbing and lighting fixtures.
Snow Shovelinq and Ice Removal. The City shall be responsible for the removal of snow and
ice from exterior walkways and sidewalks adjacent to the facility.
RiQht of Inspection. The City shall have the right to enter the premises for the purpose of
inspection at any reasonable time or times during the term of this Agreement, provided
however, that such inspections shall not unreasonably interfere with the Foundation's use
and occupancy of the premises.
ARTICLE VII. FURNISHINGS, FIXTURES AND EQUIPMENT
OperatinQ Svstems and Equiqment. All equipment, furniture, furnishings and apparatus
presently located in the Grand Opera House constitutes property of the Foundation or its
contractors, 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. If the Foundation
determines that any of system or equipment owned by the City is in need of repair or
replacement, the Foundation shall work with the City to determine whether the City will repair
or replace the system or equipment or whether the Foundation will repair or replace the
equipment. Any City property or equipment which is no longer necessary for the operation of
the facility shall be disposed of in accordance with the City's ordinances and policies
governing the disposal of surplus property. Foundation shall follow City procedures and
timelines for requesting any system or equipment replacement for the benefit of the Grand
Opera House.
Annual Inventorv. The Foundation shall provide a facility inspection report and inventory
report to the City by June 30th of each year detailing the condition of the facility and any
fixtures, any recommended capital projects and the inventory of any city equipment and
materials.
ARTICLE VIII. INSURANCE, HOLD HARMLESS AND INDEMNIFICATION
Property Insurance. The City shall provide property insurance covering the building and City
owned contents. The Foundation shall be responsible to provide property insurance on
property owned by the Foundation and shall provide property insurance or shall ensure that
appropriate insurance is provided covering any equipment leased by the Foundation.
Liabilitv Insurance. The City shall provide commercial general liability insurance covering the
City, its officers, council members, agents, employees and authorized volunteers.
The Foundation shall provide commercial general liability insurance in at least the amount of
$1,000,000 per occurrence covering its officers, employees, volunteers and agents, and
listing the City of Oshkosh, and its officers, council members, agents, employees and
authorized volunteers as additional insureds under the policy.
Intellectual Property Riqhts -- Hold Harmless and Indemnification. The Foundation shall
comply and shall ensure that any person or entity it contracts with shall comply fully with any
and all local, state, and federal laws, regulations, rules, constitutional provisions, common
laws, and rights of others applicable to the reproduction or performance of proprietary or
copyrighted materials and works of third parties (the "Works"), and to the protection of the
intellectual property rights associated with such Works. The Foundation shall indemnify,
defend, protect and hold harmless the City, its officers, council members, agents, employees
and authorized volunteers from all and any manner of Losses arising from the use of
proprietary intellectual property of third parties (whether such claims are actual or threatened)
under the copyright or other laws of the United States. The foregoing indemnity shall apply
regardless of the means of publication or performance, and shall include specifically and
without limitation the use of recordings, audio broadcasts, video broadcasts, Works on other
magnetic media, sounds or images transmitted via the worldwide web, chat rooms, webcast,
or on-line service providers, satellite or cable, and all other publication or perFormance means
whatsoever, whether now known or developed after the date of this Agreement.
Hold Harmless and Indemnification. Subject to any limitations contained in Secs. 893.80,
893.83, 345.05, and any similar statute, of the Wisconsin Statutes, the City of Oshkosh
agrees to hold The Foundation, its officers, officials, employees and agents harmless from
any and all liability, including claims, demands, losses, costs, damages, and expenses of
every kind and description (including death), or damages to person or property arising out of
the terms of this Agreement where such liability is founded upon or grows out of the acts or
omission of any of the City's officers, employees, volunteers or agents while acting within the
scope of their employment.
The Foundation agrees to hold the City of Oshkosh, its officers, officials, employees and
� agents harmless from any and all liability, including claims, demands, losses, costs, damages,
and expenses of every kind and description (including death), or damages to person or
property arising out of the terms of this Agreement where such liability is founded upon or
grows out of the acts or omission of any of The Foundation's officers, employees, volunteers
or agents while acting within the scope of their employment.
Nothing contained within this agreement is intended to be a waiver or estoppel of the ability of
the contracting municipality or its insurer to rely upon the limitations, defenses, and
immunities contained within Wisconsin law, including those contained within Wisconsin
Statues §§ 893.80, 895.52, and 345.05 and that such damage limits, caps and immunities
shall be used to govern all disputes, contractual or otherwise, as they apply to the parties,
their agents, officers and employees. To the extent that indemnification is available and
enforceable, the municipality or its insurer shall not be liable in indemnity or contribution for an
amount greater than the limits of liability for municipal claims established by Wisconsin Law.
It is the intention of the parties to this Agreement that each party shall be solely responsible
for its own actions and activities and the actions and activities of its own officers, employees
and agents while acting within the scope of their employment.
ARTICLE IX. REPORTS, FINANCIAL STATEMENTS AND AUDITS
The Foundation shall keep and maintain, at the Grand Opera House facility or its business
offices separate and independent records, in accordance with generally accepted accounting
principles, devoted exclusively to its operations in connection with its management of the
premises. Such records, including books, ledgers, journals and accounts, whether kept in
written format or electronically, shall contain all entries reflecting the business operations of
the Foundation under this Agreement. The City shall have the right to audit and inspect all
such records upon reasonable notice.
Quarterlv Reports. The Foundation shall provide to the City no later than the end of the
month following the quarter being reported upon, a quarterly report including a detailed
statement of financial position, aging report on accounts receivable, a detailed statement of
activities, and sales ledger reflective of all events hosted at the Grand facility. The Foundation
shall also provide a summary of the number and types of events held, actual and anticipated
attendance for each event, and separate cash and disbursement details including whether
the event received any booking, treatment or rates in deviation from adopted policies and if
so, the reasons therefore, for each event held for the same period covered within the
quarterly financial report.
Audit. The Foundation shall provide to the City one hundred fifty (150) days following the end
of each operating year an audited financial report and management communications,
prepared by a certified public accountant, on the accounts and records as kept by the
Foundation. Costs associated with providing the audit shall be the responsibility of the
Foundation. Such audit shall be perFormed by an external auditor approved by the City
Director of Finance and shall be conducted in accordance with genera�lly accepted auditing
standards.
Cooperation with Citv Audit and/or Litiqation. The Foundation shall fully and completely
cooperate with the City, the City's insurer, the City's attorneys, the City's Auditors or other
representative of the City (collectively, the "City" for purposes of this Article) in connection with
(a) any internal or governmental investigation or administrative, regulatory, arbitral or judicial
proceeding (collectively "Litigation") or internal or governmental Audit, with respect to matters
relating to this Agreement; other than a third party proceeding in which the Foundation is a
named pa�ty and the Foundation and the City have not entered into a mutually acceptable
joint defense agreement.
Such cooperation may include, but shall not be limited to, responding to requests for
documents and/or other records, and making the Foundation's employees available to the
City (or their respective insurers, attorneys or auditors) upon reasonable notice for: (i)
interviews, factual investigations, and providing declarations or affidavits that provide truthful
information in connection with any Litigation or Audit; (ii) appearing at the request of the City
to give testimony without requiring service of a subpoena or other legal process; (iii)
volunteering to the City all pertinent information related to any Litigation or Audit; and (iv)
providing information and legal representations to auditors in a form and within a timeframe
requested.
The City shall reimburse the Foundation for reasonable direct expenses incurred in
connection with providing documents and records required under this paragraph and may
require, at the City's sole discretion, such expenses to be documented by receipts or other
appropriate documentation. Reasonable direct expenses include costs, such as copying,
postage and similar costs; but do not include wages, salaries, benefits and other employee
compensation.
ARTICLE X. RECORDS
All records of the Foundation pertaining to the management and operation of the Grand
Opera House including any document related to this agreement, whether in electronic or
paper form, is considered a public record and shall be provided to the City upon request.
Records shall be maintained for a minimum of seven (7) years. Upon termination all records
shall be turned over to the City.
In the event of a public records request pertaining to this Agreement or the Foundation's
operations hereunder, the Foundation shall provide the requested records and may provide
the City with an explanation of why they believe any document should not be released to the
public. The City shall make all final determinations regarding the existence or release of any
document related to this agreement.
ARTICLE XI. USE OF NAMES/LOGOS
The Foundation shall include or cause to be included in all programs and brochures an
acknowledgment that the Grand Opera House Facility is owned by and receives financial
support from the City of Oshkosh. The Foundation shall have the right to use and permit
others to use for no charge, the name and any logos owned by the City of Oshkosh
pertaining to the Grand Opera House Facility, as well as the official logo of the City of
Oshkosh for this purpose. The Foundation shall take all prudent and appropriate measures
to protect the intellectual property rights of the City relating to such logos.
ARTICLE XII. USE BY THE CITY
Subject to availability, the City shall have the right to use the Grand Opera House or any part
thereof rent-free for meetings, seminars, training or other non-commercial uses, provided that
the City shall reimburse the Foundation for any out-of-pocket expenses incurred by the
Foundation (such as the cost of support personnel, any additional costs for maintenance or
janitorial staff, et-up or take-down expenses, equipment rental, etc...) in connection with such
use. Upon request of the City, the Foundation shall provide to the City a list of available
dates for City use.
ARTICLE XIII. MISCELLANEOUS PROVISIONS
Authority to Enter into Aqreement. The Foundation hereby represents, warrants and
covenants that it has the full legal right, power and authority to enter into this Agreement and
to grant the rights and perForm the obligations of the Foundation as herein enumerated.
Entire Aqreement. 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.
Modifications to Agreement. This agreement cannot be changed or modified except in writing
and signed by the duly authorized agents of the parties.
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. Any sale or transfer of the
Grand Opera House by the City shall be made subject to the terms of this agreement.
No third partv beneficiaries. Nofinrithstanding 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.
No partnership or ioint venture. Nothing contained in this Agreement shall co.nstitute or be
construed to be or create a partnership or joint venture among the parties.
Headinqs. 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.
Counterparts. This Agreement may be executed in several counterparts, each of which shall
be deemed an original, but such counterparts shall together constitute but one in the same
Agreement. Facsimile signatures shall be deemed original signatures for all purposes of this
Agreement.
Severabilitv. 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.
No Waiver. 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.
Non-Discrimination. The Operator agrees not to discriminate in its operations under this
Agreement on the basis of race, color, national origin, religion, creed, age, disability, gender,
or on any other basis prohibited by law. A breach of this covenant may be regarded as a
material breach of this Agreement
Force Maleure. Neither party shall be liable or responsible to the other party for any delay,
loss, damage, failure or inability to perForm under this Agreement due to an event of Force
Majeure, including but not limited to by reason of fire, earthquake, war, terrorist act, flood,
riot, strikes, labor disputes or shortages, government restrictions, judicial order,� public
emergency, or other causes beyond the reasonable control of the party, provided that the
party claiming failure or inability to perform provides written notice to the other party within ten
(10) days of the date on which the party gains actual knowledge of such event of force
majeure.
Governinq Law. The laws of the State of Wisconsin shall govern the interpretation and
construction of this Agreement. Winnebago County shall be the venue for all disputes arising
under this Agreement. �
Joint Draftinq. This Agreement is the product of negotiation between the parties hereto and
no term, covenant or provision herein or the failure to include a term, covenant or provision
shall be construed against any party hereto solely on the basis that one party or the other
drafted this Agreement or any term, covenant or condition contained herein.
Option for Alternative Dispute Resolution. Upon mutual consent of the parties to this
Agreement, which consent any party can withhold in its sole discretion, the parties can agree
to submit disputes arising under this Agreement to alternative dispute resolution.
1N WITNESS WHEREOF, the pa�ties hereto have �xecuted or caused this Agreement to be
executed by their officers thereunto duly authorized, all as of #he day and year first wriften
above.
CITY OF OSHKOSH OSHKOSH OPERA HDUSE �
FOUNDATl�N, IhtC.
By: By: Gn�'-�C�.�� ��� �;,�
,, �/=-
Marlc A. Rohloff, Ci#y Manager E. Alan Ha�tman, Chair
By: By: '
Parrtela R. Ubrig, City Glerk �x Humm , Secretary
Cerfification:
By:
Trena Larson, Finance Director
Approved:
By:
Lynn A. Lorenson, City Aftorney
EXHIBIT"A"
DATE
PLACEDIN
TypE QTY EQUIPMENT SERVICE VALUE EXTENSION
Lighting 1 Convert $6,000.00 $6,000.00
Lighting 1 200 Dimmer Rack $75,000.00 $75,000.00
Lighting 216 EC Quad Dimmers 2.4K $200.00 $43,200.00
Lighting 1 500'Stage Cable $1,000.00 $1,000.00
Lighting 24 Altman 4.5"Zoom Ellipsoidals(6 work in basement) $250.00 $6,000.00
Lighting 24 Altman 6"Fresenl (6 work in basement) $90.00 $2,160.00
Lighting 24 Altman 6"Zoom Ellipsoidals(8 work in basement) $375.00 $9,000.00
Lighting 12 Altman 8"Zoom Ellipsoidals(6 work in basement) $450.00 $5,400.00
Lighting 12 Colortran 6K Dimmers $650.00 $7,800.00
Lighting 4 Four Section Altman Sky Cyc $865.00 $3,460.00
Lighting 8 Par 64 Cans(4 work) $60.00 $480.00
Lighting 8 TwoFers $35.00 $280.00
Stage 1 16mm Xenon Projector $3,500.00 $3,500.00
Stage 1 18x20 Electric Movie Screen 08/31/92 $2,583.93 $2,583.93
Stage 1 8 Foot Aluminum Ladder $125.00 $125.00
Stage 3 Black Velour Curtain $2,800.00 $8,400.00
Stage 4 Border Curtains $800.00 $3,200.00
Stage 2 Buckstaff Stools $150.00 $300.00
Stage 1 Castered Crate(Included w/Projector) $0.00 $0.00
Stage 1 Conductor Stand $125.00 $125.00
Stage 1 Grand Drape $600.00 $600.00
Stage 8 Leg Curtains $600.00 $4,800.00
Stage 1 Main Curtain $3,500.00 $3,500.00
Stage 20 Music Stands $35.00 $700.00
Stage 1 Ruby Border $900.00 $900.00
Stage 1 Scope Lens Adapter $500.00 $500.00
Stage 1 Seamless White Cyclorama $2,500.00 $2,500.00
Stage 1 Stage Weights $10,000.00 $10,000.00
Stage 1 Studio Piano(Pit) $2,000.00 $2,000.00
Stage 3 Blackborder 8'x 35' 12/01/06 $900.00 $2,700.00
Sound 4 1/3 Octave EQ Biamps EQ 290 $250.00 $1,000.00
Sound 1 32 Channel 100'Snake $1,200.00 $1,200.00
Sound 1 Clear Com Base Station $750.00 $750.00
Sound 6 Clear Com Beit Packs $250.00 $1,500.00
Sound 6 Clear Com Headsets $165.00 $990.00
Sound 4 EV RE16 Microphones $300.00 $1,200.00
Sound 2 EV RE55 Microphones $400.00 $800.00
Sound 2 JBL4682Speakers $600.00 $1,200.00
Sound 2 JBL 4699 Speakers $2,000.00 $4,000.00
Sound 1 Mackie 32x8 FOH Sound Board $5,000.00 $5,000.00
Sound 4 Mic Stands $20.00 $80.00
Sound 8 Motorola UHF Radios $500.00 $4,000.00
Sound 4 Telex Hearing Impaired Receivers $150.00 $600.00
Sound 1 Telex Hearing Impaired Transmitter $625.00 $625.00
Dressing Rooms 22 Dressing Room Stools $125.00 $2,750.00
Box O�ce 1 Painting Hotel Athern $100.00 $100.00
Box Office 6 Hearing Loop Devices 09/14/10 $125.00 $750.00
Mens Warming Rm 1 Dedication Plaque $100.00 $100.00
Mens Warming Rm 1 An#ique Umbrella Stand w/Umbrellas $100.00 $100.00
Mens Warming Rm 1 State of Wisconsin Proclamation $0.00
Mens Warming Rm 3 Black and White Paintings-Views of Oshkosh $0.00
Mens Warming Rm 1 Historic Register Plaque $0.00
Mens Warming Rm 1 Mantel Clock(not working) $0.00
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DATE
PLACEDIN
TypE (,�Ty EQUIPMENT SERVICE VALUE EXTENSION
Theater 8 Folding chairs 07/01/03 $20.00 $160.00
Theater 1 Painting Teddy Roosevelt $400.00 $400.00
Theater 20 New Box Chairs $250.00 $5,000.00
Theater 1 Hearing Loop 08/01/10 $6,271.00 $6,271.00
Downstairs Lobby 1 Tapestry
Downstairs Lobby 1 Print Cigarette Maker's Romance(Mens Bathroon) $200.00 $200.00
Downstairs Lobby 1 Print Gaity Girl(Men's Bathroom) $200.00 $200.00
Downstairs Lobby 3 Brass Stanchions w/Ropes(2) $175.00 $525.00
Downstairs Lobby 2 Pictures of Women(Womens Bathroon) $200.00 $400.00
Downstairs Lobby 3 Framed Wall Mirrors(Womens Bathroom) $150.00 $450.00
Downstairs Lobby 1 Full Length Mirror(Womens Bathroom) $200.00 $200.00
Downstairs Lobby 3 Framed Wall Mirrors(Mens Bathroom) $150.00 $450.00
Downstairs Lobby 1 Flat Screen -2008-SONY 07/01/08 $300.00 $300.00
Basement 1 Print(Large)April 28 1875 Oshkosh Fire
Basement 1 Painting Sarah Bernhardt $450.00 $450.00
Basement 1 Poster Perfumed Opera House $100.00 $100.00
Basement 1 Antique Piano(Nick Nebel)&Claw Foot Stool $500.00 $500.00
Basement 1 Victorian Gentleman's Chair $500.00 $500.00
Basement 2 Victorian Reproduction Chairs $150.00 $300.00
Basement 1 Victorian Couch $750.00 $750.00
Basement 2 Stainless Steel Ticket Recepticals $100.00 $200.00
Lounge 1 Grease Interceptor Sept.2010 $0.00
Lounge 2 backsplash cutout for soda lines Sept.2010 $70.00 $140.00
General Office-100 High 1 Partner Phone System $5,000.00 $5,000.00
Misc g 6 Foot tables(2 broken) $95.00 $855.00
Misc 75 Blue Cloth Chairs $35.00 $2,625.00
Misc 2 Portable Coat Racks $200.00 $400.00
Misc 14 Old Blue Velvet Chairs-some un-repairable $100.00 $1,400.00
Misc 14 Enamel/Brass Waste Receptacles $160.00 $2,240.00
Misc 1 CompressorAC 06/01/04 $8,605.84 $8,605.84
Misc 1 Air Compressors AC 11/30/07 $10,890.00 $10,890.00
Basement 20 Old Theater Seats $0.00 $0.00
Lounge 1 three comparment sink w/drain table Sept.2010 $754.00 $754.00
Lounge 1 Pre Rinse unit(Sprayer-part of sink) Sept.2010 $459.00 $459.00
Lounge 1 Add on Faucet(part of sink) $122.00 $122.00
Lounge 3 Waste Valve Drain(part of sink) $91.50 $274.50
Lounge 1 Perlick 4 Door Cooler Sept.2010 $3,532.00 $3,532.00
l.ounge 1 Perlick hand washing station Sept.2010 $776.00 $776.00
Lounge 2 perlick drain table Sept.2010 $345.00 $690.00
Lounge 2 Perlick Dump Sink Sept.2010 $667.00 $1,334.00
Lounge 1 Perlick glass washer Sept.2010 $5,232.00 $5,232.00
Lounge 1 Hoshizaki Ice Machine Sept.2010 $2,856.00 $2,856.00
Lounge 2 Under bar filler strip 45DEG Sept.2010 $373.00 $746.00
Lounge 1 Back Bar-John Leyhe 11/17/2010 $18,000.00 $18,000.00
Lounge 1 Grand Lounge Construction 9/1/2010 $155,279.00 $155,279.00
Lounge 1 Grand Lounge construction 9/1/2010 $139,276.03 $139,276.03
Misc 1 Air Conditioning&Heating Unit 07/01/08 $55,000.00 $55,000.00
� Black Letter Grand Opera House Sign on Balcony 10/O6/12 $2,959.00 $2,959.00
Misc 1 Chandelier-Donated by Advisory Comm 10/12/12 $700.00 $700.00
Development Dir 1 3-drawer lateral file cabinet $275.00 $275.00
Marketing 1 3-drawer lateral file cabinet $275.00 $275.00
Operations Manager 1 3 drawer filing cabinet $275.00 $275.00
Office Manager Office 1 Lateral 3 drawer file cabinet $275.00 $275.00
Total City $671,560.30
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