HomeMy WebLinkAbout34968 / 88-180 ���y p� , �ggg N180 - RESOLUTION
(CARRIED LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE AMENDMENT OF FOOD & BEVERAGE AGREEMENT AN�
OPERATIONS AND MAINTENANCE AGREEMENT/OSHKOSH CENTRE
INITAITED BY: CITY A�MINISTRATION
BE IT RESOLVED by the Common Council of the City of Oshkosh that the
attached Amendment to the Food and Beverage Agreement and the Operations and
Maintenance Agreement regarding the Oshkosh Convention Centre is hereby approved
and the proper City officials are hereby authorized and directed to enter into
same.
SUBMITTED SY
APPRCJED . ,���G�(///` /j,_
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i . �C�B��
' � 7��/ _��'
AMENOMENT TO FOOD & BEVEPAGE SEAVICE AGAEEMENT
DATED 12-21 -84 , AND ENTERED INTO BY AND BETWEEN
THE RADISSON HOTEL COAPORATION � THE CITY OF OSHKOSH
AND THE OSHKOSH CENTRE HOTEL VENTURE ,
AN ILLINOIS PARTNEASHIP
WHEREAS, the Oshkosh Centre Hotel Venture has acquired
all interest in the property covered by said agreement heretofore
held by the Radisson Hotel Corporation � and
WHEREAS, the parties hereto wish to reflect this acquisition in
the Food & Beverage Service Agreement between the parties ,
NOW, THEREFORE � IT IS AGAEED BY AND BETWEEN THE PAATIES as
' folloxs:
� 7 . That any and all referenees to the rights , duties and
responsiDilities of the Radisson Hotel Corporation and all references
to Aadisso❑ Inn Oshkosh are hereby transferred to the Oshkosh Centre
Hotel Venture.
2. That the agreement shall refleet an agreement between the
City of Oshkosh and Oshkosh Centre Hotel Venture with the City
of Oshkosh retalning all rights, dutles � privileges and
responsibilities inuring to it under the 12/27/84 agreement .
3• That the Oshkosh Centre Hotel Venture shall henceforth
have all the rights , duties and responsibilities inuring to both
it and the Radisson Hotel Corporation.
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� 4. All paragraphs of this ag^zeme�t shall be modified to
reflect this new agreement .
IN WITNESS WHEREOF , the parties hereto have executed or caused
this Agreement to be executed by their afficers thereunto duly
authorized > all as of the day and year first above written .
OSHKOSH CENT9E HOTEL VENTUAE
BY '—___________—________________
By'_____�—______—_________—
CITY OF OSHKOSH
BY ' ___--___�__—____—____
William D . Frueh � City Manager
And :_ _____�_—_________
Donna C . Serwas , City Clerk
2
AMENDMENT TO FOOD & BEVEAAGE SEAVICE AGPEEMENT
DATED 72-21 -84 � AND ENTEAED INTO BY AND BETWEEN
THE RADISSON HOTEL CORPOAATION � THE CITY OF OSHKOSH
AND THE OSHKOSH CENTAE HOTEL VENTURE,
AN ILLINOIS PARTNEflSHIP
WHEAEAS, the Oshkosh Centre Hotel Venture has acquired
all interest in the property covered by said agreement heretofore
held by the Aadisson Hotel Corporation � and
WHEAEAS, the parties hereto wish to reflect this acqulsition in
the Food & Beverage Service Agreement Detween the parties ,
NOW, THEREFORE � IT IS AGREED BY AND BETWEEN THE PARTIES as
follows :
7 . That any and all references to the rights , . duties and
responsiDilities of the Radisson Hotel Corporation and all references
to Aad155on Inn Oshkosh are hereby transferred to the Oshkosh Centre
Hotel Venture.
2. That the agreement shall reflect an agreement between the
City of Oshkosh and Oshkosh Centre Hotel Venture with the City
of Oshkosh retaining all rights , duties � privileges and
� responsibilities inuring to it under the 12/27/84 agreement .
3 . That the Oshkosh Centre Hotel shall henceforth have all the �
rights � duties and responsibilities inuring to both it and the
Aadisson Hotel Corporation.
4. That Sectio❑ 13•2 is hereby added to the original agreement
to provide as follovs :
Section 13.2 g��a2lishman�_an2_�aia�aua¢�a_nf_Hasacsa
E�II�• In order to ass�re the availability of funding for all
necessary capital replacements and additions to the Convention
Center, Owner agrees to establish a Aeserve Fund for that purpose.
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� The Owner agrees that all its receipts from the hotel/motel tax
attributable to the Hotel and any miscellaneous revenues
attriDUtable to the Convention Center will be reserved exclusively
for suDPOrt of the Convention Center, and that all amounts not
required for current obligations of the Owner xith respect to the
Convention Center hereunder shall be deposited and retained in the
Aeserve Fund. 1'he Aeserve Fund shall be utilized solely to fund
capital replacements and additions to the Convention Center and
shall not be expended for normal operating expenses or any other
purpose .
5. All paragraphs of this agreement shall be modified to
reflect this neN agreement .
IN WITNESS WHEREOF , the parties hereto have executed or caused
this Agreement to be executed by their officers thereunto tluly
authorized , all as of the day and year first above uritten .
OSHKOSH CENTRE HOTEL VENTUAE
BY'—_________—__________________
BY'_____________________________—
, CITY OF OSHKOSH
BY'______________________________
William D . Frueh , City Manager
And :_____________________________
Donna C . Serwas , City Clerk
2
OPERATIONS 6 MAINTENANCE AGREEMENT
, THIS AGREEMENT is made as of the _______ tlay of June� 1988� .
between the CITY OF OSHKOSH, WISCONSIN (the "City") , and OSHKOSH
CENTRE HOTEL VENTURE, a venture organized under the laws
of the State of Illinois (^OCHV") .#1 ��y`C.1�.f1�4a11'
W I T N E S S E T H:
WHEREAS, the City has constructed a Conventlon Center Sn the
City of Oshkosh located at 2 N . Main Street , and
WHEREAS, the City and OCHV vish to provide for the operation
and maintenance of the Convention Center ,
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein and other good and valuable consideration,
the receipt and suFficiency whereof is hereby acknowledged , the
parties hereto agree as follows:
BHTI��� I
OPERATION OF CENTRE
Section 1.1 . City hereby engages OCHY as the exclusive agent
of City, in addition to food and Deverage service to handle other
operations of the convention center including scheduling � custodial ,
an^_ o:her required maintenance needed in the normal operation for a
convention center pursuant to all the terms and conditions
hereinafter set forth..
Section 1.2 pE.1f3dY.i4¢ AI1S.h4LiZ€d• OCHV has the right
to delegate any or all of its responsibilities hereunder to
responsible third parties as it deems advisaDle.
1
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eaxr��� ia
BOOKING OF CONYENTION CENTEN
section 2.1 �i�Y �sn�rQls �nuxan�isn �an�ac &2nk• in aaaitson
to the rights granted to OCHV under the Food & Beverage Service
Agreement , OCHV shall have the right to book dates for periods less
than six (6) months. The City or its designee will have the right
to use the Centre under the rental rates approved by the City for
any open date within six (6) months. For dates in advance of six
(6) months, in addition to City approval, there must be approval
from OCHY . Both City and OCHV will notify the other party within a
reasonable period of time tor any bookings. Partles will establish
procedures to eliminate double booking tluring the six month period
referred to herein .
Section 2.2 $�,¢y�g� Ld�€�• The rental rates to be charged for
use of the Convention Center shall be established from time to time
by the City. The City agrees that the rental rates shall not be
unreasonable in relation to the marketing services of Lhe Convention
Center and expenses to be borne Dy OCHV. The rental rates may be
modi£ied from time to time. OCHV shall have no authority to vary
the approvetl rental rates but OCHV s�all have the authority in its
discretlon to subsidize the rental in order to encourage use of the
Convention Center.
LBTI��� ZII
OPERATION OF THE CONVENTION CENTEF
Section 3.1 �a��.rin� aad 42araS.iQn !iY Il�HY• In addition to
the rights heretofore granted under the Food & Beverage Service
Agreement , OCHV shall operate the Convention Center 1n an efficient
2
• and economical manner and determine the programs and policies to be
followed in connection thereuith, all in accordance xlth the
provislons of this Agreement.
Section 3•2 PYfias 4f 4�HY• Without limiting the generality
of the Poregoing , OCHV shall be , and is hereby granted , the
authority and assumes the obligation to do the following :
(a) Provide normal cleaning and �anitorial services of the
� Convention Center, including Nindow cleaning and trash
collection .
(b) Pay and discharge all obligations for salaries, wages,
supplies, utilitles, service contracts, equipment rentals,
advertising and promotion, and all other necessary
expenses of the operation of the Convention Center except
such oDligations as are the responslbility of the City
pursuant to Section 3 .3 belox.
Sectlon 3•3 PJd�lg3 Pf �1�Y• City agrees to undertake the
following in connection with the Convention Center:
(a) Provlde or cause to be provided all utility service
required for a first-class convention center at all times
during the term hereof. If for any reason the utility
service 1s interrupted , City will use its best efforts to
relnstate such service as soon as possible. Although City
must make utility services available , current charges for
utilities are the responsibility of OCHV.
(b ) Make all repairs and perform all maintenance required in a
first-class convention center, including all structural ,
mechanical or electrical repairs, all exterior maintenance
for the Convention Center and surrounding grounds � lncluding
landscaping and snow removal , as well as repairs and
maintenance to Furniture, Fixtures and Equipment required in
a first-class convention center, exeept for routine day-to-
day cleaning and �anitorial serv3ces Nhich are the
responsibility of OCHV .
(c ) The City retains the right to maintain its Convention &
Tourism Bureau offices in the Convention Center. No rent
shall be payable by the City for operation of the Bureau in
the Convention Center but the Bureau shall absorb its ou+n
telephone expense .
(d ) The City retains the right to operate a Ticketron office in
the Convention Center. No rent shall be payable for such
office , but the Ticketron office shall absorb its own
telephone expense .
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AflTI�4& IY
COMPLIANCE NITH LAWS
Section 4.1 S,.2mp11aII�€ pY 4�HY• In providing the service
deseribed in this Agreement, OCHY shall make all reasonable efforts, Sn
the name of, and at expense of, and with the cooperation of C1ty , to
comply with and abide by laws , rules, regulations, requirements,
orders , notices, determinations and ordinances of any federal , state or
municipal authority .
section 4 .2 Hish� nf �iLY �n finnias� nr Pnsiann€ �smeliansa•
With respect to a violation of any such laws, rules, etc., the City
shall have the right to contest any of the foregoing and postpone
compliance pending the determination of such contest , if so permitted
by law and ❑ot detrimental to the operation of the Convention Center,
but in such event , City shall protect OCNV from any loss, cost , damage
or expense as a result thereof.
AETI�4H Y
BOOKS � RECORDS AND STATEMENTS
Section 5•1 A�C4LLIIfi¢8 SY@fgm• OCHV shall keep full and
adequate books of account and other records reflecting the results of
its operation at the Convention Center as a separate department of the
hotel. OCHV may use such fiscal year as it chooses. The books of
account� or photographic copies� and all other records relating to�
or reflecting the operations of OCHV at the Conventio❑ Center shall
be kept at the Hotel and shall be available to City and Sts
representatives at all reasonable times for examination, audit,
inspection and transcription.
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� AHTI�LH YI
INSURANCE
Sectlon 6.1 �gYLdIl£fl �4Y8Ld8B• City 9ha11 provlde and
maintain, at Clty's coat and expense� inaurance sufficient to furniah
to City and OCHY reasonable and adequate protection in the management
and operation of the Convention Center. Such insurance shall include
(i) fire and extended coverage insurance on the buildings and contents,
in an aggregate amount which shall not be less than BO$ of the full
replacement value thereof and in no event belox the minimum amount
� necessary to avoid the effect of coinsurance provisions of such
policies, (ii) such other or additional insurance and in such amounts
as OCAY and City shall agree upon wlth respect to the buildings and
contents, and other proDerty of the Convention Center, and (iii) .
general public liability insurance against claims for personal in,jury,
death or property damage , said insuranee to be in such form as shall be
reasonably satisfactory to City and OCHV. Such fire and extended
coverage policies shall provide that the loss, if any, payable
thereunder shall be adjusted with and payable to City. All other
insurance shall be in the name of City and OCHV as the insureds and
shall contain riders and endorsements adequately protecting the
interest of OCHV as it may appear including � without limitation,
provisions for at least 20-days' notice to OCHV of cancellatio❑ or of
any material change therein. City shall Drovide OCHV with a certified
copy of such insurance policies or a certificate thereof at all times .
section 6.2 �iaisac nf HuprssaSian = �iSY Assumas Eisk nf
&$84LLa4 'L. City shall have all policies of insurance provide that the
insurnce company will have no right of subrogation against a�y party
hereto, their agents or employees. City assumes all risks in
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connection with the adequacy of any insurance or self-insurance
program, and waives any elalm against OCHV for any liability, costs or
expenses arising out of any uninsured claim, Sn part or in full , of any
nature Whatsoever .
BHTI�.LE YII
FEE
Section 7.1 QC€L3S-SIl�3 anS�. .S.E.LYS4E. EflE.• City shall pay
operations and service fees to OCHY as follows:
(a) City shall pay to OCHV an annual fee of $40 ,000 payable
in quarterly installments of $10 ,000 each in advance on the
first day of January, April , July and October 1n each year.
If this Agreement commences during a calendar quarter, a
prorated quarterly fee shall be paYable at the time of
commencement .
(b ) As further compensation and as reimbursement to OCHV for
payment of the oper�t�in�CNVXpforthWithtafternreceipt thereof
the City shall pay
by City, all the operating income of the Convention Center
including all facility and equipment rentals and fees, all
food and beverage reve�ues �including vending machines and
andeanyiand 'alllrevenuesrofineveryfkindaand natureederivedes
from the operation of the Convention Center, but not
including any income from the hotel motel room tax,
ticketron or advertising .
6HT��.I.E Y�Il
TEAM OF AGREEMENT AND TEAMINATION
Section 8.1 TBLm• This Agreement shall De for a period
commencing on the date first hereinabove set forth and terminating at
Lhe end of the fiseal year 1n which the fifth ( Sth) annual anniversary
of this Agreement occurs. This Agreement shall automatically reneu
for additional 5-year periods unless prior notificatio❑ of termina-
tion by either party six (6) months prior to termination of original
Agreement or any 5-year extension thereof.
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, � Section 8.2 $dLlY T€Lml¢3L14a• Th1s Agreement can be
terminated earlier as described in this Section 8.2 and if either
party exercises its right to terminate early, the right and
obligations of the parties will cease except as to management fees of
OCHV and claims tor mismanagement or non-performance by the City
against OCHV and other elaims or liabilitles of either party which
accrued or arose before termination.
�a� H1fhBL QdL�Y �3n TflLmSIIa�g:
Upon damage to or destruction of the Convention
Center or condemnation thereof.
(� > Tha S�iS.x �an T€cmiva�€:
1 . If OCHV shall apply for or consent to the appointment of
a recelver , trustee or liquidator of OCHV or of all or a
substantial part of its assets � file a voluntary
petition in bankruptcy, or admit in uriting its
inability to pay its debts as they come tlue, make a
general assignment For the benefit of creditors , file a
petStion or an answer seeking reorganizatio❑ or
arrangement with cretlitors or to take advantage of any
insolvency law or file an answer admitting the material
allegations of a petition filed against OCHV in a
Dankruptcy , reorganization or insolvency proceedings, or
if an order , ,judgment or decree shal l be entered by any
court of competent jurisdiction, on the applicatio❑ or a
creditor, ad,judicating OCHV a bankrupt or insolvent or
approving a petition seeking reorganization of OCHV or
appointing a receiver, trustee or liquidator of OCNV or
of all or a substantial part of its assets , and such
order, judgment or tlecree shall continue unstayed and in
eFfect for any period of 90 consecutive days , or
2 . If OCHV shall fail to keep , observe or perform any
material covenant � agreement � term or provision of this
Agreement to be kept, observed or performed by OCHV , and
such default shall contlnue for a period of 60 days
after notice thereof by City to OCHV .
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(c ) 4S;.HY �an Tecmi¢aS.s:
1 . IF the City shall fail to keep , oDserve or perform any
material covenant � agreement, term or provlsion of this
Agreement to De kept, observed or performed by City , and
such default shall continue for a period of 60 days
after notice thereof by OCHV to City .
2 . If the City shall apply for or consent to the
appointment of a receiver, trustee or liquidator of the
City or of al l or a substantial part of its assets , flle .
a voluntary petition in bankruDtcy or admit in writing
its inaDility to pay 1ts debts as t6ey come due, make a
general assignment for the benefit of creditors or to
take advantage of any insolvency law, or file an answer
admltting the material allegatlons of a petitlo❑ filed
against the City Sn any bankruptcy,• reorganization or
insolveney proceeding , or if an order, ,7udgment or
decree shall be entered by any court of competent
jurisdiction, o❑ the application of a creditor
adjudicating the City a bankrupt or insolvent or
approving a petition seeking reorganization of the City
or appointing a receiver, trustee or liquidator of the
City or of all or a substantial part of the assets of
the City , and such order, ,Judgment or decree shall
continue unstayed and in effect for any period of 90
consecutive days .
n�x��a.� ix
NOTICES
Section 9.1 gp,y,iCgH• Any notice, statement or demand required
or permitted to be given under this Agreement shall be in writing ,
sent by certified or registered mail � return receipt requested �
addressed , as the case may be to City at 215 Church Avenue, P. 0. Box
1130 � Oshkosh� Wisconsin 5u902-1130 or to OCHV at One North Main
Street , Oshkosh, Wisconsin 54901 or to sueh other address as City or
OCHV shall designate in the manner herein provided and shall be
deemed to have been given on the day two days after it shall have
been mailed , as aforesaid , in any post office or branch post office
regularly maintained by the United States Government .
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eaxi�4� x
CONSENT
Sectlo❑ 10.1 Hi�hhnlQinB af S�o.nsan�• Except as herein
otherwise provided � whenever in this Agreement the consent or
approval of City or OCHV Ss required � such consent or approval ahall
not be unreasonably withheld. Such consent or approval shall be in
writing only and ahall be duly executed Dy an authorized officer or
agent of the party granting sueh consent or approval .
AHTS�LE %S
INDEMNIFICATION AND LIMITATION OF LIABILITY
section 11.1 iadgmnifi�a�isu and 41mi�aLlsn nf Liapilifx•
OCHV shall not be 1ia61e to the City or to any other person for any
aet or omission� negligent� tortious Or otherwlse� of any officer�
agent or employee of the C1ty in the performance of services in
conneetion with this Agreement and OCHV shall be indemnlfied and
saved harmless by City from all claims, actions , liab111ty, loss,
damage , cost or expense by reason of any such act or omission .
Section 11.2 Qpp� Ea1S.h �Y48maa5.• Notwithstanding any other
provisions of this greement, in no event shall the City make any
claims against OCHV on account of any alleged errors of ,7udgment made
in good faith in the determination of operating policies of the Food
and Beverage Service and other services at the Convention Center .
eaT��.�.� xzz
SUCCESSORS BOUND
Section 12.1 &���gg34L3 �Ili�nd• This Agreement shall be binding
upon and inure Lo the benefit of City , its successors and assigns �
and shall be binding and inure to the benefit of OCHV and its
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' permitted assigns. Any sale or transfer of the Convention Center by
City shall be made sub�ect to the terms of thls Agreement .
agxrs�� xiri
MISCELLANEOUS PROYISIONS
Section lj•1 xQ �dL�QgL3hS2 IlL �4�a� YflR�YL€• Nothing
contained in this Agreement shall constitute or be construed to be or
create a partnership or �oint venture among the parties .
Section 13•2 �4$1Li4d�i4� H¢$ �h3i16g3• This Agreement cannot
be changed or modified ezcept by another agreement in writing signed
by the party sought to be charged therexith or by its duly authorized
agent .
Section 13•3 H8d0.1S1Z.5.• The Article and Section headings
contained herein are for convenience of reference only and are not
intended to define, limit or describe the scope or intent of any
provision of this Agreement .
Section 13•� ThiLfl P3LS.1€S• Any provision herein to the
contrary notwithstanding � it is agreed that none of the obligations
hereunder of either party shall run to or be enforceable by � any
party other than the other party to thls Agreement .
Sectio❑ 13.5 llndecaS.andin�s and Asesaman�s• Tnis Agreement
constitutes all of Lhe understandings and agreements of whatsoever
nature or kind existing between the parties with respect to the
su6ject matter hereof .
Seetion 13.6 This Agreement supplements and in some respects
modifies that Food and Beverage Service Agreement entered into
Detween the parties December 27 , 1984. In case of any inconsistency
between this agreement and such Food and Beverage Service Agreement y#�
l,�I 7U�1��._
the provisions of this Agreement shall be controlling . 111s/f�
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, ' Section 13.7 SPY€LaQilliY• if any term, covenant, condition or
provision of this Agreement shall be invalid or unenforceable, the
remainder of this Agreement shall not be affected thereby , and each
term, covenant, condition and ➢rovision ahall be valld and be
enforeed to the fullest extent permitted by lav.
IN MITNESS NHEREOF , the parties hereto have executed or caused
this Agreement to be executed by their officers thereunto duly
authorized , all as of the day and year first above written .
CITY OF OSHKOSH OSHKOSH CENTRE HOTEL VENTURE
BY ' ___________—___________________ BY' ___________________________—
William D .Frueh, City Manager
And :_________________________—__ BY'_____—_____________________
Donna C . Serwas , City Clerk
��Y� 4�.Vl�E.kl�U�
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������d � C!�;���Q � �, iq 8
„
OPERATIONS & MAINTENANCE AGREEMENT �—�L�
THIS AGREEMENT is made as of the _______ day of Sune, 1988,
6etween the CITY OF OSHKOSH, WISCONSIN (the "City") , and OSHKOSH
CENTRE HOTEL VENTURE� a venture organized under the laws
of the State of Illinois ( "OCHV" ) .
W I T N E S S E T H:
WHEREAS, the City has constructed a Convention Center in the
City of Oshkosh located at 2 N . Main Street , and
WHEREAS� the City and OCHV wish to provide for the operation
and maintenance of the Convention Center ,
NOW, THEREFORE� in consideration oF the mutual promises and
covenants contained herein and other good and valuable consideration,
the receipt and sufficiency whereof Ss hereby acknowledged , the
parties hereto agree as follows:
AHTS�LE 2
OPEAATION OF CENTRE
Section 1.1. City hereby engages OCAV as the exclusive agent
of City, iu addition to food and beverage service to handle other
operations of the convention center including scheduling , custodial ,
and other required maintenance needetl in the normal operation for a
convention center pursuant to all the terms and conditions
hereinafter set forth..
Section 1.2 p;.lY.$aY,.19Il AYih4LlTiPt1• OCHV has the right
to delegate any or all of its responsibilities hereunder to
responsible third parties as it deems advisable.
7
BHTI�LE IZ
BOOKING OF CONVENTION CENTER
Section 2.1 �l�Y �9.R�L9.la �4LYflt1S.l4� �E¢�gL HQIIk• In addition
to the rights granted to OCHV under the Food fi Beverage Service
Agreement , OCHV sha11 have the right to book dates for periods less
than six (6) months. The City or its designee will have the riaht
to use the Centre under the rental rates approved by the City for
any open date within six (6) months. For dates in advance of six
(6) months , in addition to City approval � there must be approval
from OCHV. Both City and OCHV will notify the other party within a
reasonable period of time for any bookings. Parties will establish
procedures to eliminate double booking during the six month period
referred to herein .
Section 2.2 $Q,pr,dl Ld1.€H• The rental rates to be eharged for
use of the Convention Center shall be established from time to time
by the City . The City agrees that the rental rates shall not be
unreasonable in relation to the marketing services of the Convention
Center and expenses to be borne by OCHV. The rental rates may be
modified from time to Lime. OCHV shall have no authority to vary
the approved rental rates but OCHV shall have the authority in its
discretion to subsidize the rental in order to encourage use of the
Convention Center .
AETS�.LE ISS
OPENATION OF THE CONVENTION CENTER
Section 3.1 ScaLSL1II8 aII� 4➢.aLaS.19Il �.Y 4S�.IiY• In addition to
the rights heretofore granted under the Food � Beverage Service
Agreement, OCHV shall operate the Convention Center in an efficient
2
and economical manner and determine the programs and policies to be
followed in connection Lherewith, all in accordance uith the
provisions of this Agreement.
Section 3.2 py�lfl3 4f 4�xY• Without lioiting the generality
of the foregoing , OCHV shall be. and is hereby granted, the
authority and assumes the obligation to do the following :
(a) Provide normal cleaning and janitorial services of the
Convention Center, including window cleaning and trash
collection .
�b ) Pay and discharge all obligations for salaries � wages ,
supplies, utilities , service contracts . equipment rentals,
advertising and promotion, and all other necessary
expenses of the operation of the Convention Center except
such obligations as are the responsibility of the City
pursuant to Section 3 •3 below .
Section 3.3 LuSias, p.f �iLy. City agrees to undertake the
folloving in connection with the Convention Center:
(a) Provide or cause to be provided all utility service
requiretl for a first-class convention center at a11 times
during the term hereof. If for any reason the utility
service is interrGpted , City xill use its 6est efforts to
reinstate such service as soon as possible. Although City
must make utility services available , current charges for
utilities are the responsibility of OCHV .
(b ) Make all repairs and perform all maintenance required in a
first-class convention center, including all structural ,
mechanical or electrical repairs � all exterlor maintenance
for the Convention Center and surrounding grounds , including
landscaping and snov removal , as well as repairs and
maintenance to Furniture , Fixtures and Equipment required in
a first-class convention center, except for routine day-to-
day cleaning and janitorial services which are the
responsibility of OCHV.
(c ) The City retains the right to maintain its Convention &
Tourism Bureau offices in the Convention Center. No rent
shall be payable by the City for operation of the Burezu in
the Convention Center but the Bureau shall absorb its own
telephone expense .
(d) The City retains the right to operate a Ticketron office in
the Convention Center. No rent shall be payable for such
office, but the Ticketron office shall absorb its own
telephone expense .
3
(e) Establishment and Maintenance of Aeserve Fund. In order
to assure the availability of funding for all necessary
capital repiacements and atlditions to the Convention Cen-
ter, Owner agrees to esta6lish a Reserve Fund for that
purpose. The Owner agrees that all 1ts receipts from the
hotel/motel tax attributable to the Hotel and any miscell-
aneous revenues attributable to the Convention Center will
be reserved exclusively for support of the Convention
Center, and that all amounts not required for current
obligations of the Owner with respect to the Convention
Center hereuntler shall be deposited and retained in the
Reserve Fund. The Reserve Fund sha11 be utilized solely
to fund capital replacements and adtlitions to the Conven-
tion Center and shall not be expentled for normal operating
expenses or any other purpose.
ARTIC�$ jy
COMPLIANCE WITH LAWS
Section 4.1 S�4,mQliaa�a 2Y 4�HY• In providing the service
described in this Agreement, OCHV shall make all reasonable efforts, Sn
the name of� and at expense of, and with the cooperation of City� to
comply with and abide by laws � rules � regulations� requirements �
orders , notices , determinations and ordinances of any federal , state or
municipal authority .
section u .z Hiaht nL S�.x �n �nn�asi nz PnsSn.n.na �smalianc€•
With respect to a violatio❑ of any such laws , rules, etc., the City
shall have the right to contest any of the foregoing and Dostpone
compliance pending the determination of such contest, if so permitted
by law and not detrimental to the operation of the Convention Center,
but in such event, City shall protect OCHV from any loss, cost, damage
or expense as a result thereof.
u
____ _ __ _
AHTI�LE Y
HOOKS , RECOADS AND STATEMENTS
Section 5.1 �,�Qypy,lIIB 3YSY,.am• OCHV shall keep full and
adequate books of account and other records reflecting the results of
its operation at the Convention Center as a separate department of the
hotel. OCHV may use such fiscal year as it chooses. The books of
account, or photographic copies, and all other records relating to,
or rePlecting the operations of OCHV at the Convention Center shall
be kept at the Hotel and shall be available to City and its
representatives at all reasonable times for examination� autlit,
inspection and transcription.
A&TSS;.LE YI
INSURANCE
Section 6.1 IpS,LLLaIIA.€ Sc4YELa�€• City shall provide and
maintain, at City's cost and expense, insuranee sufficient to furnish
to City and OCHV reasonable and adequate protection in the management
and operatio❑ of the Convention Center. Such Snsurance shall include
(i) fire and extended coverage insurance on the builtlings and contents�
in an aggregate amount which shall not be less than 80$ of the full
replacement value thereof and ic no event below the minimum amount
necessary to avoid the effect of coinsuranee provisions of such
policies , (11) such other or additional insurance and in such amounts
as OCHY and City shall agree upon with respect to the buildings and
contents , and other property of the Conveation Center, and (iii)
general public liability insurance against claims for personal injury,
death or property damage , said insurance to be in such form as shall be
reasonably satisfactory to City and OCHV. Such fire and extended
5
coverage yolicies shall provide that the loss� if any, payable
thereunder shall be adjusted with and payable to City. All other
insurance shall be in the name of City and OCHV as the insureds and
shall contain riders and endorsements adequately protecting the
interest of OCHV as it may appear including , without limitation,
provisions for at least 20-days' notice to OCHV of cancellation or of
any material change therein. City shall provide OCHV uith a certified
copy of such insurance policies or a certificate thereof at all times .
Section 6.2 j{aj,ygL g,f $LLy,ro¢atyqn = �,iY.]C fls3LLIDf.5. Bisk IIL
BQgauacv. City shall have all policies of insurance provide that the
insurnce company aill have no right of subrogation against any party
hereto, their agents or employees. City assumes all risks in
connection xith the adequacy of any insurance or self-insurance
program, aad waives any claim against OCHV for any liability, costs or
expenses arising out of any uninsured claim, in part or in Pull , of any
nature whatsoever .
AH2I�.LE Y7S
FEE
Section 7.1 QQgryy,jQ,pg 3pfl, $gLY19.€ EBE.• City shall pay
operations and service fees to OCHV as follows:
(aJ City shall pay to OCHV an annual fee of $40�000 paya6le
in quarterly installments of $10,000 each in advance on the
first day of January, April , July and October in each year.
If this 9greeme¢t commences during a calendar quarter, a
prorated quarterly fee shall be payable at the time of
commencement .
(b ) As furtper compensation and as reimbursement to OCHV for
payment of the operating expenses of the Convention Center,
the City shall pay to OCHV, forthwith after receipt thereof
�y City, all the operating income of the Convention Center
including all facility and equipment rentals and fees , all
Pood and beverage revenues (including vending machines and
concessions) , all reimbursements for labor or other charges
6
and any and all revenues of every kind and nature derived
from the operation of the Convention Center, but not
including any income from the hotel motel room tax ,
tieketron or advertising .
AHTI�.LE YIIS
TERM OF AGREEMENT AND TERMINATION
Section 8.1 TgZm• This Agreement shall be for a period
commencing on the date first hereinabove set forth and terminating at
the end of the fiscal year in which the fifth ( 5th) annual anniversary
of this Agreement occurs. This Agreement shall automatically renew
for additional 5-year periods unless prior notification of termina-
tion by either party six (6) months prior to termination of original
Agreement or any 5-year extension thereof.
Section 8.2 $aLlY T€Lmiva5.i9.a• This Agreement can be
terminated earlier as described in this Section 8.2 and if either
party exercises its right Lo terminate early, the right and
obligations of the parties will cease except as to management fees of
OCHV and claims Por mismanagement or non-performance by the City
against OCHV and other claims or liabilities of either party which
accrued or arose bePore termination.
(a) E,�y.y�t PacLx �.an TscminaS.s:
Upon damage to or destruction of the Conventioa
Center or condemnation thereof.
�b ) ThE Sc1S.Y Sc3II T€LID111dLi'.:
1 . If OCHV shall apply for or conaent to the appointment of
a receiver , trustee or liquidator of OCHY or of all or a
substantial part of its assets, file a voluntary
petition Sn �ankruptcy, or admit in writing its
inability to pay 1ts debts as they come due, make a
general assignment for the benefit of creditors, file a
petition or an answer seeking reorganization or
arrangement xith creditors or to take advantage of any
iasolvency law or file an answer admitting the material
allegations of a petitio❑ filed against OCHV in a
7
bankruptcy , reorganization or insolvency proceedings , or
if an order � judgment or tlecree shall be entered by any
court of competent jurisdiction, on the application or a
creditor� ad,judicating OCHV a bankrupt or insolvent or
approving a petition seeking reorganization of OCHV or
appointing a receiver, trustee or liquidator of OCHV or
of all or a substantial part of its assets , and such
order, judgment or decree shall continue unstayed and in
effect for any period of 90 consecutive days , or
2 . If OCHV shall fail to keep , observe or perform any
material covenant, agreement, term or provision of this
Agreeaent to be kept , observed or performed by OCHV, and
such default shall continue for a periotl of 60 days
after notice thereof by City to OCHV .
(c ) Q�.�'r �n T€rmina�.s:
1 . If the City shall fail to keep , observe or perform any
material covenant, agreement, term or provision of this
Agreement to be kept , observed or performed by City, and
such default shall continue for a period of 60 days
after notice thereof by OCHV to City .
2 . If the City shall apply for or consent to the
appointment of a receiver, trustee or liquidator of the
City or of all or a substantial part of its assets , file
a voluntary petition in bankruptcy or admit in writing
its inability to pay its debts as they come due, make a
genetal assignment for the benefit of creditors or to
take advantage of any insolvency law, or file an ansNer
admitting the material allegations of a Petition filed
against the City in any bankruDtcy, reorganization or
insolvency proceeding, or if an order, judgment or
decree shall be entered Dy any court of competent
jurisdiction� on the application of a creditor
adjudicating the City a Dankrupt or insolvent or
approving a petition seeking reorganization of the City
or appointing a receiver, trustee or liquidator of the
City or of all or a substantial part of the assets of
the City, and auch order, ,judgment or decree shall
continue unstayed and in effect for aay period of 90
consecutive days .
eaxrs�.s rx
NOTICES
Section 9.1 $g,y,i�.€g. Any notice, statement or demand required
or permitted to be given under this Agreement shall be in writing ,
sent by certified or registered mail , return receipt requested ,
atldressed , as the case may be to City at 215 Church Avenue , P. 0. Box
8
1130 , Oshkosh, Nisconsin 5�902-1134 or to OCHV at One North Mai❑
Street , Oshkosh� Wisconsin 54901 or to such other address as City or
OCHV shall designate in the manner herein provided and shall be
deemed to have been given on the day two days after it shall have
been mailed� as aPoresaid , in any post offlce or branch post office
regularly maintained by the United States Government .
aaxi�� x
CONSENT
Section 10.1 ]�hhQldlBg fl.L Sc9.dfl€¢S.• Except as herein
otherwise provided � whenever in this Agreement the consent or
approval of City or OCHV is required , such consent or approval shall
not be unreasonably withheld. Such consent or approval shall be in
writing only and shall be duly executed Dy an authorized officer or
agent of the party granting such consent or approval .
flETI�LE ZI
INDEHNIFIC9TION AND LIMITATION OF LIABILITY
Section 11.1 �y,mpiPication 3p� Limitation gf j�iapllSS.Y•
OCHV shall not be liable to the City or to any other person for any
act or omission, negligent, tortious or otherwise , of any officer,
agent or employee of the City in the performance of services in
connection with this Agreement and OCHV shall be indemnified and
saved harmless by City Prom all claims , actions, liability, loss ,
damage , cost or expense by reason of any such act or omission .
Section 11 .2 �y,Q EajLh �Lu{�gmB,py,. Notwithstanding any other
provisions of this greement, in no event shall the City make any
claims against OCHV on account of any alleged errors of judgment made
9
I
in gootl faith in the determination of operating policies of the Food
and Beverage Sarvlce antl other servlces at the Convention Center.
eaxra�� xu
SUCCESSORS BOUND
Section 12.1 $���g@@4L3 HIlLLIId• This Agreement shall be binding
upon antl inure Lo the benefit of City, its successors and assigns,
antl shall De binding and inure to the benefit of OCHV and its
permitted asslgns. Any sale or transfer of the Convention Center by
City shall be made subject to the terms of this Agreement .
aaxi�.�.� xirz
MISCELLANEOUS PAOVISIONS
Section 13•1 $Q PaLS.IICLHYISP ac ,isinS. Ya¢Luca. ntothing
contained in this Agreement shall constitute or be construetl to be or
create a partnership or jolnt venture �among the parties .
Sectio❑ 13.2 MnffifiaaL.inn and G.ha¢Sas� This Agreement cannot
be changed or modified except by another agreement in writing signed
by the party sought to be chargetl therewith or Dy its duly authorized
agent .
Section 13•3 1i8ddi¢83• The Article and Section headings
contained herein are for convenience Of reference only and are not
intended to define� limit or describe � the seope or intent of any
provision of this Agreement .
Section 13•u ThiLd 2aL�.1E.fl• Any provision herein to the
contrary notwithstanding , it is agreed that none of the obllgations
hereunder of either party shall run to or be enforceable by , any j
party other than the other party to this Agreement . !
10
Section 13•5 ]lpdgL3Laadi¢83 3Ild 68LflgmH¢�3• This Agreement
constitutes all of the understandinga antl agreements of whatsoever ,
nature or kind exiating between the parties with res➢ect to the
aub3ect matter hereof.
Sectlon 13•6 This Agreement supplements and Sn some respects
motlifies that Food and Beverage Service Agreement entered into
between the parties December 27 , 1984. In case of any inconsistency
between thia agreement and such Footl and Beverage Service Agreement,
the provisions of thia Agreement shall be controlling .
Section 13.7 fl€YaraQili�Y• If any term, covenant, condition or
provision of this Agreement shall be invalid or unenforeeable, the �
remainder of Lhis Agreement shall not be affected thereby, and each
term, covenant, condition and provision shall be valid and De
anforced to the fullest extent permitted by law .
IN WITNESS WHEAEOF, the partiea hereto have executed or cauaed
this Agreement to be executed by their officera thereunto duly
authorizetl , all as of the day and year first above written .
CITY OF OSHKOSH OSHKOSH CENTPE HOTEL YENTUPE
BY'________________________________ HY '_�__________________________
NSlliam D .Frueh � City Manager
Antl :______'_'__________'_"__'_'___ BY '__'_____'__""'_________'___
Donna C . Serwas , City Clerk �
11
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