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HomeMy WebLinkAboutOshkosh Convention & Visitors Bureau Tourism Services1-3Z,)g AGREEMENT FOR TOURISM SERVICES WHEREAS, the City of Oshkosh previously established a convention and visitors bureau, pursuant to Section 8-1.1(2) of the Oshkosh Municipal Code, for the purposes of promoting convention and tourism business in the City; and WHEREAS, the Oshkosh Convention & Visitors Bureau, Inc. was formed as a not-for-profit, private corporation, to perform the functions of a tourism entity, pursuant to Section 66.0615(1m)(b)1., Wis. Stats.; and WHEREAS, the City of Oshkosh and the Oshkosh Convention & Visitors Bureau, Inc. have previously entered into Agreements for Tourism Services beginning in May 1, 1996 and continuing through the present date; and WHEREAS, it is necessary to renew the existing Agreement for Tourism Services; and WHEREAS, the City of Oshkosh and the Oshkosh Convention & Visitors Bureau, Inc. have agreed that the Oshkosh Convention & Visitors Bureau, Inc. will continue to function as the designated tourism entity, pursuant to Section 66.0615(1m)(b)1., Wis. Stats. and the designated direct marketing organization for tourism promotion; and WHEREAS, the Common Council of the City of Oshkosh previously created a convention center utility for the purpose of financing the construction of the Oshkosh Convention Center and appurtenant facilities and has previously entered into agreements for management services for the Oshkosh Convention Center and with the Oshkosh Opera House Foundation for the leasing of those premises which are funded in part through Room Tax revenue; and WHEREAS, the City of Oshkosh and the Oshkosh Area Community Foundation, Inc., entered into a Funding Agreement supporting the renovation of the Oshkosh Convention Center dated September 19, 2007 under which the Foundation made a loan to City of one million dollars ($1,000,000.00) to be used for the renovation of the Oshkosh Convention Center; and WHEREAS, the Original Funding Agreement for the Convention Center renovations provided for the repayment of the loan in the amount of one million two hundred fifty thousand and no/100 dollars ($1,250,000.00) (the Loan Repayment Amount) through revenue generated from the continued operation of the Center and the parties have renegotiated the repayment terms to provide for additional payments on this loan; and 1 WHEREAS, the Bureau has also voluntarily begun to make payments to assist in the repayment of this loan to the Foundation and wishes to memorialize these payments within this Agreement; and WHEREAS, the current agreement between the City and the Bureau terminated in May 2017 but was continued by both parties to allow for the employment of a new Executive Director for the Bureau; and WHEREAS, it is necessary to renew and amend the current agreement to provide for the payments to the Oshkosh Area Community Foundation for Convention Center debt and to update other language within the prior agreement; WHEREAS, the parties intend that the foregoing provisions are contractual in nature and are not to be construed as mere recitals to this Agreement; NOW, THEREFORE, IT IS AGREED by and between the City of Oshkosh, a Wisconsin municipality with its principal offices located at 215 Church Avenue, Oshkosh, Winnebago County, Wisconsin 54901 ("City") and the Oshkosh Convention & Visitors Bureau, Inc., Wisconsin, not-for-profit private corporation, with its principal offices located at 100 North Main Street, Suite 112, Oshkosh, Winnebago County, Wisconsin 54901 (the 'Bureau"), as follows: 1. DESIGNATION. The City hereby designates the Bureau as its "tourism entity", pursuant to Section 66.0615 of the Wisconsin Statutes. 2. PURPOSE. The Bureau shall promote convention, tourism and visitor business for the City of Oshkosh, shall provide "tourism" services to and for the City of Oshkosh as that term is defined in Sec. 66.0615(1)(e), Wis. Stats., and shall operate a tourism promotional program for the City. 3. TERM. The term of this Agreement is five (5) years, first commencing on May 1, 2018 and ending April 30, 2023, unless sooner terminated as hereinafter provided. 2 The Bureau 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 Bureau 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. 4. EARLY TERMINATION. Either party shall have the right to terminate this Agreement without cause upon six (6) months prior written notice to the other party. In the event the party has good cause for termination, it shall give written notice thereof to the other party who shall have fifteen (15) calendar days from receipt of said notice to correct the deficiency described in said notice. Notice of termination shall be in writing and delivered to the other party. In the event the party receiving the notice fails to take such actions as may be reasonably necessary to cure the deficiency within fifteen (15) days from the receipt of said notice or fails to diligently pursue said actions thereafter, the party giving the notice shall have the right to terminate this Agreement. For purposes of this Agreement "Good Cause" shall mean: (i) any intentional act of fraud, theft, misappropriation or any other material violation of law relating to the performance of duties under this Agreement; (ii) breach of any material provision of this Agreement; (iii) the willful or continued failure to substantially perform the obligations of this Agreement; or (iv) conduct that is demonstrably and materially injurious to the promotion of tourism in the City of Oshkosh, monetarily or otherwise. 5. COMPENSATION. The City shall be solely responsible for the collection of all Room Tax as permitted by Section 66.0615 of the Wisconsin Statutes. The City shall pay to the Bureau on a monthly basis that portion of the Room Tax designated under Oshkosh Municipal Code Sec. 8-1.1(B)(1); provided however, the City shall have the right to adjust the Bureau's share of the Room Tax collections based upon the obligation of the City to pay the operating costs of the Oshkosh Convention Center and any projected shortfall in debt payment for the Oshkosh Convention Center. Nothing contained in this Agreement is intended to prohibit the Bureau from seeking additional funding from sources other than the City. 6. BUREAU PAYMENT FOR BENEFIT OF CONVENTION CENTER. The Bureau shall pay twenty-five thousand dollars ($25,000.00) annually to the Oshkosh Area Community Foundation on or before December 31" each year toward repayment of the above -referenced loan from the Foundation for the 2007 renovation to the Oshkosh Convention Center. It is the intention of the parties that this provision shall be continued in any renewal terms of this Agreement until the 2007 loan is repaid in full. 7. REPORTS AND AUDITS. The Bureau shall, upon request, provide written monthly reports to the City Director of Finance of its activities performed under the terms of this Agreement. The reports shall include an accounting of the Bureau's 3 income and expenses in a manner and form agreeable to the parties as approved by the Director of Finance. In addition, the Bureau shall provide to the City an annual report of the Bureau's activities for the previous year and an annual audit, consistent with acceptable accounting practices, of its finances, to be delivered within thirty (30) days after they are received by the Bureau. 8. LOGOS AND INSIGNIAS. The City of Oshkosh shall retain full ownership, and full use rights, of any logo, slogan or insignia, such as the "Oshkosh on the Water" Insignia. Notwithstanding the foregoing, the Bureau shall have a non-exclusive license to use such indicia in the ordinary course of its activities on such terms and conditions as the parties may agree. The Bureau shall retain full ownership, and full use rights, of the "Oshkosh Wisconsin's Event City" logo and related slogans or insignia. Notwithstanding the foregoing, the Bureau hereby grants the City a non-exclusive license to use such indicia in the ordinary course of its activities on such terms and conditions as the parties may agree. 9. INSURANCE. The Bureau shall maintain all insurance coverage, such as general liability, worker's and unemployment compensation, directors and officials, fire and extended, necessary to carry out its duties under this Agreement. Copies of the current policies shall be provided upon written request. 10. 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 Bureau, 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. 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. The Bureau agrees to indemnify and hold harmless the City including its council members, committee and board members, directors, officers, employees, agents, shareholders, insurers, successors and assigns, from and against any and all claims, .19 demands, penalties, fines, causes of action, liabilities, settlements, damages, costs and expenses, including without limitation, attorneys' and consultants' fees, investigation fees, court costs and litigation expenses, and other costs of defense, known or unknown, contingent or otherwise, arising out of or in any way related to the negligence or intentional acts of any employee or agent of the Bureau where such liability is founded upon or grows out of the acts or omission of any of the Bureau's officers, employees, volunteers or agents while acting within the scope of their employment, including, but not limited to liability for: A. Any personal injury or bodily injury (including wrongful death) or property damage (real or personal); B. Any lawsuit brought or threatened, settlement reached, or local, state or federal government or agency order, including, but not limited to claims costs, liabilities, or expenses, arising under federal, state or local law; C. Any violation of laws, orders, regulations, requirements or demands of any governmental authorities; and D. Any breach or violation of any contractual provision of whatever kind with any third party. 11. DISPUTES AND RESOLUTION. This Agreement shall be construed pursuant to Wisconsin law. 12. NATURE OF RELATIONSHIP. The Bureau shall be deemed an independent contractor and shall not indicate or imply that the City has any supervisory control over the Bureau except as outlined in this Agreement. Nothing in this Agreement shall constitute or be construed to be or create a partnership or joint venture among the parties. 13. MEETINGS AND RECORDS POLICY. The Bureau shall conduct its meetings and allow public access to its records as required by the Policy Statement attached as Exhibit 1 of this Agreement. The policies set forth in the Policy Statement may be amended or modified, from time -to -time, by mutual agreement of the City and the Bureau. 14. NOTICES. Except as otherwise provided for in this Agreement, all notices shall be in writing and shall be effective when delivered in person to the other party or if delivered by first class mail, the next business day after the postmark thereof. Notices shall be delivered as follows: To the City: To the Bureau: City of Oshkosh Director, Oshkosh Convention ATTN: City Manager & Visitors Bureau 215 Church Avenue Oshkosh, WI 54901 100 North Main Street, Suite 112 Oshkosh, WI 54901 15. MISCELLANEOUS. This Agreement may not be assigned without the express written consent of the other party, such consent shall not be unreasonably withheld. Notwithstanding any provision to the contrary, none of the obligations or benefits contained within this Agreement shall run to or be enforceable by any party other than the parties to this Agreement. This Agreement constitutes all of the agreements and understandings of whatever nature or kind existing between the parties, and shall not be changed or modified except in writing and signed by the duly authorized agents of the parties. If any provision shall become invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each remaining provision shall be valid and enforced to the fullest extent permitted by law. (Signature Page follows) 2 Dated at Oshkosh, Wisconsin, this CITY OF OSHKOSH Mark , . Rohloff, City anager Pamela R. Ubrig, City Clerk APPROVED AS TO FUNDING: jrwja, , Trena Larson, Finance Director APP OVED AS TO F RM: QJ' A A- Dj"�' iLb, A Lorenson, orney day of May, 2018. OSHKOSH CONVENTION AND VISITORS BUREAU, INC. Board Chairperson, 7 Policy on Open Meetings The Oshkosh Area Convention and Visitors' Board is committed to the policy of open meetings, except under limited and specific circumstances. It believes that information about the activities of the Bureau and the decisions of the Board should be available to the public. The circumstances where the Board believes that it may not be able to conduct open meetings are (1) personnel matters, and (2) issues related to complaints by specific private groups against private businesses. In these circumstances, rights of privacy, risks of liability, and issues of proprietary information may outweigh the benefit of full public disclosure. Exhibit 1