#1 Discussion/possible action on lease modifications with Wisconsin Hockey Partners LLC
CITY MANAGER DEPARTMENT MEMORANDUM
September 8, 2010
MEMO TO: City Council
MEMO FROM: Eric Levitt, City Manager
SUBJECT: Discussion / Possible Action on proposed lease modifications
with Wisconsin Hockey Partners LLC.
Introduction
The lease with the Wisconsin Hockey Partners LLC has been in effect for one
year. At this time there is a request for several minor lease modifications.
Proposed Lease Modifications
The proposed lease modifications include:
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The Jets requested a rental rate change as outlined in their memorandum.
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The Jets requested changes in insurance requirements as outlined.
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The proposed contract modification includes a 9% gross receipts revenue
from Jets income on food (non-alcohol) sales.
Background Information & City Manager recommendation
The first year of the agreement went smoothly overall. However, as with any
agreement there were certain issues that came up. The above minor
modifications should improve the agreement overall.
Some of the initial objectives of this agreement were to:
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Increase entertainment options in the downtown area.
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Assist in increasing business potential in the downtown by increasing
entertainment options.
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Increase or maintain stable cash flows in the ice rink.
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Create more regional visibility for Janesville.
I believe each of these objectives has had some success. The most focused on
objective politically has been the cash flows at the ice. The arrangement has
increased cash flows by adding ice use at times during the winter when it
traditionally has not been used and by bringing in some camp options during the
summer. However, I hope to still have increased use at off-peak times by the
Jets as we head into future years.
The other three objectives have appeared to have been successful during our
current economic times.
Memo to: Eric Levitt, City Manager, Janesville
From: Bill McCoshen, President, Janesville Jets
Date: August 16, 2010
Re: Proposed Lease modifications
Wisconsin Hockey Partners, LLC (d/b/a Janesville Jets) entered into a lease agreement with the City of
Janesville for use of the Janesville Ice Arena for purposes of operation the Janesville Jets of the North
American Hockey League (NAHL).
The original lease calls for an annual review of terms and conditions to determine if both parties are in
agreement on certain modifications. Here are the items the Janesville Jets would ask the Janesville City
Council to modify:
1.Liquor Sales
a.Item (D) on page 6 of the lease agreement outlines the terms and conditions under
which the Janesville Jets may sell alcohol. The City Council made one adjustment prior
to approving the liquor license shorten the time the Jets can sell beer and wine coolers
before a Jets game from (1) one hour to (15) fifteen minutes prior to each home game.
The Jets request that the original lease language be reinstated allowing us to sell beer
no sooner than (1) one hour before each home game.
b.The Council also approved an addition to our liquor license which allows the Jets to sell
beer at certain times during our tryout camps in Janesville. The Jets can sell beer from
6-10pm on Friday night and from 11:00am to 6:00pm on Saturday. The Jets request to
be allowed to sell beer until 9:00pm on Saturday during our tryouts camps.
2.Rental Rate
a.Item (A)(4) provides the Jets will some relief from rental payments to the City of
Janesville if certain attendance thresholds are not met. The current lease says “If
average attendance (total games divided by total attendance) falls below six hundred
(600) fans per game, the city agrees to waive the office rental fees. The Jets request
that the language be changed to say; “If paid attendance falls below five hundred
(500) fans per game, the city agrees to waive the office rental fees. Paid attendance
includes all walk-up ticket sales, season ticket sales, Jet Pack ticket sales, group sales
and sponsor season tickets. Paid attendance does not include Jets players or staff,
Jets or JYH volunteers, opposing team players or coaches, give-away tickets or game
night promotional tickets.
b.Item (A)(5) provides the Jets the ability to cancel the current contract if paid attendance
(total attendance divided by total games) falls below (500) fans per game. The Jets
request that the language be changed to say; “If paid attendance falls below four
hundred (400) fans per game the contract may be cancelled. Paid attendance includes
all walk-up ticket sales, season ticket sales, Jet Pack ticket sales, group sales, and
sponsor season tickets. Paid attendance does not include Jets players or staff. Jets or
JYH volunteers, opposing team players or coaches, give-away tickets or game night
promotional tickets.
3.Insurance
a.Item 13 (A) of the lease agreement requires the Jets to have comprehensive public
liability insurance policy for bodily injury or death in the minimum amount of Two
Million Dollars ($2,000,000) for one (1) person, one (1) occurrence, and Five Million
Dollars ($5,000,000) for two (2) or more persons on any one occurrence, and property
damage in the amount of Two Million ($2,000,000) per occurrence. The Jets would
request that comprehensive insurance coverage be modified to cover;
i.One Million Dollars ($1,000,000) for one (1) person, one (1) occurrence, and
ii. Three Million Dollars ($3,000,000) for two (2) or more persons on any one
occurrence, and property damage in the amount of ($1,000,000) per
occurrence.
LIMITED AND NON-EXCLUSIVE LEASE
AND
USE AGREEMENT BETWEEN THE
CITY OF JANESVILLE
AND
WISCONSIN HOCKEY PARTNERS, LLC
2009 – 2014
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Table of Contents
SUBJECT PAGE
PREAMBLE 1
1.DEFINITIONS 1
2. TERM 2
3.USE OF PREMISES 3
4.WHP RIGHTS 3
5.CITY RIGHTS 5
6.RENTAL RATES 6
7.ICE CENTER IMPROVEMENTS 7
8.STAFFING AND SERVICES 7
9.PARKING 7
10.SCHEDULING 7
11.ADVERTISING 8
12.BROADCASTING RIGHTS 8
13.INSURANCE 8
14.INDEMNIFICATION 9
15.CONTINGENCY 9
16.TERMINATION AND DEFAULT 10
17.ASSIGNMENT 10
18.ENTIRE AGREEMENT 10
19.BINDING EFFECT; CHOICE OF LAW 10
20.SEVERABILITY 11
21.AUTHORITY 11
22.NOTICE 11
23.NO THIRD PARTY RIGHT 12
24.ADDITIONAL OBLIGATIONS 12
EXHIBITS
14
A.MAP OF LEASED FACILITIES
15
B.MAP OF NON-LEASED FACILITIES
16
C.MAP OF PREMISES
17
D.ICE CENTER CAPITAL IMPROVEMENTS
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LIMITED AND NON-EXCLUSIVE LEASE AND USE AGREEMENT
BETWEEN THE CITY OF JANESVILLE
AND WISCONSIN HOCKEY PARTNERS, LLC
This Agreement is made by and between the City of Janesville, a Wisconsin Municipal
Corporation, hereinafter referred to as the “City” and Wisconsin Hockey Partners LLC, a
Wisconsin Limited Liability Company, hereinafter referred to as the “WHP.”
Whereas, the City conducts its principal business at 18 North Jackson Street, City of Janesville,
County of Rock, State of Wisconsin; and
Whereas, the City is the owner of certain real property and improvements herein known as the
Janesville Indoor Ice Center, located at 821 Beloit Avenue, Janesville, Wisconsin (Ice Center);
and
Whereas, the WHP intends to own and operate a Junior A Hockey Team and desires to use the
Janesville Ice Center as the team home rink, and lease and use portions of the Ice Center, from
time to time, for exclusive team activities, and
Whereas, the City and WHP desire that this Agreement shall set forth their full and complete
understanding to the terms and conditions under which WHP uses the Ice Center for the
purposes of playing home games, practice ice time, advertising, team operations, and conduct
of other related business and ice activities as set forth in this Agreement, and occupy
designated areas of the Ice Center for team operations on a year-round basis.
Now, Therefore, For And In Consideration of the use of the premises, the payments, the
mutual promises, and covenants herein contained, and other good and valuable consideration,
the receipt, sufficiency, and adequacy of which are expressly acknowledged, the City and WHP,
each intending to be legally bound, do hereby mutually agree and promise to each other as
follows:
1. DEFINITIONS
A. Ice Center: the term “Ice Center” shall mean the public building commonly referred
to as the Janesville Ice Center, located at 821 Beloit Avenue, Janesville, Wisconsin,
53545.
B.Hockey Game: the term “Hockey Game” shall mean all pre-season, regular season,
and post season games which are scheduled by the League or WHP.
C.Hockey Season: the term “Hockey Season” shall mean and include approximately
thirty (30) regular season home games as scheduled by the League and any
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additional all-star, pre-season, play-off, or post season games. The Hockey Season
will begin in September of each year and conclude in April of the following year. The
exact dates being flexible and dependent upon the League schedule and whether
WHP participates in any pre-season, postseason, or play-off games.
D.League: the term “League” shall mean and include the North American Hockey
League (NAHL), or any successor or substitute organization of hockey teams to
which WHP may hereafter belong or become affiliated.
E.Leased Facilities: the term “Leased Facilities” shall mean and include the following
areas of the Ice Center that are leased and provided to WHP for its exclusive use for
the purpose of operating their business and conducting activities related to the
operations of their team, as depicted in the attached Exhibit A to this Agreement.
1)WHP offices
2)WHP locker room, showers and restrooms
3)WHP equipment storage area
F. Non-Leased Facilities: the term “Non-Leased Facilities” shall mean those areas of
the premises which WHP may use and occupy for the conduct of WHP team
activities during practices, games, camps, and clinics but must be shared with the
City and other user groups. The following areas can hereby be used by WHP and are
depicted in the attached Exhibit B to this Agreement.
1)Ice Sheet
2)Visitor Locker Rooms
3)Game Officials Room
4)Space to sell beer and team merchandise, novelties, souvenirs, programs and
publications
5)Lobby and ticket area
6)Public Restrooms
7)Bleachers
8)Parking Lot
9)All other Premises areas and improvements of the Ice Center not specifically
enumerated in Section 1. E., above.
G.Team Merchandise and Novelties: the term “Team Merchandise and Novelties”
shall mean any and all articles of clothing as well as items such as pennants, posters,
buttons, pens, mugs, etc. which bear the name, logos and/or colors of the team
owned by WHP and/or the name of the NAHL.
H.Premises: the term “Premises” shall include the Ice Center, parking lot, and grounds
as depicted in Exhibit C to this Agreement.
2. TERM
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A.The initial term of the Agreement shall be for 62 months commencing on April 1,
2009 and concluding on May 31, 2014.
B.This Agreement may be extended for an additional and renewable five (5) year
terms beyond the initial term, upon the mutual agreement of the City and WHP.
C.If WHP decides to extend this Agreement beyond the initial and/or subsequent
renewable term, WHP shall submit in writing to the City Clerk such request at least
ninety (90) days prior to the expiration of the initial term and any subsequent
renewable term. The term of this Agreement shall be the initial term, together with
any renewable terms as exercised by WHP.
3.USE OF THE PREMISES
A.The City hereby leases and grants to WHP the exclusive areas of the “leased
facilities” as enumerated in Section 1. E. and depicted in Exhibit A of this Agreement
for the purpose of conducting scheduled practice ice, games, camps, and clinics on a
year-round basis during the term of this Agreement and any renewals hereof.
B.The City hereby agrees to allow WHP to use the “non-leased facilities” as
enumerated in Section 1. F. and depicted in Exhibit B of this Agreement during the
conduct of scheduled practice ice, games, camps, and clinics on a year-round basis
during the term of this Agreement, such use by WHP is non-exclusive.
C.The City will provide WHP with a building key to the Ice Center.
4.WHP RIGHTS
A.The City grants WHP the right to be the exclusive Junior A hockey team at the Ice
Center that uses the Ice Center as its home rink. The City agrees that WHP shall
have first right to schedule and purchase from the City ice time for practice, games,
camps, clinics, and tournaments at the Ice Center provided that the dates and times
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are selected by April 1 for the months of June through September and are selected
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by July 1 for the months of October through May with the exception of playoffs.
The WHP will meet with other user groups at the rink to identify any conflict dates
prior to finalizing schedule.
B.The City grants WHP the exclusive right to sell and keep all revenue from the sales of
admission tickets, team merchandise, and novelties as defined in Section 1. G.
C.The City grants WHP the exclusive right to sell and keep all revenue from the sale of
advertising space on designated areas inside the Ice Center as set forth in Section 11
of this Agreement. The City and WHP shall mutually agree on the location(s), size,
colors, materials and content for said advertising. WHP shall also have the right to
sell and retain revenue from any advertising sales on WHP printed material such as
programs, yearbooks, publications and scorebooks.
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D.The City grants WHP the privilege to sell and keep all revenue from the sales of
alcoholic beverages allowed in a Class B license during scheduled hockey games (pre-
season, regular season, and post season), play-offs, tournaments and tryout camps.
Alcohol sales may begin one (1) hour before game time and shall conclude five
minutes after the beginning of the third period of said game. Alcohol may only be
dispensed, served and consumed inside the Ice Center. The sales and consumption
of alcohol outside the Ice Center upon public property is prohibited at all times, and
shall only occur if approved by the Alcohol Licensing and Advisory Committee and
the Janesville Common Council in the manner authorized by law for special event
temporary beer and wine only permits.
1)WHP shall apply to the City for an annual Class B alcohol license to sell beer at
the Janesville Ice Center. Such entity shall apply for such alcohol license in a
normal and customary manner required of all alcohol license applicants. WHP
agrees to apply for an alcohol license within thirty (30) days of the Janesville
Common Council approving this use agreement. WHP must comply with all
applicant qualifications and other alcohol law requirements.
2)No alcohol license or permit issued by the City to WHP shall be transferable.
3)WHP shall, at all times, comply with all Federal, State, and local laws governing
alcohol beverages and their sale and consumption. WHP’s appointment of an
alcohol license agent shall be a resident of the City of Janesville.
4)Since the issuance of such alcohol beverage license is discretionary, by entering
into this Agreement, the City in no manner guarantees, warrants, or represents
that WHP or anyone on WHP’s behalf shall be granted or issued any alcohol
beverage license or permit by the City.
5)Upon expiration or termination of this Agreement, or the expiration of the
alcohol beverage license year, whichever occurs first, in the event that WHP is no
longer operating at the Ice Center, WHP’s alcohol beverage license shall
forthwith terminate, be relinquished, and surrendered back to the City, and
cease to be of any further force or effect.
6)The City acknowledges the right of WHP to apply for two (2) outdoor special
event alcohol activities that include food and alcoholic beverages each Hockey
Season that would occur at the Ice Center facility or in the parking area in a
designated area. If the event impacts the rink use, ice time would be paid for.
WHP shall be responsible for obtaining all permits, licenses, and insurance
related to such events, and to comply with all applicable laws and regulations.
7)Recognizing that the grant of any alcohol license or permit is discretionary,
notwithstanding any other provision of this Agreement to the contrary, the
failure or refusal of the City, the governing body, or any of its elected or
appointed boards or committees to recommend or grant any fermented malt
beverage or intoxicating liquor alcohol beverage license or permit to WHP or any
other person on WHP’s behalf shall make this Agreement voidable.
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8)The Janesville Youth Hockey Association (JYHA) will be responsible for general
food and beverage operations (non-alcoholic beverages) during WHP games
consistent with current food and non-alcoholic beverage operations. JYHA
concession contract provides for exclusivity for food and non-alcoholic beverage
sales. WHP will have the right to negotiate with JYHA on any joint or separate
concession sales. WHP shall have the right to sell food and non-alcoholic
beverage product lines not in competition with JYHA. The City will receive 9% of
gross receipts earned by the WHP consistent with the JYHA contract. JYHA must
provide reasonable and consistent customer service to the satisfaction of WHP
and the City. If the WHP or the City receives customer complaints about
inadequate concession services, the WHP, the City and the JYHA agree to meet in
a timely fashion to address customer concerns. The WHP, the City and the JYHA
further agree to renegotiate, if necessary, the terms and conditions of the
concession contract between the City and JYHA.
9)Alcoholic beverages may not be co-located in the general concession.
E.WHP has the right to install a team logo under the ice as is currently the practice
with other Ice Center user groups. WHP shall provide the City with said decal logo in
a size consistent with other Ice Center team/club logos and the City will install at no
cost to WHP.
F.WHP shall pay the City for all home ice time used by WHP at the Ice Center for any
reason.
G.The City agrees to list home game dates and times on the Ice Center marquis.
Portable or temporary signs/banners to promote WHP events on the Ice Center
grounds must be in compliance with the City sign ordinance. WHP will be
responsible for the application of temporary signs and banners and pay all
associated fees.
5.CITY RIGHTS
A.The City has the right to undertake repairs, maintenance projects, and capital
projects from time to time and at any time, at such times, places and duration that
the City or City Manager decide is/are in the best interest of the City. Before making
any such improvements, the City will meet with a representative from WHP to
discuss the effect of such undertaking upon WHP’s use of the Ice Center, and shall
consider any reasonable input and requests by WHP. WHP will make itself
reasonably available for such discussions. In the event the City Manager determines
that the City’s improvement undertaking might substantially affect WHP’s operation
at the Ice Center or performance under this Agreement, the City and WHP shall
negotiate what, if any modifications of the Agreement, premises, rent, or operations
may be necessary as a result of such capital improvement(s). The exception to the
above is when the City must undertake emergency repairs to the Ice Center or any
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components of its infrastructure. If no prior agreement is reached, the City may
undertake the actions without notice.
B.The parties expressly understand and hereby acknowledge that WHP shall not be
relieved of any of its obligations under this Agreement, nor shall the City be liable to
WHP for any interruptions of any part, portion, or whole of WHP’s operation under
this Agreement that may directly or indirectly arise or result from the City’s
undertaking of any capital improvement(s) to the Ice Center or premises or
undertaking emergency repairs. The City shall not be liable to WHP or any other
person for any lost revenues, costs, or any other direct or consequential damage(s).
C.The City has the right and responsibility to make emergency repairs to the Ice Center
mechanical systems to preclude any unnecessary closures of this facility. The City
will notify WHP as soon as reasonably possible of any potential mechanical problems
which could require cancelling WHP games. If WHP home hockey games need to be
cancelled due to mechanical failures, WHP will be responsible for cancelling,
rescheduling or finding a different venue for their game(s). WHP will pay for all
costs associated with relocating any cancelled home games to a different venue.
The City will have no financial obligations to WHP for WHP costs associated with
relocating home hockey games. WHP will have no financial obligations to the City
for cancelled game ice time.
D.The City has the unobstructed right to access the “leased facilities” of WHP at any
time, without advance notice, for the purpose of conducting custodial services,
6.RENTAL RATES
A.WHP hereby agrees to and shall pay to the City the following off-peak rental rates
for ice time and facility use beginning in 2009. The City will invoice WHP in a
customary manner on a monthly basis.
1)Four Hundred Forty Dollars ($440) for each exhibition, pre-season, regular
season, play-off, or tournament hockey game at the Ice Center for up to 3 ½
hours. The WHP agrees to provide not-for-profit charities a minimum of 10
tickets per game.
2)Sixty Dollars ($60) per hour for WHP practice ice time.
3)One Hundred Dollars ($100) per hour for ice time designated for WHP camps,
clinics, and try-outs events.
4)WHP agrees to pay a monthly rental fee of Three Hundred Fifty Dollars ($350)
for the exclusive use of non-ice facilities, to include the office, locker room area
(to include restroom and showers), and storage space. If the average paid
attendance (total games played divided by total attendance) falls below six
hundred (600) five hundred (500) fans per game, the City agrees to waive the
office rental fees. Paid attendance incudes all walkup ticket sales, season ticket
sales, Jet Pack ticket sales, group sales and sponsor season tickets. Paid
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attendance does not include give-away tickets or game night promotional tickets
or JYH volunteers.
5)If the average paid attendance (total games played divided by total attendance)
falls below five hundred (500) four-hundred (400) fans per game, the contract
may be cancelled. Paid attendance incudes all walkup ticket sales, season ticket
sales, Jet Pack ticket sales, group sales and sponsor season tickets. Paid
attendance does not include give-away tickets or game night promotional tickets
or JYH volunteers.
B.The City and WHP mutually agree to review the ice time rental rates and make
adjustments, as necessary, on an annual basis. Any rental rate adjustments will
become effective for a twelve (12) month period from September 1 to August 31.
The rental rates enumerated in Section 6. A. are effective from the date this
Agreement is executed until August 31, 2010. The City and WHP mutually agree
that any change to the rental rates shall not increase more than the All Urban
Consumer Price Index (AUCPI).
C.The rental rates may also be reviewed and adjusted on an annual basis during any
subsequent renewal term.
7.ICE CENTER IMPROVEMENTS
A.The City shall, at its expense, perform or cause to be performed the work identified
on the attached Exhibit D, “Ice Center Capital Improvements.”
8.STAFFING AND SERVICES
A.The City shall furnish uniformed security staff at each hockey game. WHP agrees to
pay 100% of said costs for uniformed security staff for a minimum of two (2) security
personnel per event.
B.The City shall provide the following services in connection with the Ice Center and
WHP’s use of the premises:
1)Ice surface in good and suitable condition for the conduct of ice hockey.
2)Boards in good and suitable condition for the conduct of ice hockey.
3)Proper ice markings for lines and face-off circles.
4)Utility services, including but not limited to, electricity, heat, water, sewer and
air conditioning.
5)Custodial and maintenance services for the Ice Center and premises.
6)Zamboni services for the Ice Center.
7)General maintenance to the building, grounds, and appurtenances.
8)Snow and ice removal for sidewalks around the building and parking lot.
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9.PARKING
A.All parking spaces available at the Ice Center will be dedicated for the use of WHP
for any hockey game one (1) hours prior to game time and one (1) hour after a
hockey game.
B.WHP may designate a maximum of four (4) reserved parking stalls for WHP use
during the term of this Agreement. The City and WHP shall mutually agree on the
location of said WHP reserved parking stalls.
10. SCHEDULING
A. WHP is the primary tenant of the Ice Center and shall have first right to schedule ice
time and dates in the Ice Center.
B.Ice time for each hockey game shall not exceed four (4) hours and shall be
approximately from 6:00 pm to 10:00 pm.
C.Practice ice time shall be made available to WHP Monday through Friday for two (2)
hours per day and shall be approximately 1:30 pm to 3:30 pm.
D.WHP shall submit their season schedule of practice hours and home game dates and
times in writing to the City by July 1 of each year.
E.WHP’s Head Coach or his designee shall be authorized to schedule or reschedule ice
time for the team.
F.Ice time shall be made available during the months of June, July, and August for
WHP camps, clinics, and other WHP sponsored hockey events. WHP will submit in
writing to the City their summer schedule of ice usage by April 1 of each year. The
dates and times for these events shall be mutually agreed upon by the City and
WHP.
11.ADVERTISING
A.The City authorizes WHP to sell and display advertising in selected areas of the Ice
Center subject to the City’s final approval of content. WHP shall retain all revenues
derived from advertising sales. WHP is responsible for all costs of advertising
installation, display, repair, and removal. WHP shall remove all WHP sold
advertising with forty-eight (48) hours of the Agreement termination or expiration.
Approved areas for advertising include:
1)Dasher boards (both sides)
2)Under-ice logos
3)Zamboni
4)Interior walls of rink
5)Restroom walls
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6)Back-lit signs
B.Additional areas for advertising may be negotiated by the City and WHP on a case by
case basis.
C.WHP shall assume all costs associated with the production, implementation,
maintenance, and removal of all advertising signage.
D.The City agrees to advertise each WHP event in and on any selected advertising
medium controlled by the Ice Center, when space and funding permits, including a
calendar of events, marquee, etc.
12.BROADCASTING RIGHTS
A.WHP shall have the exclusive rights to broadcast, televise, and cablecast all events
which may be scheduled, promoted, and held by the WHP at the Ice Center during
the term of this Agreement and shall retain all revenues which may be generated
thereby.
B.The City shall not impose any fees on WHP for radio or television broadcasts
originating from the Ice Center.
13.INSURANCE
A.WHP shall secure at its own expense, and at all times maintain, and provide to the
City a certificate of insurance naming the City and each and every of the City’s
elected and appointed officials, officers, employees, and appointees, as an
additional insured and obtaining comprehensive public liability insurance policy for
bodily injury or death in the minimum amount of Two Million Dollars ($2,000,000)
One Million Dollars ($1,000,000) for one (1) person, one (1) occurrence, and Five
Million Dollars ($5,000,000) Three Million Dollars ($3,000,000) for two (2) or more
persons on any one occurrence, and property damage in the amount of Two Million
Dollars ($2,000,000) One Million Dollars ($1,000,000) per occurrence.
B.WHP shall secure, at its own expense and at all times maintain, Worker’s
Compensation Insurance covering the statutory liability of WHP and its employees in
the operation of a Junior A Hockey Team at the Janesville Ice Center as required by
the State of Wisconsin.
C.WHP agrees to provide liability and health insurance coverage for all team players
through the NAHL.
D.WHP shall also secure at its own expense and at all times maintain an umbrella
liability policy, with provisions insuring all property maintained at the Ice Center and
in the care, custody, and control of WHP including, but not limited to, any and all
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WHP, and separately, any and all City materials, uniforms, equipment, supplies,
merchandise, and products. Said policy shall name the City as co-insured.
E.WHP shall endorse coverage providing the City with a thirty (30) day prior notice of
policy change, termination, cancellation.
14.INDEMNIFICATION
A.WHP hereby agrees to and shall fully and forever indemnify, save, and hold harmless
the City and each and every of the City’s elected and appointed officials, officers,
employees, representatives, agents, and related others and their heirs and assigns
(indemnified parties) from any and all liability, damages, payments, awards, suits,
forfeitures, claims, demands, actions, causes of action, and other amounts of
whatsoever kind or nature arising from and/or pertaining to WHP’s intentional or
negligent use of the Ice Center or premises by anyone authorized by WHP directly or
indirectly upon and/or affecting the premises.
B.The City hereby agrees to and shall fully and forever indemnify, save and hold
harmless WHP and each and every of WHP’s partners, employees, agents, and other
affiliates (indemnified parties), from any and all liability, damages, payments,
awards, suits, forfeitures, claims, demands, actions, causes of action, and other
amounts of whatsoever kind or nature arising from and/or pertaining to the City’s
use of the Ice Center or premises.
15.CONTINGENCY
A.This Agreement is contingent upon WHP receiving approval from the League for its
hockey franchise and maintaining its hockey franchise. If WHP does not receive
approval from the League for its franchise or the League terminates the franchise in
the future, then at any time prior to or during the term of this Agreement, WHP may
terminate this Agreement and this Agreement shall no longer have any force or
effect.
B.This Agreement is contingent upon approval by the Janesville Common Council.
16.TERMINATION AND DEFAULT
A.Either party shall be entitled to unilaterally terminate this Agreement if the other
party is in default under this Agreement and fails to cure such default within thirty
(30) days after written notice of default has been given to the defaulting party,
provided that this remedy of termination shall be in addition to any and other
remedies provided by law or under this Agreement. All rights and remedies are
cumulative and not exclusive.
B.WHP may terminate this Agreement at any time in the event of any damage or
destruction of any portion of the Ice Center entirely that prohibits WHP’s use of the
Ice Center.
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C.If the average attendance (total games played divided by total attendance) falls
below five hundred (500) fans per game, the WHP may terminate this Agreement
upon giving sixty (60) days written notice to the City at the conclusion of the hockey
season.
D.If the bids for improvements necessary to meet the needs of the team exceed
$200,000, the City may terminate this Agreement upon sixty (60) days written notice
to the WHP.
17.ASSIGNMENT
A.This Agreement, the rights, privileges, duties, and obligations of the parties
hereunder may not be assigned, delegated, or pledged to another party without the
prior written consent of the City.
B.WHP may not sublet or sublease the “leased facilities”, Ice Center, or premises in
whole or in part.
18.ENTIRE AGREEMENT
A.This Agreement constitutes the entire Agreement between the parties hereto with
respect to the subject matter herein contained. Except with regards to the future
scheduling provided in Section 10, there are no agreements or understandings
between the parties hereto, whether oral or written, regarding the subject matter
hereof, which have not been embodied or incorporated herein by reference.
19.BINDING EFFECT; CHOICE OF LAW
A.This Agreement shall bind the parties, their heirs, personal representatives,
successors, and assigns. This Agreement shall be governed by, construed, and
interpreted in accordance with the laws of the State of Wisconsin.
B.WHP shall, at all times, comply with any and all applicable rules, regulations, laws,
codes, ordinances, statutes, orders of each and every governmental authority,
Federal, State, and local, lawfully exercising authority over the Ice Center, premises,
or over the operations carried out thereon by WHP.
C.Each provision of this Agreement shall extend to and shall, as the case might
require, bind and inure to the benefit of the parties hereto. This Agreement shall
not inure to the benefit of any assignee, transferee, or successor of WHP, or to any
third party, except upon the express duly authorized, written, and signed consent of
the City, which consent may be withheld for any reason and without cause or notice.
20.SEVERABILITY
A.It is the intent of the parties hereto that each section, part, portion, provision,
covenant, term, and obligation of this Agreement is severable. If any part is held
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unlawful, unenforceable, or unconstitutional for any reason, such decision shall not
affect or waive the remainder of this Agreement nor any of the remaining
obligations of the parties hereto.
21.AUTHORITY
A.Each person executing this Agreement on behalf of the parties represents and
warrants that he or she is duly authorized to execute and deliver this Agreement on
behalf of such party, and that this Agreement is binding upon that party in
accordance with its terms.
22.NOTICE
A.Any and all notices required or permitted to be given hereunder shall be deemed
delivered when actually received, if delivered personally, or when mailed, if
deposited with the U.S. Postal Service, first class prepaid, certified or registered mail,
return receipt requested, and addressed as follows:
If to WHP: William J. McCoshen
22 North Carroll Street
Suite 200
Madison, WI 53703
If to the Ice Center: Cullen Slapak
Ice Center Manager
820 Beloit Avenue
Janesville, WI 53545
If to the City: Eric Levitt
City Manager
P. O. Box 5005
18 No. Jackson Street
Janesville, WI 53547-5005
23.NO THIRD PARTY RIGHT
A.This Agreement creates no duty, obligation, or responsibility on the City and extends
no rights, privileges, causes of action, or claims to or in any third persons not a party
to this Agreement.
24.ADDITIONAL OBLIGATIONS
A.WHP shall pay all sales, use, and other taxes, license fees, and permit fees necessary
or required or arising from, by law, for the conduct of its operation in the Ice Center
or upon the premises.
B.WHP shall apply for, pay, and at all times maintain in good standing a current
Wisconsin Retail Sales and Use Tax Number, as required, now and from time to time,
by State Law and/or the Wisconsin Department of Revenue.
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C.WHP and its officers, directors, owners, employees, agents, representatives, and
team members shall, at all times, treat the general public, City staff, governmental
officials, and contractors with the upmost of courtesy, respect, and consideration.
D.The performance of each and every of a party’s obligations set forth in this
Agreement shall be solely at such parties cost and expense, and at no cost, fee, or
expense whatsoever to the other party, unless a particular section or provision of
this Agreement specifically provides otherwise, in which event the other party’s
cost, fee or expense, shall not exceed that provided in such specific section or
provision.
E.WHP shall remain in good standing with the State of Wisconsin at all times.
F.In the event that WHP fails to pay any ice time fee(s) to the City within sixty (60)
days of when originally due, the City may sell to others and/or use that ice time at its
discretion, and no longer reserve or hold that ice time for WHP or anyone on WHP’s
behalf.
G.Time is of the essence in the performance of every obligation set forth in this
Agreement.
H.This Agreement may be modified or amended by the parties hereto at any time by
mutual agreement in a writing signed by both parties. No modification,
amendment, waiver or release of any provisions of this Agreement or of any right,
obligation, claim, or cause of action arising hereunder shall be valid or binding for
any purpose unless in writing, duly authorized and executed by both parties.
I.No part, portion, provision, promise, paragraph, obligation, section, or term set forth
in this Agreement shall be deemed waived by reason of one party failing to enforce
such breach at any time or from time to time. Any such waiver must be in writing.
Dated and executed this ___ day of ___________, 2010.
City of Janesville: Wisconsin Hockey Partners, LLC:
___________________________ ___________________________
By: Eric Levitt By: William J. McCoshen
City Manager Managing Partner
City of Janesville WHP
___________________________ ______________________________
By: Jean A. Wulf By: Mark A. Cullen
City Clerk/Treasurer Member
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City of Janesville WHP
Approved as to form:
___________________________
Waldemar Klimczyk
City Attorney
EXHIBIT A
Map of Leased Facilities
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EXHIBIT B
Map of Non-Leased Facilities
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EXHIBIT C
Map of Premises
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EXHIBIT D
Ice Center Capital Improvements
The City agrees to make capital renovation improvements to the existing footprint of the Ice
Center to accommodate the WHP. The City agrees to make these improvements at the City’s
cost. A summary of these improvements include:
1.Build a ___ square foot locker room to include showers and restrooms
2.Build a ___ square foot office
3.Build a ___ square foot storage area for equipment and supplies
4.Provide ___ square feet of common space to sell beer and team merchandise
5.Provide ___ square feet of common space to sell admission tickets
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