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HomeMy WebLinkAboutScott Johnson/Menominee Prk Food/Food & Bev AGREEMENT FOR MENOMINEE PARK FOOD/BEVERAGE CONCESSION THIS AGREEMENT, made and entered into this 22nd day of May , 1987 , by and between Scott Johnson , P. 0. Box 3322 , Oshkosh, Wisconsin, party of the first part , hereinafter called "Concession- aire" , and the City of Oshkosh, a municipal corporation located in Winnebago County , Wisconsin, hereinafter referred to as "City", party of the second part , WITNESSETH: WHEREAS, the Common Council of the City of Oshkosh, by resolu- tion duly adopted on the 21st day of May , 1987 , accepted the bid of the first party , Scott Johnson , and authorized and directed the proper City officials to enter into an appropriate agreement with the party of the first part for a food/beverage concession at the "Express Station", in the City of Oshkosh in return for the City receiving seventeen percent ( 17%) of the gross sales from the food- /beverage concession at Menominee Park and forty-one percent (41%) of the gross sales from soda beverage vending sales during the 1987 season , NOW, THEREFORE, pursuant to said resolution of the Common Council of the City of Oshkosh , the parties agree as follows : 1 . That Exhibit A, attached hereto and including seven (7) pages , is incorporated herein by reference as though set forth fully herein , and is a part of this agreement , and that all the provisions of the attachment , including all paragraphs up to and including 31 are specifically agreed to by each party . 2. That Scott Johnson, in addition to the indemnifications and guarantees contained in Exhibit A attached hereto , specifically 1 agrees to indemnify and forever save and keep harmless the City of Oshkosh and the individual employees thereof and their agents , from and against any damages , penalties , fines , judgments, expenses , and charges , imposed , assessed , or incurred in any way, or for any violation or for any breach of law, ordinance , rules , order or regulation occasioned by any act, neglect or omission of the Concessionaire , relative of the Concessionaire, or of any employee of the Concessionaire . 3. That Scott Johnson agrees that should the City or any of its representatives or agents deem any conduct on the part of the Concessionaire , Concessionaire's relatives , or of any person employed by the Concessionaire or any agent of the Concessionaire, to be objectionable or improper, the City , at its sole discretion or at the sole discretion of any of its representatives or agents , shall have the right and power, and the City is hereby authorized and it is agreed to by the Concessionaire , to at once declare the concession agreement to be terminated without notice , previous or otherwise , to the Concessionaire , and the Concessionaire agrees to reimburse the City for any damages whatever resulting from such objectionable or improper conduct; and that the determination of what is objectionable or improper conduct shall be made solely by the City , its represenatives or agents . 4. That Scott Johnson agrees that he is solely responsible for his onsite personal property, materials , merchandise , foodstuffs, and liquids; that Scott Johnson agrees that he is solely responsible for payment and any other obligations to any person, partnership , corporation, or other entity from whom or which he purchases or 2 obtains his materials , merchandise , food and drink ; and that Scott Johnson agrees to indemnify and forever save and keep harmless the City and its employees and agents from any damages , penalties , fines , judgments , expenses , or charges , imposed , assessed , or incurred in any way , occasioned by any actions or omissions of Scott Johnson or his agents , employees , or with his suppliers, of whatever type . 5. That Scott Johnson agrees that should the City , for what- ever reason, terminate this agreement , that Scott Johnson shall , within 24 hours of such notice , cause to be removed from the Menom- inee Park "Express Station", any and all of his on-site materials , including personal property and any merchandise. 6. This agreement shall begin on the date of its proper execution and shall continue for a term of one ( 1 ) year , provided however, that the percentage of gross receipts to be paid to the City of Oshkosh during the 1988 season shall be renegotiated prior to January 31 , 1988 . Should the parties be unable to come to an agreement , either party will have the right to terminate the agreement by written notice on or before January 31 , 1988 . IN WITNESS WHEREOF , the parties hereunto set their hands and seals this 22nd day of May , 1987 . (SEAL) ( Witness ) Scott Johnson - Concessionaire d (Witness ) CITY OF OS OSH 4 , B (Wit 2ss) r Wil= iam D . FrT , City Manag,pr rz!" And _ :, Id. . ' eggs ---- (Witness ) ,- .r ,� Donna C . Serwas , City Clerk APP' lVED: Warren P. Kraft, A st. C y A torney EXHIBIT A SPECIFICATIONS FOOD/BEVERAGE/MERCHANDISE CONCESSION MENOMINEE PARR "TRAIN DEPOT" BUILDING TWO YEAR CONTRACT 1. LOCATION This concession is limited to Menominee Park, specifically the north end of the train depot building and is in effect from approximately May 1 to park closing, approximately October 1. Specific times are established by the Director of Parks. 2. LENGTH OF CONTRACT This contract will be for a two year period, renewable annually before February 15 each year at a negotiated annual - gross sales. The City has the option of not renewing the contract if: (1) the Concessionaire does not abide by the contract provisions; and/or (2) the negotiated annual gross revenue rate is unacceptable to the City. In the event the Concessionaire wishes to withdraw from the contract and cease operation at any time, there will be no legal or financial obligation on behalf of the City to repay or reimburse the Concessionaire for the remaining period of the contract. If the Concessionaire wishes to withdraw, he shall notifytheCity, in writing, sixty (60) days notice before the start of the park season. 3. CONCESSION ITEMS The Concessionaire shall have, at his option, the opportunity to sell (a) foodstuffs, including, but not limited to pre-prepared sandwishes, hot dogs, potato chips, candy, dispenser soft drinks, sno-cones, and cotton candy, (b) other merchandise, such as coloring books, balloons, novelties, T-shirts, post cards, camera film, souvenir- related items, and soda beverages from vending machines as specified in Paragraph 4. The City reserves the right to limit the selection of items for sale. 4. LOCATION & EQUIPMENT - All items described in section III "A" & "B" will be sold in the designated area in the train depot building or as stipulated below. A list of City furnished equipment is included in a separate attachment. The Concessionaire is also required to furnish some items as noted. Trade fixtures, partitions or any other equipment installed in, or under or about the premises by the concessionaire shall be removed at the expiration of this contract, provided any such damage to the City's property caused by the removal thereof of such fixtures, partitions or other equipment shall be repaired by the Concessionaire. The Concessionaire may select to place soda beverage vending machines at various locations in Menominee Park. These locations are to be determined by the Director of Parks. It shall be the responsibility of the Concessionaire to select a vendor, keep the machines stocked, and remove the money from the E07. 4 .l Specifications Park Concession Page 2 machines as pre-determined. Damage or vandalism to the mcahines is the responsibility of the Concessionaire. The City will not be responsible for damage, nor make remuneration to the Concessionaire for damage to these machines. Receipts from the vending operation shall be kept separate from the "train express" building operation and. reporting shall be made in the same manner as prescribed in Paragraph seven (7) . 5. HOURS OF OPERATION The building concession and/or the vending machine operation will be operated from daily during the park season at a mutually agreeable schedule approved by the Director of Parks. The primary objective is to serve the public whenever the adjoining ride concession or the park is open. 6. REVENUE DUE CITY The Concessionaire agrees to pay the City as compensation for the right and for the exclusive privilege of operating the business, a percentage of gross sales after deducting any and all sales taxes, the amount on the proposal form. The revenue percentage due to the City- will be renegotiated on or before February 15, 1988. Concession statements from previous years are available from the Director of Parks office. 7. PAYMENTS All payments due the City shall be paid monthly on or before the 20th day of each month for the receipts of the previous calendar month. Payment shall be accompanied by a statement showing detailed receipts and substantiated by cash register tapes or other means approved by the Director of Parks . 8. GROSS SALES The Concessionaire's gross sales shall be evidenced by cash register readings and must reflect all sales made by the Concessionaire. - 9. BOOKS OF ACCOUNTS AND FINANCIAL REPORTS The Concessionaire agrees to keep the books of accounts- and records of all operations and to establish a system of bookkeeping and accounts in a manner satisfactory to the City and to permit inspection of said books and records by the City Comptroller as often as is deemed necessary in the opinion of the City. The Concessionaire shall submit at the end of each year, or as required by the City, a profit and loss statement of operations under an agreement, in a form approved by the City, itemizing payroll costs, operating, and other expenses. 1=xIt. ,4 Pz Specifications Park Concession Page 3 10 . NOTICES All notices and orders given to the Concessionaire may be served by mailing the same to the Concessionaire at the address herein before set forth or by delivering a copy thereof to the Concessionaire in person. 11. MANAGER Unless personally operated by the Concessionaire only, the Concessionaire agrees to employ a manager who is satisfactory to the City, and who will be available at all time during the operation of the Agreement. If, at any time the City notifies the Concessionaire that the Manager is unsatisfactyory, the Concessionaire shall, within 48 hours, replace him (her) with a satisfactory one. The Concessionaire will have, at all time, sufficient attendants on duty to render adequate service to the public. 12. EMPLOYEES The Concessionaire will agree, at the request of the City or its authorized representative, and with the making of specific charges, forthwith to terminate the employment of any employee whom the City or such representative considers detrimental to the best interests of City or public using time. 13 . INSURANCE The Concessionaire shall procure, at his own cost and expense, worker's compensation and such public liability and property damage insurance as required to protect the Concessionaire, the City and its officers and employees from any claims for damage to property and for personal injuries, including death, which may arise from the operation of this concession by the Concessionaire. The insurance coverage limits shall be as follows: a) bodily injury $100,000. each person, each occurance, b) property $50,000. each occurance, $300 ,000 . aggregate, c) product liability, $100 ,000 . 14. RISK The Concessionaire assumes all risk in the operation and shall be solely responsible and answerable in damages for all accident or injuries to person or property and hereby covenants and agrees to indemnify and keep harmless the City, its officers and employees, from any and all claims, suits, losses, damage or injury to person or property of whatever kind and nature, whether direct or indirect, arising out of the operation of this agreement or the carelessness, negligence, or improper conduct of the Concessionaire or any servant, agent, or employee, which responsibility shall not be limited to the insurance coverage herein provided for. F. 3 Specifications Park Concession Page 4 15 . WAIVER OF DAMAGES The Concessionaire will expressly waive any and all claims for compensation for any and all loss or damage sustained by the Concessionaire resulting from fire, water, tornado, civil commotion or riots. The Concessionaire will expressly waive all rights, claims, and demands and forever release and discharge the City, its officers and employees from any and all demands, claims, actions and causes of action. arising from any cause. 16. NOT A LEASE It is expressly stated that no building, parcel, structure, equipment, or space is leased to the Concessionaire; that he/she is a Concessionaire and not a Lessee., and that the Concessionaire's right to occupy the same and to operate under an agreement shall continue only so long as each and every stipulation and condition in this concession specification and subsequent agreement contained on the Concessionaire'spart to performed is strictly and promptly to be complied with. 17. NOT AN AGENT Nothing contained in the agreement shall create or be construed as creating a co-partnership between the City and the Concessionaire or to constitute the Concessionaire as an agent of the City. 18. FEDERAL, STATE, AND MUNICIPAL The Concessionaire will not use nor permit any person to use in any manner whatsoever, the said permises or any part thereof or any building for any illegal purpose, or for any purpose in violation of any Federal, State or Municipal law, ordinace, rules, order or regulation or of any rule or regulation of the City now in effect or enacted or adopted, and will protect, indemnify and forever save and keep harmless the City and the individual employees thereof and their agents, from and against any damage, penalty, fine, judgment, expenses or charge suffered, imposed, assessed or incurred for any violation of breach or any law, ordinance, rule order or regulation occasioned by any act, neglect or omission of the Concessionaire, or any employee, person or occupant for the time being of said premises; and in any event of any violation of breach of any law, ordinance, rule, order or regulation occasioned by any act, neglect omission of the Concessionaire, or any employee, person or occupant for the time being of said premises; and in any event of any violation, or in case the City or its representatives shall deem any conduct on the part of the Concessionaire, or any person or occupant for the time being of the premises (or the operation thereof) , to be objectionable or improper, the City shall have the right and power and is hereby authorized by the Concessionaire so to do, to at once declare the concession agreement terminated 4-A-h. 4 N. y Specifications Park Concession Page 5 without previous notice to the Concessionaire. The Concessionaire is responsible for obtaining any and all appropriate licenses. 19. UTILITIES The City shall pay for all electric lights, power and gas, - used and consumed in connection with the operation of the concession. Any alterations in existing facilities for electricity, power, gas, water, sewer, drain pipes, or in other fixtures necessary for the operation of this concession, shall be made at the sole expense of the City after written approval by the City. The Concessionaire - shall use only electricity for motive power andillumination of the premises, buildings or spaces included in this specification unless otherwise permitted in writing by the City and shall use all electric lights and power in strict accordance with the plans and designs as approved by the City. Both hot and cold water shall be furnished by the City. 20. INFLAMMABLES The Concessionaire shall not use or permit the storage of any illuminating oils, oil lamps, benzine, naptha or other similar substances or explosives of any kind, or any substance or things prohibited in the standard policies of fire insurance companies in the State of Wisconsin in any buildings erected or to be erected on the premises. 21. SANITATION The Concessionaire agrees to keep clean and in a sanitary condition, all premises used by him. The Concessionaire is responsible for disposal of food wastes , packaging , containers, eating utensils, and other wastes directly attributed to the food concessions not only in the concession area but also in the area surrounding the building a radius of 50 ft. in front of the building and if vending machines are utilized, empty cans generated from the machines. All refuse and waste materials shall be stored by the Concessionaire and shall be disposed of by the City. All state and local health laws and regulations will be strictly complied with. 22. INSPECTION/ACCESS It is agreed that the concession premises may be inspected at any time by authorized representatives of the City. The Concessionaire agrees that, if notified by the City or its representative, that any part of the Concession premises or the facilities thereof is unsatisfactory , he will. immediately remedy the same. Exh. A Specifications Park Concession Page 6 23 . REPAIRS All. equipment covered in this specification and used by the Concessionaire in the conduct of the business shall be maintained and kept in repair by the Concessionaire to the City at the expiration or other termination of the year in as good condition as when received, reasonable wear and tear and damage by the elements expected. The maintenanec of any of the equipment covered by this specification shall be done by and at the expense of the Concessionaire. In case the Concessionaire does not make some needed repair within a reasonable time, the City may make the repair and charge the cost to the Concessionaire. The Concessionaire shall not make any alterations in the concession premises without the written approval of the City. 24. ADVERTISING The Concessionaire agrees not to advertise in any manner or form, on or about the premises, buildings or concession space used by him, or elsewhere, or in any newspapers or otherwise, except by means of such signs or forms of advertising as shall be approved by the City. The Concessionaire shall not employ or use any persons known as *hawkers" , "spielers* , "criers", or other ,noise-makers or means of attracting attention to the Concessionaire's business, not approved by the City, or to the extent of creating a nuisance. 25. AMUSEMENT MACHINES The Concessionaire shall not be allowed to install amusement machines of any type unless specified in a supplemental agreement to this contract. 26. OTHER BUSINESS The Concessionaire shall not carry on within or upon said concession space any other business except that described in Paragraph II. The Concessionaire agrees not to interfere with any other Concessionaire of the City or any employees of any other Concessionaire. The City reserves the right to enter into agreements with others for the sale of similar items to non-profit groups and similar organizations -with special authorization of the Common Council. 27. SERVICE TO PUBLIC The policy of the City is to serve the public in the best possible manner, and the Concessionaire agrees that both he and his employees and agents shall at all time cooperate to this end. 28. INTERPRETATION OF AGREEMENT Should any questions arise as to the proper interpretation of the terms and conditions of this specification, the decision of the City shall be final. , x h, A 1' 6 Specifications Park Concession Page 7 29. NO REPRESENTATIONS The Concessionaire acknowledges that the City has not made or caused to be made any representation of any nature whatsoever in connection with the subject concessions, and in particular has made no representations dealing with such. matters as anticipated revenue to the Concessionaire, or related issues. The Concessionaire acknowledges that he will enter into a Concession Agreement as the result solely of his own business judgment and not as the result of any representations whatsoever, direct or indirect, made by the City, its agents, or employees . 30 . NO DISCRIMINATION The Concessionaire will agree not to discriminate in its operations under the contract on the basis of race, color, creed, age, and sex, except as otherwise prohibited by law. Breach of this covenant may be regarded as a material breach. 31. CONCESSIONAIRE'S EMPLOYEES The Concessionaire shall employ such help and personnel as it may deem reasonably necessary for its operation. The Concessionaire agrees that he will not discriminate against any employee or applicant for employment, to be employed in the performance of an agreement, with respect to his hire tenure, terms, conditions or privileges of employment, or any matter directly or indirectly related to employment because of •his race, color, religion, national origin, ancestry. Breach of this specification may be regarded as a material breach. The Concessionaire shall keep the Director of Parks informed as to the names and addresses of all E-02, 4 employees . p. 7