HomeMy WebLinkAbout91-244 May 16, 1991 #91-2�� RESOLUTION
(CARRIED LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE AGREEMENT FOR CONCESSIONS AT MENOMINEE PARK
INITIATED BY: PARKS DEPARTMENT
BE IT RESOLVED by the Common Council of the City of Oshkosh
that the attached Agreement with PD&F, Inc . for concessions at
Menominee Park is hereby approved and the proper City officials
are hereby authorized and directed to enter into same.
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A G R E E M E N T
THIS AGREEMENT, made and entered into this
day of , 1991, by and between the CITY OF
OSHKOSH, a Wisconsin municipal corporation located in
Winnebago County, hereinafter referred to as "City",
and P.D. & F. , Inc. , a Wisconsin corporation, 1905
Cliffview Court, Oshkosh, Wisconsin 54901, herei�after
referred to as "Concessionaire" ;
W I T N E S S E T H:
WHEREAS, the Common Council of the City of Oshkosh,
by resolution duly adopted on the 16th day of May, 1991,
accepted the proposal of P. D. & F. , Inc. and authorized
and directed the proper City officials to enter into an
appropriate agreement with the party of the first part
for ride concessions at Menominee Park in the City of
Oshkosh; and
WHEREAS, the City is the owner of premises
commonly known as Menominee Park, and is desirous of
providing amusement rides for the general public in that
park, and has the power to grant rights and privileges
with respect thereto; and
WHEREAS, the Concessionaire is desirous of
obtaining the right to operate certain amusement rides
upon the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the promises,
covenants, terms and conditions hereinafter contained,
the parties mutually agree as follows:
1. AMUSEMENT RIDES: The concessionaire shall have
the exclusive ric�ht to operate amusement rides in
Menominee Park, which shall consist of (a) one (1) train,
track, and accessories; (b) canoe, boat and waterbike
rentals; (c) one (1) carousel, and (d) one (1) small
"kiddie" ride.
2 . LOCATION: The rides are located in Menominee
Park easterly of the large water lagoon and westerly of
Pratt Trail.
3 . TERM OF AGREEMENT: This agreement shall be
effective commencing on , 1991, for a total term
of ten (10) years.
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4 . PAYMENT TO CITY: Concessionaire will pay to
the City of Oshkosh, after deduction of State sales tax,
ten percent (10%) of gross sales for 1996 through 2001.
No payment will be received from 1991-1995. At the
conclusion of the fifth year of this Agreement, the
�arties will confer to determine whether Concessionaire
is able and willing to increase the payment to the City
for the last five years of this Agreement. The
Concessionaire will pay to the City of Oshkosh, the
appropriate amount of funds, such payments to be made
monthly, or otherwise mutually agreed to by each party,
by the 15th da� of each month to the Department of
Finance of the City of Oshkosh, and payments to be made
at the Collections Division, City Hall, 215 Church
Avenue, Oshkosh, Wisconsin, 54902 . 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 Cit� to repay or
reimburse the Concessionaire for the remaining period of
this contract.
5. TIME OF OPERATION: The Rides shall be
operating and open for business commencing with the park
opening (about April 1) for weekends and special
occasions, and seven (7) days a week, including holidays,
commencing with Memorial Day until Labor Day, and then on
weekends or special occasions until park closing (about
October 30) . Specific opening and closing dates will be
established by the Director of Parks.
6. HOURS OF OPERATION: The hours of operation
shall be determined upon mutual agreement between the
City's representatives and the Concessionaire. A request
for any change of hours must be submitted to and approved
by the Director of Parks. The operating hours shall be
posted on the ticket office and shall be strictly adhered
to, with such posting to be changed whenever the
operating hours are approved for change. In the event
weather conditions or other circumstances should warrant
closing or opening of the operation, such closing and
opening, outside of the above mentioned hours, shall be
mutuallly agreed upon by the Concessionaire and the
Director of Parks.
7. INSPECTION OF RECORDS: Concessionaire shall
keep accurate records of sale which shall be available
for inspection by the City at any reasonable time.
Concessionaire further agrees to submit to an audit of
his operations by the City in a manner to be prescribed
by the City Comptroller of the City.
8 . NON-DISCRIMINATION: All rides and rentals,
operated by Concessionaire, shall be provided to the
general public without discrimination as to race, creed,
color, sex, handicapped, or national origin.
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9. CHARGES: Concessionaire shall charge admission
� for the Rides based on a rate schedule currently in
effect or as amended in the future. The rates shall not
be increased without the express permission of the City
Council; except that Concessionaire may increase its
charges on April 1 of each year b� the cost of living
index increase that has occurred in the previous year
from February to February for Small Metro Areas North
Central States/Size Class C (CPI-W) or its most
comparable successor.
10. SUPERVISION: Concessionaire shall, at all
times during the operation of the Rides, provide at least
one responsible, competent and trained person who must be
at least eighteen (18) years of age, to supervise and be
in charge of the operation.
11. MAINTENANCE: Concessionaire shall solely
maintain the Rides in a safe, neat, and satisfactory
condition. He shall assist and cooperate with Park
Personnel in the care and maintenance of the area upon
which the Rides are located and the area approximately 50
feet surrounding the Rides location. He shall maintain
such area in a neat, clean, and attractive condition, by
pickup of litter, waste paper, bottles, etc. The
Concessionaire hereby agrees to further maintain the area
adjacent to the entire train track length, for a width of
approximately the track' s gravel bed in a manner as
prescribed by the Director of Parks.
12 . NOTICES: All notices and orders given to
Concessionaire may be served by mailing the same to the
Concessionaire at the address hereinbefore set forth or
by delivering a copy thereof to the Concessionaire or his
authorized representative in person.
13 . FEDERAL, STATE, AND MUNICIPAL LAWS: The
Concessionaire will not use nor permit any person to use
in any manner whatsoever the said premises or any part
thereof or an� buildinc� for any illegal purpose, or for
any purpose in violation of any Federal, State, or
Municipal law, ordinance, rule, order, or regulation or
of any rule or regulation of the City now in effect or
enacted or adopted, and will protect, indemnif� and
forever save and keep harmless the City and the
individual employees thereof and their agents, from and
against any damage, penality, fine, judgement, expense,
or charge suffered, imposed, assessed or incurred any
violation or breach of 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 the 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
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premises (or the operation thereof) , to be objectionable
or improper, the City shall have the ri�ht and power and
is hereby authorized by the Concessionaire so to do, to
at once declare the concession agreement terminated
without previous notice to the Concessionaire.
14. INSURANCE: Concessionaire shall procure, at
his own cost and expense, and have in effect at all times
pertinent to this Agreement, insurance as follows:
A. Public liabilit� insurance in the amount
of not less than $500, 000 for in�ury to one person in one
accident, and $500, 000 for injury to more than one person
in one accident.
B. Workmen's compensation insurance
coverage for all employees, if any.
All insurance required shall be secured from an
insurance company or companies which have been approved
by the City Manager and the City Attorney. All insurance
premiums shall be the obligation of, and shall be paid
by, Concessionaire. Concessionaire shall not commence
operation under this contract until he has obtained all
insurance required under this heading, and such
insurance, which shall also list the City of Oshkosh as
an additional insured, has been approved by the City and
a Certificate of Insurance attesting to all required
coverage, has been placed on file in the Office of the
City Clerk. Such policy of insurance shall not be
cancellable in less than thirty (30) days and shall also
state that written notice will be given to the insured
and the City at least thirty (30) days prior to any
contemplated cancellation. In the event Concessionaire
receives notice of such cancellation and fails to obtain
the required insurance in the thirty (30) day period, his
operation shall cease as of the last day of coverage and
shall not resume until the reguired insurance has been
obtained and again approved by City.
15. COMPENSATION RESPONSIBILITY: Concessionaire
shall be solely responsible for all compensation to its
employees, if any, and for any and all debts and
obligations incurred as a result of its operations
covered by this Agreement.
16. RISK: The Concessionaire assumes all risks in
the operation and shall be solely responsible and
answerable in damages for all accidents or injuries to
�ersons 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,
damages, 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,
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negligence, or improper conduct of the Concessionaire or
any servant, a�ent, or employee which responsibility
shall not be limited to the insurance coverage herein
provided for.
17. ASSIGNMENT: This Agreement shall not be
assigned, transferred, subleased, nor hypothecated or
otherwise disposed of, nor shall the control of the
Agreement or Rides, or any interest therein, or any part
thereof, be granted by Concessionaire to any other person
or entity, without the consent in writing of the City
Manager.
18 . COMPLIANCE WITH PARK REGULATIONS:
Concessionaire agrees to operate the Rides in such a
manner so as not to interfere with the normal use and
enjoyment of Menominee Park by the general public, and
ac�rees to abide b� any rules of the Director of Parks
with regard to maintenance and operation of Menominee
Park.
19. ADVERTISING: Concessionaire may place on
Buildinc� #2 an appropriate sign indicating that the
concession is operated by the Concessionaire. The
Concessionaire may advertise in any other manner or form
in any newspaper, brochures, or otherwise printed
material. Posting bills or circulars in the park however
are excluded.
20. OTHER BUSINESS: Concessionaire shall not
carry on or within such area any other business, except
that described in Paragraph (1) . The City agrees not to
sell, rent, lease, or permit any other person, business,
or concessionaire who are in a similar business to that
described in Paragraph (1) to operate within the area
described and shown in Exhibit "A" ; except Sawdust Daze,
a non-profit community event. Sawdust Daze has the right
to subcontract a carnival, but not to duplicate the
existing rides of the Concessionaire. Carnival rides are
to be located in a manner not to interfere with the
existing ride concessions.
21. SERVICE TO THE PUBLIC: The policy of the City
is to serve the public in the best possible manner-, as
prescribed by the City Manager. The Concessionaire
agrees that both he and his employees, volunteers, and
agents shall at all times cooperate to this end.
22 . BREACH OF AGREEMENT: In the event of any
breach of any of the terms or provisions of this
Agreement, the City shall have, in addition to any other
recourse, the right to terminate this Agreement, to enter
and obtain possession of any of its property upon which
the Rides are located, to remove and exclude all property
of Concessionaire, at his expense, all without service of
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note, or resort to legal process, without any legal
liability on its part.
23 . TERMINATION OF AGREEMENT: In addition to
other provisions for termination, this Agreement may be
terminated by the mutual consent of the parties upon
sixty (60) days notice, deliverable in writing.
24. REMOVAL OF PROPERTY AFTER TERMINATION: Upon
termination or cancellation of this Agreement,
Concessionaire shall remove any and all of his property
from Menominee Park, at his expense within ninety (90)
days from the lease cancellation, and shall return the
land upon which the Rides were located, to their
condition prior to the installation of the Rides,
including proper grade, level, and vegetation.
25. FIRST RIGHT OF REFUSAL: The City has the
first right of refusal, under the conditions of this
agreement, to purchase the Ride concession, including all
physical components of the Rides. The purchase price
shall be determined at a fair market value.
26. USE OF CITY BUILDING #2 : The Concessionaire
may use a portion of City building #2 (Menominee Park)
for the following purposes: ticket sales, employee
counters, storage of life preservers, and canoes. The
Concessionare's employees are responsible for the
security of the Concessionaire's space. No alterations
to the building shall be made without the express written
permission of the City. The Concessionaire shall have
adequate contents insurance to cover his equipment and
supplies in the building and in case of loss shall hold
the City harmless in case of fire, theft, or other loss.
That �ortion of Building #2 that is used by the
Concessionaire, shall, at the expiration of this
Agreement, or renewal thereof, be returned to the City in
as good condition as when received, reasonable wear and
tear excepted. Maintenance of any of the equipment and
building covered in the Agreement, shall be done by and
at the expense of the Concessionaire. The City may
direct said maintenance, when in the opinion of the
Director of Parks, repair and maintenance is required.
If the work is not done by Concessionaire, the City may
direct the work be done and said costs be charged to
Concessionaire.
27 . USE OF STORAGE AREA UNDER THE STONE BRIDGE:
Concessionaire may also use the area under the stone
bridge, (commonly known as the Cooper-Wells Bridge)
adjacent to Building #2 for storage of canoes, water
bikes, and water-related equipment used in the
concession. Any alterations to the bridge must (a) be
approved by the Director of Parks, (b) be done at the
expense of Concessionaire, and (c) after use or
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termination of this contract, be restored to its original
condition prior to alterations.
28 . INSPECTION/ACCESS: It is agreed that the
premises used by the Concessionaire in building #2 may be
inspected at an� time by authorized Cit� representatives.
The Concessionaire agrees that if notified by the City or
its representatives, that any part of the concession
premises thereof is unsatisfactory, it will immediately
remedy same.
29 . MODIFICATION OF THE AGREEMENT: Any terms of
this Agreement can be modified, upon mutual consent of
the parties. These modifications shall be made in
writing and executed via an addendum prepared by the City
of Oshkosh administration and signed by both parties.
30. SUPPLEML2JT AB�ENLUMS: This agreement does not
preclude an addendum or supplemental agreement to specify
consideration of food/beverage concession rights,
additional physical improvements, and other
considerations to be specified at a later date.
IN WITNESS WHEREOF, the parties have hereunto set
their hands and seals this day of
, 1991.
In the presence of:
BY:
PAUL C. WAGNER, PRESIDENT
CITY OF OSHKOSH
BY:
WILLIAM D. FRUEH,
CITY MANAGER
BY:
DONNA C. SERWAS,
CITY CLERK
Approved as to form:
Warren Kraft,
Assistant City Attorney
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