HomeMy WebLinkAbout34265 / 87-481R�SOLUTION #481
A G R E E M E N T
THIS AGREEMENT, made and entered into this
day of , 198�, by and between the CITY OF
OSAKOSH, a Wisconsin municipal corporation located in
winnebago County, hereinafter referred to as "City", and
D.E.G. ENTERPRISES, INC., a Wisconsin corporation, Post
Office Box 754, Neenah, Wisconsin 54956, hereinafter 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 18th day of March, 1982,
accepted the proposal of the first party, D.E.G. ENTERPRISES,
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 tha awner of prenises commc�ly
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
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RESOLUTION �481
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 right to operate amusement rides in Menominee Park,
°ahich 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 location of the rides in Menominee
Park shall be as shown in Exhibit "A".
3. TERM OF AGREEMENT: This agreement shall be
effective commencing on April 1, 1987, for a total term of
five (5) years. It may be extended for an additional
five-year term, beyond 1991, provided the following
conditions are met: a) City Council rati£ication of the
five-year extension, b) successful negotiation of revenue due
to the City, c) notice in writing prior to February lst of
each year for continuation, and d) satisfactory performance
of the Concessionaire.
4. PAYMENT TO CITY: Concessionaire will pay to the
City of Oshkosh, 3fteT' ded+;ction af State sales tax, the
following percentages of gross sales: 1987 throuqh 1991,
ten percent (10$). The Concessionaire will pay to the City
of Oshkosh, the appropriate amount of £unds, such payments to
be made monthly, or otherwise mutually agreed to by each
party, by the 15th day of each month to the Department of
Finance of the City of Oshkosh, and payments to be made at
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RESOLIJTION #481
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 City 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. xOURS 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 operatinq hours shall be posted on
the ticket oifice 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 RECORDSS Concessionaire shall keep
accurate records of sale which shall be available for
inspection by the City at any reasonable time.
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RESOliUTION u481
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-DZSCRIMINATION: 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.
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.
10. SIIPERVISION: 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 o£ the operation.
11. MAINTENANCE: Concessionaire shall solely maintain
the Rides in a sa£e, 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 o£ 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. NOTSCES: All notices and orders given to
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Concessionaire may be served by mailing the same to the
Concessionaire at the address hereinbefore set forth or by
delivering a copy thereo£ 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 any building 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, indemnify and £orever 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 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
without previous notice to the Concessionaire.
14. INSURANCE: Concessionaire shall procure, at his own
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RF,SOLUTION u�R1
cost and expense, and have in effect at all times pertinent
to this Agreement, insurance as follows:
A. Public liability insurance in the amount of
not less than $500,000 for injury to one
person in one accident, and $500,000 for
injury to more than one person in one accident.
B. Wor]ffien'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 £ile 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 qiven 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
o£ the last day of coverage and shall not resume until the
required insurance has been obtained and again approved by
City.
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RESOLUTION u481
15. COMPEN3ATION RESPONSIBILITY: Concessionaire shall
be solely responsible £or 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. RISR: The Concessionaire assumes all risks in the
operation and shall be solely responsible and answerable in
damages for all accidents or injuries to persons 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, 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.
17. AS3IGNMENT: 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 thereo£, be granted by
Concessionaire to any other person or entity, without the
consent in writing of the City Manager.
18. COMPLIANCE WITH PARX 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 agrees to abide by any rules of
the Director of Parks with regard to maintenance and
operation of Menominee Park.
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RESOLUTION #481
19. ADVERTISING: COriCe55iORaire may place on Bllildirig
#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 BIISINESS: 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 employ2es, 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
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RESOLUTIOPS �481
expense, all without service of note, or resort to legal
process, without any legal liability on its part.
23. TERMZNATION 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. OSE 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 o£ £ire, theft,
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or other loss. That portion 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. IP 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 ONDER THE STONE BRZDGE:
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 termination of this
contract, be restored to its oriqinal condition prior to
alterations.
2�. INSPECTION/ACCESS: It is agreed that the premises
used by the Concessionaire in building #2 may be inspected at
any time by authorized City 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:
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Any terms of this
RESOLUTION R48]_
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. SIIPPLEMENT ADDENDIIMS: This agreement does not
preclude an addendum or supplemental agreement to specify
consideration o£ £ood/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 , 1987.
In the presence of: D.E.G. ENTERPRISES, INC.
Approved as to form:
Warren P. Kraft,
Assistant City Attorney
BY:
DONALD E. GROSS, PRESIDENT
CITY OF OSHKOSH
BYe
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WILLIAM D. FRUEH,
CITY MANAGER
DONNA Co SERWAS,
CITY CLERK
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January 22, 1987 #481 RESOLUTION
(CARRIED LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE AGREEMENT FOR MENOMINEE PARK
CONCESSION
INITIATED BY: PARKS DEPARTMENT
BE IT RESOLVED by the Common Council of the City of Oshkosh
that the proper City officials are hereby authorized and directed
to enter into the attached Agreement with D.E.G. Enterprises, Inc.
for ride concessions at Menominee Park in the City of Oshkosh.
I5'JA?dI2T�D AY
APF'ROVF•D�� � ,
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