HomeMy WebLinkAbout31770 / 82-07P�rch 18, 1982 lF 7 RESOLUTION
PURPOSE:
INITIATED BY:
AGREEMENT BETWEEN CITY OF OSHKOSH AND
D.E.G. ENTERPRISES, INC.
PARKS DEPARTMENT
BE ZT 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. as Concessionaire, allowing said Con—
cessionaire to obtain the right to operate certain amusement rides in Menominee
Park.
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SUBkITT�D BY
APPROYED
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A G R E F_ ;d E N T
THIS AGkEEMENT, made and entered into this _ day of
1982, by and between the CITY OF OSHKOSH, a Wisconsin Municipal corporation
located in Winnebag� County, hereinafter referred to as "City", and�D.E.G.
E�TERPRISEJ, INC., a Wisconsin corporation, Post Utfice Box 754, Neenah, l4is-
consin 54956, hereinatter reterrea to as "Concessionaire";
W I T N E S S E T H:
't/HEREAS, the Conmon Council of the City of Oshkosh, by resolution duly
adopted on the _ day ot , 1982, accepted the proposal ot the
tirst party, D.E.G. ENTERPRISES, INC. and authorized and directed the proper
City officials to enter into an appropri,ate agreement with the party of the
first part tor�ride concessions at Menominee Park in the City of Oshkosh; and
WHEREAS, the City is 'he o�mer ot premises canrtanly known as Menaninee
Park, and is desirous of providing amusement rides for the general public in
that park, and has the power to grant rights antl privileges with respect the�e-
to; and
' WHEREAS, the Concessionaire is desirous of obta�ining the right to oper-
ate certain amusement rides upon the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the prmises, covenants, terms and
conditions hereinafter contained, the parties mutually agree as follows:
I. Amusement Rides: The Concessionaire shall have the exclusive right
to operate amusement rides in Menominee Park, which shall censist of (a) one CI)
train, treck, and accessories; (b) canoes, boat and waterbike rentals; (c) one
(I) carousel, and (d) one (I) small "kiadie" ride, type to be d=ter.nined at a
later date, by the Parks Oirector, City 1Aanager, and Concessionaire, which shall
be hereinatter be referred tn as "Rides". �
2. Location: The location of the Rides in Menaninee Park shall be as
shown in Exhibit "A". -The Director of Parks shall determine the exact location
of the Rides in cooperatirn with the Concessionaire. In case of a dispute as
to location, the Concessionaire may, within thirty (30) days of the final deci-
sion, zppeal to the Advisory Park 6oard and City Idanager.
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.j. Term of AgreemenC This agreemen[ shall Se effe<[ive commencing
on the day of , 1982, for an initial term of five (5) years,
with one (1) addi[ional renewal period of five (5) years provided [he following
conditions are me[: (a) successful negotiation of the revenue due [o [he Lity;
(b) notice in writing prior to Fehruary lst of each year for continuation; and (c)
sa[isfac[ory performance of ihe Concessionaire. In [he even[ the Concessionaire
wishes to withdraw fran [he con[ract and cease opera[ion at any time, [here will be
no Iegal or financial obligation on behalf of the Li[y [o repay or reimburse the
Loncessionaire for the remaining period of this contrac[.
4. Time of Operation: The Rides shall be operating and open for bus-
iness commencing with the park opening (abou[ April 1) for weekends and specfal
occasions and seven (7) days a week, including holidays, commencing with Memorial
Day un[il Labor Day and [hen on weekends or special occasions un[il park closing
(ahout October 30). Specific opening and closing da[es will he established by
the �irector of Parks.
5• Hours of OOeration: The hours of operation shall be from 12:30
p.m. [0 8:30 p.m., Monday thru Sa[urday and from 10:00 a.m. Co 8:30 p.m. on Sun-
day. A request for any change of hours musT be submi[ted [o and approved hy the
Director of Parks. The operating hours shall be posted on the ticket oFfice and
shall be strictly adhered to, wixh such pos[ing Co be changed whenever the opera[-
ing hours are approved for change. In the event weather conditions or other cir-
cumstances should warrant closing or opening of the operation, such closing and
opening, ou[side of [he above men[ioned hours, shall be mutually agreed upon by
the Concessionaire and [he Director of Parks. �
� 6. Inspection of Records: Concessionaire shall keep accurate rec-
ords of sale which shall be available for inspec[ion by the Lity at any reasonable �
[ime. Concessionaire further agrees to submi[ to an audi[ of his operations by
the City in a manner to be prescri6ed by the Li[y Comptroiler of che City. Conces-
sionaire agrees to pay [o Ci[y, a percenTage of [he gross receipts derived from the
opera[ion of [he Rides according to the fotlowing Exhibi[ "B", after deduc[ions for
Wisconsin State Sales Tax.
7. Non-Discrimination: .AII rides and rentals, operated by Lonces-
sionaire, shall be provided to [he general public withou[ discrimination as [o rate,
creed, color, sex, handicapped, or national origin.
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6. Chargev Concessionaire shall cnarqe admiseion for the train �
and o[her "kiddie" rides a[ the ra[e of $•35 per single ride; 4 rides for $1.20;
12 rides for $3.00; or IS rides for 53•60. Concessionaire shall charge rental for
the boa[, canoe, and wa[er6ike rides at [he ra[e of $I.50 per person, per hour, for
the first two (2j ri.ders, and an additional S•75 per person, per hour, for che
third or sucsequent riders. These rates shall no[ be increased without [he ex-
press permission of the Ciey Coun<il of ihe City of Oshkosh.
4. Supervision: Concessionaire shall, at all Cimes during the oper-
ation of the Rides, provide at least one responsible, competent and [rained per
son who mus2 be at least eighteen (ISj years of age, to supervise and be in charge
of the opera[ion. .
10. Utili[ies: i[ shall be the responsibility of [he Concessionaire
[o pay for [he costs of electrical service. The Concessionaire shall use oniy
electricity for mo[ive power and illumination of the premises, building, or spaces
included in this specifiwtion unless o[herwise Oermitted in writing by the City.
11. Main[enance: Loncessionaire shall solely maintain [he Rides in
a safe, neat, and sa[isfactory condition. �He shall assist and coopera[e with Park
Personnel in the care and maintenance of the area upon wfiich the Rides are
loca[ed and [he park area approximately 50' surrounding [he Rides location. He
shall main[ain such area in a neat, clean, and attractive condition, by pickup
of lit[er, waste paper, bo[tles, etc. The City will mav, if necessary, the adja-
cent area around the Rides. The Concessionaire hereby agrees to fur[ner main[ain
the area adjacent to the entire train track length, for a width of approximately
the track's qravel bed in a manner as prescrtbed hy the Director of parks.
� 12. Notices: All notices and orders given to Concessiona�re may be
served 6y mailing [he same to the Concessionaire a[ the address hereinbefore set
forth o� 6y delivering a copy tfiereof [o tfie Concessionaire or his authorized
representa[ive in person.
13. Federal, 5[ate, and Nunicipal Laws: The Concessionaire will not
use nor permi[ any person [o use in any manner whatsoever [he said premises or
any part thereof or any building for any illegal purpose, or for any purpose In
vi.olation of any Federal, S[a[e, or Municipal taw, ordinance, rule, order, or regu-
la[i.on or of any rule or regula[ion of [he City now in effect or enacted or adopted,
and wi.11 pro[ec[, indemnify and forever save and keep harmless the City and the
individual employees thereof and their agen[s, from and against any damage, pen-
ality, fine, judqment, expense, or charge suffered, imposed, assessed or i.ncurred
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for any violation or breach oP any law, orainance, rule-, order or reyula[ion o��
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casioned 6y any aci, neglect or omission of the Concessionaire or any employee,
person or occupan[ for the time being of said premises; and in the even[ of
any violation, or in case [he Li[y o� its representatives shall deem any conduc[
on [he part of [he Concessionaire, or any person or occupant for the [ime heing
of [he premises (or the operation thereof�, Co 6e objec[ionable or improper,
[he City shall fiave [he righ[ and power and is hereby au[horized by the Lonces-
sionaire so [o do, to at once declare the concession agreement termina[ed without
previous no[ice [o the Concessionaire.
14. Insurance: Concessionaire shall procure, a[ his own cast and ex-
pense, 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 [o one person in
� one accident, and SI,000,000 for injury to more '
[han one person in one accident.
h� yroperty damage of 5500,000 for each occur- ,
rence.
c) 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 [he Lity Manager and Che City At[orney. All in-
surance premiums shall be the obligation of, and sfia11 be paid by, Concessiom
aire. Concessionaire shall not coimnence operation under this contract until he
has obtained all insurance requfred under this heading, and such insurance,
which shall also list [he City of Oshkosh as an additional insured, has been
approved hy the Ci[y and a Certifi wte of Insurance atcesting 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 sta[e [hat writren notice will be given to the insured and the City a[
least thirty (30) days prior to any contemplated cancellation. In the event
Concessionaire receives notice of such cancellation and fails [o ob[ain the re-
quired insurance in the [hirty (30� day period, his operation shall cease as
of the last day of coverage and shall not resume until the required insurance
has been o6tained and again approved by City.
15• Compensa[ion Responsibili[y: Concessionaire shall be solely
responsi6le for all compensa[ion [o its employees, if any, and for any�and all
de6ts and obliga[ions incurred as a resul[ of its opera[ions covered by this
Agreement.
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16. Risk: The ConceSSiona[rc assumes all risks i.n [;�e opera[ion an� �
shall be solely responsible and answerahle in damages for all-accidents or in-
jurie5 [o persons or property and hereby covenan[s and agrees to indemnify and
keep harmless [he City, its officers, and employees from any and all claims,
suits, losses, damages, or injury [o person or property of whatever kind and
nature, whether direct or indirect, arising ou[ of t6e operation of Chis Agree-
ment or the carelessness, negligence, or improper conduct of [fie Concessionaire
or any servant, agent, or employee which responsi6ility shall no[ be limited
to the insurance wverage herein provided fon � �
� 17. Assignment: This Agreement shall no[ be assigned, [ransferred,
su6leased nor hypothecated or otherwise disposed of, nor shall the con[rol of
the Agreement or Rides, or any in[erest therein, or any par[ thereof, be granted
by Concessionaire to any other person�or enti[y, without [he consent in writing
of the City Manager.
IB�. Compliance with Park Regulations: Concessionaire agrees [o oper-
age [he Rides in such a manner so as not to interfere with the normal use and en-
joyment of Menominee Park by tfie general pu6iic, and agrees to abide by any rules
of the Director of Parks with regard ro maintenance and operation of Menominee Park.
19. Advertising: Concessionaire may place on Building k2 an appro-
pria[e sign indi wting that the concession is operated by the Loncessionaire. -
The Loncessionaire may advertise in any o[her manner or form in any newspaper,
brochures, or o[herwise. �
20. Other Business: Loncessionaire shall not carry on or wi[hin
such area any o[her business, except [hat-described in Paragraph (1). The Lity
agrees not to sell, rent, lease, or permi[ any other person, business or con-
cessionaire who are in a similar business to that descri6ed in Paragraph (I) to
operate within the area described and shown in Exhibit "A"; exceP[ [hose non-
profit or previously approved vendors and [he dates as hereintherefore se[ for[h.
These exceptions shall 6e loca[ed elsewhere in [he park, no[ in [he area shown
in Exhibi[ "A".
a) Sawdust Daze, an annual three (3) day event.
21. Service to the Public: The policy of the City is xo serve the
public in [he best possible manner, as prescribed by the City Manager, and the
Concessionaire agrees that bo[h he and his employees, volunteers, and agents
shall at all times coopera[e [o Chis end.
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22. 3reacn oF ;Agrec�i�enC In cne evcn[ o' any brtach of -eny or [ne� �
terms or provisions of [his Agreemen[, the Lity shail have, in addi[ion Co any
o[her recourse, the righ[ to termina[e [his Agreement, to enter and obtain pos-
session of any of its property upon which the Rides are loca[ed, to remove and
exclude alI property of Concessionaire, at his expense, all without service of
note, or resort io legal process, wi[hout any legal lia6ility on its part.
23. Termination of Aqreement: In addition to o[her provisions for
[ermina[ion, [his Agreemen[ may be terminated by [he mutual consen[ of the parties
upon sixty (60) days notice, deliverable in wri[ing.
24. Removal of Property after Termination: Upon termination or can-
cellation of this Agreemen[, Concessionaire shall remove any and all of his pro-
perty from Menominee Park, aC his expense, and shall return [he land upon which
the Rides were loca2ed, [o their condition prior to [he installation of [he Rides,
including proper,grade, level, and vegeta[ion.
25• Ride Installation: The Concessionaire�shall ins[all the train
and accessories, and [he canoe, boat rentals for opera[ion in 1982- He may, a[
his option, ins[all the remaining rides in 1982 or succeeding years.
26. Use of Lity Buildinq N2: The Loncessionaire may use a portion
of city Building ,'�{2 (Menominee Park) for the following purposes: ticket sales,
employee counters, s[orage of life preserves, and canoes. (Exhi6it ^L"j The
Concessionaire's employees are responsi6le for [Re securiCy of the Concessionaire's
space. No alterations to the 6uilding sfiall be made wi[hou[ the express wri[Cen
permission of [he City. The Concessionaire shall fiave adequate con[ents insur-
ance to cover his equipment and supplies in the building and in case of loss shall
fiold the Lity harmless in case of fire, theft, or otfier loss. That portion of
Building (j2 tha[ is used by the Loncessionaire, shall, at the expiration of this
Agreement, or renewal [hereof, 6e returned to tFe City in as good condition as
when received, reasonable wear and [ear excepted. Maintenance of any of [he equip-
ment and 6uilding covered in the Agreement, shall 6e done by and a[ the expense
of Che Concessionaire. No ai[erations to the building shall be made without the
wri[ten approval of the Ci[y.
27. Modification of [he Agreemen[: My [erms of this Agreement can
be modified, upon mutual consen[ of the parties. These modifica[ions shall be
made in writing and executed via an addendum prepared by the Ci[y of Oshkosh
Administration and signed by both parties.
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LS. Inspec[ion/Access: IC is agreed U�a[ [be prernises used by b._ ��
Concessionaire in huilding d2 may he inspecied a[ anY time 6y autho�ized Cicy
representatives. The Concessionaire agrees that if aotified 6y the City or its
representatives, that any par[ of the concession premises thereof is un4atisfac-
rory, i.t wi.11 immediately remedy same.
� IN WlTNE55 WHEREOF, the parties have hereunto set their hands and
seals Cfiis day of _ _ _ __ �_ �_. , 1p82,
In [he presence of:
Approved as [o Form
TOM AHRENS
ASSISTANT CITY ATT�RNEY
D.E.G. ENTERPRISES, INC.
by:
DONqLD E. GRO55
PRESLDENT
6y:
WILLIAM D. FRUEH .
. CITY MANAGER
ATTEST:
by:
� CONVERSE.L. MARKS
CITY CLERK
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EXHIBIT "B"
REVENUE RECEIPTS
The Concessionaire will pay to the City of Oshkosh, after deduc[ion of S[ate
Sales Tax, [he following percen[ages of gross sales:
i982 3�
1983 5%
1984 8%
1985 l08
After 1986, revenue perceniages witl be negotiated.
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_ The Loncessionaire will pay to the Ci[y of Oshkosh, the appropriate amoun[ of
.. . funds, such payments to be made monthly, payable by Che ISth of each month deem-
� ed appropriate.by the Department of Adminis[ration of tfie City of Oshkosh, and
payments io be made a[ the Department of Administration, City Hall, 215 thurch
� Avenue, Oshkosh, Wisconsin 54901.
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