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HomeMy WebLinkAbout1994-07-11 94-321 ORDER,il Admn Miss wu' 7-11-94 item No. 94-321 tl : PutM1trcizftg Ilse City 16nag to eaxnata an IteMSublect: Aignsemsent Imitumsern Fath to Bang aM Dmmn 6 ]71 , Ehoses Supply Wcha for Un Responsible Department: 1994 Ban¢r State Fair Baca Park Commentary: M Un lbmcll will xsall, the City solicited atBwats for Proposal £e Operation of the miday at Un Baml@' State Fail ]ate ]eat fell. Several OO2potaes NBt6 rH% , aM tin FiimsS Cmrai.t[PE aptl the Cmsa U autM fee l us to aagoti.ates an, a9[ememt with Fitsta Siuvs. Follavitg that action, Staff at bass Part Ms epmt much tfae reviewing tM £ORSt Of the Fair aM rnmtiafirve an ag� pith tiR midpea1' o at . 1gIB Base Park Ct I tee vas imiutled fn marry of the discuasfw zegatdiig the fouat m Ube utilizeci this year. M agieeeent base ro✓ bsen retptiatai and ie attacheci far year ter, e . I urs a taitl that Mita Dyer, Rome Park f:ererel Yaia¢[, free diScuasad the vajow prwfzfaa of this contract with Rnbere of the ams Park pnmfttee and that It Onflects Ube ptopcsal vddch was Osxoal d as esll as the diacusaiam which waxe hail reganifig Un Fafr's format. Please rote that the faiftiaa tem® of tie agrem®it is aye }err w1N four cptionai xalenel Per'iode subject W Ratual a�ement t*tvkO i the City med Fieetii Shwm In regard to the terve for the followiw y r. Wpartmem Xwd Manager's Comments: ,ry manner, Auaciated Informetion: , ACDOOnsext Budget Approval: Fj,,,,eDirrctor Lagal Approval: ' CnY Solieiior Intraduced For El passage [-I First Pending Page —of — ❑ Referral 94-321 Assigned to Counaor Blanchette July ll, 1994 CITY OF BANGOR (TITLE.) (®rbtr AutF l=q the City BYnager to lxavta art _. Acgt o Bet Me City of Bad and leen 6 Flynn, Ls., d/b/a/ PieeU � to Supply Mld y far the 1994 By Btete Fair . ByW Cite Cwyeil of W City of D . . SBAS the C£ty Manager. is hmm y auttsr/zed a diteoted to eaecuta ilie attacted ag� beGsen tM City of Bangor anti O 6 Flynn, Ins., d/b/a/ Rest Btr».s to operate =i W a viT at the 1994 BaraPr SFate Iaiz. IN CITY COUNCIL July 11, 1994 Passed CITY 94-321 ORDER Title, Authorizing the City Manager to Execs an Agreement Between the City of Bangor and f-� Dean d ornn. Inc.. d/b/a Fiesta Shows to Midway for the 199b*Ba¢gox S[ete-Pelr. I �G �........ Councilman YI ®LI A9r+ralfure „„,. Areaci O FamiArea m O rt O ,p,M ox.ww NodwPA 7 ao d D EXHIBIT A 94-321 BANGOR STATE FAIR MIDWAY OPERATION 1994 AGREEMENT THIS AGREEMENT, made and executed in duplicate, this day of , 1994, by and between the CITY OF BANGOR, a Maine municipal corporation, hereinafter referred to as the "CITY", and DEAN 6 FLYNN, INC., a Massachusetts Corporation d/b/a FIESTA SHOWS, with its principal place of business at 2 Heritage Road, Pelham, New Hampshire, hereinafter referred to as "FIESTA", W I T N E S S E T H' WHEREAS, the CITY sponsors and conducts an annual agricultural fair and related events known as the Bangor State Fair; and WHEREAS, FIESTA desires to operate midway activities at the 1994 Bangor State Fair, said midway activities to consist of rides, food concessions, games, exhibits, shows and similar attractions; NOW, THEREFORE, in consideration Of the above recitals, the mutual and reciprocal covenants, terms and conditions hereinafter contained and other good and valuable considerations, the CITY and FIESTA hereby mutually agree as follows: 1. Tom. This Agreement shall be in force for an initial term commencing ncing on the date of execution and terminating on August 31, 1994,unless renewed or sooner terminated as hereinafter provided. _ 2. Option to Renew. Provided that FIESTA has fully and satisfactorily performed all its obligations arising under this Agreement during the initial term hereof, and subject to the same requirement of full and satisfactory performance with respect to each renewal term, FIESTA shall have the option to renew this Agreement for four (4) successive seasonal terms commencing May 1 and terminating August 31 of each renewal year. Such renewal shall be subject to renegotiation by the parties of Section 5 and 6 below relating to rides, fees, and admissions policy. In order to exercise its renewal Option(s), FIESTA shall give the CITY written notice of FIESTA's intention no later than August 31 Of each successive year. Open receipt of such notice, and within thirty (30) days thereafter, representatives of FIESTA and the CITY shall meet as needed to negotiate mutually acceptable Agreement terms for the following year. Both parties agree to negotiate in good faith. If the CITY and FIESTA fail to reach agreement within that period, this Agreement shall be deemed terminated, and the CITY shall be free at such time to solicit other proposals and to enter into other agreements for the operation of the Bangor State Fair midway. In the event FIESTA shall fail to give written notice of its intention to renew this 94-321 -2- Agreement for any successive year within the period stated above, then this Agreement shall likewise be deemed terminated. Such termination shall not relieve FIESTA of any obligations arising under this Agreement prior to the termination date. 3. Premises. The premises subject to this Agreement shall consist of the Bangor State Fair Midway, together with support areas and necessary a s the CITY 'a adjacent premises, all s depicted oncExhibitAsattached hereto. The premises concerned are a portion of the CITY's "Bass Park Complex" located on lower Main Street in the City of Bangor. 4. Use and Occupancy. Notwithstanding the provisions of Section 1 of this Agreement, FIESTA shall have the exclusive use and occupancy of the premises for the period July 24, 1994 through August 9, 1994 only. FIESTA shall use the premises for the purpose of operating a midway in connection with the 1994 Bangor, State Fair, in a safe, clean and professional manner, and for no other purpose whatsoever without the express prior consent of the CITY. FIESTA shall have all rides and concessions setup, inspected and operable by 4 p.m. on July 28, 1994. No rides or concessions shall be dismantled prior to eleven o'clock P.M. on August q, 1994, without the express prior consent of the CITY. For each renewal term of this Agreement, if renewed, FIESTA shall have the exclusive use and occupancy of the premises for a continuous seventeen (17) day period which shall be concurrent with the annual fair dates for the Bangor State Fair as established by the CITY. 5. Rides and Concessions, Emolovees. During the entire period of the 1994 Bangor State Fair, FIESTA shall provide and operate a minimum of thirty (30) major rides which shall include a minimum of six (6) spectacular rides. All rides shall be in excellent condition as to their general attractiveness and appearance) shall be mechanically safe and operational; shall be fully inspected in accordance with all applicable laws, codes, and regulations; and shall be kept clean at all times. Shows, games and c shall also be kept clean at all times and shall be of goodquality and of sufficient number to fill the midway area in keeping with the present reputation and tradition of. the Bangor State Fair as a premier Maine event. A minimum of 700 linear feet of shows, games and concessions shall be provided. FIESTA shall not bring onto the midway or operate thereon any rides, shows, games or concessions which, in the sole opinion of the CITY, may be unsafe, immoral, illegal, fraudulent, inappropriate, or otherwise not in keeping with the character of the Bangor State Fair as a family-oriented event. The'CITY's Code Enforcement Officer, the General Manager of the Bass Park Complex, and their designated representatives shall, at all times, have free access to all rides, shows, games and concessions operated under this Agreement, and shall have the authority to immediately close any ride, show, game 94-321 -3- or concession that they may find to be in violation of any applicable laws, cedes, regulations or ordinances, or that they otherwise find to be objectionable upon the grounds provided herein. All FIESTA employees shall be clothed in clean attire when n duty and shall wear photo identification badges. All FIESTA employees or personnel retained by FIESTA shall be courteous to the public at all times and any complaints concerning the behavior of any FIESTA personnel shall be resolved immediately by the FIESTA management. FIESTA shall clean the area around all rides, shows, games and concessions at the close of each day. The CITY shall provide and maintain trash barrels and a dumpster for disposal of refuse generated by midway operations. 6. Fees. For the privilege of operating the midway at the 1994 Bangor State Fair, FIESTA shall pay the CITY the following amounts: Midway License Fee'. FIESTA shall pay a midway license fee in the amount of $60,000. Said amount shall be due in two equal installments of $30,000 each, to be paid by cash or certified check on or before June 30, 1994 and August ], 1994. In connection action with its operation of the Bangor State Fair, the CITY shall expend not less than $24,000 of the midway license fee on entertainment events during one or more 1994 Bangor State Fair dates. The CITY further agrees that it may expend the balance of the midway license fee, up to $36,000 total, prior to December 31, 1994, for improvements to the Bangor State fairgrounds and the Bass Park Complex that will enhance operation of the Bangor State Fair and the midway in future years. All such improvements shall be selected by the CITY, in. itssolediscretion. Ride Commissions. All rides operated by FIESTA under this Agreement, exclusive of shows, games and concessions, shall operate on a ticket, coupon or wristband basis. FIESTA shall supply all tickets, coupons and wristbands for this purpose. The CITY shall retain a ride commission onall receipts from the sale of ride coupons or bracelets, as follows: 308 of the first $300,000 408 of all receipts over $300,000 94-321 _4_ In establishing prices for individual rides and for passes (i.e. wristbands), FIESTA shall consult with the CITY for the purpose of determining a reasonable and affordable pricing scheme. The CITY agrees to make FIESTA a daily accounting of all amounts due as ride commissions for each day of operation under this Agreement. Actual sale of tickets, coupons and wristbands shall be handled by the CITY's employees, as provided in Exhibit B under the City's obligations to FIESTA. ]. Vtilitie6. The CITY will provide all necessary electrical service to the midway area. FIESTA shall provide all direct hookups from the CITY's service drop(s) to individual rides, shows, games and concessions. All direct hookups shall be subject to inspection and approval by the CITY'S electrician. Within ten (10) days from receipt of the CITY'S invoice, FIESTA shall reimburse the CITY for the cost of all electricity consumed by FIESTA or its concessionaires.' The CITY will provide all necessary water and sewer service and c ections. within ten (10) days from receipt of the CITY's invoice FIESTA shall reimburse the CITY for the cost of all water and sewer services used by FIESTA or its concessionaires. 8. Security. The CITY will provide grounds security for the midway area during operating hours of the Bangor State Fair. FIESTA will provide overnight security and will pay all necessary expenses for police officer(s) and fair security personnel on overnight duty. The number of personnel required shall be determined in advance. 9. Fire Protection. The CITY will provide fire protection for the midway area during operating hours of the Bangor State Fair. The CITY shall also provide overnight fire protection on an on-call basis. It is understood and agreed, however, that the CITY undertakes no obligation to insure the property of FIESTA or its concessionaires against loss by fire, and that the CITY shall not be responsible for any loss of or damage to the property of FIESTA or its concessionaires due to fire. 10. Parte. All surplus trucks, trailers and vehicles owned or operated by FIESTA or its concessionaires shall be parked off the midway in areas designated for that purpose by the CITY. All customers/visitors to the Bangor State Fair parking on the Bass Park property shall park only in those areae designated by the CITY. Any revenues generated by parking on the CITY's premises shall be the sole property of the CITY. 94-321 -5- 11. Licenses. FIESTA shall obtain and maintain in force all licenses for its operations required by law. FIESTA shall be responsible for payment to the Bangor City Clerk's office of all vendor license fees for midway vendors as required by the CITY's current ordinances. (Lunch wagon permits = $67.00 per location.) 12. Special Promotions. All special ride pricing and special price promotions (such as wristband day) shall be approved in advance by FIESTA and the CITY. 13. Indemnification. FIESTA agrees that it will indemnify and hold the CITY harmless from and against any and all claims made or asserted by any person, including FIESTA's agents, servants, Officers Or employees, arising out of FIESTA's activities under this AOreement. For this Absecon. FIESTA herebv exnrassly waives under this paragraph shall extend to and include any and all costs incurred by the CITY to investigate, answer, defend and settle all such claims; including bat not limitedtoethe CITY's costa for attorneys fees, expert and other witness fees, the cost of investigators, and payment in full of any and all judgments rendered in favor of any person, including FIESTA's agents, servants, officers or employees, against the CITY and arising out of FIESTA's activities under this Agreement. 14. Insurance. FIESTA will provide satisfactory evidence of public liability insurance with a coverage amount of one million dollars covering all claims of any person arising out of FIESTA's activities under this Agreessent. The City of Bangor shall be named as a co-insured in the coverage certificates evidencing such insurance. In addition t0 public liability insurance, FIESTA shall carry and maintain in force all workers' compensation and employment compensation coverages required to be maintained with respect to its employees under State or Federal law. 15. Other Obligations. in addition to the obligations set out herein, FIESTA and the CITY undertake to perform the additional obligations set out in Exhibit B attached hereto. 16. Administration. This Agreement shall be administered for the CITY by the General Manager of the Bass Park Complex or his designee. This Agreement shall be administered for FIESTA by Eugene Dean, President, Fiesta Showa, Inc., or his designee. Written notice will be given immediately to the other party if anyone is designated to act instead of the two individuals noted above. 37. Management. FIESTA acknowledges that the identity of its present ownership and principal management staff are conditions material to the CITY's selection of FIESTA as the 1994 midway 94-321 -6- operator for the Bangor State Fair. During the term of this Agreement and during any renewal term, FIESTA shall inform the CITY of all changes i ownership or management of the corporation. In the event the major portion of FIESTA's current management team shall be replaced, or a controlling interest in the corporation shall be sold or transferred to persons other than the present ownership, the CITY, within thirty (30) days from the date of notice of such change(s) in ownership or management, shall have the right to declare this Agreement void, the provisions of paragraph 2 above notwithstanding. Upon a declaration by the CITY under this paragraph, the CITY shall be entitled to solicit other proposals and to enter into other Agreements for the operation of the Bangor State Fair midway. FIESTA agrees that the corporation's current principal owner, manager, or a designated representative shall be on site in the midway area at all times during operating hours of the Bangor State Fair. 18. Termination. This Agreement may be terminated by the CITY immediately upon the occurrence of any of the following conditions: (a) Bankruptcy or insolvency of Fiesta Shows, The CITY shall give written notice to FIESTA of any termination on the grounds provided in this paragraph. 19. Independent Cont t • No Joint Venture. In the performance of this Agreement and in every activity connected therewith, FIESTA shall act as an independent contractor maintaining complete control over and having full responsibility for the performance of all its agents, officers and employees. It is understood and agreed that neither the method of computing fees to be paid by FIESTA to the CITY nor any other provision of this Agreement shall be deemed by either party hereto, or by any third agency, betweentFIESTArandtthesCITY ofpartnership, asecreatingoint any venture, or relationship other than the relationship of Owner (the CITY) and Licensee/Concessionaire (FIESTA). Inc.; (b) A change in FIESTA's corporate ownership or management as provided in paragraph 17 above; (c) An unremedied failure by FIESTA to comply with its obligations under paragraphs 5, 6, ], 11, 13 or 14 of this Agreement; or (d) A legislative decision by the Bangor City Council, made prior to June 1 of the calendar year concerned, to cease operating the Bangor State Fair. The CITY shall give written notice to FIESTA of any termination on the grounds provided in this paragraph. 19. Independent Cont t • No Joint Venture. In the performance of this Agreement and in every activity connected therewith, FIESTA shall act as an independent contractor maintaining complete control over and having full responsibility for the performance of all its agents, officers and employees. It is understood and agreed that neither the method of computing fees to be paid by FIESTA to the CITY nor any other provision of this Agreement shall be deemed by either party hereto, or by any third agency, betweentFIESTArandtthesCITY ofpartnership, asecreatingoint any venture, or relationship other than the relationship of Owner (the CITY) and Licensee/Concessionaire (FIESTA). 94-321 -7- 20. SeverabilityllavaliditV Of Particular Provisions. If any term or provision of this Agreement or the application thereof to any person or circumstances is hereafter determined to be, to any extent, invalid or unenforceable, the remainder of this Agreement or the application of such .terms and previsions to persons or circumstances other than those to which it is held invalid or unenforceable shall net be affected thereby and such term and provision of this Agreement shall be valid and be enforceable to the fullest extent permitted by law. 21. Notices. Notices to the CITY provided for in this Agreement shall be sufficient if sent by registered or certified mail, return receipt requested, postage prepaid to: Michael Dyer, General Manager Hass Park Complex 100 Dutton Street Bangor, ME 04401 with copies to City Manager, Bangor City Hall, 73 Harlow Street, Bangor, ME 04401. and notices to FIESTA, are to be sent by registered or certified mail, return receipt requested, postage prepaid, addressed to: Eugene Dean, President Dean s Flynn, Inc. 2 Heritage Road Pelham, New Hampshire 03076 or to such other respective addresses as the parties may designate to each other in writing from time to time. 22. Amendments. This Agreement constitutes the complete understanding of the parties and may be amended only in writing, executed by representatives of FIESTA and the CITY. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed on the day and year first written above. witness CITY OF BANGOR By Title DEAN 6 FLYNN, INC. d/b/a FIESTA By Title 94-321 EXHIBIT B IT SHALL BE THE OBLIGATION OF FIESTA TO THE CITY: -- to provide a list of rides at least 15 days prior to the opening of the 1994 Bangor State Fair; -- to provide a midway layout after Consultation with CITY prior to move in (insert date?); -- to rovide a list of vendors, attractions and games (namesand addresses) a a timely manner prior to the openng of the 1994 Bangor State Faire -- to cooperate with the Bangor City Clerk's office by facilitating inspections of lunch wagons, etc., and paying CITY for all licenses issued to non -independent vendors; -- to maintain an employee dress code acceptable to CITY; -- to cooperate with CITY to eliminate vehicular traffic on the midway during show hours; -- to maintain hose and electric wire runs in accordance with State Fire Marshals and insurance regulations; -- to keep the midway clean and litter free at all times; -- to fill and seal all holes created in black top; -- to maintain complete ride inspection and maintenance logs and keep on the grounds pertinent State licenses and permits for all rides and attractions, and to make the same available to CITY upon request; -- to encourage cooperation among vendors with CITY's recycling efforts; -- to provide adequate signage that is clearly posted a to the number of tickets or coupons necessary sary for each ride or attraction a well as any heightrequirements or other ride restrictions; -- to supply adequate ticket or coupon selling booths for the midway as well as all tickets, coupons and wristbands that will be sold; and to insure that all selling locations will be supplied with a complete list of and the number of tickets or coupons required; and -- to promptly pay all financial obligations to the CITY r to third parties arising out of FIESTA's operation of the midway under this Agreement. FIESTA shall hold the CITY harmless from any and all claims arising o account of any unpaid FIESTA obligation. 94-321 IT SHALL BE TRE OBLIGATION OF CITY TO FIESTA: -- to expend a amount for advertising and promotion that is in keepingwithpast expenditures and that will be well above the average amount expended by other Maine fairs in order to insure steady growth; -- to expend an amount for entertainment consistent with the provisions of paragraph 6 of the Agreement that will insure that the CITY maintains its position as Maine's premiere entertainment bargain; -- to supply all sellers for ride tickets, coupons or wristbands and a complete accounting of all receipts; -- to provide for general lighting and grounds communications; -- to provide an agricultural area that truly fits the description for a State fair; -- to provide adequate parking, rest areas and bathrooms; -- to develop aomprehensive grounds improvement plan for future fairs;c -- to make a commitment to do whatever is reasonable to make the Bangor State Pair the highlight of Maine's summer season; and -- to work with FIESTA to insure that the midway operator has a reasonable opportunity to grow and prosper along with the Bangor State Pair.