HomeMy WebLinkAbout2012-03-12 12-115 ORDERCOUNCIL ACTION
Item No. 12 115
Date: March 12, 2012
Item/Subject: Order, Authorizing Execution of Agreement for Bangor State Fair Midway -
Operation Agreement with Fiesta Shows
Responsible Department: Bass Park
Commentary:
This Order authorizes and extension of an agreement with Fiesta shows for operation of the
Bangor State Fair Midway from 2012-2016. The current Agreement provides an option for the
City to negotiate a five year extension with Fiesta Shows. An extension of this contract will
continue the Pay -One -Price admission format that has been used very successfully for the last
three years and is anticipated to be used in 2012. Due to the transfer of operation of the new
arena, it was necessary to include a provision in the agreement to allow the City to assign the
contract to Global Spectrum.
In September 2011, the Business & Economic Development Committee directed staff to
negotiate the allowable extension citing the fact that Fiesta Shows consistently delivered quality
rides, facilities and attractions. Fiesta has been a good partner and worked with the City
through some difficult economic times. Additionally, Fiesta has proven their willingness to work
with the City by sacrificing short term gains for long-term success. This would be the last option
for extension available, and it would be the City's intent to seek competitive proposals for 2017
and beyond. The Finance Committee unanimously recommended approval.
Department Head
Manager's Comments:
City Manager
Associated Information:
Agreement
Budget Approval:
Finance Director
Legal Approval:
Solicitor
Introduced for
X Passage
First Reading
Referral
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`r. Assigned to Councilor -Blanchette
March 12, 2012
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CITY
OF BANGOR
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(TITLE.) ORDER, Authorizing Execution of Agreement for Bangor State Fair Midway -
Operation Agreement with Fiesta Shows
WHEREAS, the City of Bangor and Festa Shows are parties to an Agreement wherein Resta
Shows operates the midway activities for the Bangor State Fair: and
WHEREAS, the Agreement allowed for the negotiation of a fiver year extension; and
NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR
the City Manager is hereby authorized, on behalf of the City of Bangor, to execute an
Agreement with Fiesta Shows to operate midway activities for the 2012-2016 Bangor State Fair.
Said Agreement shall be in substantially the same form as attached hereto and in a final form
as approved by the City Solicitor or Assistant City Solicitor.
IN CITY COUNCIL. # 12-115
MARCH 12, 2012
MOTION MADE AND SECONDED FOR PASSAGE ORDER
PASSED
(TITLE,) AUTHORIZING EXECUTION OF AGREEMENT FOR
BANGOR STATE FAIR MIDWAY OPERATION AGREEMENT
��e4 WITH FIESTA SHOWS
Assigned to Councilor Q o ,,
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Bangor State Fair
Midway Operation Agreement
between
The City of Bangor
And
Fiesta Shows
This Agreement made and executed in duplicate, this day of -- 2012, by
and between the City of Bangor, a Maine Municipal Corporation, hereinafter, referred to as the
"City", and Fiesta Shows, hereinafter referred to as "Concessionaire".
WITNESSETH:
WHEREAS, The City sponsors and conducts an annual agricultural fair and related
events knows as the Bangor State Fair, and
. WHEREAS, Concessionaire desires to operate midway activities for the 2012-2016
Bangor State Fairs said midway activities to consist of rides, food concessions, games, exhibits,
shows and similar attractions;
THEREFORE, in consideration of the above recitals, the mutual and reciprocal
convenants, terms and conditions hereinafter contained and other good and valuable
considerations, the City and Concessionaire hereby mutually agree as follows:
Article 1: Term of Contract:
This Agreement shall be in force for a period of five (5) seasons, beginning on the date of
execution and terminating on August 31, 2016,
Article• 2 Option to Extend:
Currently, the City intends to go to a RFP process to identify a provider for Midway Operation
Services for the 2017 Bangor State Fair and beyond. Fiesta Shows will be eligible to participate
in that process should they chose to do so and are not in violation of any of the provisions of this
agreement.
Article 3: Premises:
The premises subject to this Agreement shall consist of the Bangor State Fair Midway, together
with support areas and necessary access across the City's adjacent premises. The premises
concerned are a portion of the City's "Bass Park Complex" located on lower Main Street in the
City of Bangor.
The parties agree and acknowledge that with the opening of the new Bangor Event and
Conference Center sometime in the year 2013 the description of the premises may be amended
by the City, with the intent that the Concessionaire is able to continue to operate in generally the
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same manner, and that the City shall not be responsible for any loss by Concessionaire as a result
thereof.
The parties agree and acknowledge that the City will demolish the existing Bangor Auditorium
and Civic Center during the spring or summer of 2013. Concessionaire agrees that the
description of the premises may be amended by the City, with the intent that the Concessionaire
is able to continue to operate in generally the same manner, and that the City shall not be
responsible for any loss by Concessionaire as a result thereof.
Article 4: Use and Occupancy•
Notwithstanding the provision of Article I of this Agreement, Concessionaire shall have the use
and occupancy of the premises for the period July 22, 2012 through August 8, 2012 only.
Concessionaire shall use the premises for the purpose of operating a midway in connection with
the 2012 Bangor State Fair, in a safe, clean and professional manner and for no other purpose
whatsoever without the express prior consent of the City. Concessionaire shall have all rides and
concessions set up, inspected and operable by 4:00 PM on Thursday, July 26, 2012. No rides or
concessions shall be dismantled prior to 8:00 PM on August 5, 2012, without the express prior
consent of the City.
The City shall inform Concessionaire of the specific dates and times of future Bangor State Fairs
by the first day of May of each year; each of which will be held in late July and early August.
Article 5: Rides and Concessions: Employees:
During the entire period of each Bangor State Fair, Concessionaire shall provide and operate a
minimum of thirty-two (32) 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 concessions shall also be kept clean at all times and shall be of good quality
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, attractions and concessions shall be provided. Concessionaire shall not bring on to 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 or concession that they may find to be in violation of any applicable laws,
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codes, regulation or ordinances, or that they otherwise find to be objectionable upon the grounds
provided.
All Concessionaire employees shall be clothed in clean attire when on duty and shall wear photo
identification badges. All Concessionaire employees or personnel retained by Concessionaire
shall be courteous to the public at all times and any complaints concerning the behavior of any
Concessionaire personnel shall be resolved immediately by the Concessionaire management.
Concessionaire 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.
The Concessionaire acknowledges that the Bangor State Fair, pursuant to full compliance with
the laws of the State of Maine, has established the Midway and other areas of the grounds as
`Smoke Free* and that the Concessionaire assumes the responsibility of enforcing the rules as
posted, including the use of the established Designated Smoking Areas by all Concessionaire
employees and contractors.
Article 6: Share of Receipts:
Standard Gate Admission:
The City will retain all gate admission receipts for its sole use. 'rhe City will sell all ride tickets,
pre -sale promotions, etc. and retain all receipts for settlement.
Concessionaire will continue to provide all ride tickets at its sole expense.
The division of receipts paid to the City is as follows:
25% of the first $150,000 in ride receipts
• 35% of the next $150,000 and
• 45% of the next $150,000; and
• 30% of the receipts over $450,000
In addition, the Concessionaire will pay an increase of 1% to the City's 30% share of receipts
over $450,000 for every 10% increase in the price of single ride tickets during the initial term
(currently $1.25 per ticket) to compensate for surpassing the $450,000 threshold simply through
price increases, as opposed to increased ticket sales drive by new ride acquisitions.
Should the gross ride receipts exceed $450,000 in any two consecutive years the threshold for the
City to receive 45% of the gross ride receipts will be reduced from $300.000 to $275.000 for the
remaining years of the Agreement.
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POP Admission Poli
Should the City and the Concessionaire mutually agree to continue the current (2009-2011) Pay
One Price (POP) Admission Policy through a portion or the entire term of this agreement the
division of POP receipts retained by the City will be as follows(on a $ 10.00 POP admission):
62% of the first $650,000 in receipts
55% of the next $49,999 ($650,001-$700,000)
50% of receipts over $700,001
Concessionaire will continue to provide, at its expense, sufficient wristbands to accommodate
expected sales.
Should the City and Concessionaire mutually agree to raise the POP admission price (currently
$ 10.00 per person) the above percentage 'take outs' may be adjusted up or down through
negotiation by the parties, it being the parties intent to provide consistent and reliable revenues to
both parties at approximately the same levels of actual attendance (customers purchasing
admissions) as is currently established.
Ground Rent:
The ground rent (space occupied by Fiesta Show Midway) will be $75,000 per year
Article 8: Additional Pavments:
Concessionaire will pay a pro rata share of the electric, water and sewer bills during the run of
the Fair, including set-up and tear down. Concessionaire will pay for the rental of camping
facilities for its employees at the prevailing rate.
Article 9: Special Proiects:
From time to time or as a specific need arises, in addition to the contractual payments outlined,
Concessionaire and the City agree to negotiate a sharing of the costs of various projects or
infrastructure improvements at the Fairgrounds that would have a positive impact on Fair
operations. These projects would be undertaken during the term as needed or as matching funds
become available to the City.
Article 10: Utilities:
The City will provide supplemental electrical service to the midway area. Concessionaire 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. Concessionaire shall
reimburse the City for the cost of all electricity consumed by Concessionaire or its
subconcessionaires.
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The City shall provide as many water and sewer service connections as practicable. Within ten
(10) days from the receipt of the City's invoice. Concessionaire shall reimburse the City for all
cost of water and sewer services used by Concessionaire of its subconcessionaires.
Article It: Securill:
The City will provide grounds security for the midway area during operating hours of the Bangor
State Fair.
Concessionaire 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.
Article 12: 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 Concessionaire
or its subconcessionaires against loss by fire, and that the City shall not be responsible for any
loss of, or damage to the property of the Concessionaire or its subconcessionaires due to fire.
Article 13: Parkin:
All surplus trucks, trailers and vehicles owned or operated by Concessionaire or its
subconcessionaires shall he parked offthe midway in areas designated for the purpose by the
City. All customers/visitors to the Bangor State Fair parking on the Bass Park property shall
park only in those areas designated by the City. All revenues generated by parking on the City's
premises shall be the sole property of the City.
Article 14: Licenses:
Concessionaire shall obtain and maintain in force all licenses for its operation required by law.
Concessionaire 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) at prevailing yearly rates.
Article 15: Special Promotions:
All special ride pricing and special price promotions (such as wristband day(s), POP admission
policy) shall be agreed upon in advance by Concessionaire and the City. .
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Article 16: Indemnification:
The Concessionaire shall indemnify, defend and hold harmless the City from and against all
claims and actions, and all expenses incidental to such claims or actions, based upon or arising
out of damage to property or injuries to persons or other tortuous acts caused or contributed to by
the Concessionaire or anyone acting under its direction or control or in its behalf in the course of
its performance under this Agreement, provided the Concessionaire's aforesaid indemnity and
hold harmless Agreement shall not be applicable to any liability based upon the sole negligence
of the City.
The Concessionaire hereby expressly agrees that it will defend, indemnify and hold the City of
Bangor harmless from any and all claims made or asserted by Concessionaire agents, servants or
employees arising out of Concessionaire activities under this Agreement.
For this purpose, Concessionaire hereby expressly waives any and all immunity it in Y have
under Maine's Workers CoMMnsation Act in regard to such claims made or asserted by
Contractor's agents, servants or eMployees. The indemnification provided under this paragraph
shall extend to and include any and all costs incurred by the City of Bangor to answer,
investigate, defend and settle all such claims, including but not limited to the City of Bangor's
costs 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 Contractor's agents, servants or employers
against the City of Bangor in regard to claims made or asserted by such agents, servants or
employees.
Article 17: Insurance:
Concessionaire will provide satisfactory evidence of public liability insurance with a coverage
amount of Five million dollars ($5,000,000.00) covering all claims of any person arising out of
Concessionaire's activities under this Agreement. The City of Bangor and Bangor Historic
Ttact, Inc, shall he names as additional insured in the coverage certificates evidencing such
insurance. In addition to public liability insurance, Concessionaire shall carry and maintain in
force all Workers Compensation and unemployment compensation coverages required to be
maintained with respect to its employees under State and Federal law.
Article 18: Administration and Assignment;
This Agreement shall be administered for the City by the Director of the Bass Park Complex or
his designee. This Agreement shall be administered for Concessionaire by Eugene Dean, 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.
Concessionaire acknowledges and that the City may assign this Agreement to Global Spectrum
or any other private operator of the Bass Park Complex.
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Article 19: Concessionaire Management:
Concessionaire acknowledges that the identity of its present ownership and principal
management staff are conditions material to the City's selection of Concessionaire as the 2012
midway operator for the Bangor State Fair. During the term of this Agreement and during any
renewal term, Concessionaire shall inform. the City of all changes in ownership or management
of the corporation.
In the event the major portion of the Concessionaire's 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.
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.
Concessionaire 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 the operating hours of the
Bangor State Fair.
Article 20: Termination:
This Agreement may be terminated by the City immediately upon the occurrence of any of the
following conditions:
a. Bankruptcy or insolvency of Concessionaire;
b. A change in Concessionaire's corporate ownership or management as provided in
Article 19 above,
c. A default by Concessionaire of any obligation under this Agreement that is not
immediately cured to the satisfaction of the City, or
d. A legislative decision by the Bangor City Council, made prior to June I or the
calendar year concerned, to cease operating the Bangor State Fair.
The City shall give written notice to Concessionaire of any termination on the grounds provided
in this paragraph.
Article 21: Independent Contractor• No Joint Venture:
In the performance of this Agreement and in every activity conducted therewith, Concessionaire
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 Concessionaire to the City or any
other provision of this Agreement shall be deemed by either party hereto, or by any third agency
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between the Concessionaire and the City, as creating any relationship other than the relationship
of Owner (the City) and Licensee/Concessionaire (Concessionaire).
Article 22-,.5—everabilitynnyalidftj of Particular Provisions
In any term or provision of this Agreement or 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 provisions to persons or circumstances other
than those to which it is held invalid or unerifiorceable shall not be affected thereby and such term
and provision of this Agreement shall be valid and be enforceable to the fullest extent permitted
by law.
Article 23: Notices:
All notices required or permitted to be given under this Agreement shall be sufficient if sent by
registered or certified mail, return receipt requested, postage prepaid to:
C
Li ty
Michael Dyer, Director
Bass Park Complex
100 Dutton Street
Bangor, ME 04401
Concessionaire
Eugene Dean
Fiesta Shows
PO Box 460
Seabrook, NH 03841
with copies to the City Manager, Bangor City Hall, 73 Harlow Street, Bangor, ME 04401
Article 24: Amendments:
This Agreement constitutes the complete understanding of the parties and may be amended only
in writing, executed by representatives of Concessionaire and the City.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed in the day
and year first written above.
Witness: City of Bangor (City)
Deborah A. Cyr
Purchasing Agent
Witness: Fiesta Shows (Concessionaire)
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