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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 12 115 `r. Assigned to Councilor -Blanchette March 12, 2012 y O�BANC' S• CITY OF BANGOR p4`F r D. F� (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 ,, 12 115 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 12 115 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, 12 115 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. 12 115 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. 12 115 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. . 12 115 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. 12 115 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 12 115 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) ME=