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2024-1392024-139 Resolution Authorizing The Execution Of The Agreement For Operation Of Carnival, Rides, Concessions And Amusements For Town Of Wappinger Fall Festival At a Regular Meeting of the Town Board of the Town of Wappinger, Dutchess County, New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on June 24, 2024. The meeting was called to order by Joseph D. Cavaccini, Town Supervisor, and upon roll being called, the following was recorded: ✓ Vote Record - Resolution RES -2024-139 Yes/Aye No/Nay Abstain Absent Q Adopted ❑ Adopted as Amended Joseph D. Cavaccini Voter Q ❑ ❑ ❑ ❑ Defeated William H. Beale Voter 2 ❑ ❑ ❑ ❑ Tabled Angela Bettina Voter Q ❑ ❑ ❑ ❑ Withdrawn Christopher Phillips Mover Q ❑ ❑ ❑ Al Casella Seconder Q ❑ ❑ ❑ The following Resolution was introduced by Councilman Phillips and seconded by Casella. WHEREAS, the Town of Wappinger Recreation Department sponsors the Town of Wappinger Carni "fall"; and WHEREAS, the Town of Wappinger Carni "fall"consists of a carnival which includes rides, games and concessions; and WHEREAS, McDaniel Brothers, Inc. t/a McDaniel Brothers Shows has shown as the vendor for this event in the previous two years that they are qualified with the necessary skills and experiences to perform quality work as required by the Town; and WHEREAS, the Town Board, in consultation with the Director of Recreation, finds that it is in the best interests of the Town to enter into an Agreement with McDaniel Brothers, Inc. t/a McDaniel Brothers Shows to provide for the operation of carnival rides, games and concessions; and WHEREAS, the Attorney to the Town, in consultation with the Director of Recreation, has negotiated the terms of a proposed Agreement, a copy of which is attached hereto. NOW, THEREFORE, BE IT RESOLVED, as follows: 1. The Town Board Members acknowledge they have reviewed the terms and conditions of the proposed Agreement and find the terms contained therein reasonable and acceptable. 2. The Town Board hereby authorizes the Town Supervisor to execute said Agreement with McDaniel Brothers, Inc. t/a McDaniel Brothers Shows in accordance with the terms and conditions contained therein, to provide carnival rides, games and concessions in accordance with the Agreement. 3. Supervisor Joseph D. Cavaccini is hereby authorized and directed to execute the Agreement between the Town of Wappinger and McDaniel Brothers, Inc. t/a McDaniel Brothers Shows in substantially the same form as attached hereto. The foregoing was put to a vote which resulted as follows: RESULT: ADOPTED [UNANIMOUS] MOVER: Christopher Phillips, Councilman SECONDER: Al Casella, Councilman AYES: Cavaccini, Beale, Bettina, Phillips, Casella Dated: Wappingers Falls, New York 6/24/2024 The Resolution is hereby duly declared Adopted. ADENDUM TO AGREEMENT FOR OPERATION OF RIDES FOR TOWN OF WAPPINGER FALL FESTIVAL THIS AGREEMENT, made the day of , 2024 by and between Town of Wappinger a municipal subdivision with its office located at Town Hall, 20 Middlebush Road, Wappinger Falls, New York, 12590 (hereinafter referred to as the "TOWN") and McDANIEL BROTHERS, INC. trading as McDANIEL BROTHERS SHOWS, a New Jersey Corporation (hereinafter referred to as "McDaniel") having a principal place of business at P.O. Box 293, Lodi, New Jersey, 07644, WITNESSETH: The purpose of this Agreement is to provide for operation of carnival rides during the 2024 Town of Wappinger Fall Festival ("Fall Festival"). The provisions of this Addendum supersede any inconsistent provisions in the McDaniel form of contract. I. Payment A. The Town will operate the ticket booths which will be provided by McDaniel and retain 25% of the gross receipts from all ride revenues, and the balance to be paid to McDaniel at the end of each business day. B. The Town grants to McDaniel the exclusive right to sell cotton candy, sno-cones, popcorn, jelly apples, soft serve ice cream, funnel cakes, fried oreos, fried pickles, and lemonade. The Town grants to McDaniel the exclusive right to operate all games of skill. Any revenue from sales of food and other items and games of skill received by McDaniel are free from any rental or commission to the Town. C. The Town reserves the right to allow vendors or groups to sell any food/beverage item not specifically assigned to McDaniel. All revenues from these sales are retained by the vendors and any fees collected by the Town are to be retained by the Town. D. The Town reserves the right to let space to the sellers of crafts and other items. All revenues from these sales are retained by the vendors and any fees collected by the Town are to be retained by the Town. E. The Town shall pay all such taxes for the ride revenues that may be due such as, but not limited to, state income tax, state excise tax, and sales tax. F. The Town shall not be responsible for any taxes that may be due as a result of its payment to McDaniel or for any revenues collected by McDaniel. II. McDaniel's Obligations A. McDaniel has the exclusive right to provide, and shall provide, the following rides: 1. 8-10 amusement rides 2. 1 air conditioned ticket booth with tickets. B. The rides shall be in operation during the following hours: October 11, 2024 from 6-10 pm, October 12, 2024 from 3pm-10pm, October 13, 2024 from 3pm-10pm and October 14, 2024 from 3pm-7pm. The hours of ride operation are subject to change based on attendance, weather or other factors with the mutual agreement of both parties. C. McDaniel agrees to provide electrical current to power rides and other supplied units. All wires shall be placed in a manner that provides for safe public movement. D. McDaniel shall maintain the ride areas, the area for games and its concession areas free of all garbage and debris. All garbage and debris is to be bagged and deposited in designated collection area. E. All McDaniel employees shall wear distinctive uniforms and some form of identification. F. All McDaniel employees will refrain from smoking within the event space. G. McDaniel certifies that it maintains all permits and licenses necessary for the operation of its rides, games and food units. H. All McDaniel employees handling foods shall have the necessary food handling permits required by Dutchess County or New York State and abide by all applicable health codes. I. McDaniel shall be responsible for the removal of any hazardous products generated by its operations and will comply with all laws, rules and regulations concerning the disposal of hazardous waste; J. McDaniel shall restore any disturbances to the grounds caused by the installation, set-up, running, break -down or removal of equipment, including any holes, trenches, divots, tire ruts, etc. K. McDaniel agrees that Town shall not be liable for, and it agrees to indemnify, defend and hold the Town harmless from and against any and all claims and liability for loss or damage to property or any injury to or death of any and all persons that may be occasioned by any cause whatsoever pertaining to the above -referenced event, including, without limiting the generality of the foregoing, claims resulting from the operations of McDaniel, and all claims arising from all causes of action and reasonable attorneys' fees and any other expenses incurred in defending any suits or actions which may arise as a result of any of the foregoing, provided that any such claims, causes of action, judgments, losses, damages, liabilities or expenses of the Town are not incurred or do not result from the intentional or willful wrongdoing of the Town. L. This agreement shall be in full force and effect until the Fall Festival is complete. This agreement shall survive, however, to the extent of any claim or cause of action accruing prior to such date and until the expiration of any applicable statute of limitations. III. Insurance Required A. On or before September 25, 2024, MCDANIEL must obtain at its sole cost and expense, insurance of the following types and minimum amounts to cover the event: 1. Commercial Liability Insurance coverage in the amount of $1,000,000 per occurrence and 2,000,000 aggregate; 2. Comprehensive Automobile Liability insurance coverage in the amount of $1,000,000 per occurrence; 3. Intentionally omitted; 4. Worker's Compensation and Disability Insurance in accordance with New York State Law requirements; and 5. Intentionally omitted. B. All insurance policies are subject to the following conditions: 1. The Town of Wappinger must be listed as additional named insured on a primary, non-contributory basis; and 2. Insurance is to be provided by Carrier licensed to do business in the State of New York with a rating no less than "A" as rated by A.M. Best Co.; and 3. All liability insurance must be written on an occurrence basis. 4. The general aggregate shall apply on a per event basis. 5. All insurance policies shall include a clause to the effect that the policy shall not be canceled or changed unless thirty (30) days prior written notice has been provided to the TOWN and provided further that the notice must be evidenced by receipt of registered letter. C. The commercial liability policy shall include the following coverages: 1. Blanket Contractual; 2. Broad Form Property Damage; and 3. Fire Legal Liability; D. Intentionally omitted. E. McDaniel shall provide to the Town an original Certificate of Insurance on or before September 25, 2024. IV. Town's Obligations A. The Town will provide all permits, licenses or clearances required by the town and county to hold the event. Any individual licenses required by McDaniel employees are the responsibility of McDaniel. B. The Town will provide Ticket sellers for all rides. C. The Town will provide adequate security and protection. V. Mutual Agreement A. No other rides similar to or competitive with those provided by McDaniel shall be allowed on the grounds. B. In the event of any equipment or electrical power failure, McDaniel will not be held responsible for any lost or anticipated revenue. C. There will be no financial adjustments contingent on weather. D. Either party upon giving 180 days written notice to the other may terminate this contract without cause provided said notice is sent by registered Mail, Return Receipt Required, to the other at the address indicated herein, except as otherwise provided, the agreement is irrevocable. E. This instrument sets forth the entire contract between the parties, is not assignable without prior written approval of both parties and is binding upon and endures to the benefit of the parties hereto and their respective Executors, Administrators, Successors, and Assignees, and may be cancelled, modified or amended only by written instrument executed by both parties. F. Any mishap that may occur during the hours of operation of the event must be reported to the show office immediately or will be considered null and void. G. In the event of unforeseen occurrence which McDaniel has no control over, for example: trucking accidents, delays, strikes, fire, floods, cyclones, it will not be held for damages to the Town. H. The laws of the State of New York shall govern this Agreement and the parties stipulate that any lawsuit regarding this Agreement must be brought in Dutchess County, New York. VI. Independent Contractor A. McDaniel agrees that it will perform services under this Agreement as an independent contractor and not as an agent, employee or servant of the Town. The parties agree that McDaniel and its employees are not entitled to any benefits or rights enjoyed by employees of the Town. The Town specifically has the right to direct and control McDaniel's activities in providing services in accordance with the terms of this Agreement. The Town shall only have the right to ensure performance. MCDANIEL agrees that neither it nor its employees, agents, subcontractors or sub -licensees shall in any manner represent itself or permit itself to be represented to the public as an agent of the Town. VII. Attorney's Fees. A. The losing party agrees to pay reasonable attorney fees and costs to the prevailing party in the event it is necessary to commence any legal action, suit or proceeding against the other party by reason of any breach of this Agreement. VIII. Notices. All correspondence and/or notices concerning this Agreement shall be sent to: Town of Wappinger Recreation Department Town Hall 20 Middlebush Road Wappinger Falls, New York 12590 Attention: Jessica Fulton, Recreation Director with a copy to: Michael T. Liguori Hogan, Rossi & Liguori Attorneys at Law 3 Starr Ridge Road Brewster, New York 10509 and: McDANIEL BROTHERS, INC. trading as McDANIEL BROTHERS SHOWS, P.O. Box 293, Lodi, New Jersey, 07644 IN WITNESS WHEREOF, the parties have hereunto set their names Town of Wappinger Joseph D. Cavaccini, Supervisor McDANIEL BROTHERS, INC. t/a McDANIEL BROTHERS SHOWS Manfred McDaniel, President P. 0. BOX 293 LODI, NJ 07644 RICHARD, FRED, ROBERT AGREEMENT THIS AGREEMENT, made this day of 2024, between McDANIEL BROTHERS, INC. trading as McDANIEL BROTHERS SHOWS, a New Jersey Corporation (hereinafter referred to as "McDaniel") having a principal place of business at P.O. Box 293, Lodi, New Jersey, 07644, and The Town of Wappinger, a municipal corporation (hereinafter referred to as "Town") located at 20 Middlebush Rd Wappingers Falls NY 12590, WHEREAS, McDaniel Brothers Shows is in the business of providing amusements, concessions, and rides to individuals or organizations for purposes of fund raising or profit; and WHEREAS, Town desires to contract with McDaniel to furnish and provide amusements, concessions, and rides for a carnival or fair; and WHEREAS, Town desires to conduct a carnival or fair at the location described as Wappingers Jr. High School, 30 Major Macdonald Way, Wappingers Falls, NY 12590. Should Wappingers Junior High become unavailable for some reason, the carnival would move back to its prior location Schlathaus Park, 126 All Angels Hill Rd,Wappingers Falls (hereinafter referred to as "fairgrounds"), NOW THEREFORE, in consideration of the mutual covenants and terms contained herein, the parties agree as follows: 1. McDaniel shall provide a total of Unit B rides, as well as tickets and ticket offices. All revenues from rides shall be collected by McDaniel and shall be divided 75% percent to McDaniel and 25% percent to Town. The settlement with respect to revenues shall be made at the close of each business day during the term of the carnival or fair, in cash or certified check. 2. McDaniel shall also be permitted to provide and operate the following concessions and activities and all revenues from such concessions and activities shall belong to McDaniel: Popcorn, Cotton Candy, Jelly Apples, Sno Cones Juice/Soda Com. Soft Serve Ice Cream Complete Funnel Cakes, Fried Oreos, Fried Pickles, Soda, lemonade Food Stand 3. Town retains the right to conduct concessions and activities which are not similar to those of McDaniel as described above. These concessions and activities shall be conducted in a location within the fairgrounds, as determined by the mutual agreement of a designated member of Town and McDaniel. Town shall be entitled to retain any and all revenues derived from said concessions and activities. 4. In the event McDaniel contracts or books any third party or outside vendors, it is agreed by the parties that Town shall receive $0 per vendor. Third party or outside vendors must supply proof of liability insurance to McDaniel or pay McDaniel for coverage under McDaniel's insurance policy during the term of the event. 5. The amusements, concessions and rides shall be furnished by McDaniel upon the fairgrounds for the following period: Dates: Oct 11-14 2024 Hours: By agreement of the parties. McDaniel shall close operations when it determines, in its sole discretion, that weather conditions may cause equipment to be a danger to the public or if proper security is not visibly present or crowd control is no longer possible. 6. Town shall obtain and furnish McDaniel with a suitable location, (referred to herein as the "fairgrounds") for the operation of the carnival or fair. The fairgrounds should be cleared of brush, refuse and all other objectionable matter and be in such condition that the complete carnival or fair may be conveniently set up so that the show may be exhibited without discomfort or hazards to itself or the general public. The fairgrounds must be made available to McDaniel at least two (2) days prior to opening. 7. Town shall also be responsible for the following: a. Providing all necessary municipal permits and licenses that may be required by law to operate. b. Providing all newspaper, radio, and hand -bill advertising. McDaniel will give Town at no additional charge 100 advertising posters to be distributed by Town. C. Providing a fresh water faucet, toilet facilities, ticket sellers, police protection during the running of the show, and police or guard service for the equipment from time of show set up to final departure. d. Providing refuse removal and cleaning and restoring of fairgrounds to original order after the departure of McDaniel, except that McDaniel shall be responsible to restore any disturbances to the grounds caused by the installation, set-up, running, break -down or removal of equipment, including any holes, trenches, divots, tire ruts, etc. e. Providing hook-ups for water. 8. Town agrees not to book or contract any attractions similar to McDaniel. Town shall also use its best efforts to discourage any other organization from seeking to run a carnival or fair within the same period of time as the dates contracted for herein. 9. During the term of the carnival or fair herein described and any additional period required for the set up or removal of the amusements, concessions, and/or rides of McDaniel, McDaniel shall protect, indemnify, and hold harmless Town for any and all loss, damage, or liability incurred by any action, conduct, or neglect on the part of McDaniel or any of McDaniel's agents, employees, or licensees. McDaniel will also at all times at its own cost protect both McDaniel and Town with public liability insurance with a reputable insurance company in the amount of one million dollars, insuring against bodily injury and property damage liability. McDaniel shall furnish Town with a Certificate of Insurance showing such insurance to be paid and in force for the period defined herein. (See attached Addendum for Insurance Coverage Requirements.) 10. McDaniel shall in no way be liable for any damages or expenses caused by any failure or delay in the presenting of its attraction, rides, or concessions as herein described, if caused by war, riots, strikes, governmental regulations, labor difficulties, transportation difficulties, adverse weather conditions, or any accident or circumstances over which McDaniel has no control. 11. This Agreement shall become void if not signed and returned to McDaniel within thirty (30) days of proposal to Town. Failure to return the Agreement may result in forfeiture of the play dates specified. 12. Any notice required by this Agreement may be delivered to a party personally or mailed to it by certified mail, return receipt requested, at the address contained in this Agreement. 13. The parties may modify the terms of this Agreement at any time by mutual consent, provided it is in writing and executed with the same formality of this writing. Failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. 14. This Agreement and all rights of the parties thereunder shall be governed by the laws of the State of New York. Each of the parties hereby expressly submit and consent in advance to the jurisdiction of the Courts of the State of New York with regard to any claim or dispute pertaining to the Agreement or any matter arising therefrom. 15. The provisions of this Agreement are severable and if any provision, section, clause or phrase shall for any reason be held invalid, the validity of the remaining provisions, sections, clauses or phrases, shall not be affected, but shall remain in effect. 16. The parties hereto have read this Agreement before signing same and hereby agree that no statement, remark, agreement or understand, oral or written, not contained herein will be recognized or enforced. 17. Town acknowledges that this Agreement is a legal document; that it has the right to and the opportunity for independent legal advice with regard to this Agreement; and that it fully understands its obligation under this Agreement. 18. This Agreement is not assignable and shall be binding upon the parties their heirs, successors, and assigns. 19. It is expressly agreed that the Town shall have no right or authority at any time to make any contract or other binding Agreement of any nature on behalf of McDaniel, whether oral or written; to extend credit on behalf of McDaniel; to incur any debt or otherwise obligate McDaniel, for the payment of any obligation; or to employ, hire, or retain any person, firm, corporation or entity, on behalf of McDaniel, without the express written consent of McDaniel. 20. The member of Town executing this Agreement it does so with the full authority to bind Town to its provisions. 21. Additional Specifications: See attached Addendum. IN WITNESS WHEREOF, the parties hereto, signed and sealed this Agreement the day and year first above written. McDANIEL BROTHERS, INC, t/a McDANIEL BROTHERS SHOWS by: Joseph Cavaccini , Supervsior,Town Manfred McDaniel, President Of Wappinger