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CCR2020005-Attachment BEER GARDEN AGREEMENT THIS AGREEMENT is made and entered into by and between Component Brewing st Company, LLC (the “BREWER”) whose street address is 2018 S 1 St #207, Milwaukee, Wisconsin 53207, and The City of Muskego, a municipal corporation organized and existing under the laws of the State of Wisconsin located at W182 S8200 Racine Avenue, Muskego, WI 53150 (the “HOST”) (the “AGREEMENT”). PRELIMINARY RECITALS WHEREAS, BREWER is the owner and operator of the Muskego Beer Garden. WHEREAS, BREWER is in the business of selling alcoholic beverages and possesses the necessary licensing, experience, and resources to create a beer garden experience at HOST facilities, and HOST wishes to have a qualified business operate a beer garden at HOST facilities. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the receipt and adequacy of which are acknowledged, the BREWER and HOST agree to the following terms: TERM/RENEWAL This AGREEMENT shall commence on date of acceptance by BREWER and HOST and terminate on September 20, 2020. HOST may terminate this AGREEMENT for any reason upon not less than thirty (30) calendar days written Notice to BREWER. BEER GARDEN The BREWER shall provide a beer garden experience at the HOST park facilities identified above on a rotating basis. “Beer Garden” is defined as an event at which BREWER may sell alcoholic beverages, non-alcoholic beverages, food and merchandise. In addition, BREWER shall provide a fun venue for families to enjoy HOST Park facilities. BREWER must provide games and activities for the purpose of family entertainment at the Beer Garden. BREWER must provide food and live entertainment at each Beer Garden event. GRANT OF RIGHT AND PRIVILEGE OBLIGATION TO SELL AND PROVIDE The HOST grants the BREWER the right and privilege to provide merchandise, alcoholic beverages and non-alcoholic beverages at the Beer Garden. During the term of this Agreement, the HOST shall not permit any other brewery with the right and privilege to operate a beer garden or similar experience at any of the HOST park facilities as identified above on the same days as BREWER. For illustration purposes, if BREWER is operating a Beer Garden on June 1, Pg. 1 2020 at Veteran’s Memorial Park, then HOST shall not permit another brewer to operate a separate beer garden experience on June 1, 2020 at the same location. BREWER may provide a third party vendor to supply food or entertainment during the operation of the Beer Garden. BREWER will ensure the Beer Garden facilities are functioning in a manner compliant with all State and Local codes, laws and regulations. HOST’s reserves the right to approve or disallow third party vendors in the HOSTS sole discretion. DATES AND HOURS OF OPERATION Weather permitting, Beer Garden dates of operations will be May 29-May 30, July 17-18 and September 18-19; Beer Garden hours of operation are intended to be from 4:00 pm to 9:00 pm on Friday’s and Saturdays, unless otherwise noted in this AGREEMENT. No alcohol shall be dispensed or distributed to patrons after 9:00 pm. Dates and times of operation may be modified upon written approval of the HOST. In the event of a weather cancellation, make-up date can be scheduled the Sunday of each hosting weekend. BEER GARDEN SITE The Beer Garden will be located at Veterans Memorial Park, w182s8200 Racine Ave, Muskego, WI 53150. MARKETING It is advantageous for both parties to jointly market the Beer Garden. All marketing shall be mutually acceptable to both parties. BREWER’s logo will be shared with HOST, and HOST’s logo will be shared with BREWER for the purpose of cross marketing Beer Garden events. Announcement of events will be scheduled and agreed upon by both parties. Upon the termination or expiration of this Agreement, each party shall immediately cease using the trademarks or any other logos of the other party. Marketing campaign and logo usage must be agreed upon/approved by all participants prior to any promotion. HOST will promote the event via website and social media posts a minimum of two months prior to each beer garden weekend. Both parties must agree upon hashtags, event name/date/time/location. BREWER will create social media events, which HOST will share throughout its social media platforms. It is advantageous for both parties to promote that the HOST’s proceeds from Beer Garden sales will benefit Muskego Parks improvements. SIGNAGE BREWER will provide signage one month prior to Beer Garden. HOST will purchase and secure any sign permits for Beer Garden. BREWER’s logo will be included in signage. BREWER will provide digital signage files to HOST for printing and posting at HOST discretion. Pg. 2 MANAGEMENT OF THE BEER GARDEN It is the responsibility of the BREWER to manage the distribution of alcohol. BREWER shall monitor the service of alcoholic beverages, making sure no one under the age of twenty-one (21) is drinking alcohol and refusing service to people who appear to be intoxicated or using poor judgment in their drinking. Public shall bring no carry-in alcoholic beverages to the Beer Garden. BREWER must maintain general cleanliness during Beer Garden(s) event hours, with responsibility of removing event refuse/recycling, stocking of restrooms, evening light control, etc. PERSONNEL The BREWER shall supply all personnel necessary to carry out its responsibilities under this AGREEMENT. The HOST shall supply all personnel necessary to procure appropriate seating, refuse receptacle and electrical needs during setup, and direct traffic/parking and maintain general cleanliness during the Beer Garden. THIRD PARTY VENDORS Third party vendors are not a party to this AGREEMENT. BREWER may fulfill its responsibilities under this AGREEMENT by contracting with third party vendors to provide services (“Third Party Vendor”). HOST reserves the right to approve or disallow Third Party Vendors in the HOST’s sole discretion. BEER GARDEN SITE AND EQUIPMENT BREWER shall be responsible for each site established as the Beer Garden. Games and entertainment shall be safe and well-maintained. All Beer Garden equipment and disposable expenses in establishing the Beer Garden are the responsibility of the BREWER. All necessary equipment and personnel to create the Beer Garden experience are the responsibility of the BREWER. The BREWER shall include all labor, merchandise, alcoholic and non-alcoholic beverage supplies, equipment and related items necessary to serve the needs of the customers of a Beer Garden. RESPONSIBILITY OF HOST Anything to the contrary notwithstanding, HOST shall be responsible for and shall take the following actions: (a) cleanliness of the area surrounding the Beer Garden before and after hours of operation, including without limitation lawn mowing and maintenance of the restrooms, and. HOST shall provide electrical supplies and adequate lighting, seating and tables, waste receptacles, and sufficient space for Beer Garden setup. HOST is responsible for complying with all laws, including those related to safety, applicable to the HOST in connection with this Agreement. Pg. 3 CLEANLINESS BREWER shall keep the premises and the Beer Garden site clean during hours of operation, and facility keys will be assigned to BREWER for use. No offensive or refuse matter, nor any substance constituting an unnecessary, unreasonable, or unlawful hazard, nor any material detrimental to the public health, shall be permitted to remain thereon, and BREWER shall prevent any such matter or material from being or accumulating upon the Beer Garden site. BREWER shall maintain recycling efforts by using #1, #2 or #5 recyclable drink cups for beverage service. BREWER shall see that all garbage or refuse is collected as often as necessary and in no case less than once per event and disposed of in the HOST receptacles. HOST will supply waste receptacles and recycling receptacles for the Beer Garden use. BEVERAGE AND MERCHANDISE FEES In return for the right to sell merchandise, alcoholic and non-alcoholic beverages through the Beer Garden, the BREWER shall pay the HOST Four Hundred and 00/100 Dollars ($400.00) per day when Beer Garden is open no later than thirty (30) days after the Beer Garden event. BREWER shall provide HOST with the necessary documentation and accounting evidencing gross beverage and merchandise sales along with event payment. In the event of a dispute, HOST may prohibit BREWER from hosting any future events and terminate this agreement immediately in the HOST’s sole discretion. INCLEMENT WEATHER Beer Garden is an outdoor experience. BREWER shall make every effort to hold events as scheduled. Cancellation of an event is dependent upon weather conditions at the host facility. The decision to cancel an event is the mutual responsibility of the BREWER and HOST and will be made as close to event time as possible. BREWER and HOST will assist with social media postings to notify the public. In the event of a cancellation due to weather, BREWER is not responsible for the per day fee of $400.00 as stated herein. Pg. 4 INDEMNIFICATION The HOST, forever discharges, holds harmless and indemnifies the BREWER, its agents and employees, and its or their successors and assigns, from and against any and all claims, demands, damages, costs including attorney fees, actions and causes of action of whatever kind or nature, incurred by BREWER (its agents and employees, and its or their successors and assigns) for any third party claim to the extent arising out of (a) a material breach or non- fulfillment of any material representation, warranty or covenant in this Agreement by HOST (or its personnel) or (b) any negligence or more culpable act or omission of HOST (or its personnel) in connection with the performance of its obligations under this Agreement. The BREWER, forever discharges, holds harmless and indemnifies the HOST, its Departments, Commissions, Officials, Agents and Employees, his her its or their successors and assigns (“Released Parties”) from any and all claims, demands, damages, costs including attorney fees, actions and causes of action of whatever kind or nature, incurred by the Released Parties for any third party claim to the extent arising out of (a) a material breach or non-fulfillment of any material representation, warranty or covenant in this Agreement by BREWER (or its personnel) or (b) any negligence or more culpable act or omission of BREWER (or its personnel) in connection with the performance of its obligations under this Agreement. INSURANCE In order to protect against potential liability arising out of the activities performed hereunder, BREWER shall obtain and maintain, in full force and affect, comprehensive general liability, bodily injury and property damage insurance coverage with minimum limits of $1,000,000 per occurrence and $1,000,000 aggregate. Said insurance may not be cancelled, reduced or changed in any way without at least thirty (30) day written notice to the HOST. Failure to provide proper notice, in and of itself, shall be grounds for termination of this AGREEMENT. Brewer shall obtain Certificates of Insurance as well as Endorsements to its insurance policies as follows: ➢ 30 day notice of cancellation. ➢ BREWER’s primary insurance. ➢ Waiver of rights of recovery against others to us. ➢ Naming the HOST as an additional insured. Pg. 5 ASSIGNMENT This AGREEMENT may not be assigned by the BREWER without the prior written consent of the HOST. INDEPENDENT CONTRACTOR For purposes of this AGREEMENT, the BREWER is an independent contractor and not the employee or agent of the HOST. The BREWER is not an employee of the HOST for any purpose whatsoever, to include coverage under the Wisconsin Worker’s Compensation Statute. JURISDICTION/VENUE The circuit court of Waukesha County, Wisconsin, shall have exclusive jurisdiction for any legal proceedings concerning this AGREEMENT, and Waukesha County shall be the exclusive venue for such proceedings. All such proceedings shall be governed by the laws of the State of Wisconsin. DISPUTE RESOLUTION Should disputes arise between parties during the course of this AGREEMENT, the parties shall make a good faith attempt to resolve disputes through dialogue and negotiation. If such efforts fail to resolve the differences, prior to the commencement of legal action, the parties will attempt to resolve the issues through mediation conducted in Waukesha County, State of Wisconsin, by a Wisconsin mediator chosen by AGREEMENT of the parties. The parties shall share equally in all costs associated with Mediation. RELATIONSHIP Nothing contained in this AGREEMENT shall constitute or be construed to create a partnership or joint venture between the HOST and the BREWER or successors or assigns. This AGREEMENT does not create the relationship of principal and agent. FORCE MAJEURE The obligation of the Parties shall be excused by detention of key personnel by sickness, accident, riot, strike, epidemic, act of God, Force Majeure or any other legitimate condition beyond the control of the obliged Party. In case of Force Majeure, neither Party shall be liable for indirect, special or consequential damages arising from any breach of this Agreement. Pg. 6 SEVERABILITY In the event that any provision of this AGREEMENT is deemed to be invalid by reason of the operation of any law or by reason of the interpretation placed thereon by any Governmental Authority, the validity, legality and enforceability of the remaining terms and provisions of this AGREEMENT shall not in any way be affected or impaired thereby, all of which shall remain in full force and effect, and the affected term or provision shall be modified to the minimum extent permitted by law so as to achieve most fully the intention of this AGREEMENT. ENTIRE AGREEMENT; AMENDMENTS This AGREEMENT, together with any attachments, shall constitute the entire AGREEMENT between the parties and previous communications or AGREEMENTS pertaining to the subject matter of this AGREEMENT are hereby superseded. Any contractual revisions may be made only by a written amendment to this AGREEMENT, signed by both parties prior to the ending date of this AGREEMENT. NOTICES BREWER: HOST: Component Brewing Company, LLC _____________________________ Attn: Jonathan Kowalske _____________________________ st 2018 S 1, #207 _____________________________ Milwaukee, WI 53207 _____________________________ In Witness Whereof, the parties hereto agree to this AGREEMENT: BREWER: HOST: Component Brewing Company, LLC ________________________________ BY:______________________________ BY:______________________________ Jonathan Kowalske Owner, Sales & Marketing Name: ___________________________ Dated: ___________________ Title: ____________________________ Dated: ___________________ Pg. 7