Concessions Agreement - Kenwood Cove
City of Salina
Kenwood Cove
CONCESSIONS MANAGEMENT AGREEMENT
This Agreement is entered into this M day of April 2010, by and between the
CITY OF SALINA, KANSAS (the "City") and HUNGRY CATS, INC., a Kansas
corporation, ("Hungry Cats").
Recitals
A. The City owns and operates an aquatic park known as Kenwood Cove
which includes an approximately 1,390 square foot concession building designed for the
sale of concessions to the general public attending the Kenwood Cove as depicted on
the attached and incorporated Exhibit A ("Concession Building").
B. The City wishes to provide food and beverage concession services and
merchandise for the better accommodation, convenience and welfare of the general
public attending Kenwood Cove pursuant to this qualified management agreement as
defined by the Internal Revenue Service (the "Concession Operation").
C. Kenwood Cove will operate for approximately 88 days each season,
generally from Memorial Day weekend through mid-August (the "Season"). Hungry
Cats, Inc., has offered to operate the Concession Operation for the 2010 Season and
potentially future Seasons, subject to the renewal and termination provisions of this
Agreement.
D. The City believes that contracting with Hungry Cats, Inc. for the
Concession Operation at Kenwood Cove is in the best interest of the City and the
general public attending Kenwood Cove.
IN CONSIDERATION of the mutual covenants and promises outlined herein, the
parties agree as follows:
1. Right to Occupy and Operate. The City grants to Hungry Cats, Inc. and
Hungry Cats, Inc. accepts the right to occupy the Concession Building for the purpose
of conducting the Concession Operation at Kenwood Cove.
2. Compensation. Hungry Cats, Inc. shall pay to the City for the right to
conduct the Concession Operation at Kenwood Cove the sum of 23.5% of the gross
sales per calendar month from the Concession Operation for each month of the
Season, payable on or before the 10th of each following month (June 10th, July 10th,
August 10tli and September 10th). If, however, the average daily attendance at
Kenwood Cove for the days of operation during any calendar month of the Season is
greater than 1,900 persons per day, the percentage to be paid by Hungry Cats, Inc. to
the City will increase to 28.5% of gross sales for that calendar month. Attendance
numbers will be provided to Hungry Cats, Inc. by the City on or before the third day of
operation following the qualifying calendar month. The parties acknowledge that the
point-of-sale hardware and software provided by the City will enable to both parties to
monitor and verify gross sales from the Concession Operation.
3. Food and Beverage. Hungry Cats, Inc. agrees to sell a complete line of
food and beverage items normally associated with an aquatic park concession
operation. The type and price of any food, beverage, or merchandise to be sold at
Kenwood Cove by Hungry Cats, Inc. shall be subject to prior approval by the City, which
approval shall not be unreasonably withheld, and shall be conspicuously posted in a
manner readily visible to the public at the Concession Building.
4. Equipment, Supplies, and Inventory. The City shall be responsible for
providing and maintaining the basic equipment necessary to conduct the Concession
Operation. Hungry Cats, Inc. shall be responsible for providing smallware, specialty
equipment provided by its food vendors, and the soft drink fountain. Hungry Cats shall
also be responsible for the cost and all aspects of properly supplying and stocking the
Concession Operation. Hungry Cats, Inc. shall safely and carefully use the City's
equipment and shall be responsible for the cost of repair or replacement resulting from
any damage to the City's equipment. Hungry Cats, Inc. shall maintain its equipment in
good working order and shall not damage City property or equipment in either the
installation or removal of its equipment. Any equipment, supplies, and inventory
purchased by Hungry Cats, Inc. for use in the concession operation shall remain the
property of Hungry Cats, Inc. Hungry Cats, Inc. and not the City shall be responsible for
any risk of property loss or damage to equipment or other personal property owned or
leased by Hungry Cats, Inc. for use in the Concession Operation. Hungry Cats, Inc.
may obtain insurance coverage for loss or damage to its equipment and other personal
property at their discretion and expense.
5. Storage of Inventory and Supplies. Hungry Cats, Inc. agrees that all
equipment, supplies (including ice), and inventory necessary for the Concession
Operation shall be properly stored inside the Concession Building.
6. Loss of Inventory or Money. The City shall not be responsible for any
loss of inventory or money suffered by Hungry Cats, Inc. in the course of conducting the
Concession Operation.
7. Lawful Operation. Hungry Cats, Inc. shall conduct the Concession
Operation in compliance with all federal, state and local laws and permit or license
requirements. Hungry Cats, Inc. shall be solely responsible for obtaining any permits or
licenses required to lawfully conduct the Concession Operation.
8. Sanitation. Hungry Cats, Inc. shall maintain the Concession Building, the
immediate area around the Concession Building, and all fixtures, equipment, and
personal property within the Concession Building, whether owned by the City or Hungry
Cats, Inc., in a clean, sanitary, and orderly condition at all times. Hungry Cats, Inc. shall
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conduct the Concession Operation strictly in accordance with the requirements of all
local and state regulatory authorities. All janitorial services necessary in the
Concession Building shall be the responsibility of Hungry Cats, Inc. The City shall
dispose of trash collected by Hungry Cats, Inc. from the Concession Building and
deposited in sealed containers in locations designated by the City.
9. Time of Operation and Related Duties. Hungry Cats, Inc. shall conduct
the Concession Operation during all times Kenwood Cove is open to the general public
and during special events at the direction of the City. On regular days Kenwood Cove is
open to the general public, Hungry Cats will commence the Concession Operation from
one hour prior to the scheduled opening time to one-half hour before the scheduled
closing time.
10. Staffing. Hungry Cats, Inc. shall staff the Concession Operation with
trained personnel in sufficient number to adequately handle the concession needs of
those in attendance at Kenwood Cove any given time. Hungry Cats, Inc. employees or
volunteers staffing the Concession Operation shall not for any purposes be regarded as
the agents or employees of the City.
11. Access. The parties acknowledge that access to the Concession Stand
by representatives of the City on a normal basis is not required. However, Hungry Cats,
Inc. agrees that the City's authorized employees, agents, and contractors shall have
reasonable access to the Concession Building when needed for inspection,
maintenance or other necessary activities.
12. Utilities. The City will pay for all utilities used during the operation of the
Concession Building by Hungry Cats, Inc.
13. Sale of City Novelty Items. Hungry Cats, Inc. agrees that upon the
request of the City it shall sell in the Concession Building the City's inventory of novelty
items, including t-shirts, hats, sunglasses, sunscreen or other items designated by the
City. For selling the City's novelty items, Hungry Cats, Inc. shall be paid 10% of the
City-determined sale price of each item sold.
14. Sales Tax. Hungry Cats, Inc. shall be solely responsible for the collection
and payment of state and local sales taxes to be paid on all food, beverages, and other
merchandise sold in the Concession Operation.
15. Indemnification. Hungry Cats, Inc. shall indemnify, defend, hold
harmless and protect the City and its directors, officers, officials, agents and employees
from and against all claims, damages, loss, judgment, penalty, expense, or cost
(including attorney's fees and any other cost of defense) arising from its performance of
this Agreement.
16. Commercial General Liability Insurance. Hungry Cats, Inc. shall carry
general liability insurance coverage in an amount no less than one million dollars
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($1,000,000) per occurrence, with an annual aggregate of two million dollars
($2,000,000).
17. Commercial/Business Automobile Liability Insurance. Hungry Cats,
Inc. shall carry automobile liability insurance for bodily injury (including death) and
property damage which provides total limits of not less than one million dollars
($1,000,000) combined single limit per occurrence applicable to all owned, non-owned
and hired autos.
18. Worker's Compensation Insurance. Hungry Cats, Inc. shall carry
insurance for the benefit of their injured employees as required by law for all persons
who he may employ directly, or otherwise, in carrying out the work contemplated under
this agreement, and with the minimum limits of one million dollars ($1,000,000).
19. Certificate of Insurance. Certificate(s) of Insurance acceptable to the
City shall be filed with the City at the time this Agreement is executed. These
certificates shall contain a provision that coverage afforded under the policies will not be
cancelled or substantially changed until at least thirty (30) days prior written notice has
been given to the City and acknowledged. Note: if Hungry Cats, Inc. is subject to
worker's compensation law a certificate shall be provided. Certificate Holder should be
shown as listed below:
City of Salina
Attn: Risk Management
P.O. Box 736
300 W. Ash, Room 202
Salina, KS 67402-0736
20. Notice of Claim. Hungry Cats, Inc., upon receipt of notice of any claim in
excess of $1,000 in connection with this Agreement shall promptly notify the City's Risk
Management Department, (785-309-5705), providing full details thereof, including an
estimate of the amount of loss or liability.
21. Default. In the event either party fails to perform any of the promises and
covenants under this Agreement, the non-defaulting party shall give written notice of the
default to the other party specifying the nature of the default. If such default remains
uncured for ten (10) days after delivery of the notice specifying the nature of the default,
this Agreement shall terminate at the sole option of the non-defaulting party. In the
event of termination based upon default of Hungry Cats, Inc., Hungry Cats, Inc. shall
immediately discontinue operations and shall be required to immediately remove all of
their equipment, inventory, and supplies from the Concession Building.
22. Term. Subject to the default provisions above, this Agreement shall be for
a primary term of the 2010 season, and shall self-renew annually for the following
single Season unless either party gives written notice of termination no later than
November 1 to be effective the following February 1 of any year following the primary
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term. Upon notification of termination of this Agreement, Hungry Cats, Inc. agrees that
they will remove all their equipment, supplies, and inventory from the Concession
Building between the November 1 notice date and the February 1 termination date.
23. Relationship of the Parties. The relationship between the parties shall
be strictly that the City as owner of Kenwood Cove and Hungry Cats, Inc. as a
contractor for the Concession Operation. Under no circumstances shall Hungry Cats,
Inc. be regarded as an agent of the City, specifically with regard to the incurring of any
expense or obligation in conjunction with performance of the responsibilities of Hungry
Cats, Inc. under this Agreement.
24. Assignment. The City's willingness to enter this Agreement and the
public interest served thereby is unique to Hungry Cats, Inc.; therefore, this Agreement
is non-assignable by Hungry Cats, Inc.
25. Contract Administration. The City Manager or his designee shall be
responsible for all aspects of the administration and interpretation of this Agreement on
behalf of the City.
26. Written Notices. All written notices, as provided herein, shall be
delivered by certified mail, return receipt requested, mailed as follows:
City:
City of Salina
Office of the City Clerk
City-County Building
300 WAsh
Salina, KS 67401
Hungry Cats, Inc.:
Brian Wise
2815 Anderson Ave.
Manhattan, KS 66502
27. Non-discrimination. Hungry Cats, Inc. agrees not to discriminate
against any employee or any applicant for employment because of race, color, religion,
age, sex, disability, or national origin or ancestry and likewise not to discriminate for
those same reasons against any person in the course providing concession services to
the general public attending Kenwood Cove.
28. Kansas Law Applies. This Agreement and its validity, constructions and
performance shall be governed by the laws of Kansas. This Agreement shall be
interpreted according to its fair meaning, and not in favor of or against any party.
29. Merger. These terms are intended by the parties as a complete,
conclusive and final expression of all the conditions of their Agreement. No other
promises, statements, warranties, agreements or understandings, oral or written, made
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before or at the signing thereof, shall be binding unless in writing and signed by all
parties and attached hereto. Any amendment to this Agreement, including an oral
modification supported by new consideration, must be reduced to writing and signed by
both parties before it will be effective.
30. Severability. The unenforceability, invalidity, or illegality of any provision
of this Agreement shall not render the other provisions unenforceable, invalid, or illegal.
31. Non-waiver. No waiver of default by either party of any of the terms,
covenants, and conditions of this Agreement to be performed, kept and observed by the
other party shall be construed as, or operate as, a waiver of any subsequent default of
any of the terms, covenants or conditions of this Agreement to be performed, kept and
observed by the other party.
32. Binding Effect. This agreement shall be binding upon the parties and
their successors.
IN WITNESS WHEREOF, the duly authorized officers of the parties have
executed this Agreement on the date first above written.
ATTEST:
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By:
Lieu Ann Elsey, City CI k
HUN
By:
Brian Wise, President
2815 Anderson Ave.
Manhattan, KS 66502
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