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Consulting Services AGREEMENT BETWEEN THE CITY OF SALlNA,'KANSAS' and THE BIGELOW COMPANIES, INC. ,.~ '..;L'" . for' '. , ' CONSULTING SERVICES .~ This Agreement is entered into on the latest date of execution shown on the signature page by and between the City of Salina, Kansas, (the "CITY") and The Bigelow Companies, Inc. (the "CONSUL TANT"). Recitals A. ' The CITY owns and operates the Salina Bicentennial Center, including'in- house food service operations. ' B. The CITY desires to contract for the consulting services necessary to assist in the planning and implementation of upgrading the management systems of the in-house food service operation at the Bicentennial Center. C. The CONSULTANT has the requisite qualifications and experience to perform the services desired by the CITY and desires to perform those services pursuant to the terms of this Agre~ment. The parties therefore agr~e and covenant: 1. Scope of Services. The CONSULTANT agrees to perform the services outlined in the attached and incorporated Exhibit A. 2. Term. The CONSULTANT agrees to perform the services according to the timeframe described in Exhibit A, subject to prior termination pursuant to the terms of this Agreement. 3. Compensation. The CITY agrees to compensate the CONSULTANT on the basis of a lump sum fee of fifteen thousand dollars ($15,000.00) and reimbursable expenses not to exceed twenty-five hundred dollars ($2,500.00) as described and on such terms as are described in Exhibit A and paragraph 5 below. 4. Non-appropriation. In the event that this Agreement anticipates work spanning multiple budget years for the City I it is subject to further appropriation by the CITY's governing body for future fiscal budget years. If the CITY's governing body does not appropriate the funds necessary to compensate the CONSULTANT for services to be provided pursuant to this Agreement in the future fiscal years, the CITY shall so notify the CONSULTANT and this Agreement shall be null and void for purposes of the fiscal budget year(s) affected' by the decision o~ the governing body not to appropriate. 5. Invoices. CONSUL TANT agrees to submit to the CITY detailed invoices at least monthly for work performed' and 'reimbursable expenses actually , incurred. The invoices shall identify the personnel performing the work, the date of the' 1 work, the work performed and the time required to the one-tenth of an hour:. Charges for reimbursable expenses will specifically identify the type and amount of each expense in a manner consistent with the description of reimbursable expenses set forth in Exhibit A. 6. Payment. Invoices will be due and payable within 45 days of receipt by the CITY. If the CITY disputes any items in CONSULTANT's invoice for any reason, the CITY may temporarily delete the disputed item and pay the remaining amount of the invoice. The CITY will promptly notify CONSULTANT and request clarification and/or correction. Following resolution of any dispute, CONSULTANT will include the disputed item as resolved on a subsequent invoice. The CONSULTANT retains the right to assess the CITY interest at the rate of up to one percent (1 %) per month on undisputed invoices which are not paid within 45 days of receipt by the CITY. 7. Nonperformance. If either party fails to comply with any term of this Agreement within 10 days after written notice to comply has been received by the non- defaulting party to the defaulting party, such failure shall be deemed an immediate breach of this Agreement. In such case, the non-defaulting party may pursue against the defaulting party such remedies as provided by law or in equity, including without limitation, the right to specifically enforce this Agreement. In addition, the non-defaulting party may recover its costs and reasonable attorneys' fees incurred in any action related to such breach. In the event of such termination upon the default of the CONSULTANT, the CONSULTANT shall not be entitled to further compensation from the CITY for work performed or costs sustained following the date of termination. .. 8. Termination. Either party may terminate this Agreement, with or without cause, upon 30 days advance written notice to the other party. In the event of such termination, the CONSULTANT shall be compensated for such services as have been performed through the date of termination. 9. Relationship. It is expressly understood that CONSULTANT in performing services under this Agreement, does so as an independent contractor. The City shall neither have nor exercise any control or direction over the methods by which CONSULTANT performs its services hereunder. The sole interest and responsibility of the City is to see that the services covered by this Agreement are performed and rendered in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. CONSULTANT shall be exclusively responsible for all taxes, withholding payments, employment-based benefits, deferred compensation plans, including but not limited to its workers compensation and social security obligations, and the filing of all necessary documents, forms, or returns pertinent to the foregoing. 10. Iniurv to Persons or Damaae to Property. CONSULTANT acknowledges responsibility for any injury to person(s) or damage to property caused by its employees or agents in the performance of its duties under this Agreement and shall immediately notify the City's Risk Management Department at (785) 309-5705 in the event of such injury to person(s) or damage to property. - " 2 ,.' .,: 11. Indemnification. CONSULTANT agrees to indemnify and save harll1less the City, its officials, agents, servants, officers, directors and employees from: and against all claims, expenses, demands, judgments and causes of action for personal injury or death or damage to property where, and to the extent that, such claims, expenses, demands judgment or causes or action arise from CONSULTANT's negligent acts. ",:_J. .r 12. Insurance Reauirements. CONSULTANT shall maintain the following insurance coverage without interruption from the date of the commencement of this agreement until date of final payment and termination of any coverage required to be maintained after final payment Commercial General Liability Insurance CONSULTANT shall provide public liability insurance coverage in an amount no less than $500,000 per claim and annual aggregate covering the liability of CONSULTANT and any and all consultants, agents or independent contractors which are employed or retained by CONSULTANT on an occurrence basis. In lieu of the above coverage, CONSULTANT may provide coverage for its own firm in the above amount or an additional amount and submit proof all its consultants, agents and independent contractors have insurance deemed adequate by the City of Salina. Automobile Liabilitv CONSULT ANT shaH provide coverage ptotectingCONSUL T ANT against" Claims for bodily injury and/or property damage arising out of the ownership or use of any owned, hired and/or non-owned vehicle. Required minimum limits: $500,000 each accident, combined single limits, bodily injury and property damage. _...._-"'~.~ Worker's Compensation Before beginning any work, CONSULTANT shall furnish to the City satisfactory proof that he has taken out, for the period covered by the work under this contract, full workers' compensation coverage as required by state law for all persons who he may employ directly, or through subcontractors, in carrying out the work contemplated under this contract, and shall hold the City free and harmless for all personal injuries of all persons who the CONSULTANT may employ directly or through subcontractors. Certificate(s) 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. Notice of Claim CONSULTANT, upon receipt of notice of any claim in excess of $1,000 in connection with this Agreement shall promptly notify the Risk Management 3 Department, (785) 309-5705, providing full details thereof, including an estimate of the amount of loss or liability. 13. Equal Opportunity. (Not applicable due to contract amount.) 14. Affirmative Action. (Not applicable due to contract amount.) 15. Compliance with Applicable Law. CONSULTANT shall comply with all applicable federal, state, and local law in the performance of its duties under this Agreement. 16. Non-assianable. Due to the unique qualifications and circumstances of the parties, neither the rights nor the responsibilities provided for under this Agreement shall be assignable by either party, either in whole or in part. 17. Feminine-Masculine. Sinaular-Plural. Wherever used, singular shall include the plural, plural the singular, and use of any gender shall include all genders. 18. Kansas Law Applies. This Agreement and its validity, construction 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. 19. Severability. The unenforceability, invalidity, or illegality of any provision of this Contract shall not render the other provisions unenforceable, invalid, or illegal~'; -c... 20. Time. Time is of the essence of this Agreement. No extension will be granted unless in writing and signed by the parties. Should the end of a time period fall on a legal holiday, that time period shall extend to 5:00 p.m. of the next full business day. 21. Persons Bound-Copies. This Agreement shall extend to and bind the successors and assigns of the parties hereto, and may be executed in any number of counterparts, each of which shall be deemed an original, or in multiple originals, and all such counterparts or originals shall for all purposes constitute one agreement. 22. Notices. All notices and demands shall be given in writing either by personal service or by registered or certified mail, postage prepaid, and return-receipt requested. Notice shall be considered given when received on date appearing on the return receipt, but if the receipt is not returned within five (5) days, then forty-eight (48) hours after deposit in the mail. Notices shall be addressed as appears below for each party, provided that if any party gives notice of a change of name or address, notices to the giver of that notice shall thereafter be given as demanded in that notice. CITY: City Clerk P.O. Box 736 Salina, KS 67402-0736 CONSULTANT: The Bigelow Companies, Inc. 1575 Universal Ave., Suite 156 Kansas City, MO 64120 4 ..) . 23. Tvpewritten or Handwritten Provisions. Typewritten or handwritten provisions inserted or attached shall supersede all conflicting printed provisions. 24. Meraer Clause. 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 before or at the signing thereof, shall be binding unless in writing and signed by all parties and attached hereto. Any amendment to this Contract, including an oral modification supported by new consideration, must be reduced to writing and signed by both parties before it will be effective. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective proper officials. ~ Executed by the CONSULTANT this I J day of --s- ~ 2010 Executed by the CITY this 14~ day of ~ 2010 By: ~ C./2 THE BIGELOW COMPANIES, INC. ("CONSULTANT') CITY OF SAUNA, KANSAS ("CITY') By: G. Peck, Mayor ATTEST: BY~ APPROVED AS TO FORM: By: '. r' . 5 EXHIBIT "A" A Proposal for Management Advisory Services For the In-House Foodservice Operations For the Bicentennial Cente'r ~ .. In Salina, Kansas , , ~ ,- Client Objective Provide advisory assistance in the planning and implementation of upgrading the management systems of the in-house foodservice operation at the Bicentennial Center. The foodservices overseen by this department include both concessions and catering. The self-operated foodservice department should be established with the proper planning, personnel and procedures to ensure that it is efficiently serving its customers with the highest level of services and products while returning the maximum revenues to the facility. To implement this plan the following scope of services will be provided: Scope of Services Phase I - Facility History and Projections . Input event, attendance and sales history into data base . Collect future event and attendance projections . Develop an understanding of the organizational structure, support and supervisory capabilities of the City staff overseeing the foodservice department Phase II - Personnel . Develop an organizational structure for the in-house department . Develop a salary and incentive structure for the in-house department . Develop service staffing guidelines for future events Phase III - Product . . Develop menu, pricing and portions . Develop menu pricing guidelines for future years based on perfect costing Phase IV - Equipment . Assist management in specifications of smallwares and serviceware for upgrading banquet service 5/20/2010 1 The Bigelow Companies, Inc. Salina Bicentennial Center In-House Foodservice Department Systems Development . Assist management in specifications of uniforms for upgrading serVers '-' ' uniforms ,- . Assist management in specifications for upgrading concession and bar portables and service equipment . Phase V - Financial .. ~\,.. ~J . Develop an annual budget with sales and industry average product costs and personnel costs . Establish basic controls for foodservice department's submittal to the Center's management. Controls to include; ~ Purchasing ~ Receiving ~ Warehousing ~ Stocking ~ Cash controls ~ Inventory controls ~ Stand control sheets ~ Banquet Event Orders ~ Labor planning ~ Event, daily and weekly sales reporting ~ Monthly operating reports ~ Monthly inventory and product costing ~ Payroll by department ~ Monthly and annual budgeting and profit and loss statenier1fs.. Phase VI - Summary Report . Provide a summary of the topics reviewed, controls implemented, budget established and auditing benchmarks the City's finance department should use in reviewing the Center's food and beverage department. Phase VII - Continuing Advisory Services . Remain available for advisory counsel to the management staff, via email, fax and phone, for a one year period, without additional fees. Project Fees and Expenses The Bigelow Companies will provide the services described above in Phases I through VI for a lump sum fee of fifteen thousand dollars ($15,000.00) plus reimbursable expenses invoiced at 100% of cost. Reimbursable expenses include all out of pocket costs directly attributable to the project including, but not limited to travel, lodging, meals, communications, postage, computer disks, form reproductions and printing. Reimbursables will not exceed twenty five hundred dollars ($2,500.00). A_, 5/20/2010 2 The Bigelow Companies, Inc. Salina Bicentennial Center In-House Foodservice Depaitment Systems Development Client is invoiced monthly as work progresses. Invoices are due upon receipf These financial arrangements are based on the prompt payment of our invoices and the continuous progress of the project. Within forty-five d~ys of receipt of our invoice, client shall thoroughly examine the invoice to ascertain its accuracy and completeness and notify the Bigelow Companies Qt.;' any questions or objections to the invoice. Failure to notify the Bigetow Companies of any objections within twenty one days of receipt obligates the Client for full payment of the invoice. Outstanding balances are assessed 1% monthly. Upon thirty days written notice, we may suspend services until all outstanding balances are paid in full. Client is liable for any legal or collection fees in any effort to enforce the payment of the outstanding invoices. Project Parameters The fee includes the time required for five (5) days on-site with up to two consultants. Reasonable telephone and electronic communication is provided for one year without additional charge. Additional services and travel time if requested and approved by the client will be invoiced at the hourly rate of two hundred ten dollars ($210.00) per hour. TBC will coordinate dates with the Bicentennial Center management based on event schedules allowing Center management the sufficient time to concentrate on project workload. In order to efficiently implement the proposed upgrades, we would suggest the first three day training period be July 6th through the 8th and then a return visit be established after Andra Thurlow has had a chance to implement the suggested controls and develop a list of questions or concerns regarding the procedures. The follow up will be a two day on-site session. 5/20/2010 3 The Bigelow Companies, Inc. J '-'./ "-. 'r Salina Bicentennial Center In-House Foodservice Department Systems Development The project price is valid until July 30, 2010 or when approved, whichever occurs sooner. Date ~ Approved by Print Name Title Organization Please return approved proposal to: The Bigelow Companies, Inc. 1575 Universal Ave. Suite 156 Kansas City, MO 64120 USA Fax 816-483-5510 chrisbioelow@bioelowcompanies.com 5120/2010 4 The Bigelow Companies, Inc.