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Use and Storage of Concrete Barriers
r AGREEMENT BETWEEN THE CITY OF SALINA, KANSAS and FRANK CONSTRUCTION CO.,INC. d/b/a FERCO RENTAL for USE AND STORAGE OF CONCRETE BARRIERS This Agreement is entered into on the latest date of execution shown on the signature page by and between the City of Salina, Kansas, ("CITY") and Frank Construction Company, Inc., a Kansas corporation, d/b/a Ferco Rental ("FERCO"). Recitals A. The CITY owns and operates the East Crawford Recreation Area(the "ECRA"). B. The annual drag race held at ECRA as a part of the Kustom Kemps of America Lead Sled car show (the "Race") involves the use of portable concrete barriers of the quantity and type owned by FERCO as a spectator safety measure. C. FERCO has need for a location to store and access its owned stock of portable concrete barriers (the "Barriers") when not in use at FERCO job sites. D. The CITY and FERCO desire to enter into a mutually beneficial arrangement pursuant to the terms of this Agreement providing for use of the Barriers during the Race and storage of the Barriers at the ECRA when not otherwise in use by FERCO. The parties therefore agree and covenant: 1. Use of Barriers. FERCO agrees that for the term of this Agreement the Barriers shall be used by the CITY over the number of days required for the CITY to properly place the Barriers prior to the Race, utilize the Barriers during the Race, and remove the Barriers and return them to storage after the Race. In exchange for use of the Barriers, FERCO will be allowed to store the Barriers in the location at the ECRA depicted on the attached and incorporated Exhibit A ("Storage Site"). 2. Term. The term of this Agreement shall commence upon its execution and shall remain in effect until terminated by either party upon written notice to the other of no less than 90 days before the date of termination specified in the notice. Following delivery of a notice of termination by either party, FERCO shall, at its expense, fully remove the Barriers from the Storage Site during the 90 day notice period. 3. Compensation. The CITY and FERCO agree that upon the basis of the mutual benefit to the parties under this Agreement, no separate monetary compensation shall be required of either party. 4. Access to Stored Barriers. FERCO shall have access to the Site for the purposes of removing some or all of the Barriers from the Site or returning them upon the following conditions: a. The Barriers shall be removed or returned by FERCO during those times and in a manner that will not disrupt or disturb nearby residents or other ECRA events; b. FERCO shall conduct its operations on the ERCA in compliance with all applicable law and licensing or permit requirements; and C. The CITY shall not be responsible for any loss of or damage to the Barriers while stored on the Site. 5. Relationship and Release of Claims. It is expressly understood that the CITY allowing FERCO to store and access the Barriers on the Site pursuant to this Agreement is of the nature of a license to use public property under which FERCO retains full ownership and responsibility for the Barriers. FERCO releases the CITY from any claims of loss or damage to the Barriers. 6. Iniury to Persons or Damage to Property. FERCO acknowledges responsibility for any. injury to person(s) or damage to property caused by its employees or agents in the performance of its rights and responsibilities 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. 7. Indemnification by FERCO. FERCO agrees to indemnify and save harmless the CITY, its officials, agents, servants, officers, directors and employees from and against all claims, expenses, demands,judgments and causes of action (including attorney fees) 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 FERCO's intentional or negligent acts. 8. Indemnification by CITY. CITY agrees to indemnify and save harmless FERCO, its officials, agents, servants, officers, directors and employees from and against all claims, expenses, demands,judgments and causes of action(including attorney fees) 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 CITY's intentional or negligent acts. 9. Insurance Requirements. FERCO shall procure and maintain the following insurance coverage without interruption for the term of this Agreement: Commercial General Liability Insurance Commercial general liability insurance with limits not less than $1,000,000 each occurrence, bodily injury and/or property damage, and $1,000,000 general aggregate. Automobile Liability Automobile liability insurance with limits of not less than $500,000 for all owned, hired and non-owned autos. Worker's Compensation Statutory worker's compensation insurance. 2 1 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 and shall be kept current for the term of this Agreement. 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 . FERCO, upon receipt of notice of any claim in excess of$1,000 in connection with this Agreement shall promptly notify the Risk Management Department, (785) 309-5705, providing full details thereof, including an estimate of the amount of loss or liability. 10. Compliance with Applicable Law. FERCO shall comply with all applicable federal, state, and local law in the performance of its rights and responsibilities under this Agreement. 11: Nonperformance. If either party fails to comply with any term of this Agreement within 10 days after written notice to comply has been mailed 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 or to terminate 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 termination upon the default of FERCO, FERCO shall have 30 days to remove the Barriers from the Site, at its expense. 12. Non-assignable. Due to the unique 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. 13. Feminine-Masculine, Singular-Plural. Wherever used, singular shall include the plural,plural the singular,and use of any gender shall include all genders. 14. 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. 15. Severabili ty. The unenforceability, invalidity, or illegality of any provision of this Contract shall not render the other provisions unenforceable, invalid, or illegal. 16. 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. 17. Persons Bound-Copies. This Agreement shall extend to and bind the successors 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. 3 Y 18. 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 the 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 City of Salina, Kansas P.O. Box 736 Salina, KS 67402-0736 CONSULTANT: Joe Frank,President Ferco Rental 264 S. Broadway Blvd. Salina, KS 67401 19. Typewritten or Handwritten Provisions. Typewritten or handwritten provisions inserted or attached shall supersede all conflicting printed provisions. 20. Merger 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. CITY OF SALINA, KANSAS ("CITY") FRANK CONSTRUCTION, INC. (FERCO) By: Y•B Samantha . An ll, Mayor Joe Frank, President Date: a Date: ATTEST: c- By: Lieu Ann Elsey, CMC, City lerk APPROVED AS TO FORM: APPROVED AS TO FORM: By: By: Greg A. Be tson, Legal Counsel , City of ina Kansas 4 l ® DATE(MM/DDIYYYY) CERTIFICATE OF LIABILITY INSURANCE 6/1i2012 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER - CONTACT Beck y Good NAME: Assurance Partners PHONE ($00)563-1871 A/C No:(785)825-5098 2090 S. Ohio ADORILSS:bgood@yourassurance.com P.O. Box 1213 PRODUCER p0035851 CUSTOMER ID Salina KS 67402-1213 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURERA.Mid-Continent Casualty 0033 INSURER Bpe ositors Insurance Company 42587 Frank Construction Co. , Inc. INSURERC:Chartis Specialty Insurance 26883 PO Box 47 INSURERD:KBIWCF 0010 INSURER E: Salina KS 67402-0047 INSURER F: COVERAGES CERTIFICATE NUMBER:12/13 All Lines REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER MM/DD/YYEYYY POLICY LIMITS LTR D GENERAL LIABILITY EACH OCCURRENCE $ 11000,000 DAMAGE TO RENTED 100,000 X COMMERCIAL GENERAL LIABILITY PREMISES Ea occurrence $ A CLAIMS-MADE OCCUR 04GL000841444 5/3/2012 5/3/2013 MED EXP(Any one person) $ 5,000 PERSONAL BADVINJURY $ 11000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OPAGG $ 2,000,000 POLICY X PE LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 11000,000 (Ea accident) X ANY AUTO CP7205325785 5/3/2012 5/3/2013 BODILY INJURY(Per person) $ B ALL OWNED AUTOS BODILY INJURY(Per accident) $ SCHEDULED AUTOS PROPERTY DAMAGE $ X HIRED AUTOS (Per accident) X NON-OWNED AUTOS $ UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 2,000,000 X EXCESS LIAB CLAIMS-MADE AGGREGATE $ 2,000,000 DEDUCTIBLE $ C X RETENTION $ 10,000 E011030717 5/29/2012 5/3/2013 $ D WORKERS COMPENSATION X OC STATU- O R RY AND EMPLOYERS'LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE❑ N/A E.L.EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? 1599 1/1/2012 1/1/2013 (Mandatory in NH) E.L.DISEASE-EA EMPLOYE $ 11000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 1 000 000 DESCRIPTION OF OPERATIONS I LOCATIONS/VEHICLES (Attach ACORD 101,Additional Remarks Schedule,If more space is required) CERTIFICATE HOLDER CANCELLATION coi@salina.org SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Salina 300 W Ash Salina, KS 67401 AUTHORIZED REPRESENTATIVE Roberta Blair/RBLAIR � 45tzfee dL. ACORD 25(2009/09) ©1988-2009 ACORD CORPORATION. All rights reserved. IN S025(200909) The ACORD name and logo are registered marks of ACORD