6.7 Kenwood Cove Concession Agreement AmendmentCITY OF SALINA
REQUEST FOR CITY COMMISSION ACTION DATE TIME
02/25/2013 4:00 P.M.
ORIGINATING DEPARTMENT: FISCAL APPROVAL: AGENDA SECTION
NO: 6
BY: PARKS AND RECREATION
FINAL APPROVAL: ITEM
NO:
Page 1
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BY: Dion Louthan BY:
ITEM: Resolution No. 13-6984
A resolution authorizing a first amendment to the Kenwood Cove Concession Agreement with Hungry
Cats, Inc.
BACKGROUND:
Hungry Cats, Inc. has operated as the concessionaire at Kenwood Cove for the last three years.
Overall the service and products have met the requirements set forth in the existing contract.
Feedback from users indicates that customers enjoy the offerings, but would like to shorten wait times.
As part of the first amendment to the contract, language has been added to include the use of a
mobile concession cart during peak hours and Hungry Cats, Inc. will pay an additional 1% in gross
sales to the City of Salina.
Because Kenwood Cove was financed with bond proceeds, the agreement must comply with certain
requirements imposed by IRS Regulations relating to, among other things, the form of compensation
payable to Hungry Cats, Inc. Although the IRS Regulations are less stringent during the “initial start-
up period” for bond-financed facilities, the City’s Bond Counsel has advised that the agreement is now
likely to be subjected to more stringent requirements, since Kenwood Cove is approaching its third
year in operation. However, Bond Counsel also advised that the Concession Agreement can be
exempted from these requirements if the total cost of the concession area can be shown to represent
less than 5% of the proceeds from the bonds issued to finance Kenwood Cove.
City staff consulted with Jones, Gillam, Renz Architects, Inc., the lead architect and designer for
Kenwood Cove, and obtained written confirmation that the total cost of the concession area
represents less than 5% of the net proceeds from the bonds. Accordingly, Bond Counsel has
approved the Concession Agreement as compliant with federal law, and no changes are needed to
the form of compensation payable to Hungry Cats, Inc.
FISCAL NOTE: The gross sales amount due to the City from Hungry Cats, Inc. will increase from
23.5% to 24.5%.
CONFORMANCE WITH STRATEGIC PLAN: The city will provide the highest quality of services,
consistent with governing body direction, available resources and staff commitment to quality.
RECOMMENDED ACTION:
Staff submits the following options for City Commission consideration.
1. Adopt Resolution No. 13-6984 authorizing a first amendment of the Kenwood Cove Concession
Agreement with Hungry Cats, Inc.
2. Reject proposed changes to the Kenwood Cove Concession Agreement and maintain existing
contract.
3. Provide different or additional changes to the Kenwood Cove Concession Agreement.
City staff recommends option 1.
AMENDMENT TO
CONCESSIONS MANAGEMENT AGREEMENT
This Amendment to Concessions Management Agreement (“Amendment”) is made and
entered into this 25th day of February, 2013, by the CITY OF SALINA, KANSAS, (“City”) and
HUNGRY CATS, INC., a Kansas corporation, (“Hungry Cats”).
Recitals
A. The City and Hungry Cats are parties to a Concessions Management Agreement
dated April 26, 2010 (“Agreement”) under which Hungry Cats agreed to provide food and beverage
concession services at the City’s aquatic park known as “Kenwood Cove.”
B. The parties desire to make certain modifications to the Agreement affecting the
compensation payable to the City, and the timing and scope of services provided by Hungry Cats at
Kenwood Cove.
FOR AND IN CONSIDERATION of the mutual and reciprocal promises and agreements
set forth herein, the parties agree as follows:
Section 1 – Amendment of Section 2. Section 2 of the Agreement is amended to read as
follows:
2. Compensation. Hungry Cats, Inc. shall pay to the City for the
right to conduct the Concession Operation at Kenwood Cove the sum of 24.5% 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 10th 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 both parties to monitor and verify gross sales
from the Concession Operation.
Section 2 – Amendment of Section 9. Section 9 of the Agreement is amended to read as
follows:
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 15 minutes prior to the scheduled opening time to
one-half hour before the scheduled closing time. During weekend hours and/or
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heavy use periods, Hungry Cats, Inc. will provide and staff a food/beverage cart
at an agreed upon location within the facility.
Section 3 – Amendment of Section 27. Section 27 of the Agreement is amended to read as
follows:
27. Equal Opportunity.
(a) In conformity with the Kansas act against discrimination and Chapter 13
of the Salina Code, Hungry Cats and its subcontractors, if any, agree that:
(1) Hungry Cats shall observe the provisions of the Kansas act against
discrimination and Chapter 13 of the Salina Code and in doing so
shall not discriminate against any person in the performance of
work under this Agreement because of race, sex, religion, age,
color, national origin, ancestry or disability;
(2) Hungry Cats shall include in all solicitations, or advertisements for
employees, the phrase “equal opportunity employer,” or a similar
phrase to be approved by the city’s human relations director;
(3) If Hungry Cats fails to comply with the manner in which Hungry
Cats reports to the Kansas human rights commission in accordance
with the provisions of K.S.A. 44-1031 and amendments thereto,
Hungry Cats shall be deemed to have breached this Agreement and
it may be canceled, terminated or suspended, in whole or in part,
by the City;
(4) If the Hungry Cats is found guilty of a violation of Chapter 13 of
the Salina Code or the Kansas act against discrimination under a
decision or order of the Salina human relations commission or the
Kansas human rights commission which has become final, Hungry
Cats shall be deemed to have breached this Agreement and it may
be canceled, terminated or suspended, in whole or in part, by the
City;
(5) Hungry Cats shall not discriminate against any employee or
applicant for employment in the performance of this Agreement
because of race, sex, sexual orientation, gender identity, religion,
age, color, national origin, ancestry or disability; and
(6) Hungry Cats shall include similar provisions in any subcontract
under this Agreement.
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(b) The provisions of this section shall not apply to this Agreement if Hungry
Cats:
(1) Employs fewer than four employees during the term of this
Agreement; or
(2) Agreements with the City for cumulatively $5,000 or less during
the City’s calendar fiscal year.
Section 4 – No Other Changes. Except as otherwise stated in this Amendment, the
Agreement, as amended herein, shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be signed by their
duly authorized representatives on the day and year first above written.
CITY OF SALINA, KANSAS
By: ________________________________
Norman M. Jennings, Mayor
ATTEST:
By: _____________________________
Lieu Ann Elsey, CMC, City Clerk
HUNGRY CATS, INC.
By: ___________________________________
Brian Wise, President
RESOLUTION NUMBER 13-6984
A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A FIRST AMENDMENT TO
THE KENWOOD COVE CONCESSION AGREEMENT WITH HUNGRY CATS, INC.
BE IT RESOLVED by the Governing Body of the City of Salina, Kansas:
Section 1. That the Mayor is hereby authorized to execute an agreement with Salina Area Chamber of
Commerce to provide Economic Development Services, in an amount not to exceed $ subject to the
terms and conditions of the agreement.
Section 2. That the City Clerk is hereby directed to file the original agreement and retain according to
the City of Salina Records Management Policy.
Section 3. That this resolution shall be in full force and effect from and after its adoption.
Adopted by the Board of Commissioners and signed by the Mayor this 25th day of February 2013.
Norman M. Jennings, Mayor
(SEAL)
ATTEST:
Lieu Ann Elsey, CMC, City Clerk