ECRA Concession Services Agreement AGREEMENT BETWEEN THE CITY OF SALINA,KANSAS
and
MARY ELDER d/b/a TROPICAL SHAVED ICE
for
CONCESSION SERVICES
This Agreement is entered into March3( , 2014 by and between the City of Salina, Kansas, (the "City") and Mary
Elder,d/b/a Tropical Shaved Ice(the"Contractor").
Recitals
A. The City desires to contract for concession services for the purpose of providing concessions to the general public
attending baseball and softball games,at the East Crawford Recreation Area, in compliance with federal, state, and local
regulations.
B. The Contractor has the requisite qualifications and experience to perform the services needed by the City and desires
to perform those services pursuant to the terms of this Agreement.
The parties,in consideration of the mutual promises set forth in this Agreement,agree and covenant:
1. Definitions. Capitalized words used in this Agreement shall have the following meanings:
"Agreement"means this Agreement for Concession Services,as amended and supplemented from time to time.
"City"means the City of Salina,Kansas.
"Contractor"means Mary Elder,d/b/a Tropical Shaved Ice, and their successors.
2. Exhibits. The following Exhibits are attached to and made a part of this Agreement(Mark with"X" if applicable):
Exhibit A: Responsibilities of the Parties 1
Exhibit B: Term; Schedule
Exhibit C:Basis of Payment
Exhibit D: Insurance Requirements
3. Responsibilities of the Parties. The parties agree to perform the responsibilities outlined in the attached and
incorporated Exhibit A.
4. Term; Schedule. The Contractor agrees to perform its responsibilities during the term and according to the
timeframe and schedule described in Exhibit B, subject to the potential for prior termination pursuant to the terms of this
Agreement.
5. Payment. The Contractor shall pay the City for the right to perform the concession services pursuant to this
Agreement,as set forth in Exhibit C.
6. Insurance Requirements.
6.1. Types and Amount of Coverage.The Contractor agrees to obtain insurance coverage as specified in Exhibit
D, attached hereto, and shall not make any material modification or change from these specifications without the prior
approval of the City. If the Contractor subcontracts any of its obligations under this Agreement, the Contractor shall require
each such subcontractor to obtain insurance coverage as specified in Exhibit D. Failure of the Contractor or its
subcontractors to comply with these requirements shall not be construed as a waiver of these requirements or provisions and
shall not relieve the Contractor of liability.
Contractor Services(2014-02-14)
6.2. Rating. All insurance policies shall be issued by insurance companies rated no less than A-VII in the most
recent `Bests" insurance guide, and admitted in the State of Kansas. Except as otherwise specified in Exhibit D, all such
policies shall be in such form and contain such provisions as are generally considered standard for the type of insurance
involved.
6.3. Certificate of Insurance. The parties acknowledge that the Contractor has provided the City with a
certificate of insurance listing the City as the Certificate Holder and evidencing compliance with the insurance requirements
in this Agreement. The City reserves the right to require complete certified copies of all insurance policies procured by the
Contractor pursuant to this Agreement,including any and all endorsements affecting the coverage required hereunder.
7. Injury to Persons or Damage to Property. The Contractor 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.
8. Indemnification. To the fullest extent permitted by law, the Contractor shall defend, indemnify and hold harmless
the City, its agents, representatives, officers, officials and employees from and against all claims, damages, losses and
expenses (including but not limited to attorney fees and court costs) attributable to bodily injury, sickness, disease, death, or
injury to, impairment, or destruction of property, including loss of use resulting therefrom, to the extent that such claims,
damages, losses, and expenses relate to, arise out of, or are alleged to have resulted from the wrongful acts, negligent acts,
errors, omissions, or defective work or services of the Contractor, its employees, agents, or any tier of subcontractors in the
performance of this Agreement.
9. Voluntary Termination. Either party may terminate this Agreement, with or without cause, upon thirty(30) days
advance written notice to the other party. In the event of such termination, the Contractor shall be compensated for such
services as have been satisfactorily performed through the date of termination, but no compensation shall be earned after the
effective date of the termination.Within five(5)days of any such termination,all finished or unfinished documents,data,studies,
surveys, drawings, maps, models, photographs, reports or other material prepared by the Contractor pursuant to this Agreement
shall be delivered to the City. Notwithstanding the above, the Contractor shall not be relieved of any liability to the City for
damages sustained by the City by virtue of any breach of this Agreement by the Contractor, and the City may withhold any
payments to the Contractor for the purposes of set-off until such time as the exact amount of damages due the City from the
Contractor may be determined.
10. Default. If either party fails to comply with any term of this Agreement within ten(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("Event of Default").
11. Remedies. Upon the occurrence of an Event of Default,the non-defaulting party shall have the following rights and
remedies,in addition to any other rights and remedies provided under this Agreement or by law:
11.1 Termination. The non-defaulting party shall have the right to terminate this Agreement or terminate the
defaulting party's rights under this Agreement.
11.2 Other Remedies. The non-defaulting party may pursue any available remedy at law or in equity(including
specific performance)by suit,action,mandamus or other proceeding to enforce and compel the performance of the duties and
obligations set forth in this Agreement, to enforce or preserve any other rights or interests of the non-defaulting party under
this Agreement or otherwise existing at law or in equity and to recover any damages incurred by the non-defaulting party
resulting from such Event of Default.
12. Non-Assignable. Due to the unique qualifications and capabilities of the Contractor, neither the rights nor
responsibilities provided for under this Agreement shall be assignable by either party,either in whole or in part.
13. Notices. All notices required or permitted to be given pursuant to this Agreement shall be in writing and delivered
personally or sent by registered or certified mail, return receipt requested, or by generally recognized, prepaid, commercial
courier or overnight air courier service. 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 three (3) days after mailed, if sent by registered or certified
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mail or commercial courier service; or the next business day, if sent by overnight air courier service. 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
CONTRACTOR: Mary Elder
1661 Beverly
Salina,KS 67401
14. Retention and Inspection of Records. The Contractor shall maintain complete, accurate, and clearly identifiable
records with respect to all costs and expenses incurred under this Agreement. The records shall be maintained during the
term of this Agreement, and for a period of three (3) years from the date of final payment under this Agreement (the
"Retention Period"); provided, however, that if any•litigation, claim or audit is commenced prior to the expiration of the
Retention Period, then the Retention Period shall be extended until all litigation, claims or audit findings have been
completely terminated or resolved, without right of further appeal. During the Retention Period, the Contractor shall allow a
representative of the City during normal business hours to examine, audit,and make transcripts or copies of such records and
any other documents created pursuant to, or arising under, this Agreement. The City agrees to responsibly utilize all
information obtained pursuant to this paragraph for the purposes of reviewing, confirming, and verifying the nature and
amount of all costs and expenses incurred under this Agreement. The City agrees to take reasonable precautions not to
disclose such information outside the scope of those stated purposes, subject to the Kansas open records act or other
applicable law.
15. Non-appropriation. The City is subject to Kansas budget and cash basis laws, and operates on a calendar fiscal
year. In the event that this Agreement involves financial obligations spanning multiple fiscal years for the City, it is subject
to annual appropriation by the City's governing body for future fiscal years. If the City's governing body does not
appropriate the funds necessary to fulfill the City's financial obligations pursuant to this Agreement, the City shall so notify
the other parties to this Agreement and this Agreement shall be null and void for purposes of the fiscal year(s) affected by the
decision of the governing body not to appropriate.
16. Relationship. It is expressly understood that Contractor 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
Contractor performs its responsibilities as outlined in Exhibit A. The sole interest and responsibility of the City is to see that
the services covered by this Agreement are performed and rendered in a competent, efficient, and satisfactory manner.
Contractor 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.
17. Subcontracting. Contractor shall not subcontract any work or services under this Agreement without the City's
prior written consent.
18. Compliance with Applicable Law.
Contractor shall comply with all applicable federal,state,and local law in the performance of this Agreement.
19. Equal Opportunity.
(a) In conformity with the Kansas act against discrimination and Chapter 13 of the Salina Code, the Contractor and its
subcontractors, if any,agree that:
(1) The Contractor 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;
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(2) The Contractor 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 the Contractor fails to comply with the manner in which the Contractor reports to the Kansas human rights
commission in accordance with the provisions of K.S.A.44-1031 and amendments thereto,the Contractor 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 Contractor 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, the Contractor 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) The Contractor shall not discriminate against any employee or applicant for employment in the performance of
this Agreement because of race,sex,religion, age,color,national origin,ancestry or disability; and
(6) The Contractor shall include similar provisions in any subcontract under this Agreement.
(b) The provisions of this section shall not apply to this Agreement if the Contractor:
(1) Employs fewer than four employees during the term of this Agreement;or
(2) Contracts with the City for cumulatively$5,000 or less during the City's calendar fiscal year.
20. Administration of Agreement. All references in this Agreement requiring the City's participation or approval shall
mean the participation or approval of the City Manager or his designee,unless otherwise provided herein.
21. Attorney Fees. If any suit or action is instituted by either party hereunder,including all appeals,the prevailing party in
such suit or action shall be entitled to recover reasonable attorney fees and expenses from the non-prevailing party,in addition to
any other amounts to which it may be entitled.
22. Right to Independent Legal Advice. The Contractor understands and acknowledges the right to have this Agreement
reviewed by legal counsel of the Contractor's choice.
23. Applicable Law;Venue. This Agreement and its validity,construction and performance shall be governed by the laws
of Kansas. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be in the
Saline County,Kansas District Court.
24. Interpretation. This Agreement shall be interpreted according to its fair meaning, and not in favor of or against any
ply
25. 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 termination time shall extend to 5:00 p.m. of the next full
business day.
26. Severability. The unenforceability,invalidity,or illegality of any provision of this Agreement shall not render the other
provisions unenforceable,invalid,or illegal.
27. Authority and Consent to Transaction. Each party represents to the other that the person executing this Agreement
has full and legal authority to bind such party to the terms of this Agreement, and that the execution and delivery of this
Agreement have been duly and validly authorized by the governing body of each party.
28. Persons Bound. This Agreement shall extend to and bind the heirs, executors, administrators, trustees, successors and
authorized assigns of the parties hereto.
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29. Counterparts. This Agreement 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.
30. Amendments.Neither this Agreement nor any of its terms may be changed or modified, waived, or terminated except
by an instrument in writing signed by an authorized representative of the party against whom the enforcement of the change,
waiver,or termination is sought.
31. Waiver. No failure or delay by a party hereto to insist on the strict performance of any term of this Agreement, or to
exercise any right or remedy consequent to a breach thereof, shall constitute a waiver of any breach or any subsequent breach of
such term. No waiver of any breach hereunder shall affect or alter the remaining terms of this Agreement, but each and every
term of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.
32. Conflict Resolution. No interpretation of this Agreement shall be allowed to find the City has agreed to binding
arbitration.
33. No Third Party Beneficiaries. Solely the parties to this Agreement shall have rights and may make claims under this
Agreement. There are no intended third party beneficiaries under this Agreement, and no third parties shall have any rights or
make any claims hereunder.
34. Typewritten or Handwritten Provisions.Typewritten or handwritten provisions inserted or attached,and initialed by
all parties,shall supersede all conflicting printed provisions.
35. Feminine-Masculine,Singular-Plural. Wherever used,singular shall include the plural,plural the singular,and use of
any gender shall include all genders.
36. Headings. The headings of the sections of this Agreement are included for the purposes of convenience only and
shall not affect the interpretation of any provision hereof.
37. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their authorized
representatives.
CITY OF ALINA,KANSAS
By: 1. t
• J:son A.Gage, i / ana/n�(�,'/
Attest: 6 `.t J(!C, s.
Shand Wicks,CMC,Interim City Clerk
MARY ELDER d/b/a TROPICAL SHAVED ICE
(NI]der
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EXHIBIT A
RESPONSIBILITIES OF THE PARTIES
1. Right to Occupy and Operate. The City grants to Contractor the right to occupy the two
concession stands adjacent to Diamonds #1 and #2, and adjacent to Dean Evans Stadium ("Concession
Stands"), both of which are within the baseball/softball complex known as East Crawford Recreation
Area ("Complex"). Contractor accepts this right from the City, and agrees to sell concessions from the
Concession Stands at all baseball and softball games scheduled by the City for play at the Complex.
2. Food and Beverage. Contractor agrees to sell a complete line of food and beverage items
normally associated with a baseball/softball complex concession operation. The type and price of any
food, drink, or merchandise to be sold at the Complex by Contractor shall be conspicuously posted at the •
Concession Stands and shall be subject to prior approval by the City. Contractor agrees to abide by any
and all contractual obligations of the City, whether now or hereafter existing, with respect to exclusive
distribution rights at the Complex, including but not limited to the any agreement between the City and a
vendor for exclusive pouring rights at the Complex.
3. Equipment, Supplies, and Inventory. Contractor shall be responsible for the cost and all
aspects of properly equipping, supplying, and stocking the Concession Stands. Contractor shall maintain
all equipment in good working order and shall not damage City property in either the installation or
removal of any equipment. Any equipment, supplies, and inventory purchased by Contractor for use in
the concession operation shall remain the property of Contractor. Contractor shall be solely responsible
for any risk of property loss or damage to equipment or other personal property owned or leased by
Contractor for use in the concession operation, and Contractor may obtain insurance coverage for loss or
damage to its equipment and other personal property at its discretion and expense.
4. Storage of Inventory and Supplies. All equipment, supplies (including ice), and
inventory necessary for the concession operation shall be properly stored inside the Concession Stands.
5. Loss of Inventory or Money. The City shall not be responsible for any loss of inventory
or money suffered by Contractor in the course of conducting the concession operation.
6. Lawful Operation. Contractor shall conduct the concession operation in compliance with
all federal, state and local laws and permit or license requirements. Contractor shall be solely responsible
for obtaining any permits or licenses required to lawfully conduct the concession operation.
7. Sanitation. Contractor shall maintain the Concession Stands, the immediate area around
the Concession Stands, and all fixtures, equipment, and personal property within the Concession Stands,
whether owned by the City or Contractor, in a clean, sanitary, and orderly condition at all times. All
janitorial services necessary in the Concession Stands shall be the responsibility of Contractor. The City
shall dispose of trash collected by Contractor from the Concession Stands and deposited in sealed
containers in locations designated by the City.
8. Related Duties. Contractor shall have the following responsibilities before and after each
game at the Complex:
a. If necessary during the pre-game time of operation, Contractor shall help to:
• Unlock the access gates;
• Unlock the field gates;
• Unlock the press box; and
• Turn on lights (if necessary).
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b. If necessary during the post-game time of operation, Contractor shall help to:
• Secure the press box;
• Secure the field gates;
• Turn of lights; and
• Secure access gates.
9. Staffing. Contractor shall staff the Concession Stands with trained personnel in sufficient
number to adequately handle the concession needs of those in attendance at any given game. Contractor's
employees or volunteers staffing the Concession Stands shall not for any purposes be regarded as the
agents or employees of the City.
10. Access. The parties acknowledge that access to the ticket booth and certain equipment
that is part of the mechanical system for the entire stadium can only be obtained through the Concession
Stands. Contractor agrees that authorized persons representing the sponsors of events at the stadium shall
have reasonable access to the ticket booth at all times. The City's employees or authorized
representatives shall also have reasonable access to the Concession Stands when needed for inspection,
maintenance, or other activities.
11. Utilities. Due to the integrated nature of the utility service at the Complex, Contractor
will not be separately charged for any utilities consumed in the concession operation. With the approval
of the City, and at Contractor's expense, Contractor may obtain additional or modified utility service.
Any additions or modification to the utility service shall be regarded as a permanent installation and shall
remain in place upon termination of this Agreement.
12. Sale of City Clothing Items. Upon request of the City, Contractor shall sell in the
Concession Stands the City's inventory of baseball and softball shirts or other clothing items designated
by the City. For selling the City's clothing items, Contractor shall be paid a predetermined percentage of
the sale price of each clothing item sold.
13. Sales Tax. Contractor 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
Stands.
14. Removal of Equipment upon Termination. Upon termination of this Agreement,
Contractor shall immediately discontinue operations and remove all equipment, inventory, and supplies
from the Concession Stands.
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•
•
EXHIBIT B
TERM; SCHEDULE
1. Term. This Agreement shall be for a primary term of the 2014 baseball and softball
season at the Complex, and shall self-renew annually for the following single season, subject to the
potential for prior termination pursuant to the terms of this Agreement.
2. Schedule. Except as otherwise agreed by the parties, Contractor shall provide the
concession services and responsibilities outlined in Exhibit A at all baseball and softball games scheduled
by the City for play at the Complex, commencing one hour prior to the scheduled start time of a game and
continuing until one-half hour after the game ends. The City will provide Contractor with an anticipated
game schedule at the beginning of each season, but the schedule is subject to change, at the City's
discretion, due to weather or other scheduling issues.
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EXHIBIT C
BASIS OF PAYMENT
1. Compensation. The Contractor shall pay to the City, for the right to sell concessions at
the Complex, the sum of$500.00 per year, payable in two equal installments of$250.00 on July l' and
August 1 S'of each year during the term of this Agreement.
2. Invoices. On June l'and July 1'of each year during the term of this Agreement,the City
shall invoice the Contractor for the amount due.
3. Payment. The City's invoice shall be due and payable within 30 days of receipt by the
Contactor.
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EXHIBIT D
INSURANCE REQUIREMENTS
Pursuant to Section 6 of the Agreement,the Contractor shall obtain,pay for,and maintain—and shall
require each of its authorized subcontractors to obtain and maintain—for the duration of the Agreement,
policies of insurance meeting the following requirements:
•
1. General Requirements.
A. Additional Insured. With the exception of the workers' compensation and professional
liability policies to be obtained by the Contractor hereunder, all policies shall name the City of Salina
("City"), its agents, representatives, officers, officials, and employees as additional insured(s). Insurance
for the additional insured shall extend to Products/Completed Operations and be as broad as the insurance
for the named insured, including defense expense coverage, and shall apply as primary and non-
contributory insurance before any other insurance or self-insurance, including any deductible, maintained
by, or provided to,the additional insured(s).
B. Waiver of Subrogation. Where allowed by law, all policies will include a waiver of
subrogation in favor of the City, its agents, representatives, officers, officials, and employees.
C. Premium and Deductible Expenses. The Contractor shall be responsible for all premiums
and retention or deductible expense for any and all policies required by this Agreement.
2. Specific Coverage Requirements.
A. Commercial General Liability ("CGL"). The Contractor shall maintain CGL coverage
written on ISO Occurrence form CG00 01 or an industry equivalent, which shall cover liability arising
from Personal Injury, Bodily Injury, Property Damage, Premises and Operations, Products and
Completed Operations, Contractual Liability, Independent Contractors and Advertising Injury. The
policy limits shall not be less than the following:
• Each occurrence $500,000
• General aggregate $500,000
• Personal and Advertising Liability $500,000
The policy shall contain an endorsement that modifies the general aggregate to apply separately to each
project. The Contractor shall maintain the Products and Completed Operations liability coverage for a
period of at least two(2) years after completion of all work under the Contract.
B. Business Automobile Liability ("BAL"). The Contractor shall maintain BAL coverage
written on ISO form CA 00 01 or an industry equivalent. Coverage shall be applicable to all autos and
other vehicles subject to compulsory auto liability laws that are owned, hired, rented or used by the
Contractor and include automobiles not owned by but used on behalf of the Contractor. The BAL policy
limits shall not be less than the following:
• Combined single limit $500,000
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C. Workers' Compensation/Employer's Liability. The Contractor shall maintain workers'
compensation and employer's liability coverage with policy limits not less than the following:
• Workers' Compensation (Coverage Part A)
o Statutory
• Employer's Liability(Coverage Part B)
o $100,000 each accident
o $500,000 disease—policy limit
o $100,000 disease—each employee
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