Concessions Management Agreement City of Salina
Salina Soccer Complex
CONCESSIONS MANAGEMENT AGREEMENT
This Agreement is entered into this ' day of September 2017 ("Effective Date"), by
and between the City of Salina, Kansas (the "City') and KBI Meats, LLC, a Kansas limited
liability corporation ("Contractor").
Recitals
A. The City owns and operates a soccer complex located at 2100 E. Magnolia,
Salina. Kansas (the "Complex"), which includes a structure designed for the sale of concessions
to the general public attending events at the Complex (the "Concession Stand'').
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 the Complex pursuant to this Agreement(the "Concession Operation").
C. Contractor has offered to operate the Concession Operation for all games played
at the Complex.
D. The City believes that contracting with Contractor for the Concession Operation
at the Complex is in the best interest of the City and the general public attending the Complex.
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 Contractor and Contractor
accepts the right to occupy the Concession Building for the purpose of conducting the
Concession Operation at the Complex.
2. Compensation; Reporting. Contractor shall pay to the City for the right to
conduct the Concession Operation at the Complex the sum of 20.0% of the gross revenue per
calendar month from the Concession Operation for each month during the Term, payable on or
before the 10th day of each month for the City's share of revenues from the immediately
preceding month. The Contractor shall maintain accurate and complete records related to all
sales from the Concession Operation. Detailed sales reports verifying gross revenue from the
Concession Operation shall be provided to the City on a monthly basis, at the time of remittance
of the City's share of revenues.
3. Term. Subject to the potential for prior termination pursuant to the terms of this
Agreement, the initial term of this Agreement shall be for a period beginning on the Effective
Date and ending on July 31, 2018. Thereafter, this Agreement shall automatically renew for
additional consecutive one (1) year terms unless either party gives written notice of termination
no later than the July 1 preceding the expiration of the current term. Upon termination of this
Agreement, Contractor shall immediately discontinue operations and shall be required to
immediately remove all of its equipment, inventory, and supplies from the Concession Building.
4. Food and Beverage. Contractor agrees to sell a complete line of food and
beverage items normally associated with a soccer complex concession operation. The type and
price of any food, beverage, or merchandise to be sold at the Complex by Contractor 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.
5. Pepsi-Cola Exclusive Rights. 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 City's agreement with Pepsi-
Cola Bottling Company of Salina, Inc. for exclusive pouring rights at the Complex. Contractor
acknowledges and agrees that it has reviewed the City's agreement with Pepsi-Cola Bottling
Company of Salina, Inc., and will abide by its terms.
6. Sponsored Tournaments. The parties acknowledge that the City has previously
granted Salina Soccer Club Association, and its successors and assigns (the "Club"), the right to
provide concessions, or subcontract for the provision of concessions, at all Club sponsored
tournaments at the Complex. Contractor agrees that the Club shall be allowed to provide
concessions, or subcontract for the provision of concessions, at the Club's sponsored
tournaments, and if the Club exercises this privilege, the Club shall be entitled to retain all
proceeds from concessions operated or subcontracted by the Club.
7. City Equipment. The Concession Building is currently equipped with the
following equipment owned by the City (the "City Equipment"):
• Ice machine;
• Hot dog machine;
• Nacho machine/server;
• Popcorn machine;
• Microwave; and
• Commercial refrigerator.
In consideration of the compensation to be paid to the City under this Agreement, the City agrees
to lease the City Equipment to Contractor during the term of this Agreement. The City and
Contractor acknowledge that as of the commencement of this Agreement, the City Equipment is
in good working order.
8. Equipment, Supplies, and Inventory. Contractor shall be responsible for the
cost and all aspects of properly equipping, supplying, and stocking the Concession Building.
Contractor shall safely and carefully use the City Equipment and shall be responsible for the cost
of repair or replacement resulting from any damage to the City Equipment. Contractor shall
maintain all equipment (including the City Equipment) in good working order and shall not
damage City property or equipment in either the installation or removal of its own equipment.
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Any equipment, supplies, and inventory purchased by Contractor for use in the concession
operation shall remain the property of Contractor. Contractor 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 Contractor for use in the Concession Operation. Contractor may obtain
insurance coverage for loss or damage to its equipment, the City Equipment, and other personal
property at its discretion and expense.
9. Storage of Inventory and Supplies. Contractor agrees that all equipment,
supplies (including ice), and inventory necessary for the Concession Operation shall be properly
stored inside the Concession Building.
10. 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.
11. 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.
12. Sanitation. Contractor 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 Contractor, in a clean, sanitary, and
orderly condition at all times. Contractor shall 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 Contractor. The City
shall dispose of trash collected by Contractor from the Concession Building and deposited in
sealed containers in locations designated by the City. Contractor is responsible for thoroughly
cleaning the building at the end of each soccer season.
13. Time of Operation and Related Duties. Contractor shall conduct the
Concession Operation during all times the Complex is open for scheduled soccer games.
Contractor will commence the Concession Operation from 30 minutes prior to the scheduled
start time of the first game until conclusion of the last game.
14. Staffing; Relationship. Contractor shall staff the Concession Operation with
trained personnel in sufficient number to adequately handle the concession needs of those in
attendance at the Complex at any given time. 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 under this Agreement. 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. Under no
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circumstances shall Contractor be regarded as an agent of the City, including with regard to the
incurring of any expense or obligation in conjunction with performance of the responsibilities of
Contractor under this Agreement.
15. Access. The parties acknowledge that access to certain equipment that is part of
the mechanical system for the entire Complex can only be obtained through the Concession
Building. Contractor agrees that the City's authorized employees, agents, and contractors shall
have reasonable access to the Complex mechanical systems. In addition, Contractor 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.
16. 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 modifications to the utility service shall
be regarded as a permanent installation and shall remain in place upon the termination of this
Agreement.
17. Sale of City Novelty Items. Contractor 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, Contractor shall be paid 10%of the City-determined sale price of each item sold.
18. 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 Operation.
19. Indemnification. To the fullest extent permitted by law, 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 Contractor, its employees, agents, or any tier of subcontractors in the performance of this
Agreement.
20. Insurance Requirements.
20.1. Types and Amount of Coverage. Contractor agrees to obtain insurance
coverage as specified in Exhibit A, attached hereto, and shall not make any material modification
or change from these specifications without the prior approval of the City. If Contractor
subcontracts any of its obligations under this Agreement, Contractor shall require each such
subcontractor to obtain insurance coverage as specified in Exhibit A. Failure of 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 Contractor of liability.
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20.2. 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 A, all such policies shall be in such form and
contain such provisions as are generally considered standard for the type of insurance involved.
20.3. Certificate of Insurance. The parties acknowledge that 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 Contractor
pursuant to this Agreement, including any and all endorsements affecting the coverage required
hereunder.
21. Notice of Claim. 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.
22. 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 Contractor, Contractor shall immediately discontinue operations and shall be required
to immediately remove all of its equipment, inventory, and supplies from the Concession
Building.
23. Assignment; Subcontracting. The City's willingness to enter this Agreement
and the public interest served thereby is unique to Contractor; therefore, this Agreement is non-
assignable by Contractor. Contractor shall not subcontract any work or services under this
Agreement without the City's prior written consent.
24. 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.
25. Written Notices. All written notices, as provided herein, shall be delivered by
certified mail. return receipt requested, mailed as follows:
City: City Clerk
City-County Building
300 W Ash
Salina, KS 67401
Contractor: KBI Meats, LLC
Attn: Tod Eland
111 East Lake Drive
5
Salina, KS 67401
26. Equal Opportunity.
(a) In conformity with the Kansas act against discrimination and Chapter 13 of the Salina
Code, Contractor and its subcontractors, if any, agree that:
(1) 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;
(2) 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 Contractor fails to comply with the manner in which Contractor reports to the Kansas
human rights commission in accordance with the provisions of K.S.A. 44-1031 and
amendments thereto, 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 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,
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) 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) Contractor shall include similar provisions in any subcontract under this Agreement.
27. 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.
28. 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 before or at the signing thereof,
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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.
29. Severability. The unenforceability, invalidity, or illegality of any provision of
this Agreement shall not render the other provisions unenforceable, invalid, or illegal.
30. 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.
31. 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.
CITY OF SALINA, KANSAS
By:
la n Gage, City Manager
ATTEST:
By:
—
'Allison Strait. De t. Cit' Clerk
KBI MEATS, LLC
By:
Name: Tod Eland
Title: , fref
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EXHIBIT A
INSURANCE REQUIREMENTS
Pursuant to Section 20 of the Agreement, 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, with respect to the commercial general liability policy required hereunder, shall
be endorsed to 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. Claims Made Policies. If coverage is written on a claims-made basis for any of
the policies required by this Agreement, the Contractor must maintain the coverage for a
minimum of two (2) years from the date of final completion of all work under the Agreement.
D. 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 CGOO 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 $1,000,000
• General aggregate $2,000,000
• Personal and Advertising Liability $1,000,000
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:
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• Combined single limit $1,000,000
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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