2011 AGREEMENT FOR CONCESSIONAIRE

SERVICES TO THE CITY OF LAWRENCE, KANSAS

COMES NOW, the City of Lawrence, Kansas (hereafter City) a municipal corporation under the laws of the State of Kansas, and Hy-Vee Store #1377 (hereafter Concessionaire) a corporation under the laws of the State of Kansas, and do hereby agree as follows:

1. The City hereby grants the Concessionaire the privilege to sell certain items at the Lawrence Outdoor Aquatic Center, 727 Kentucky, Youth Sports Inc, (YSI) 4911 W 27^th Street, Clinton Lake Adult Softball Complex, (CLSC) 1501 Speicher Rd, and Holcom Park Sports Complex, (HPSC) 2601 W. 25^th Street, and any other location agreed upon by the City and Concessionaire pursuant to the conditions and requirements of this Agreement. The Concessionaire shall pay to the City of Lawrence, Kansas, by written check or money order, an amount equal to the percentage of gross sales from all Concessionaire sales at the Lawrence Outdoor Aquatic Center, Youth Sports Inc, (YSI), Clinton Lake Adult Softball Complex, (CLSC) and Holcom Park Sports Complex and any other location agreed upon by the City and Concessionaire.

The Concessionaire shall pay 15% of the combined gross sales per month until which time the total sales reach $100,000. Once combined sales reach $100,000 the concessionaire will pay 20% of gross sales from that point forward until the end of the calendar year. Proof of wholesale beverage purchases and retail sales must accompany payment each month showing breakdown of product sales per location.

The prices, quality and unit quantity of all consumable merchandise offered by sale shall be as approved in advance by the City. Within 14 days prior to beginning of concession operations, the Concessionaire shall submit a detailed price schedule for all items he proposes to sell for each concession premise for consideration by the City. The price schedule shall be required prior to each operating year during the term of this contract.

The Concessionaire and the City shall review the general price structure of all commodities sold annually. The parties may, at any time, by the agreement in writing, for good cause shown, increase or decrease the price of any article to be offered for sale.

If Concessionaire desires to substitute any article for an article listed in the approved price schedule, written approval of the City must be obtained for such substitutions.

Consumable Merchandise

Concessionaire will offer customers food, drink and other consumable merchandise of first quality and standard quality. Healthy food alternatives will be considered while planning food menus. Consumables shall conform in all respects to federal, state and local food laws, ordinances and regulations. All merchandise kept for sale shall be subject to inspection and approval or rejection by the City or duly authorized representatives.

Sale of Beverages

The City solicits proposals from soft drink vendors to be exclusive suppliers of all beverages for both vending machine and fountain operations at all Lawrence Parks and Recreation Department locations. Any and all drinks, excluding milk and hot beverages, must comply with the City’s beverage marketing agreement which states:

“WHEREAS, Lawrence Parks and Recreation and Pepsi each desire that Pepsi, through its Brands (as hereinafter defined), serve as the sole, exclusive and official Beverage (as hereinafter defined) supplier, distributor and advertiser of Lawrence Parks & Recreation at each and every location owned and operated, controlled or utilized by the Lawrence Parks & Recreation including, but not limited to, each and every location, beverage fountain and vending location, special events area, concession vending area and any and all other areas and locations that become operational during the term of their Agreement (the “Facilities”).”

8. Non-Consumable Merchandise, Personal Effects

All Non-consumable merchandise to be offered for sale shall be approved, together with prices, by the City. Non-consumable merchandise shall be sold only at such times and in such locations as approved by the City. Novelties or souvenirs offered for sale shall be consistent with generally acceptable social standards in the area and shall not be hazardous or dangerous when used in their normal manner. Personal items not involved with the daily operations of the concessions stands shall not be stored on the Concession premises.

9. Advertising

Concessionaire agrees not to cause, suffer or permit the advertising of any merchandise, products or equipment on or within the concession premises and its adjacent grounds, whether for display, advertising, or other allowances or otherwise, except for advertising products sold within the concession premises and with approval of the City.

10. Operating Objective

The Concessionaire shall endeavor constantly to improve the operations with the objectives of developing maximum gross receipts potential and service to the concession premises patrons. The Concessionaire shall immediately notify the City of any and all complaints and/or inspections and corrective actions taken including but not limited to incidents involving the Lawrence Douglas County Health Department.

11. Improvement of the Premises

The Concessionaire agrees, at his or her own expense, to equip the concession premises sufficient to provide proper service to the patrons of the concession premises and provide a first quality appearance subject to the terms and conditions hereinafter set out.

The Concessionaire may, at his or her discretion, utilize any concession equipment currently available at the concession premises. All equipment is to be returned in reasonable condition and displaying only normal deterioration.

The Concessionaire shall cause all construction and installation work performed hereunder at his or her expense to be coordinated with any time schedules established by the City.

12. Building Services

The City will furnish certain building services but will not supply the labor or materials for the Concessionaire’s initial equipment installations. Any change in configuration of utility services necessary for Concessionaire’s operations will be agreed upon between the City and Concessionaire. The Concession premises are currently supplied with domestic water, sanitary drains and electricity.

13. Maintenance, Repair and Replacement of Concession Equipment

Maintenance, repair and replacement of all concession equipment and improvements owned by the City shall be borne by the City. Concessionaire may have any City equipment not working repaired unless the cost of said repairs is unreasonable or exceeds the value of the equipment. Any repairs made to City equipment must have prior approval by the City.

The Concessionaire agrees to keep in good repair and to maintain in clean and good appearance all equipment and improvements.

14. Signs

Concessionaire agrees that no signs or advertising displays shall be placed on, pointed on or erected in any manner upon the areas of the Concession Premises without prior written approval of the City with respect to City Code, wording, type, size, design, color and location.

15. Title to Improvements

All permanent improvements installed by the Concessionaire shall become the property of the City, except that upon termination of this agreement, the City reserves the right, and the Concessionaire agrees, that the City may require the Concessionaire to remove all or such external improvements and structures, and the Concessionaire agrees to bear all costs of such removals and restoration.

16. Minimum Hours of Operation

The Concessionaire will be responsible for providing concession services for those events and facilities described in this agreement. The Concessionaire or his/her employee(s) shall open the complex gates 30 minutes prior to the first scheduled game in the complex. The Concessionaire or his/her employee(s) shall remain at the complex until the events are completed and all participants have exited the complex. The Concessionaire or his/her employee(s) shall conduct visual inspections of the fields, dugouts, restrooms and other complex facilities for people, lost items, equipment, etc. The Concessionaire or his/her employee(s) shall lock all doors, turn out the lights, and lock all gates of the complex after the events are completed and all participants have exited the complex.

In the event of inclement weather the Concessionaire will be responsible for following a predetermined procedure to be outlined by the Parks and Recreation Department.

17. Special Events

The Concessionaire will be required to provide concession services at special events to include but not limited to, baseball/softball tournaments, football and/or soccer tournaments, arts and crafts shows. The provision of concession services may require operation during hours that may vary from the prescribed hours in this contract. Further provision of concessions services will be subject to City approval.

Use and Maintenance of Property

1. Compliance with Laws and Regulations

The Concessionaire shall comply with all federal, state and county and local statutes, laws and ordinances and all such rules and regulations now or hereafter applicable to the Concession premises or to any adjoining public ways, or as to the manner of use or the conduct of the Concessionaire’s business hereunder.

2. Utilities

The City will, at its own expense, provide all electricity and water and sanitary sewer service as currently available for the concession operations under this agreement. The City shall not be liable for any reason, for any interruption of any utility service. The Concessionaire shall not unreasonably waste the provision of electricity, water and sanitary sewer service.

3. Repairs and Maintenance of Physical Structures, Mechanics, Site

The City shall maintain the major elements of the structure and the mechanical, plumbing and electrical systems of the building containing the Concession premises, except for repair occasioned by the negligent or intentional acts of the Concessionaire, or its employees or representatives. Repairs required to doors, windows, building exterior or interior caused by efforts to break into the facility shall be borne by the City.

After occupancy of the permanent Concession Premises, the Concessionaire convents and agrees at its expense and without cost or expense to the City during the term hereof:

Good Condition. To keep the designated Concession premises in good order and safe condition.

Housekeeping of Premises. To keep neat, clean and in a sanitary condition all the Concession Premises and the nearby areas used by Concessionaire. The Concessionaire shall keep the public area as per agreed upon perimeter at each individual concession site, and any temporary or portable concession stand locations that may be operated clean and free of all refuse, rubbish, litter, obstruction or other nuisances. Within the concession stand areas described above he or she shall police these areas for litter and refuse. The Concessionaire shall sweep these areas daily to maintain neatness and sanitary conditions. The City shall supply 55 gallon trash drums with liners as deemed necessary by the City. The Concessionaire shall place all trash in the drums, replacing the liners as necessary.

The following constitutes the definition of a neat and clean concession stand. At a minimum, the following list must be completed at the conclusion of every operating day to insure minimum health and safety standards, and customer satisfaction.

· All counters, prep surfaces, and refrigerator handles are to be wiped down and sanitized.

· Clean all windows with glass cleaner (inside and out).

· Empty and wipe out all warming trays and cabinets. Leave no crumbs or other food particles that may attract rodents.

· All food service equipment is to be cleaned, polished or sanitized and properly shut down.

· Insure all cooking equipment has been cleaned properly and grease wells emptied.

· Trash is to be bagged, tied and placed in dumpster.

· Cardboard boxes are to be completely broken down prior to placing in dumpster.

· Soda machines and drip trays to be cleaned and sanitized. Pour hot water and sanitizer down drains. Clean and sanitize soda taps according to vendor recommendations.

· Wash all dishes and small wares and place in proper storage location in stand.

· Clean and sanitize all condiment carts or tables. Wash out condiment pumps and store leftover product in cooler according to Health Department regulations.

· Sweep and mop floors, including under portable equipment and tables.

· Empty and rinse mop bucket when finished. Store mop and allow to dry.

· Rinse and sanitize all sinks.

4. Right to Enter, Inspect and Make Repairs

The City and its authorized officers, employees, agents, contractors, subcontractors and other representatives shall have the right (at such times as may be reasonable under the circumstances and with as little interruption of the Concessionaire’s operation as is reasonably practicable) to enter upon and in the Concession Premises for inspection, maintenance or necessary activities.

Insurance and Indemnification

1. Adjustment of claims

Concessionaire shall provide for the prompt and efficient handling of all claims for bodily injury, property damage or theft arising out of the activities of Concessionaire under this agreement.

2. Cancellation, Termination or Interruption of Event

Concessionaire understands that the City reserves the right in its sole discretion to cancel, interrupt or terminate any performance, lecture, event, public or private gathering, whether or not admission has been charged, upon its premises and to dismiss the audience or cause the same to be dismissed and the Concessionaire hereby agrees that it will not make or allow to be made against the City any claim or damage to the Concessionaire or other party arising out of any act of the City, its officers, agents or employees in the exercise of the City’s discretions as aforesaid.

3. Indemnification

The Concessionaire agrees to indemnify and hold harmless the City and its officers, agents and employees and all concession premises tenants, their officers, agents and employees from and against any and all loss of or damage to property of third persons, or injuries to, or death of, any person or persons and from any and all claims, damages, suits, costs, expense, liability, actions or proceeding of any kind whatsoever, in any way resulting from or arising out of the acts and omissions of officers and/or employees of the Concessionaire arising out of this agreement or the Concessionaire’s use and occupancy of the Concession Premises. At its own cost and expense, Concessionaire will defend and protect the City and its tenants from any and all such claims or demands and will defend all suits arising/there from.

4. Insurance

The Concessionaire will retain, at his or her sole expense, general liability insurance for the term of the agreement including any extensions thereof which shall be as follows: Comprehensive General Liability with a broadening endorsement to include: For Concession Premises/Operation; Products/Completed Operation; Blanket Contractual; and Personal Injury. Bodily injury and property damage must have combined single limit of $1,000,000,00.

Before the concessionaire begins operations, he or she shall obtain all such insurance and deliver to the City policies of such insurance, or certificates evidencing the issuance of such policies, during the initial terms of such insurance and all renewals thereof. All insurance requires hereunder shall be effected under valid and enforceable policies issued by insurers of recognized responsibility authorized to do business in the State of Kansas. All insurance required hereunder shall name as an additional insured, the City, its employees, and agents. All insurance required hereunder shall contain a provision whereby the insurer agrees not to cancel the insurance without thirty (30) days prior written notice to the City.

Liens and Claims

Prompt payment of Taxes and Fees.

The Concessionaire covenants and agrees to pay promptly all lawful general taxes, sales tax, special assessments, excises, license fees, permit fees and utility service charges of whatever nature, applicable to its operations in the concession premises, and to take out and keep current all licenses, (county, municipal, state or federal), required for the conduct of its business at and upon the concession premises and further covenants and agrees not to permit any of said taxes, assessments, excises, fees or charges to become delinquent. The failure to pay promptly all lawful general taxes, special assessments, excises, license fees, permit fees and utility service charges, shall be grounds for immediate cancellation or termination of this Agreement at the option of the City.

2. Mechanics and Materialmen’s Liens

The Concessionaire agrees not to permit any mechanicsor materialmen’s or any other lien to become attached upon the Concession Premises or any part or parcel thereof, by reason of any work or labor performed or materials furnished by any mechanic or materialmen or for any other reason.

Termination of Agreement in Entirety

1. City’s right to Terminate

The City, acting by and through its Director of Parks and Recreation, may declare this Agreement terminated in its entirety, upon the happening of any one more or the following events and may exercise all rights of entry and re-entry with or without process of law, upon the premises governed hereby. Said termination may be declared if:

Nonpayment. The rentals, fees, charges or other money payments which the Concessionaire herein agrees to pay, or any part thereof, shall be unpaid after the date the same shall become due;
Default. If the Concessionaire shall have failed in the performance of any covenant or condition herein required to be performed by the Concessionaire.

On the date set forth in the Notices of Termination, all right, title and interest of the Concessionaire shall expire.

Failure by the City to take any authorized action upon default by the Concessionaire of any of the terms, covenants or conditions required to be performed, kept and observed by the Concessionaire shall not be construed to be or act as a waiver of default or in any subsequent default of any of the terms, covenants, and conditions herein contained to be performed, kept and observed by the Concessionaire;

the happening of any act or omission which results in the suspension or revocation of any act, power, license, permit or authority that terminates or suspends the conduct and operation of the concession in any of the concession premises;
the levy of any attachment or execution, or the appointment of any receiver, of the execution of any other process of any court of competent jurisdiction which does, or as a direct consequence of such process, will interfere with the Concessionaire’s occupancy of the Concession Premises and will interfere with its operations under this Agreement;
a petition under any part of the Federal bankruptcy laws, or an action under any present or future solvency law or status is filed against Concessionaire and Concessionaire’s operations hereunder and interfered with or adversely affected thereby, or Concessionaire is adjudicated a bankrupt.
Concessionaire shall voluntarily abandon, desert, vacate or discontinue all or part of its operation of the Concession, or the Concession Premises, or any other action that results in a failure by Concessionaire to provide the public and others with the service contemplated hereunder; and/or
the continuation of any violation or sub-standard performances of the terms of this contract. Provided the Director of Parks and Recreation has advised the Concessionaire, in writing, of the violation of sub-standard performances, and in the opinion of the Director of Parks and Recreation a satisfactory correction of the violation of the sub-standard performance is not completed within fourteen (14) calendar days.

The Concessionaire’s Right to Terminate.

The Concessionaire, at his option, may declare this agreement terminated in its entirety, if the City shall have failed in the performance of any covenant or condition within the control of the City and herein be required to be performed by the City. Provided that said failure to perform by the City was not directly or indirectly caused by physical or manpower limitations and also provided that any non-performance by the City can be shown to result in direct income loss to the Concessionaire.

3. Procedure for Termination or Repossession

No termination declared by either party shall be effective and the City shall not take possession of the Concession Premises unless and until not less than fifteen (15) days have lapsed after notice by either party to the other specifying the date upon which such termination will take effect and the cause for which this agreement is being terminated.

In the event that suit shall be instituted by the City upon the default of payment of rent, charges and fees as provided herein, then Concessionaire agrees also to pay a reasonable attorney’s fee.

4. Rights Cumulative

It is understood and agreed that the rights and remedies of the City and Concessionaire specified in this Article are not intended to be and shall not be, exclusive of one another or exclusive of any common law right of either of the parties hereto.

Miscellaneous Provisions

1. Governing Law

This agreement shall be deemed to have been made in, and be construed in accordance with the laws of the State of Kansas.

Notices

Except as herein otherwise expressly provided, all notices required to be given to the City hereunder shall be in writing and shall be sent by certified mail, return receipt requested, to Parks and Recreation, City of Lawrence, 947 New Hampshire, Suite 200B, Lawrence, Kansas 66044; all notices, demands, and requests by the City to Concessionaire shall be sent by certified mail, return receipt requested, addressed to: Hy-Vee, Store #1377, 3504 Clinton Parkway, Lawrence, Kansas 66047.

The parties, or either of them may designate in writing from time to time any changes in addresses or any addresses of substitute or supplementary persons in connection with said notices. The effective date of service of any such notice shall be the date such notice is mailed to Concessionaire or said Director.

3. Amendments

This agreement may be amended from time to time by written agreement, duly authorized and executed by representatives of all parties hereto.

4. Invalid Provisions

In the event any covenant, condition or provision herein contained is held to be invalid by a court of competent jurisdiction, the invalidity of any covenant, condition, or provision shall in no way affect any other covenant, condition, or provision herein contained, provided the invalidity of any such covenant, condition or provision does not materially prejudice either the City or Concessionaire in its respective rights and obligations contained in the valid covenants conditions and provisions of this agreement.

5. Headings

The headings of the several Articles and Sections of this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent or any provisions of this Agreement and shall not be construed to affect in any manner the terms and provisions hereof or the interpretation or construction thereof.

6. Withholding Required Approvals

Whenever the approval of the City or of the Director of Parks and Recreation, to the Concessionaire is required herein, no such approval shall be unreasonably withheld.

Successors and Assigns

All the terms, provisions, covenants, stipulations, conditions and considerations of this Agreement shall extend to and bind the legal representatives and successors of the respective parties hereto. Concessionaire shall not transfer or assign this agreement without the prior written consent of the City.

8. Waivers

No waiver or default by either party or any of the terms, covenants and conditions hereof 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 herein contained, to be performed, kept and observed by the other party.

9. Designation of Representative of the City

For the purpose of the daily operations under the terms of the Agreement, the Parks and Recreation Department will act as the City’s Designate Representative for the purposes of this Agreement. Any City actions, as specified in the Agreement, which cannot legally be so assigned shall be exercised solely by the City Manager.

10. Discrimination

The parties hereto understand and agree that the City and the Concessionaire, in the operation and use of concession premises, will not on the grounds of race, color, disability, sexual orientation, or national origin, discriminate or permit discrimination against any person or group of persons in any manner prohibited by law.

Concessionaire further agrees that any employment office on the Concession premises shall be posted to such effect as required by law. The City hereby reserves the right to take such action as the Federal Government and the City may direct to enforce the above covenant.

Concessionaire will not on the grounds of race, color, disability, sexual orientation, or national origin, discriminate or permit discrimination against any person or group of persons in any manner. The City hereby reserves the right to take such action as the United States Government may direct to enforce this covenant.

The Concessionaire agrees to refrain from any unlawful employment practice as to comply with all lawfully adopted regulations relating thereto.

Concessionaire agrees to furnish service on a fair, equal and nondiscriminatory basis to all users thereof, and to charge fair, reasonable and nondiscriminatory prices for each unit or service.

The parties hereto understand and agree that the City may from time to time be required by the United States Government, or its agencies, to adopt additional or amended provisions, including discrimination provisions, concerning the use and operation of the concession premises, and Concessionaire agrees that it will adopt any such requirements as apart of this Agreement.

11. Term of Agreement

This Agreement shall be effective until December 31, 2013, subject to annual appropriation by the City Commission and on the condition of an annual review and mutual agreement of both parties, unless one or both parties provide notice of termination to the other prior to December 1.

12. Entire Agreement

This Agreement constitutes the entire Agreement between the parties hereto and all other representatives of statements heretofore made, verbal or written, are merged herein and this Agreement may be amended only in writing, and executed by duly authorized representatives of the parties hereto.

In witness whereof, the parties hereto for themselves, and their successors have executed the Agreement on this Day of 2011.

City of Lawrence, Kansas

David L. Corliss, City Manager

_________________________ ______________________

Signature Date

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written.

__________________________ ______________________

Notary Public My Commission Expires:

ACKNOWLEDGEMENT

STATE OF KANSAS)

:SS

COUNTY OF DOUGLAS)

BE IT REMEMBERED, that on this _____ day of _____________, 2011, before me, the undersigned, a Notary Public in and for the County and State aforesaid came _____________________, acting on behalf of the Owner, City of Lawrence, Kansas, the party of the first part, who is personally known to me to be the same person who executed the within and foregoing instrument of writing, and duly acknowledged the execution of the same.

Hy-Vee, Store #1377

Kevin Green, Manager of Perishables

_________________________ _______________________ Signature Date

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written.

__________________________ ______________________

Notary Public My Commission Expires: