HomeMy WebLinkAboutReg 2003-10-06 Item 5C - Agreements - Change Order for Foster Golf Course with WPC and Concessionaire with Gordy'sCAS Number: 03-123
Original Sponsor:
Timeline:
Sponsor's Summary:
Recommendations:
Committee:
Administration:
Cost Impact (if known):
I Fund Source (if known):
Meeting Date I
10/6/03 I
Meeting Date
10/6/03
Sponsor:
COUNCIL AGENDA SYNOPSIS
Initials
I Meeting Date Prepared by I Mayons revieyj I C tl r„• iew
I October 6, 2003 BF /MS
Parks Recreation Administration
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Original Agenda Date: Ootobar 6, 2003
Agenda Item Title: Foster Golf Course Projects Action Items:
1. Clubhouse Project Change Order Approval: Purchase of Kitchen Equipment
2. Mayoral Authority to Execute Concessionaire (Restaurant Owner) Contract
Parks Recreation Administration.
For Council approval, meeting of October 6, 2003.
1) Request Authorization of Clubhouse Project Change Order Approval for the Kitchen
Equipment Purchase of $300,000. These costs were not included in the bid amount and
contract award to the general contractor (WPC), or in the project contingency related to
that contract.
2) Request authorization of Mayor to execute Concessionaire (Restaurant Owner) Contract
(Attached memo dated 9/17/03 provides additional information to this summary)
1) Authorize Mayor to Execute "Concessionaire Agreement";
2) Authorize Clubhouse Project to a) approve kitchen equipment change order with WPC
Construction for $300K, b) amend clubhouse project budget contingency and WPC
contract amount by $300K.
CAP on 9/23/03: Advised that issue be taken to Council on 10/6/03 for approval
Same as sponsor.
No Cost Impact to Total Project Funding
Foster Golf Capital Improvement Project, previously approved by Council
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Action
Attachments
ITEM NO.
5.c
I Item 1) Memo from Bruce Fletcher dated Feb 20, 2003
I Item 2) Memo from Bruce Fletcher dated October 1, 2003
I Item 3) Final Restaurateur Contract
I Item 4) Informational Memo dated 9/17/03 by Mike Sweeney to Mayor Mullet and CAP
F
MEMORANDUM
LE COPY
TO: Community Affairs and Parks Committee
FROM: Bruce Fletcher, Director of Parks and Recreation
DATE: February 20, 2003
SUBJECT: Foster Golf Course Restaurant Concession Agreement
The Foster Clubhouse design team has been in restaurant discussions with Gordon Harris
of Gordy's of Tukwila, Inc. for some time to provide restaurant services to the new
Clubhouse restaurant.
Mr. Harris has been working with an interior designer and the Smith Green Company
for food service equipment and supplies to be provided in our new restaurant. All design
work has been shared with our clubhouse architect in a cooperative and teamwork
atmosphere.
The next step is to complete a Restaurant Concession Agreement. City staff has
completed a draft agreement and shared the first reading with Mr. Harris last week.
Major components of the agreement include:
Mr. Harris will pay the City a $25,000 good faith deposit upon contract acceptance
Agreement terms are for seven (7) years and may be extend an additional seven years
by written addendum.
First year percentage of the gross receipts will be 5% and 4% above $2,000,000.00.
Year 2 -7, percentage of the gross receipts will be
Restaurant Lounge: 6% up to $1,000,000.00
5% above $1,000,000.00
4% above $2,000,000.00
Catering Room Rental 7% up to $500,000.00
6% above $500,000.00
Out Catering 2% flat fee
The concessionaire shall pay to the City all costs of the acquisition of identified kitchen
equipment and perform routine maintenance and cleaning and all necessary repair and
replacement.
The next step is to have the complete agreement reviewed by our Legal Department prior
to bringing it back for Council approval.
MEMORANDUM
TO: Tukwila City Council
FROM: Bruce Fletcher, Director of Parks Recreation
DATE: October 1, 2003
SUBJECT: Restaurant Agreement with Gordy's of Tukwila, Inc.
The Parks Recreation Department advertised a request for qualifications for the
operation of the new Foster Clubhouse restaurant, lounge and banquet facilities in August
of 2002. The clubhouse design team, interviewed the top three candidates and
determined that Gordon Harris of Gordy's Steak BBQ Smokehouse was the most
qualified candidate.
The City's interest was to create an exciting business opportunity to partner and offer
quality food service to our new clubhouse. This public /private partnership will provide a
long -term contract that will share financial investments as well as bring new revenues to
the project.
Mr. Harris has worked with the clubhouse design team for over a year and has hired an
interior designer and the Food Service Company Smith Green for kitchen design and
equipment selections.
We have worked for many months and made many revisions to this new restaurant
concessionaire contract that will eventually provide food and drink services to our golfers
and new food customers.
It is with pleasure the Parks Recreation Department presents the final draft contract
between the City of Tukwila and Gordon Harris of Gordy's of Tukwila, Inc. to the City
Council. It is our recommendation that you authorize the Mayor to execute the Foster
restaurant concessionaire contract.
BF
FOSTER GOLF COURSE RESTAURANT
CONCESSION AGREEMENT
This agreement Agreement") is entered into by and between the CITY OF TUKWILA, a
municipal corporation of the State of Washington (hereinafter referred to as the "City and
GORDY'S OF TUKWILA, INC., a Washington ,corporation (hereinafter referred to as
"Concessionaire
WITNESSETH, that in consideration of the mutual promises, covenants and agreement
contained herein, the parties hereby agree as follows:
I CONCESSION RIGHTS GRANTED
The City hereby grants to the Concessionaire for the term and upon the conditions and
provisions contained herein the exclusive restaurant, lounge, snack bar, catering, and
beverage /snack cart concession rights at the Foster Golf Course located at 13500 Interurban
Avenue, Tukwila, Washington, legally described in Exhibit B attached hereto and incorporated
herein by reference. The facilities available to the Concessionaire to carry on all activities
authorized in this Agreement shall be located within the Club House and shall hereinafter be
referred to as the "Concession Areas" and shall include only the Restaurant, Lounge, Kitchen,
Banquet Rooms, Storage, Hallway to Banquet Rooms, Storage, Covered Patio, Patio, Interior Rest
Rooms, Marketing Office, Lobby/Hospitality Area also known as rooms 101, 102, 104, 103, 104,
108, 110, 111, 112, 113, 114, 115, 116, 121,122, 129, 130, and A -3 as shown on the floor plan
attached as Exhibit A attached hereto and incorporated by reference. In addition, the City grants the
Concessionaire the exclusive right to operate a beverage /snack cart on the golf course. City reserves
the right, and Concessionaire acknowledges City's right, for the golf course pro shop to sell drip
coffee, bottled or canned beverages (including water, soda, juices, but not alcoholic beverages),
prepackaged snacks and prepackaged sandwiches incidental to the operation of the pro shop.
The City acknowledges that convenient parking is necessary for the operational and financial
success of the restaurant, lounge, and other food and beverage business to be conducted by
Concessionaire in the Concession Areas. In order to assure that Concessionaire has sufficient
customer parking, City agrees, by signage or other markings, to designate twenty-four (24) spaces
as two -hour (2) restricted parking only. These spaces are provided with intent that the two -hour (2)
restriction will cause golf patrons parking for longer durations, not to utilize these twenty-four
spaces proximate to the Concession Areas main entrance. These spaces are shown on the parking
site plans, are hereby identified as the twenty (20) stall parking section, closest to and just easterly
of the entrance planter in the main parking lot's central section, and the four (4) stalls in the main
parking lot at the north curbline immediately adjacent to the six stalls designated for handicap only
parking. City shall mark these twenty-four spaces, by sign or other markings, with words to the
effect "2 Hour Parking Only While interacting with patrons, clubhouse staff will encourage
parking restriction compliance by golf patrons.
FOSTER GOLF LINKS CLUBHOUSE Page 1 of 30
CONCESSION AGREEMENT
Restaurant /Lounge:
II TERM OF CONCESSION AGREEMENT
This agreement shall commence on the first day the restaurant operation is open to the public
(the "Commencement Date and shall expire seven (7) years from the first day of the first calendar
month immediately following the Commencement Date. Provided that Concessionaire is not then in
default of this Agreement, Concessionaire shall have right to further extend the lease for an
additional seven (7) years, provided the city and concessionaire mutually agree upon reasonable
modifications (if any) to those fees and assessments contained in Article III of this agreement, and
further agree upon any facility restorations, improvements, or upgrades that result from the
evaluation of facility conditions, potential improvements or alterations. Notification of the
Concessionaire's intent to exercise provisions for this lease must be issued by the Concessionaire to
the City by formal written notice, not later than one hundred eighty (180) days prior to the
expiration of the initial term of this Agreement. If the seven (7) year extension is sought, the terms
of this Agreement, or any revisions thereto when mutually agreed to by the City and
Concessionaire, shall apply to the additional seven (7) year period.
Catering /Room Rental
Out Catering
III CONCESSION FEES
Concession Fees (defined below in Section III G) shall be paid to the City by the
Concessionaire as follows:
A. For the period that concludes December 31, 2004 Concessionaire shall pay the City
the following percentage of the Gross Receipts:
Restaurant /Lounge /Catering/Room Rental:
5% of Gross Receipts up to $2,000,000.00
4% of Gross Receipts above $2,000,000.00
Out Catering 2% of Gross Receipts
B. For the period after the first twelve (12) complete calendar months following the
Commencement Date through termination of the Agreement, Concessionaire shall pay the City the
following percentage of the Gross Receipts:
6% of Gross Receipts up to $1,000,000.00
5% of Gross Receipts above $1,000,000.00
4% of Gross Receipts above $2,000,000.00
7% of Gross Receipts up to $500,000.00
6% of Gross Receipts above $500,000.00
2% of Gross Receipts
The payments of a percentage of Gross Receipts, as set forth above, are hereinafter referred to as the
"Percentage Fees."
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CONCESSION AGREEMENT
C. In accordance with state law the City is charged a leasehold tax on the Percentage
Fees paid to the City at a rate of 12.84% "Leasehold Tax The Leasehold Tax is in lieu of
payment of property tax and shall be payable to the city by the Concessionaire.
D. The term `Gross Receints" shall include the total amount in dollars of the actual price
charged, whether for cash or on credit, for all sales by Concessionaire for merchandise, food,
beverages, services, gift or merchandise certificates, rentals, and all other receipts from business
conducted at, in, on, about or from the Concession Areas, but shall not include the following:
(a) sales of gift or merchandise certificates until converted to a sale by redemption on the
Concession Areas; (b) any sums collected and remitted for any retail sales tax, retail excise tax or
general excise tax imposed by any duly constituted governmental authority and separately stated to
and collected from customers; (c) any exchange of goods or merchandise between the stores of
Concessionaire where such exchange of goods or merchandise is made solely for the convenient
operation of the business of Concessionaire; (d) any cash or credit discount, allowance or refund made
upon any sale; (e) any sales of fixtures and equipment which are not a part of Concessionaire's stock in
trade; (f) the sales price of meals provided to employees; (g) the portion of meals provided to
customers pursuant to coupons or other promotional programs or devices (to the extent that
Concessionaire receives no payment therefor or for the coupon or promotional programs or device);
(h) tips or gratuities paid by customers to or for the benefit of Concessionaire's employees which are
retained by Concessionaire's employees; (i) the portion of the receipts from any vending machines or
other coin- or token operated device that Concessionaire must remit to any third party for providing
and/or stocking said machine or device, excluding any vending machines located inside the Pro Shop;
0) the price charged for sales to purchasers who, by reason of canceled credit cards, bad checks, and
the like, do not pay for the same, (k) interest, service, finance or sales carrying charges applicable to
credit transactions; (1) postage, parcel post freight, express or other delivery charges paid in connection
with any mail order sales; (m) layaways until the sale is completed or the deposit abandoned by the
customer provided any forfeited deposits shall be reported as sales; (n) occasional bulk sales of
inventory, including damaged or aged merchandise to commercial customers or jobbers; and (o)
insurance proceeds for damaged furniture, improvements, fixtures, equipment and merchandise.
E. Concessionaire shall deliver to the City on or before the 15th day of each month
following the first day of operations (1) a written report for the prior calendar month period of all
Gross Receipts from concessions for such period in a form reasonably approved by the City, And
(2) payment of the Percentage Fees for such period calculated in accordance with Section III A
above. If the monthly Percentage Fees payment is not received by the 15th of each month, then the
Concessionaire shall pay a late charge of ten percent (10 of the applicable month's Percentage
Fees.
F. Concessionaire shall pay to the City monthly a sum equal to 1/60 of the City's total
cost for acquisition of the kitchen equipment listed in Exhibit C attached hereto and incorporated
herein by reference. The City shall furnish concessionaire with a payment schedule. (Note: Such
payment is sometimes referred to hereinafter as the "Ecuinment Acquisition Reimbursement
Payment Concessionaire shall perform routine maintenance and cleaning and all necessary repair
and replacement of the said equipment during the term of this agreement at Concessionaire's sole
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CONCESSION AGREEMENT
cost. When and if Concessionaire has paid the monthly Equipment Acquisition Reimbursement
Payment obligation set forth in this Section III.E, for a period of five (5) years, the Concessionaire
shall have the right to purchase said Kitchen Equipment from the City by paying to the City $100.00
by check. The first payment by the concessionaire shall be due 45 days after the date the restaurant
is opened for business operations to the public. The range hood, exhaust and makeup air exchange,
and HVAC system (and all equipment in Exhibit Cl shah remain the property of the City and not to
be included within the cost of acquisition of the kitchen equipment and monthly payment. The
concessionaire shall provide proof of normal and periodic maintenance for range hood, exhaust and
makeup air exchange, and HVAC system by furnishing within monthly reports copies of servicing
reports and invoices.
G. The Percentage Fees, Leasehold Tax, and Equipment Acquisition Reimbursement
Payment are referred to collectively as the "Concession Fees." All required payments of
Concession Fees and the monthly Gross Receipt reports shall be delivered to the:
Finance Director
Tukwila City Hall
6200 Southcenter Boulevard
Tukwila, WA 98188
A. The Concessionaire shall:
IV OPERATIONS AND SERVICE
1. Provide the number of personnel (in Concessionaire's sole, reasonable judgment) to
adequately manage and staff the Restaurant portion of the Concession Areas. Personnel
shall include a manager, whose principal employment responsibility shall be the
management of this Restaurant and who shall spend a majority of his/her hours in such
management capacity on site at the Restaurant.
2. Prepare the application and assume responsibility for all costs and expenses of the
application and obtaining of a Class H license issued by the Washington State Liquor
Control Board. Concessionaire shall abide by the rules and regulations of the Liquor
Control Board relative to any such licenses. The City shall cooperate in the application
including, without limitation, executing any reasonable, appropriate documents as
"owner" of the Concession Areas that may be required in conjunction with such
application.
3. Provide complete food services, in compliance with all applicable health and food
service regulations, in and from the Restaurant for a minimum of eight (8) consecutive
hours per day during each day of golf course operations, which include most holidays
and all weekends; provided, that limited food service as reasonably approved by the City
may be provided during the period(s) when remodeling and equipment installation is
taking place. Food service shall not be limited at any other time without prior written
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CONCESSION AGREEMENT
approval of the City. The Concessionaire shall determine which actual hours during
each day the Restaurant shall be open.
4. Keep the areas for which the Concessionaire is responsible under this Agreement open
and use them to transact business with the public daily during hours designated by the
Concessionaire. Holidays the Concession Areas may be closed are Christmas Eve,
Christmas Day, New Year's Day, and Thanksgiving Day. Subject to the approval of the
City, the Concessionaire may, upon posting a written notice to the public of not less than
one week, close the restaurant and lounge for a reasonable period of time for repairs or
remodeling as authorized, for taking inventory, or to accommodate construction by the
City of public improvements.
5. Provide necessary advertising to publicize the Restaurant, Lounge and Banquet Rooms
and establish an advertising program acceptable to and approved by the City's Director
of Parks and Recreation Department or designee. The City shall not unreasonably
withhold its approval of an advertising program proposed by the Concessionaire
provided it is in conformance with applicable laws and regulations, is generally accepted
as advertising practices for similar business operations, and reflects community
standards.
B. The facility shall be smoke free with the exception of outdoor Patio and Covered
Patio areas of the Concession Area.
C. The City shall allow the Concessionaire to operate a beverage /snack cart on the golf
course. The cart may serve and sell alcoholic beverages, food items, and sundries.
D. The Concessionaire shall establish all prices for goods and services provided by
Concessionaire in the Concession Areas, subject to the right of the City to periodically review the
price schedules for all food and beverages to ensure competitive pricing with other golf course
concessions.
E. Concessionaire may not subcontract all or any portion of the Restaurant, Lounge or
beverage cart operations.
F. All signs (entry, interior, exterior) and graphics placed upon or affixed to any of the
Concession Areas shall be subject to the prior written approval of the City, which approval shall not
be unreasonably withheld, conditioned or delayed The Concessionaire shall submit detailed plans
and secure any needed permits /approvals for all exterior and interior signs. In all cases, signage
shall be consistent in size, color, lettering and theme to the clubhouse design and regular park
signage and specifications, and in accordance all governmental regulations.
G. With respect to the entry signage, Concessionaire shall pay any costs which exceeds
the $16,320 amount budgeted by the City for the entry sign.
H. Concessionaire shall use reasonable, good faith efforts to communicate to and
coordinate with golf course management staff all reservations and "private" function activities in the
FOSTER GOLF LINKS CLUBHOUSE Page 5 of 30
CONCESSION AGREEMENT
Concession Areas so as to avoid unreasonable conflicts with golf course events and activities,
particularly when parking limitations exist due to tournaments, demonstrations or other similar
"high use" periods. Concessionaire shall maintain at all times readily accessible, up -to -date
scheduling records associated with the Restaurant and Banquet Rooms.
I. The following shall be excluded from the Concessionaire's operation:
1. Non -food products unless approved by the City;
2. Vending machines unless approved by the City (provided, however, that
Concessionaire shall be allowed to install and maintain one (1) cash machine
in the Concession Areas); and
3. Video games or gambling devices unless approved by the City.
V RELATED RIGHTS
The City shall have the right at any time to establish necessary, reasonable rules and
regulations in the use of the facility, grounds, golf course, and proximate areas provided that the
City shall give thirty (30) days written notice to Concessionaire prior to imposing such rules and
regulation. The rules and regulations may include, but are not limited to, the following:
1. The minimum number of hours that the Restaurant, Lounge, and restrooms are to be open
to the public, provided that in no event shall Concessionaire be required to operate the Restaurant or
Lounge more than eight (8) hours per day.
2. General rules of conduct regarding use of the Restaurant, provided that such rules shall be
consistent with the spirit of this Agreement and the operation of a first -class restaurant operation,
and shall not materially increase Concessionaire's operating costs.
3. The City reserves the right to use the Banquet Rooms for eight (8) events annually, at no
fee to the City for the use of the Banquet Rooms. City shall schedule such Banquet Room events in
writing with Concessionaire not less than thirty (30) days prior to the planned event date, and
scheduling shall be subject to events scheduled by Concessionaire prior to receipt of City's
scheduling notice. City shall be required to use Concessionaire's food and beverage services and
shall pay scheduled prices for any food, beverages or services provided to City during its use of the
Banquet Rooms.
4. The City reserves the right to use the Covered Patio for eight (8) events annually, at no fee
to the City, for the promotion of the men's and women's clubs and course tournament program.
City shall schedule such Covered Patio events in writing with Concessionaire not less than thirty
(30) days prior to the planned event date, and scheduling shall be subject to events scheduled by
Concessionaire prior to receipt of City's scheduling notice. City shall be required to use
Concessionaire's food and beverage services and shall pay scheduled prices for any food, beverages
or services provided to City during its use of the Covered Patio.
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CONCESSION AGREEMENT
5. The City reserves the right to use of the Banquet Area and Covered Patio for impromptu
use if no conflicting events are scheduled with Concessionaire for the use of such areas, provided
that City shall give Concessionaire as much advance notice as possible. City shall be required to
use Concessionaire's food and beverage services and shall pay scheduled prices for any food,
beverages or services provided to City during its use of the Banquet Area or Covered Patio.
City shall retain all rights to make improvements to the Club House building to enhance
access or use. Prior to commencing any such improvements, the City shall give the Concessionaire
not less than thirty (30) days prior written notice of the nature and schedule of such improvements
in order for Concessionaire to review and comment on the proposed improvements. The City shall
review and duly consider the comments of the Concessionaire and other relevant information prior
to making a final decision regarding the completion of the improvements. If these additional
improvements increase the cost of the basic liability policy to the Concessionaire, the City shall
reimburse the Concessionaire for any reasonable additional cost. City shall use best efforts to
minimize disruption, construction- related dust, and to otherwise not interfere with Concessionaire's
operations in the Concession Areas. The City shall not unreasonably interfere with access to the
Premises by Concessionaire, its employees, vendors, and customers.
VI PRICES AND WEIGHTS
Concessionaire and its employees shall not make or permit any misrepresentation as to kind,
quality, weight or price of food, beverages or merchandise offered for sale, nor refuse to sell the
same, which have been displayed or advertised (except due to unavailability of the particular item or
running out of stock).
VII CUSTODIAN AND SECURITY SERVICES
Concessionaire shall, at all times, keep the Concession Areas in a neat, clean, safe and
sanitary condition, and in compliance with all applicable codes. Concessionaire shall keep the glass
of all windows and doors clean and presentable, furnish all cleaning supplies and materials needed
to operate the Concession Areas in a manner prescribed in this Agreement, and provide all
necessary janitorial services to adequately maintain Concession Areas.
VIII UTILITIES
The City and Concessionaire agree to pay for utility charges consistent with Exhibit `B" of
this agreement. Generally, the concessionaire shall pay all charges for water, sewer, electricity,
Metro utility, natural gas, garbage, and security for the following Concession Areas: the Restaurant,
Lounge, Kitchen, mechanical room (for the Concession Areas), storage area, Banquet Rooms, Patio,
Covered Patio, Interior Rest Rooms, and all sewer, water and garbage. The City's utilities shall
include Marketing Office, Lobby/Hospitality, hallway to Banquet Rooms, vestibule, pro shop
storage, pro shop, cart storage, exterior rest rooms parking lot, exterior lighting. The Concessionaire
shall install and maintain a private telephone.
IX CAPITAL IMPROVEMENTS
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CONCESSION AGREEMENT
A. Concessionaire shall, prior to commencing formal planning for any facility
alterations, improvements or construction (interior or exterior), submit to the City's Director of
Parks and Recreation a concept proposal paper including preliminary sketches of such work. If
approved by the Director of Parks and Recreation, the Concessionaire may then submit to the City
in writing, formal plans for alterations, improvements, and construction along with a breakdown of
costs for such improvements.
B. All plans submitted are subject to the approval of the City prior to commencement of
any alteration, improvements or construction. The City agrees to promptly review said plans, and if
the alterations, improvements, and construction are acceptable, to promptly approve the same, and
the plans as approved shall be attached to an executed copy of this Agreement and incorporated
herein.
C. All work performed shall be done to the satisfaction of the City and shall be carried
out in a manner that minimizes impact upon the use of the golf course by the public. Concessionaire
shall be responsible for obtaining all governmental permits and meeting all code requirements and
shall submit copies of the same to the City or its representative prior to commencing any
construction on the Concession Areas.
D. The City may conduct inspections of any capital improvement work at any time to
assure itself that such work is in accordance with the plans approved by the City. In the event any
such work is not according to plans as then approved by the City, shall send a Notice of Non
Compliance to the Concessionaire. In the event the Concessionaire fails to make corrections within
twenty (20) days after the Concessionaire's receipt of such Notice of Non Compliance, the City
may make whatever corrections necessary to bring such work into compliance with the plans as
approved, and shall charge the Concessionaire for all reasonable costs of such corrective work.
E. Concessionaire shall, prior to commencement of any construction work, deposit with
City the amount of TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000) (the
"Concessionaire Deposit in lieu of any other payment and performance bond(s). City shall
deposit the Concessionaire Deposit in an interest bearing account. Provided that Concessionaire has
fulfilled all of its obligations under this Agreement through the Commencement Date, City shall
reimburse to Concessionaire the Concessionaire Deposit, together with interest accrued thereon,
within fifteen (15) days of the Commencement Date.
F. All alterations, improvements, and construction shall become the property of the City
upon termination or expiration of this Agreement and shall be installed solely at the
Concessionaire's expense unless the City expressly agrees in writing to contribute toward the costs
thereof. Notwithstanding any provision to the contrary contained herein, upon termination of this
Agreement, Concessionaire shall have the right to de- identify the Concession Areas by removing all
brand- identity elements such as proprietary signage, custom lighting, trade fixtures, and personal
property related to the Concessionaire's restaurant brand. In addition, Concessionaire shall have the
right to remove, without limitation, the items listed in Exhibit D hereto.
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CONCESSION AGREEMENT
X MAINTENANCE
A. Concessionaire shall be responsible for all maintenance in the Concession Areas and
shall repair and replace all damage arising out of its use, or the use of its patrons, of the concession
areas, reasonable wear and tear accepted. Maintenance shall include cleaning, refinishing and
painting of the interior of the Concession Areas specifically including the restaurant, lounge,
kitchen, banquet rooms, and interior restrooms and the exterior's covered patio, and patio areas.
B. The City shall maintain the building structure (including roof, structural elements,
exterior walls, doors and windows), foundation, HVAC system (does not include kitchen range
ventilation and exhaust system or the HVAC system serving the Concession Areas), electric power
lighting panels and distribution circuits, plumbing system including plumbing fixtures, provided,
that any damages or repairs which are the result of the Concessionaire's negligent or intentional acts
shall be the responsibility of the Concessionaire. City acknowledges that it is responsible for the
construction and installation of the plumbing system, including the dishwasher drain and any grease
traps. City shall indemnify and hold harmless Concessionaire from any cost or expense associated
with the maintenance, repair, or replacement of the dishwasher drain/plumbing system due to the
City's election to construct the dishwasher drain/plumbing system without a grease trap.
C. The Concessionaire and City shall each have a representative attend meetings as
needed to discuss and resolve any maintenance problems or concerns. The Mayor of Tukwila shall
settle any unresolved problems in a timely and efficient manner within the limits of this Agreement.
XI INSTALLATION OF EQUIPMENT
A. Concessionaire shall, at no expense to the City, install, on or by the date the
Concession Areas are open to the public, the restaurant/lounge furnishings and kitchen equipment
described on Exhibit D attached hereto and incorporated by reference. All such equipment shall
remain the property of the Concessionaire under the conditions and provisions of this Agreement.
XII HAZARDOUS SUBSTANCES
A. As used herein, the term "Hazardous Substance" means any hazardous, toxic, or
dangerous substance, waste, or material, which is or becomes regulated under any federal, state, or
local statute, ordinance, rule, regulation, or other law now or hereafter in affect pertaining to
environmental protection, contamination, or cleanup (collectively, "Environmental Laws
B. Concessionaire shall keep upon the Concession Areas, in a location accessible to
City, on request during normal business hours, copies of all reports regarding hazardous or toxic
materials in the Concession Areas that Concessionaire has provided to any governmental agency in
the previous quarter. Concessionaire shall, upon request and at Concessionaire's expense, provide
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CONCESSION AGREEMENT
City with a copy of any such report as to which City requests a copy. In the event of any accident,
spill, or other incident involving hazardous or toxic matter that Concessionaire is required to report
to any governmental agency, Concessionaire shall immediately report the same to the City and
supply City with all information and reports with respect to the same, together with
Concessionaire's clean-up or remediation plan and schedule. If such clean-up or remediation plan is
not acceptable to City in City's sole discretion, City may so notify Concessionaire and, upon 48
hours prior written notice (or without notice if so required by an emergency) may enter on the
Concession Areas to conduct the cleanup or remediation and charge Concessionaire the costs
thereof. All information described herein shall be provided to City regardless of any claim by
Concessionaire that it is confidential or privileged, provided that the City shall not publish or
disclose the information to any third party except as pursuant to Chapter 42.17 RCW.
C. Indemnification: Concessionaire agrees to hold harmless, protect, indemnify, and
defend City from and against any damage, loss, claim, or liability, INCLUDING reasonable
attorney's fees and costs, resulting from Concessionaire's use, disposal, transportation, generation,
and/or sale of any Hazardous Substances. The City agrees to hold harmless, protect, indemnify, and
defend Concessionaire from and against any damage, loss, claim, or liability, including attorney's
fees and costs, resulting from (a) Hazardous Substances existing on the Concession Areas as of the
date of execution of this Agreement; or (b) Hazardous Substances thereafter used, disposed of, or
generated on the Concession Areas by the City; or (c) Hazardous Substances used, disposed of, or
generated on the Concession Areas by any third party unrelated to Concessionaire. These
indemnities will survive the termination of this Agreement, whether by expiration of the Term or
otherwise.
D. Risk of Loss: All personal property of any kind or description whatsoever in the
Concession Areas shall be at the Concessionaire's sole risk, and City shall not be liable for any
damage done to, or loss of, such personal property. However, Concessionaire is not responsible for
losses or claims of stolen property during those periods of exclusive use of these areas by the city or
its employees.
XIII TERMINATION
A. The parties may terminate this Agreement at any time by mutual execution of such
written termination agreement as may be negotiated between the parties.
B. The City may terminate this Agreement and take immediate possession of the
Concession Areas in the event that the Concessionaire shall have failed to perform any of the
covenants or conditions of this Agreement and such default or deficiency in performance was not
remedied by the Concessionaire within thirty (30) days after receiving notice in writing stating with
reasonable specificity the nature of the default or deficiency and the City's intention to terminate if
not corrected; provided, however, that in the event of a default or deficiency that is of a nature
requiring more than 30 days to remedy, Concessionaire shall not be in default so long as
Concessionaire undertakes to remedy the default or deficiency within the 30 -day period and
thereafter diligently pursues completion of the remedy.
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CONCESSION AGREEMENT
This paragraph shall not apply where the Concessionaire's failure to perform in a timely manner
was caused by the Concessionaire's inability to secure necessary governmental permits, excluding
licenses from the Washington State Liquor Control Board. The Concessionaire may terminate this
Concession Agreement in the event it is unable to secure the governmental permits necessary to the
use of the Concession Areas proposed herein.
C. In addition, the City may terminate this Agreement and take immediate possession of
the Concession Areas in the event that the Concessionaire shall have been convicted of committing
or engaging in any illegal activity as a part of the concession operations, including the willful failure
to pay all taxes and required fees
D. In the event that after termination, as provided herein, Concessionaire has not
removed its property and fixtures within the time allowed, the City may, but need not, remove said
personal property and hold it for the owners thereof, or place the same in storage, all at the expense
and risk of the owners thereof, and Concessionaire shall reimburse the City for any expense incurred
by the City in connection with such removal and storage. The City shall have the right to sell such
stored property, without notice to Concessionaire, after it has been stored for a period of thirty (30)
days or more. The proceeds of such sale shall be applied first to the cost of such sale, second to the
payment of the charges for storage, and the third to the payment of any other amounts which may
then be due from Concessionaire to the City, and the balance, if any, shall be paid to the
Concessionaire. Notwithstanding any provision to the contrary contained herein, City's and
Concessionaires rights under this paragraph shall be subject to the applicable laws of the State of
Washington.
E. Upon expiration of the term of this Agreement, Concessionaire shall remove all it
goods, wares and merchandise from the Concession Areas and shall remove any equipment or
fixtures placed therein by Concessionaire pursuant to the terms of any written Agreement providing
for removal by the Concessionaire upon expiration. The Concessionaire shall have twenty (20) days
to complete removal of such property from the Concession Areas. The Concessionaire shall restore
any areas damaged by the installation of fixtures or equipment to the condition of the area before
installation occurred, reasonable wear and tear excepted. No fixtures or improvements or additions
to the Concession Areas shall be removed unless previously agreed in this Agreement or a separate
writing signed by both parties. The City may, but need not, treat any property remaining upon the
Concession Areas after expiration of this Agreement or period for removal of Concessionaire's
property as abandoned by Concessionaire, and may make any disposition of such property as the
City deems fit.
F. Upon termination or expiration of this Agreement, the Concessionaire shall surrender
the Concession Areas to the City in as good condition as at the date of execution of this Agreement,
except for the effects of reasonable wear and tear, alterations and repairs made with the concurrence
of the City, and property damage caused by risks insured against under fire, extended coverage and
vandalism insurance in current practice.
XIV STANDARDS OF CONDUCT
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CONCESSION AGREEMENT
A. Concessionaire recognizes that, although it is operating the concession facilities as an
independent operator for profit, the City's Department of Parks and Recreation is organized and
exists for the purpose of maintaining park and recreation facilities for the use and enjoyment of the
general public. The Concessionaire and its employees will devote their best efforts toward
rendering courteous service to the public as though, Concessionaire and its employees were
employees of the City, with a view of adding to the enjoyment of the patrons of this recreational
facility.
B. Concessionaire shall operate and conduct the concessions in the Concession Areas in
a business like manner, and will not permit any acts or conduct on the part of the Concessionaire's
employees that would be detrimental to the City's image and operation of the golf course.
C. Concessionaire shall at all times provide sufficient personnel to adequately staff the
Concession Areas. All personnel shall be dressed in neat appearing attire, which shall include a
standard uniform and shirt logo for Concessionaire personnel that shall uniquely identify a
Concessionaire's employee but which shall not in any way infer association with or depict
representation of the City.
XV COMPLIANCE WITH LAWS
The Concessionaire, its officers, employees, and agents shall comply with applicable federal,
state, county, and local laws, statutes, rules, regulations, and ordinances, in performing its
obligations under this Agreement. Such compliance shall include abiding by all applicable federal,
state and local policies to ensure equal employment opportunity based on ability and fitness to all
persons regardless of race, creed, color, national origin, religion, sex, physical handicaps or age. The
Concessionaire shall comply with applicable laws, standards, and regulations pertaining to
employment practices and employee treatment. Conditions of the Federal Occupational Safety and
Health Act of 1970 (OSHA), and the Washington Industrial Safety and Health Act of 1973
(WISHA). Concessionaire agrees to indemnify and hold harmless the City from all damages
assessed for the Concessionaire's failure to comply with the Acts and Standards issued thereunder.
The Concessionaire is also responsible for meeting all pertinent local, state and federal health and
environmental regulations and standards applying to any operation in the performance of this
Agreement.
XVI ACCESS TO BOOKS AND RECORDS
A. The City or its agents shall have the right to examine and inspect the books and
records of the Concessionaire for the purpose of validating Gross Receipts reports. If
Concessionaire conducts business operations at a location outside the Concession Areas,
Concessionaire shall adopt an accounting system to accurately reflect the Gross Receipts and
expenses derived from the Concession Areas to include beverage /snack cart sales. Concessionaire
shall record all Restaurant sales using systems which electronically and/or digitally record and
identify the dates of sales and the types and amounts of each transaction (so- called "point of sale" or
"POS" systems). The electronic and/or digital POS system data files from the restaurant and lounge
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CONCESSION AGREEMENT
areas may be required to be turned in to the City and are also subject to annual on -site inspections.
All electronic and/or digital POS system data files are to be maintained for two (2) years.
B. The Concessionaire shall provide to the City within one hundred five (105) days of
the end of a calendar year, a copy of its State B &O Tax Report for the previous year. No certified
copy of an annual report shall be required. The City shall not pay the Concessionaire for
preparation of any of the financial records or State B &O Tax Report that will be provided to the
City.
XVII PHOTOGRAPHS
Either party shall have the right without liability to the other to make photographs or motion
pictures of the facilities, grounds, golf course, and proximate spaces, activity therein, and/or
displays or exhibits.
XVIII ADDRESSES FOR NOTICES
Except for payments and Gross Receipt reports as directed by Article III.E. above, any
notice required or permitted hereunder must be in writing and will be effective upon the earlier of
personal delivery or three days after being mailed by certified mail, return receipt requested,
addressed to CONCESSIONAIRE or to CITY at the address for that party designated herein. Either
party may specify a different address for notice purposes by written notice to the other. All notices
shall be delivered to the following addresses:
To the City at the following address:
Office of the Mayor
Tukwila City Hall
6200 Southcenter Boulevard
Tukwila, WA 98188
And to the Concessionaire at the following address:
Gordon Harris, President
Gordy's Steak BBQ Smokehouse
14303 436 Avenue SE
North Bend, WA 98045
With a copy to:
Jonathan Pearlstein, Esq.
1130 SW 12' Street
North Bend, WA 98045
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CONCESSION AGREEMENT
XIX ASSIGNMENT OF AGREEMENT
The City and Concessionaire each agree to be bound to the other party in respect to all
covenants, agreements, and obligations contained in this contract. Neither party shall assign the
contract in part or as a whole, without the written consent of the other, which consent shall not be
unreasonably withheld, conditioned or delayed. The Concessionaire shall not subcontract any of the
Concession Areas, services, facilities, or equipment, or delegate any of its duties under this
Agreement without the prior written approval of the City, which approval shall not be unreasonably
withheld, conditioned or delayed.
XX EQUALITY OF TREATMENT
A. Concessionaire shall conduct its business in a manner which assures fair, equal and
nondiscriminatory treatment at all times in all respects to all persons without regard to race, color,
religion, sex, age, or national origin. No person shall be refused service, be given discriminatory
treatment, or be denied any privilege, use of facilities or participation in activities on the Concession
Areas on account of race, color, religion, sex, age or national origin.
B. Concessionaire shall not discriminate in employment on the basis of race, color,
national origin, sex, religion, age, marital status, or disability, except for employment actions based
on bona fide occupational qualification.
XXI CASAULTY TO OR DEMOLITION OF CONCESSION AREAS
The parties agree that the primary use of the premises is the operation of a golf course.
Secondary to that use is the concession that is the subject to this Agreement. The parties recognize
that some one or more of these uses may be interfered with or prevented because of fire, earthquake,
flood, storm, landslide, act of war, vandalism, theft or other extraordinary casualty.
A. Material Damage. If the Concession Areas are damaged or destroyed by fire
or any casualty which cannot, despite diligent, good faith efforts be repaired or restored within two
hundred seventy (270) days following the date on which such damage occurs, then Concessionaire
may elect to terminate the Agreement effective as of the date of such damage or destruction. Within
thirty (30) days after the date of such damage, the parties shall determine how long the repair and
restoration will take. After that determination has been made, Concessionaire shall have a period of
thirty (30) days to terminate the Agreement by giving written notice to City.
B. Repair After Damage. If Concessionaire does not give notice of
Concessionaire's election to terminate as provided in Section XXI.A. above, then City shall, subject
to the provisions of this Section, immediately commence and diligently pursue to completion the
repair of such damage so that the Concession Areas and the Golf Course Property are restored to a
condition of similar quality, character and utility for Concessionaire's purposes, including
restoration of all items described on Exhibit B and Exhibit C existing in the Concession Areas prior
to such damage. Notwithstanding anything contained herein to the contrary, if the Concession
Areas or the Golf Course property is not repaired and restored within one hundred eighty (180) days
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CONCESSION AGREEMENT
from the date of the damage, Concessionaire may cancel the Agreement at any time before City
completes the repairs and delivers the restored Concession Areas to Concessionaire. If
Concessionaire does not so terminate, City shall continue to restore the Concession Areas.
C. Uninsured Damase. If damage or destruction is caused by a peril not
required to be insured against hereunder and for which insurance proceeds are not available, either
City or Concessionaire may terminate this Agreement by thirty (30) days written notice to the other
of its election so to do and the Agreement shall be deemed to have terminated as of such date unless
the other party agrees in writing to pay for such repairs or restoration.
XXII NO LIENS OR ENCUMBRANCES
It is mutually understood and agreed that the Concessionaire shall have no authority, express
or implied, to create or place any lien or encumbrance of any kind or nature whatsoever upon, or in
any manner to bind, the interest of the City in the Concession Areas or to charge the rentals payable
hereunder for any claim in favor of any person dealing with Concessionaire, including those who
may furnish materials or perform labor for any construction or repairs, and each such claim shall
affect and each such lien shall attach to, if at all, only the right and interest granted to
Concessionaire by this Agreement. If any such liens are filed, City may, without waiving its rights
and remedies for breach, and without releasing Concessionaire from its obligations hereunder,
require Concessionaire to post security in form and amount reasonably satisfactory to City or cause
such liens to be released by any means City deems proper, including payment in satisfaction of the
claim giving rise to the lien. Concessionaire shall pay to City upon demand any sum paid by City to
remove the liens. Further, Concessionaire agrees that it will save and hold the City harmless from
any and all loss, cost, or expenses based on or arising out of the asserted claims or liens, against this
Agreement or against the right, title, and interest of the City in the Concession Areas or under the
terms of this Agreement, including reasonable attorney's fees and costs incurred by City in
removing such liens, and in enforcing this paragraph. Additionally, it is mutually understood and
agreed that this paragraph is intended to be a continuing provision applicable to future repairs and
improvements after the initial construction phase.
XXIII INSURANCE
A. Fire. Earthouake, Casualty Insurance: The Concessionaire agrees that, at all times
during the full term of this Agreement and at its own expense, Concessionaire shall, at its sole cost
and expense, maintain in full force and effect adequate fire, earthquake, and other casualty coverage
covering the Concession Areas and its contents, including all personal property, fixtures,
improvements. Such policy shall include a replacement cost endorsement. Concessionaire will, prior
to commencing installations of their supplied equipment at the worksite and before business
operations commence, shall obtain and file with the City's Risk Manager a Certificate of Insurance
evidencing such coverage. All such insurance coverage shall include a thirty -(30) day cancellation
notice to Concessionaire and the City Adequacy of coverage is defined as insurance sufficient to
restore the Concession Areas to its pre casualty condition.
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CONCESSION AGREEMENT
B. Liability Insurance: Not less than thirty (30) days prior to the date of
Concessionaire's entry onto the Concession Areas, Concessionaire, at its own expense shall obtain
and file with the City's Risk Manager a Certificate of Insurance evidencing commercial general
liability insurance coverage "COL providing coverage of at least $1,000,000 per occurrence for
bodily injury and $500,000 per occurrence for property damage. This Certificate of Insurance shall
be subject to approval by the City's Risk Manager as. to company, terms and coverage, and said
approval shall not be unreasonably withheld. The CGL shall name the City as an additional insured
and must fully protect the City from any and all claims and risks and losses in connection with any
activities or omissions by the Concessionaire by virtue of this Agreement. The CGL policy shall
remain in full force and effect at the Concessionaire's sole expense for liability for property damage
or personal injury that may occur in connection with activities or omissions by the Concessionaire
or its patrons, and provide coverage for the full term of this Agreement. Concessionaire shall insure
that the City's Risk Manager is given thirty (30) calendar days prior written notice, by certified
mail, of any cancellation, lapse, reduction or modification of such insurance. Concessionaire shall
have the right to maintain a deductible level of up to $5,000.00.
C. Release and Waiver of Subroeation: Any policy of insurance carried by either City or
Concessionaire pursuant to any obligation under this Agreement, shall, to the extent available,
contain a waiver of subrogation clause on the part of the insurer. Such waiver shall apply to
damages to adjacent property. Notwithstanding any other provision of this Agreement, neither City
nor Concessionaire shall be liable to the other party or to any insurance company (by subrogation or
otherwise) insuring the other party for any loss or damage to any building, structure or tangible
personal property of the other occurring in or about the Concession Areas, even though such loss or
damage might have been occasioned by the negligence of such party, its agents or employees, if
such loss or damage is covered by insurance issued by an insurance carrier authorized or licensed by
the Insurance Commissioner of the State of Washington to issue lines of insurance, benefiting the
party suffering such loss or damage or was required under the terms of this Agreement to be
covered by insurance by the party covering the loss.
XXIV HOLD HARMLESS, INDEMNIFICATION, INDUSTRIAL INSURANCE
A. Hold Harmless Indemnification: Each party hereto agrees to be responsible and
assumes liability for its own wrongful or negligent acts or omissions, or those of its officers, agents,
or employees to the fullest extent required by law. Each party agrees to save, indemnify, defend, or
hold the other party harmless against all liability, loss, damages, and expenses, including costs and
attorney's fees, resulting from actions, claims and lawsuits arising or alleged to have arisen, in
whole or in part, out of or in consequence of the acts or failures to act of the other party, its
employees, its subcontractors, its agents, or its assigns, which arise in any way out of the
performance of this Agreement. In the case of negligence of both the City and the Concessionaire,
any damages allowed shall be levied in proportion to the percentage of negligence attributable to
each party, and each party shall have the right to seek contribution from the other party in
proportion to the percentage of negligence attributable to the other party.
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CONCESSION AGREEMENT
B. Industrial Insurance: The parties have specifically negotiated Concessionaire's
waiver of its immunity under Title 51 RCW, which is hereby waived for purposes of
Concessionaire's indemnification and hold harmless of the City, including the duty
to defend. This provision shall be inapplicable to the extent such action, claim, or
lawsuit is judicially found to arise solely from the acts or failures to act of the City.
XXV RELATIONSHIP OF PARTIES
A. Concessionaire Indenendent Contractor Status: The parties intend that an
independent contractor relationship shall be created by this Agreement. Nothing contained herein
shall create the relationship of principal and agent or of partnership or of joint venture between the
parties hereto, and neither the method of computation of consideration nor any other provision
contained herein shall be deemed to create any relationship between the parties hereto other than the
relationship of City as granting a concession to the Concessionaire. Concessionaire has the
experience, ability, and resources to develop and operate restaurant facility and is performing
independent functions and responsibilities within its field of expertise. Concessionaire and its
personnel are independent contractors and not employees of the City. No agent, employee, servant,
or representative of the Concessionaire shall be deemed to be an employee, agent, servant or
representative of the City. Concessionaire and its personnel have no authority to bind the City or to
control the City's employees. As an independent contractor, Concessionaire is responsible for its
own management. The City's administration and enforcement of this Agreement shall not be
deemed an exercise of managerial control over Concessionaire or its personnel.
B. No Third Party Rights Created: It is mutually understood and agreed that this
Agreement is solely for the benefit of the PARTIES hereto and gives no right to any other party.
C. No Joint Venture/Partnershin: It is mutually understood and agreed that no joint
venture or partnership formed as a result of this Agreement.
XXVI PERMITS, LICENSES, TAXES AND FEES
A. The Concessionaire shall obtain and at all times maintain a current Tukwila Business
License and shall obtain all liquor, health, and all other regulatory licenses and permits as may be
required or become necessary, including all construction and building permits, necessary to fulfill
Concessionaire's obligations under this Agreement at Concessionaire's sole expense. Each party
agrees to execute such additional or other documents as may be required to fully implement the
intent of this Agreement.
B. As an independent contractor, the Concessionaire shall be solely responsible for all
taxes, fees and charges incurred, including but not limited to license fees, business and occupation
taxes, workers' compensation and unemployment benefits, all federal, state, regional, county and
local taxes and fees, including income taxes, leaseholder taxes, permit fees, operating fees,
FOSTER GOLF LINKS CLUBHOUSE Page 17 of 30
CONCESSION AGREEMENT
surcharges of any kind that apply to any and all persons, facilities, property, income, equipment,
materials, supplies or activities related to the Concessionaire's obligations under this Agreement.
XXVII WAIVER
Failure to enforce any provision of this Agreement shall not be deemed a waiver of that
provision. No waiver of any right or obligation of either party hereto shall be effective unless in
writing, specifying such waiver, executed by the party against whom such waiver is sought to be
enforced. Waiver of any right or power arising out of this Agreement shall not be deemed waiver of
any other right or power.
XXVIII ADVERTISING
Concessionaire shall submit for the City's approval, not to be unreasonably withheld, all
advertisements for commercial vendors related to the concession operation.
XXIX REMEDIES
In addition to all other remedies provided by law, the parties hereto agree that the actual
damages suffered by the City may be difficult to calculate and, in the event of the abandonment of
the premises by Concessionaire or entry by the City because of breach or default by Concessionaire,
Concessionaire shall pay at the City's option to the City 1/365' per day of prior year's concession
fee as liquidated damages until the City has obtained a new Concessionaire satisfactory to the City.
For 2004, the rate would be at a pro -rated daily amount. Such liquidated damages, if elected by the
City, shall be in lieu of any other remedy provided by law.
XXX COSTS ATTORNEY'S FEES
In any action brought to enforce any provision of this Agreement, including actions to
recover sums due or for the breach of any covenant or condition of this Agreement, or for the
restitution of the Concession Areas to the City or eviction of the Concessionaire during the term or
after expiration thereof, the substantially prevailing party shall be entitled to recover from the other
party all reasonable costs and reasonable attorney's fees incurred, including the fees of accountants,
appraisers, and other professionals, at trial or on appeal, and without resort to suit.
XXXI ARTICLE HEADINGS, GENDER, NUMBER
Article paragraph headings are not to be construed as binding provisions of this concession;
they are for the convenience of the parties only. The masculine, feminine, singular and plural of any
word or words shall be deemed to include and refer to the gender and number appropriate in the
context.
XXXII ENTIRE AGREEMENT
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CONCESSION AGREEMENT
This Agreement and its Exhibits constitutes the entire agreement between the parties, and
the Parties acknowledge that there are no other agreements, written or oral, that have not been set
forth in the text of this Agreement.
XXXVII CHOICE OF LAW VENUE
This Agreement shall be interpreted according to the laws of the State of Washington. Any
judicial action to resolve disputes arising out of this Agreement shall be brought in King County
Superior Court.
XXXIV MODIFICATION
This Agreement may only be modified by written instrument signed by both parties.
XXXV ILLEGAL PROVISIONS SEVERABILITY
Should any part of this Agreement be found void, illegal, or unenforceable, the balance of
the Agreement shall remain in full force and effect.
XXXVICOUNTERPARTS
This Agreement may be executed simultaneously in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same instrument.
XXXVII RECORDING
Upon the execution of this Agreement the City will cause this Agreement to be recorded
with the land use records of King County, Washington.
(Signatures appear on the following page)
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CONCESSION AGREEMENT
IN WITNESS WHEREOF, this Agreement has been entered into between the City of
Tukwila and Gordy's of Tukwila, Inc., as of the day of 2003.
CONCESSIONAIRE
GORDY'S OF TUKWILA, INC.
a Washington corporation
By:
By:
Gordon Harris, President
CITY OF TUKWILA
a Washington municipal corporation
Steven M. Mullet, Mayor
APPROVED AS TO FORM:
City Attorney
ATTEST:
City Clerk
LIST OF EXHIBITS
Exhibit A Architectural Floor Plan with Numerical Identification of Rooms /Spaces
Exhibit B Legal Description of Foster Golf Course Property
Exhibit C Provided by the City in Concessionaire's Interests
Exhibit D —Provided by the Concessionaire
Exhibit E Rights in Use and Control of Facility Spaces with Apportioning of Utility,
Maintenance, and Custodial Costs
FOSTER GOLF LINKS CLUBHOUSE Page 20 of 30
CONCESSION AGREEMENT
STATE OF WASHINGTON
ss.
COUNTY OF KING
I certify that I know or have satisfactory evidence that STEVEN M. MULLET is the person who
appeared before me, and said person acknowledged that she signed this instrument, on oath stated
that she was authorized to execute the instrument and acknowledged it as the Mayor of the CITY
OF TUKWILA to be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Given under my hand and official seal this
STATE OF WASHINGTON
ss.
COUNTY OF KING
On this day of 2003, before me personally appeared Gordon Harris, to
me known to be the President of Gordy's of Tukwila, Inc., a Washington corporation, that executed
the within and foregoing instrument and acknowledged the said instrument to be the free and
voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath
stated that he was authorized to execute and in fact executed said instrument on behalf of the
corporation.
Given under my hand and official seal this
day of 2003.
Type/Print Name
Notary Public in and for the
State of Washington residing at
My Commission expires
day of 2003.
Type/Print Name
Notary Public in and for the
State of Washington residing at
My Commission expires
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CONCESSION AGREEMENT
EXHIBIT "A"
Architectural Floor Plan with Numerical Identification of Rooms /Spaces
FOSTER GOLF LINKS CLUBHOUSE Page 22 of 30
CONCESSION AGREEMENT
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EXHIBIT `B"
Legal Description of Property
King County Parcel Account Number 000300004900 Record Number 01
0049 FOSTER STEPHEN DC #38 POR OF DC LY NELY OF PS E RY R/W& NELY ELY
SELY OF FOLG
DESC LN BEG AT NXN OF ELY LN OF PS E RY R/W NLY MGN OF FOSTER ST PROD
ELY THN 49 -11 -08 E 51.59 FT TH
S 75 -02 -50 E TO C/L OF FOSTER ST PROD ELY TH NELY ALG SDC/L TO BANK OF
GREEN RIVER
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CONCESSION AGREEMENT
EXHIBIT "C"
Provided by the City in the Concessionaire's Interests
Bolded As specified within the project's construction documents, required by the city
pursuant to its construction contract with Wade Perrow Construction, LLC., General
Contractor.
1. Value of entire project 4- phased scope, including but not limited to: staff and legal time
and resources; architect; facility engineering; utility coordination; permits and bidding;
contracting; siting, site preparation; coordination with contractor and construction
administration required by project documents in concessionaire's areas of use;
2. Project management/administrative services provided by the owner's representative
during construction; including the procurement of certain restaurant equipment specified
and contained within Volume 2 of the project manual.
3. Restaurant wood base molding, door, and window casings.
4. Epoxy kitchen flooring.
5. Carpeting.
6. Finished ceilings and soffits
7. Interior paint and wainscot finishes
8. One air curtain at kitchen door
9. Building security and fire alarm hardware systems (security not exceeding $8704 owners
allowance, with consultation)
10. Power, phone, and data infrastructure
11. Standard electrical type j boxes for future connections of music system by others
12. Restaurant booth stubout walls
13. Restaurant exterior walk up service counter
14. Patio and patio lighting
15. Ducts and fans for connection to three concessionaire supplied and installed kitchen
hoods
16. Raised floor for booths
17. Raised floor for breakfast bar
18. Underslab soda sleeves
19. Underslab plumbing
20. Slab floor sinks and drains
21. Backing for restaurant shelving
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CONCESSION AGREEMENT
22. HVAC system and controls for kitchen, restaurant, lounge, (and all other
concessionaire use or joint use areas)
23. Kitchen make up air supply
24. Kitchen ductwork
(Exhibit "C" continued)
25. Roof penetrations and venting, kitchen, restaurant, lounge and all other
26. Smoker slab, shed roof, and installation connections
27. Meeting room data wiring and floorbox connection
28. Meeting room divider /operable partition
29. All water routing and piping
30. General exterior building, grounds, parking lot, and landscape maintenance
31. Shared use benefit of "joint use areas
32. Exterior signage as budgeted by owner not to exceed $16,320
33. General overhead lighting fixtures in restaurant and in all other concessionaire and
joint use spaces;
34. Interior and exterior facility artwork, motif, and decor accessories procured by owner to
the extent provided in areas exclusive of the concessionaire's spaces.
35. Lobby furniture as selected and procured by owner;
36. Grease trap as required for compliance to city code
END
FOSTER GOLF LINKS CLUBHOUSE Page 25 of 30
CONCESSION AGREEMENT
EXHIBIT "D"
Provided by the Concessionaire
1. COSTS OF KITCHEN EQUIPMENT AND INFRASTRUCTURE: Those costs described below
are known and referred to by the parties as kitchen equipment and infrastructure. Capital investment
costs associated with kitchen equipment and infrastructure are of immediate value to the
concessionaire. Though the initial outlay is provided by the city to the concessionaire, the terms
borne within this agreement result in their costs eventually paid by the concessionaire. In no case
will the capital investment by the city in the concessionaire's interests exceed $350,000. The
kitchen equipment purchased/supplied by the city represents the majority of the restaurant's
equipment. In the event that the city's costs in procuring and supplying kitchen equipment and
infrastructure are less than $350,000 the concessionaire may offer the city evidence of kitchen
equipment purchased privately related to this project. All or part of those amounts less than
$350,000, may in negotiation with the concessionaire, be applied against this agreement's
repayment terms and conditions or applied against leaseholder balances the concessionaire assumes.
These terms and conditions must be agreed to once city costs are known, and will require an
addendum to this agreement that must be executed not later than April 1, 2004, unless that date is
extended by the city.
a. KITCHEN EQUIPMENT: That equipment specified within Volume 2 of the project manual but
excluding the "Smoke?' and POS (Point of Sale) system that will be purchased directly by
concessionaire. All other equipment contained in Volume 2 is to be procured by the city in the
concessionaire's interest consistent with the terms of this agreement.
b. CONCESSIONAIRE SPACES INFRASTRUCTURE: Included WITHIN the total $350,000
capital investment provided by the city, the following items and their costs are also attributable to
the concessionaire's interests. These costs may be paid by the concessionaire or applied against the
$350,000 balance.
I Item Title
Electrical: Final placement of and electrical connections for restaurant
equipment specified by the concessionaire and procured by the owner in his behalf
that require hardwire electrical connections.
Fireplace: Owner's provisions within the construction project for contractor
procurement installation of restaurant fireplace.
FOSTER GOLF LINKS CLUBHOUSE Page 26 of 30
CONCESSION AGREEMENT
Includes Tax
$22,500
$13,556
Plumbing: Owner's provisions within the construction project for plumbing
systems to the restaurant and connections of equipment within the construction
project or procured by the owner in concessionaire's behalf.
FOSTER GOLF LINKS CLUBHOUSE Page 27 of 30
CONCESSION AGREEMENT
$28,250
TOTAL: i $64,306
(Exhibit `D" continued)
The amounts contained in the above table represent the owner /architect's good faith estimate of costs
incurred attributable to this infrastructure and are hereby fixed.
2. INTERIOR DESIGN SERVICES ENGINEERING COSTS
a. To achieve interior design coordination in joint use of the facility, the city has contracted for
interior design services through the project architect in the concessionaire's interests. An amount
not to exceed $15,000 has been established by the concessionaire as his limit for interior design
services. The city will, after processing payment applications for architectural services, "re-
invoice"' the concessionaire for those services provided.
b. Design engineering costs have been incurred by the city involving restaurant equipment
mechanical, electrical, and plumbing requirements, loads, methods, and installations. Those
requirements have been bid and incorporated within the project's plans and specifications. They
have been billed by the architect to the city in the amount of $3600.
Costs relating to 2A 2B will be paid directly by the concessionaire upon city invoicing.
3. Additive change order costs incurred by the City relating to restaurant equipment that
are a result of equipment substitutions, alterations, or changes when approved by the
concessionaire; when such changes result in differing connection or design
requirements from that equipment procured by the city in the concessionaire's
interests contained in Volume 2 of the project manual.
4. Wood Smoker (J R Oiler 700 and components)
5. All cabinetry in restaurant, kitchen, and bar
6. lounge bar and backbar
7. interior and exterior service stations
8. booths seating
9. breakfast bar
10. double acting doors for 104B,C,D;
11. music system
12. CCTV system
13. Satellite video system
14. restaurant point -of -sale system, other computers and peripherals
15. restaurant, banquet, banquet room phones phone related components
16. specialty booth/wall lighting
END
17. interior signage (matching), as agreed to and paid for in part by owner (costs itemized
per sign apportioned)
18. audio system speakers, PA system in meeting room and/or other concessionaire
areas
19. refrigeration and condensation lines
20. sheet stainless and/or other metal surfacings, backboards, etc.
21. beverage service lines
22. shelving
23. office related hardware, furniture, furnishings and supplies
(Exhibit `D" continued)
24. any and all other cook, dish, food service wares and utensils, tables, chairs, linens
required to provide restaurant services
25. outdoor patio seating and furnishings
26. televisions and other restaurant media to the concessionaires preference;
27. all health, business, and food service compliance permits obtained and maintained
28. installation/hanging of outdoor cooler freezer box compressors
29. All other FF &E not included as within the city's scope but required for a complete
and operating restaurant facility.
30. installation of Food Service Equipment not requiring hard -wired electrical or
plumbing connections
FOSTER GOLF LINKS CLUBHOUSE Page 28 of 30
CONCESSION AGREEMENT
EXHIBIT "E"
Rights in Use and Control of Facility Spaces with Apportioning of Utility, Maintenance, and Custodial Costs
The city and concessionaire have agreed that joint operations of the facility require 1) that rights and responsibilities for
the use and control of spaces be established, and 2) that operating costs respective to those spaces which require 3)
utilities, 4) necessary maintenance and repair, and 4) custodial services be delineated. The following table depicts these
responsibilities:
Room Room/SpaceName.
100 Pro Shop
TOT
102 u Restaurant
1153
Lotmge
104 Kitchen
108 Meeting Room B (Banquet)
110 Meeting Room A (Banquet)
111 Meeting Hallway Corridor
112 Restroom Hallway Corridor.
113 Mechanical
114 Storage (Meeting Rooms)
115 Women's Restroom
116 Men's Restroom
117 Electrical Data Room
119 Vestibule Front/Main Entry
120 SRR Sprinkler Riser Room
122 Concessionaire Office
1 23_
Storage Golf Retail
124 Lobby
125 Instruction Area
126 Men's Restroom Exterior
Maintenance 4 Custodial
City
city
Concessionaire
Concessionaire
Concessionaire
Concessionaire
Concessionaire
Concessionaire
City Concessionaire
Joint Use Concessionaire City
Concessionaire Concessionaire Concessionaire
Joint Use Concessionaire Concessionaire
Joint Use Concessionaire Concessionaire
Joint Use W Concessionaire Concessionaire
Joint Use City
Joint Use City
Concessionaire Concessionaire
City City
Joint Use City
City City
City City
1 —Right 2 UN'
City City
Concessionaire Concessionaire ess
Concionaire T l:Concessionaire
Concessionaire Concessionaire
Concessionaire Concessionaire
Concessionaire Concessionaire
Concessionaire City
Concessionaire
City
City
City
City
City
City
City
City
Concessionaire
Concessionaire
Concessionaire
Concessionaire
Concessionaire
Concessionaire
Concessionaire
t Not Required
Concessionaire
Concessionaire
Concessionaire
Concessionaire
Concessionaire
City
Concessionaire
City
Concessionaire
City
City
Room
127
128
129
130
130A
Room/Space Name 1 Right
i Woments Res,troom Extenor-
Office (Pro -Shop)
atib,, West:Covered Diningi?
Patio, East Covered Dining
Patio, Meeting Room
Parking Lots
xtenor Sloe, LYghtmg
Landscape
City
oncessionaire
Concessionaire
oncessionaire
Joint Use
Tonit Use
Joint Use
City
FOSTER GOLF LINKS CLUBHOUSE Page 30 of 30
CONCESSION AGREEMENT
2,- Utility
3 Maintenance
City,,.:;
City
City
City
4— Custodial
City
City
Joint (note #1)
Joint (note #1)
Joint (note #1)
City
City
City
Notes of Explanation
1. Patios: Daily maintenance is jointly shared in that the city will perform daily cleaning in its
proximity and landscape. The concessionaire will be responsible for wastes, cleaning fixtures and furnishings including food and beverage
stains.
2. Utilities: In consideration of overall HVAC, power, sewer, water, waste disposal, CATV, landscape, parking lot cleaning, exterior building
maintenance and lighting, site and facility utility needs overall utility use considering rights to spaces were deliberated. Facility utility loads,
durations of daily operations, were considered and utility responsibilities are apportioned by balancing some areas against others. The right of
use of the room or space does not strictly assign responsibility for utilities.
Phone/Data/CATV: Infrastructure is provided by the city. Trailing costs of connections, installation, lines, and subscriber fees are the
responsibility of the user
Gas: gas usage has been established by separate meters and separate accounts.
Water: Interior water use is the responsibility of the concessionaire; exterior water for irrigation and other uses are the responsibility of the city.
Waste Disposal /or Recycling: is the responsibility of the concessionaire
Power: power is sub metered by manual process from within the electrical room based on right of use to spaces. Power attributable to the
concessionaire will be inspected jointly and monthly and invoices the concessionaire.
3. Maintenance: "maintenance" refers not to routine custodial work, but to the maintenance of
walls, carpets, fixed and portable furnishings the condition of the space and its contents. It includes replacements of light bulbs, repairs, stain
removal, painting, and refurbishing of spaces as it deteriorates through use over time.
4. Custodial: refers to routine daily and other custodial functions, including but not limited to: sweeping, mopping,
vacuuming, dusting, surface cleaning, waste disposal.
TO: Mayor Steve Mullet
Community Affairs and Parks Committee
FROM: Mike Sweeney, Owner's Representative; Foster Golf Links Projects
DATE: September 17, 2003
SUBJECT: Foster Golf Links Clubhouse Project
Food Service Equipment Change Order Approval
BACKGROUND
1. The City Council's overall funding of the Foster Golf Links Capital Improvement
Project, authorized a funding level beyond those amounts related only to contract
awards for Demolition, Course Improvement, and Clubhouse construction. For
example, costs related to permitting, architecture engineering, interior artwork and
furnishings, and Food Service Eauipment were included in the allocation of funds for
the project.
2. The clubhouse project, since inception and through design, has necessarily required
participation by the "concessionaire" (restaurant operator), with whom the city has
executed an agreement with "leaseholder" provisions.
3. The terms of the concessionaire agreement requires that the city fund the initial
purchase of the food service equipment. The concessionaire, as the leaseholder,
then reimburses these costs to the city. The leaseholder (concessionaire) over a
five- (5) year period must make a monthly Equipment Acquisition Reimbursement
Payment The concessionaire through direct invoicing reimburses certain other
costs incurred by the project in the concessionaire's interests.
4. The concessionaire, at his cost, independently provided our architect and engineers,
dimensional restaurant drawings and specifications for one hundred forty seven
(147) restaurant equipment components. The concessionaire's restaurant and
kitchen drawings, containing dimensionally exacting equipment placements and
manufacturer specifications, were incorporated as reference sources within our bid
documents. The clubhouse contractor's scope of work requires that he provide
electrical, mechanical, and plumbing connections for the restaurants equipment, to
include refrigeration, freezing, exhaust, cooktop, grilling, frying, dishwashing,
dispensing, and related food preparation components.
5. Though food service equipment "connectivity" is required of the clubhouse
contractor, the eauipment itself was originally excluded from the oroiect bid due to
uncertainty in the orocurement method sought by the concessionaire to assure his
costing interests. The eauipment is his to oav for within the "leaseholder" provisions.
6. As the owner's representative, with concessionaire concurring, I commissioned the
general contractor (WPC) to advance for consideration a Food Service Equipment
change order cost proposal. The proposal offered provides for purchase, delivery,
insure, and coordination as well as installation of the food service equipment. WPC
obtained bid proposals from several firms. A final cost of $300,000 including tax
($275,735 without) was agreed to by WPC.
7. The costs of contractor markup, incurred by the concessionaire as a leaseholder to
the city, are of benefit to the project. WPC and the food service equipment firm will
clearly assume the majority of responsibility for delivery, timing, and equipment
conditions upon delivery, equipment placement to plan dimensions, and installation
and connection requirements. Alternatively, the project would have assumed these
coordination roles, and the risks and responsibilities that accompany them. By
authorizing this change order, the project (city) will have avoided the time, cost,
logistics, substitution arguments, and legal exposures that the provider of the Food
Service Equipment assumes. Had the project commissioned a bid or another
procurement method for the equipment, the risks and coordination requirements
would have been assumed as well.
RECOMMENDATION
1. Authorize Change Order with WPC for Food Service Equipment be approved for the
amount of $300,000 with tax; and
2. Authorize the City Council's previously approved project encumbrances for Foster
Golf Links Clubhouse Proiect 89- BG09 -GO1 ,F 03 -02 be amended as follows:
a. Clubhouse Construction Contingency: from 304,447 to 604,447
b. WPC Contract Amount (including tax): from 3,044,768 to 3,344,768
NOTE: No increase in the overall CIP project funding is at issue; this request
involves the distribution of project funds within the project's cost accounting
structure.
cc: Rhonda Berry, Interim City Administrator
Bruce Fletcher, Parks Recreation Director