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HomeMy WebLinkAboutCAP 2007-05-15 Item 2D - Contract Amendment - Foster Golf Course Concession Agreement with Gordy's of Tukwila City of Tukwila Steven M. Mullet, Mayor ParkS & Recreation Department Bruce Retcher, Director MEMORANDUM TO: Mayor Mullet FROM: Bruce Fletcher, Director of Parks & Recreation 0{/ DATE: May 10, 2007 SUBJECT: Foster Golf Concession Agreement Amendment In September of2003, the City entered into a concession agreement with Gordy's of Tukwila, Inc to provide concessionaire services at Foster Golf Links. The restaurant opened during the summer of 2004 getting off to a rough start with lower than expected food service business. The new restaurant was not immediately accepted by the local golfing community and the entire golf/restaurant business had reduced numbers caused by the year long construction proj ect. Since the slow start, Gordy's (now Gordon's on the Green) sales continue to grow each year and shows financial promise in their updated marketing and business plan. Gordon's business carried a tremendous amount of back debt that had caused cash shortages and forced them to obtain high interest loans during their first couple of years. Gordon has been working with Steele Development on the advice of Eastside Commercial Bank in efforts to improve the financial side of their business. Gordon has made several requests to the city in order to help his business succeed at Foster Golf Links. After several meetings that included the Directors of Parks and Recreation and Director of Finance, we are ready to bring a contract addendum to the City Council. Gordon highest priority request includes transferring the ownership of all capital equipment to the City. After much thought and discussion, it makes sense for the city to assume ownership of all itemized kitchen equipment for several reasons. For whatever reason, if the concessionaire contract was terminated, it would be Gordon's responsibility to disassemble and remove all kitchen and capital equipment from the restaurant. If the capital equipment belonged to the city, then a new concessionaire could move in and start up time would be more immediate. Gordon has also requested that the restaurant/lounge percentage fees remain at 5% of gross receipts which has been deemed acceptable to Parks and Finance. "Creating Community through People, Parks and Programs" 12424 42nd Ave. S. . Tukwila, Washington 98168 · Phone: 206-768-2822 · Fax: 206-768-0524 With the recommendation to approve these amendments from the Parks and Recreation Director, it is also a time that Gordy's of Tukwila Inc, must agree to perform to terms or face possible termination. Gordy's ofTukwila, Inc has an outstanding debt to the city and an acceptable payment plan is in place. Gordon's on the Green's business success is very important to the Foster Golf Links operations. Even though our partnership got off to a slow start, the restaurant business continues to improve and Foster's golf rounds are also increasing. We look forward to a renewed partnership and increased services for our residents, businesses and many visitors at the Foster Clubhouse and Restaurant. Cc: Rhonda Berry, City Administrator Kevin Fuhrer, Finance Director Peter Beckwith, Assistant City Attorney FOSTER GOLF COURSE RESTAURANT CONCESSION AGREEMENT This agreement ("Agreement") is entered into by and between the CITY OF TUK\VILA, 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 A venue, 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, I I I, 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 nvo-hour (2) restricted parking only. These spaces are provided with intent that the nvo-hour (2) restriction will cause golf patrons parking for longer durations, not to utilize these nventy-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 nventy-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 30Modified 01131107511007 CONCESSION AGREEMENT 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. III CONCESSION FEES Concession Fees (defined below in Section Ill.G.) shall be paid to the City by the Concessionaire.. tI1~'?l!g].1 !~n:njl1~.tj~rl-'?!: ~he. ?g~~~f!l.~I1!.as f<?!!9-~""?:___...uu.. ...u. u u. .uu....... u u u __.. __.......... { Deleted: as follows Restaurant /Lounge: %Yo. ~f. Q!.<??~ ,~~-,~~jP'!~. ~.P.!9- .$J, 9.QQ..Q.QQ ..QQ......".......,.,. fJ.. ........__. .,...__.. .. --.....------. .--... ...--.. ;, 4% of Gross Receipts above $2,000,000.00 \\ j, 'Yo. ~f. Q!,<??~ Bc~~~j p.!~, ~.P.!9-". ~?QQ, 9.QQ..QQ.... --, ,...... --".,:\ Catering /Room Rental Out Catering '9:. ____ _ _ __ _ _ __ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ -- _ _ _ _ _ _ --- _ _ -- _ _ _ _ _ _ -- _ -- - - --- - - - - - - - - - -....' -~ 2% of Gross Receipts ;,: "; :\ \~ The payments of a percentage of Gross Receipts, as set forth above, are hereinafter referred to as the "Percentage Fees." 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 Receipts" 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 FOSTER GOLF LINKS CLUBHOUSE Page 2 of 30Modifted 01131/07f/HY07 CONCESSION AGREEMENT ...... Deleted: A. For the period that concludes December 31, 2004 Concessionaire shall pay the City the I following percentage of the Gross Receipts:~ ~ Restaurant lLoungefCateringIRoom Rental:~ 5% of Gross Receipts up to S2,OOO,OOO.00~ 4% of Gross Receipts above S2,OOO,OOO.~ Out Catering ,";' ('\ ~eceiPts ~ " '., 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 \)\i ::::: 6 \\ ':( Deleted: I ';: Deleted: 5% of Gross Receipts above ';': S 1,000,000.0 \( Deleted: 7 2% of Gross Deleted: 6% of Gross Receipts above S5oo,Ooo.00 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; G) 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; (I) 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 (0) insurance proceeds for damaged furniture, improvements, fixiures, 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 IlI.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. T.I~~. q!y. .S.Il.'!H .<?-":.\:I!. fi! I. J5.s.t~~. f~<?4. ~~ry}.c:~. ~911jjJI!).~n.t fs.~~ .~~.h i l* X1-,-\'!!~. .th~. e-'<.~~ptjQI!. .of r..... & R 700 Smoker. Concessionaire shall be responsibIe for all necessary maintenance. repair and replacement of equipment listed in Exhibit F for the life of the concession agreement.The range hood, exhaust and makeup air exchange, and HV AC system (and all equipment in Exhibit C) shall 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 HV AC 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 IV OPERATIONS AND SERVICE FOSTER GOLF LINKS CLUBHOUSE Page 3 of 30Modified 01131/07511CV07 CONCESSION AGREEMENT .' j Deleted: F. Concessionaire shall pay 1 , to the CIty monthly a sum equal to 1/60 ! of the City's total cost for acquisition of I the kitchen equipment Iiste<l in Exhibit C I attached hereto and incorporated herein 1 by reference. The City shall furnish concessionaire with a payment schedule. (Note: Such paj11lent is sometimes referred to hereinafter as the "Eauioment Accuisition Reimbursement Pavrnent") I Concessionaire shall perform routine I maintenance and cleaning and all necessary repair and replacement of the said equipment during the term of this agreement at Concessionaire's sole 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 shan have the right to purchase said Kitchen I Equipment from the City by paying to the City SIOO.OO by check. The first payment by the concessionaire shall be due 45 days after the date the restaurant is opw"'Tled for business operations to the public A. The Concessionaire shall: 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 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. FOSTER GOLF LINKS CLUBHOUSE Page 4 of 30Modified 01131/075/1 0107 CONCESSION AGREEMENT 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 ofthe 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 S 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 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 foJlowing: FOSTER GOLF LINKS CLUBHOUSE Page 5 of 30Modified 01f311075110107 CONCESSION AGREEMENT 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. 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 FOSTER GOLF LINKS CLUBHOUSE Page 6 of 30Modified 01l31/07fV1 0107 CONCESSION AGREEMENT 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 ofthe 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 "E" 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, LobbyfHospitality, 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 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 ofthe 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. FOSTER GOLF LINKS CLUBHOUSE Page 7 of 30Mo-:lified 01/31/07511 {jI07 CONCESSION AGREEMENT 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. .f.._ _._ . _ Nl _alt~rations, _ill1I'r()v~ll1ent.s,..alld. c:oI1st~cti<?ll.shall.b.ecoII1e the Rroperty()f.the .(:ity_ 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. 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, HV AC system (does not include kitchen range ventilation and exhaust system or the HV AC 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. T.___ _________________________ ---------------------------------------------------------------------------------------- ---------------- ---" XI,. .IIA~MW9.lJ~.~lJIJ~:rr\~~E;~ u_____ FOSTER GOLF LINKS CLUBHOUSE Page 8 of 30Modffied 01131/07511 0107 CONCESSION AGREEMENT Deleted: E_ Concessionaire shall, prior to commencement of any construction work, deposit with City the amount ofnVENTY.FIVE THOUSAND AND NOlI 00 DOLLARS ($25,000) (the "Concessionaire Denosif') in lieu of any i 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 L~e Commencement . Date, City shall reimburse to ~ I Concessionaire the Concessionaire ~ Deposit. together \.\1th interest accrued ',_ I thereon, within fifteen (15) days of the \[ ~ommencement Date_~ t Deleted: F r Deleted: XI INSTALLATION OF -1 EQUIPlIIENT'l " ~ I A ConcessIonaire shall, at no expense to the City, Install, on or by the date the ConcessIOn Areas are open to the public. the restauranulounge fumlshmgs and kitchen equipment described on Exhibit J2. attached hereto and incorporated by reference. All such equipment shall remain the property of the Concessionaire under the conditions and provisions of this Agreernenl ~ .. - { Deleted: I 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 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. XII, l:'IH~MIl\' A JI QJ'.r ___ ~ __ ___ 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. FOSTER GOLF LINKS CLUBHOUSE Page 9 of 30Modified 01/311075'10/07 CONCESSION AGREEMENT _---~{ Deleted: I 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. 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 FOSTER GOLF LINKS CLUBHOUSEt Page 10 of 30Mcxfified 01/31/07fllfY07 CONCESSION AGREEMENT 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. XI!!.~I;\NI)AItf)_~ QF._C:()]~l)JJ<::T_u _----1 Deleted: V 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. XIV COMPLIAi'lCE 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. FOSTER GOLF LJ1'..'KS CLUBHOUSE Page 11 of 30Modified 01l31/07!'11CW7 CONCESSION AGREEMENT XV ACCESS TO BOOKS AND RECORDS /-{ Deleted: I 't._____________________________________________________------------------------------------------- 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 "pas" systems). The electronic and/or digital pas system data files from the restaurant and lounge 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 pas 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 wiII be provided to the City. XVI.J~ffQTQQR1~J)_~~_m_mm_muuum__mmum_uuum__u_- - --{ Deleted: I 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. XVII. A])DRESS~SF'Q:RuNOTICES___ ____-----1 Deleted: I 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 wiII 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 South center Boulevard Tukwila, W A 98188 And to the Concessionaire at the following address: Gordon Harris, President Gordy's Steak & BBQ Smokehouse FOSTER GOLF LINKS CLUBHOUSE Page 12 of 30Modified 01I31f07511(Y()7 CONCESSION AGREEMENT 14303 436th Avenue SE North Bend, W A 98045 With a copy to: Jonathan Pearlstein, Esq. 1130 SW 12th Street North Bend, W A 98045 XVIIl1\~~IGNIVIEl'H 9F'AGItE.EM;E~T. ...-.j Deleted: IX -.-J 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. XIX 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 ofrace, 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. xx..~A~~IY.IQ.Q~J~~~1QPIml~gf--GQ.N~~.S~I.Q~.-,~:MA~.--. __.m.m......------f Deleted: J ....j Deleted: AU 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 ofthe 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 wiII 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. FOSTER GOLF LINKS CLUBHOUSE Page 13 of 30Modified 01131107!i'lQ!07 CONCESSION AGREEMENT 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 Band 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 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 Damage. 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. XXI.J~QJ:J_~~~_SJ~R_~N~llJY1JmAN~J~~~________h__n___n-n________-nnnn _- - - { Deleted: I It is mutually understood and agreed that the Concessionaire shaIl 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 shaIl affect and each such lien shaIl 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 ofthe 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. AdditionaIly, it is mutuaIly understood and agreed that this paragraph is intended to be a continuing provision applicable to future repairs and improvements after the initial construction phase. XXI~ J~SYRA_N~E_ _ _____ _---of Deleted: I A. Fire. Earthquake. & Casualty Insurance: The Concessionaire agrees that, at all times during the fuIl term of this Agreement and at its own expense, Concessionaire shall, at its sole cost and expense, maintain in fuIl force and effect adequate fire, earthquake, and other casualty coverage FOSTER GOLF LINKS CLUBHOUSE Page 14 of 30Modified 01131/075110107 CONCESSION AGREEMENT covering the Concession Areas and its contents, including all personal property, fixtures, improvements. Such policy shall include a replacement cost endorsement. Concessionaire wiIl, 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. 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 ("CGL") 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 Subrogation: 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. XXI!!. "-()J":..I> "ff~llMq~;~~,JNI?E:MNn<'IGA IIQ~,_ ~_~NP U~IWi\I,dl\'~lJM]\TC:~- _ ___ _.- -. { Deleted: V 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 FOSTER GOLF LINKS CLUBHOUSE Page 15 of 30Modified 011311075/W07 CONCESSION AGREElv!ENT 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. 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. XXIV RELATIONSHIP OF PARTIES A. Concessionaire Independent 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 VenturelPartnership: It is mutually understood and agreed that no joint venture or partnership formed as a result of this Agreement. xxv,ur~~-MJI~~ qc::~N~~~LIAX~~.A~P .F'~;ES.. ........{ Deleted: I 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. FOSTER GOLF LINKS CLUBHOUSE Page 16 of 30Modified 01131/075110107 CONCESSION 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, 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. CONCESSION AGREEMENT XXVI, 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 riot be deemed waiver of any other right or power. XXVII, ADVERTISING Concessionaire shall submit for the City's approval, not to be unreasonably withheld, all advertisements for commercial vendors related to the concession operation. XXVIII, 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 11365` 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. XXIX 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. XXX 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. 1 FOSTER GOLF LINKS CLUBHOUSE Page 17 of 30.Modified 01/31/075'10'07 j Deleted:I j Deleted: I Deleted: IX j Deleted: I XXXI, ENTIRE 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. CONCESSION AGREEMENT XXXII CHOICE OF LAW VENUE 1 Deleted: I 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. XXXIIIL 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. XXXVI COUNTERPARTS 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) FOSTER GOLF LINKS CLUBHOUSE Page 18 of 30Modfied 01131/07510/07 Deleted: 1 Deleted: V 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 200j. 1 Deleted: 3 CONCESSIONAIRE GORDY'S OF TUKWILA, INC. a Washington corporation By: CITY OF TUKWILA a Washington municipal corporation By: APPROVED AS TO FORM: City Attorney ATTEST: City Clerk Gordon Harris, President Steven M. Mullet, Mayor 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 19 of 301lodified 01/31/075/10 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. I Given under my hand and official seal this day of 2007, --j Deleted: 3 STATE OF WASHINGTON ss. COUNTY OF KING Type/Print Name Notary Public in and for the State of Washington residing at My Commission expires 1 On this day of 2007,, before mepersonallyappeared 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. Deleted: 3 Given under my hand and official seal this day of 2007 --j Deleted: 3 CONCESSION AGREEMENT Type/Print Name Notary Public in and for the State of Washington residing at My Commission expires FOSTER GOLF LINKS CLUBHOUSE Page 20 of 30ModII6ed 01/31/075/10/07 EXHIBIT" A" Architectural Floor Plan with Numerical Identification of Rooms/Spaces FOSTER GOLF LINKS CLUBHOUSE Page 21 of 30Modified 01/31/07511007 CONCESSION AGREEMENT -> Foster Golf Course Clubhouse Floor Plan Finish Wall Plan EXHIBIT "B" Legal Description of Property King County Parcel Account Number 000300004900 Record Number 01 Legal Description: 0049 FOSTER STEPHEN - DC #38 POROF DC LYNELY OFPS E RY RJ\V& l\TELY ELY & SEL Y OF FOLG DESC LN - BEG AT NXN OF EL Y LN OF PS E RY R/W & NL Y MGN OF FOSTER ST PROD ELY THN 49-11-08 E 51.59 FT ill S 75-02-50 E TO CIL OF FOSTER ST PROD EL Y ill NEL Y ALG SDCIL TO BANK OF GREEN RIVER FOSTER GOLF LINKS CLUBHOUSE Page 22 of 30Modified 01/31/07[:11007 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. I. 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 ofthe 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 22. HV AC 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 FOSTER GOLF LINKS CLUBHOUSE Page 23 of 30Mrxfiiiad 011311075110107 CONCESSION AGREEMENT Co ~ ~-~ I (Exhibit He" 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. AIl 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 LTh'KS CLUBHOUSE Page 24 of 30Modified 01131/075/1007 CONCESSION AGREEMENT EXHIBIT "D" Provided by the Concessionaire I... .OJ 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 I, 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 "Smoker" 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 ofthis 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. Item Title Includes Tax Electrical: Fina] placement of and electrical connections for restaurant $22,500 equipment specified by the concessionaire and procured by the owner in his behalf that require hard wire electrical connections. Fireplace: Owner's provisions within the construction project for contractor $]3,556 procurement & installation of restaurant fireplace. Plumbing: Owner's provisions within the construction project for plumbing $28,250 systems to the restaurant and connections of equipment within the construction project or procured by the owner in concessionaire's behalf. TOTAL: $64,306 FOSTER GOLF LINKS CLUBHOUSE Page 25 of 30Modified 01/31107511G'07 CONCESSION AGREEMENT (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 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 FOSTER GOLF LINKS CLUBHOUSE Page 26 of 30Modified 01131/07t'110/07 CONCESSION AGREEMENT (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. installationlhanging 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 END FOSTER GOLF LINKS CLUBHOUSE Page 27 of 30MlXlified 01131/075110107 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 100 0 102 103 104 108 110 111: 112 '11.3 114 11.5, 116 1 119 120 122 124 .125 126 Roon/Space Name,''' Pro Shop Hospitality, Restaurant Loux ge Kitchen Meeting Room B,(Banquet) Meeting Room A (Banquet) Meeting Hall',way Corridor Restroom Hallway Corridor Mcchanical Storage (Meeting Rooms) Women's Restroom Men's Restroom Electrical Data Room Vestibule Front/Main Entry RR Sprinkler Riser Room j S„ Concessionaire Office Storage Golf Retail Lobby Instruction Area Men's Restroom Exterior City Joint Use Concessionaire Concessionaire Concessionaire oncessionaire Concessionaire c oncessionaire Concessionaire Joint Use Concessionaire Joint'Use Joint Use Joint Use Joint Use Joint Use Concessionaire City,''; Joint Use City City Utility City City Concessionaire Conc essni. Conc essionaire i i 9 0 C Concessionaire Ci ty Ci ty C Conce Conccssir Concessionaire onaie` Concessionaire City City City City City City City 3 Maintenance City City Concessionaire oncessxonaire Concessionaire Concessionaire Concessionaire C 4nc e ssaonai.re Concessionaire City Concessionaire C oncessionaire Concessionaire C oncessro naire City City Concessionaire City City City City 4 Custodial City ty Concessionaire Concessionaire Concessionaire Concessionaire, Concessionaire Concessionaire Concessionaire Not Regttire Concessionaire Concessionaire Concessionaire Con Concessionaire City Concessionaire City Concessionaire City City Roonz /Space Name 1— Right Room 127 Restroom Exterior City i City City 128 Office (Pro -Shop) City City City 129 Patio, West Covered g!' i Joint Use City ed Dmin Concessionaire 130 Patio, East Covered Dining Concessionaire Joint Use City 130A Patio, Meeting tY 13 g It.0 `Concessionaire Joint Use Ci Parking Lots Joint Use City City Exterior Site Lighting Joint Use City City Landscape Joint Use City City Notes of Explanation CONCESSION AGREEMENT 2 Utility 3 Maintenance 4 Custodial 1 FOSTER GOLF LINKS CLUBHOUSE Page 30 of 30Modified 01/31/075/10/07 C City .Joint (note #1) Joint (note #1) Joint (note #1) City City 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 Toads, 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.