HomeMy WebLinkAboutSpecial 2023-06-26 Item 2C - Contract - 7-Year Concessionaire Services at Foster Golf Links with MMS Consultants (Operating as Billy Baroo's)ITEM INFORMATION
STAFF SPONSOR: DAVID ROSEN ORIGINAL AGENDA DATE: 6/26/23
AGENDA ITEM TITLE Foster Golf Links Concession Agreement Renewal: MMS Consultants Inc.
CATEGORY Discussion Motion Resolution Ordinance Bid Award Public Hearing Other
Mtg Date Mtg Date 6/26/23 Mtg Date Mtg Date Mtg Date Mtg Date Mtg Date
SPONSOR Council Mayor Admin Svcs DCD Finance Fire P&R Police PW
SPONSOR’S
SUMMARY The current agreement between the City of Tukwila and the concessionaire located at
Foster Golf Links (FGL), MMS Consultants Inc., is set to expire July 1, 2023. To prevent
service disruption for golfers at FGL and customers for the concessionaire, a contract
renewal is being sought with modifications agreed to by both parties.
REVIEWED BY Trans&Infrastructure Svcs Community Svcs/Safety Finance & Governance Planning & Community Dev.
LTAC Arts Comm. Parks Comm. Planning Comm.
DATE: 6/12/23 COMMITTEE CHAIR: ABDI
RECOMMENDATIONS:
SPONSOR/ADMIN. Parks & Recreation Department
COMMITTEE
COST IMPACT / FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$0 $0 $0
Fund Source: FOSTER GOLF LINKS FUND
Comments: Additional utility share will create estimated $24K in utility costs
MTG. DATE RECORD OF COUNCIL ACTION
6/26/23
MTG. DATE ATTACHMENTS
6/26/23 Informational Memorandum dated June 2, 2023
Proposed Foster Golf Course Concession Agreement
FGL Concession Fees History
FGL Leasehold Excise Tax History
Minutes from the 6/12 CSS Committee meeting
COUNCIL AGENDA SYNOPSIS
----------------------------------Initials --------------------------------- ITEM NO.
Meeting Date Prepared by Mayor’s review Council review
6/26/23 DR
Unanimous Approval; Forward to 6/26 Special Consent
Spec 2.C.
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INFORMATIONAL MEMORANDUM
TO: Community Services & Safety Committee
FROM: David Rosen, Parks & Recreation Fiscal Analyst
DATE: June 2, 2023
SUBJECT: Renewal of Foster Golf Links Concessionaire Contract with MMS Consultants Inc.
ISSUE
The current agreement between the City of Tukwila and the concessionaire located at Foster Golf Links
(FGL), MMS Consultants Inc., is set to expire July 1, 2023. To prevent service disruption for golfers at
FGL and customers for the concessionaire, a contract renewal is being sought with modifications
agreed to by both parties.
BACKGROUND
Foster Golf Links provides food and beverage services via an on-site Concessionaire. Said
Concessionaire is granted exclusive restaurant, lounge, snack bar, catering, and beverage/snack cart
concession rights at the golf course in exchange for payment of Concession Fees in the form of a
percentage of their gross receipts. This Agreement does not prevent the FGL Pro Shop from selling
food and beverage incidentals such as bottled water, chips, candy, etc.. Since 2009 the Concessionaire
at FGL has been MMS Consultants Inc., operating as Billy Baroo’s. The contract with MMS was
renewed in 2016 and is now set for another renewal in the coming month. Said renewal is for 7 years.
DISCUSSION
Staff are pleased to have secured the following changes in the proposed agreement:
Fully retained Concession Fees percentages
Change to Concession Fees timeline and payment method, saving General Fund $3K in CC Fees
Fully defined complete food services to guarantee provision of turn window and snack/beverage
cart services to golfers year round
Better defined meetings and communications between both contract parties, including
advertisement program approvals, quarterly meetings, maintenance coordination, and on-site
inspections
Secured usage of banquet rooms at FGL that will not require usage of Concessionaire services,
allowing a lower cost approach for city departments or staff to utilize the facilities on a limited basis
Clarified contract language around maintenance and custodial responsibilities that will enable faster
response times for both parties, maintaining service provision and customer satisfaction
Overall, staff were able to secure higher service levels for golfers and customers, better coordination
between parties, general fund savings, and removed barriers to facility use, in exchange for higher
utility share for power and water/sewer. These changes and final language were coordinated with our
golf business plan consultant, National Golf Foundation, who believes the changes made will serve to
benefit both parties in terms of bottom line financial performance.
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FINANCIAL IMPACT
The Concession Agreement creates revenue for the Foster Golf Links (411) Fund via Leasehold Excise
Tax and Concession Fees paid to the city by the Concessionaire. The revenue amounts generated by
these sources for the past five fiscal years are as follows:
Source 2019 2020 2021 2022 2023 YTD
Leasehold E. Tax $4,046 $1,925 $2,895 $3,618 $0
Concession Fees $103,224 $49,112 $73,853 $92,283 $31,312
As part of contract negotiations, the City has agreed to a utility share that increases our responsibility
for power and water/sewer charges at Foster Golf Links Clubhouse. This increased utility share is
estimated to cost the 411 Fund $24,000 per fiscal year. Additional revenue gained via increased
Concessionaire services secured by the contract is indeterminate at this time. However, additional
services secured have been identified as golfers greatest complaint areas per our consultant, staff is
confident services secured will enable Foster Golf Links to remain competitive in the local golf market.
RECOMMENDATION
Staff recommends the committee forward the attached contract for approval on the City Council
Consent Agenda on June 26, 2023.
ATTACHMENTS
A --- Proposed Foster Golf Course Concession Agreement
B --- Concession Fees History
C --- Leasehold Excise Tax History
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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 MMS CONSULTANTS, INC., jointly and severally (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, Turn Window, Banquet Rooms,
Storage, Hallway to Banquet Rooms, Covered Patio, Patio, Interior Rest Rooms,
Marketing Office, Lobby/Hospitality Area also known as rooms 101, 102, 104, 103, 108,
110, 111, 112, 114, 115, 116, 121,122, 129, 130,130A, 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 (except
alcoholic beverages), prepackaged snacks and prepackaged sandwiches incidental to
the operation of the pro shop.
II. TERM OF CONCESSION AGREEMENT
This agreement shall commence on July 1, 2023 (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
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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 Concessiona ire shall apply
to the additional seven (7) year period. For the term of this Agreement and any renewal
or extension, Manmohan (MM) Sharma shall be Manager of the INC. and together hold
a majority percentage interest in the INC.
III. CONCESSION FEES
A. Concession Fees (defined below in Section III.G.) shall be paid to the City by the
Concessionaire as follows:
Restaurant /Lounge
/Beverage & Snack Cart 6% of Gross Receipts up to $2,000,000.00
5% of Gross Receipts above $2,000,000.00
Catering /Room Rental 6% of Gross Receipts up to $500,000.00
5% of Gross Receipts above $500,000.00
Out Catering 2% of Gross Receipts
B. 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 (including internet sales), but shall not include the following:
(a) sales of gift or merchandise certificates until converted to a sale by rede mption
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 state to and collected from customers;
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(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 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;
(j) 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;
(l) 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;
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(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 10th 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 above. The method of payment for the
aforementioned Percentage Fees shall be debit card, check, or ACH if available. If
the monthly Percentage Fees payment is not received by the 10th of each month, then
the Concessionaire shall pay a late charge of five percent (5%) of the applicable
month’s Percentage Fees.
F. The City shall own all listed food service equipment (see Exhibit E). Concessionaire
shall be responsible for all reasonably necessary maintenance, and/or repa ir and
replacement of equipment listed in Exhibit E for the life of the concession agreement.
The concessionaire shall provide proof of normal and periodic maintenance for
range hood, exhaust and makeup air exchange, HVAC system and all maintenance
or work performed to any equipment listed in Exhibit E by furnishing quarterly
reports which include copies of servicing reports and invoices. At the termination of
this Agreement, Concessionaire shall return the listed food service equipment to the
City, subject to any wear and tear occasioned by the normal and customary use of
such equipment.
G. The Percentage Fees and Leasehold Tax 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
H. Concessionaire shall deposit with City the amount of FIFTEEN THOUSAND AND
NO/100 DOLLARS ($15,000) (the “Security Deposit”) as security for
Concessionaire’s compliance with its obligations under this Agreement. City shall
deposit the concessionaire security deposit in an interest -bearing account to the
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benefit of the Concessionaire. During the term of this Agreement, or upon
termination, in the event of any failure of performance or other default by
Concessionaire, the City shall be entitled to have recourse to the Security Deposit for
any unpaid concession fees, damages to the Concession Area, or other City losses
arising from Concessionaire conduct. If Concessionaire has fulfilled all of its
obligations under this Agreement, City shall reimburse to Concessionaire the
Security Deposit, together with interest accrued, within fifteen (15) days following
the expiration date of the agreement, or a termination of the agreement that is not
occasioned by a failure of performance or other default by Concessionaire. Within
fifteen (15) days following a termination of the agreement that is occasioned by a
failure of performance or other default by Concessionaire, City shall reimburse to
Concessionaire any remaining balance of the Security Deposit.
IV. OPERATIONS AND SERVICE
A. The Concessionaire shall:
1. Provide the number of personnel (in Concessionaire’s sole and reasonable
judgment) to adequately manage and staff the beverage/snack cart and
Restaurant and Turn Window 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. Unless otherwise provided by written approval by the City, Concessionaire shall
provide complete food services to the public every day of golf course operations.
“Complete food services” shall include a minimum of the following:
• During the Spring months (Spring Equinox – Summer Solstice):
o Turn Window shall open by 8:00AM to serve a limited menu (to be
agreed upon by both parties) and shall operate at least until full
restaurant operation begins;
o Full restaurant operation shall begin by 11:00AM on weekdays and
9:00AM on weekends. Full restaurant operation shall be provided for
a minimum of ten (10) consecutive hours each day; and
o Beverage cart operation for at least four (4) consecutive hours.
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• During the Summer months (Summer Solstice – Fall Equinox):
o Turn Window shall open by 8:00AM to serve a limited menu (to be
agreed upon by both parties) and shall operate at least until full
restaurant operation begins;
o Full restaurant operation shall begin by 11:00AM on weekdays and
9:00AM on weekends. Full restaurant operation shall be provided for
a minimum of ten (10) consecutive hours each day; and
o Beverage cart operation for at least four (4) consecutive hours.
• During the Fall months (Fall Equinox – Winter Solstice):
o Turn Window shall open by 9:00AM to serve a limited menu (to be
agreed upon by both parties) and shall operate at least until full
restaurant operation begins;
o Full restaurant operation shall begin by 11:00AM on weekdays and
9:00AM on weekends. Full restaurant operation shall be provided for
a minimum of for ten (10) consecutive hours each day; and
o Beverage cart operation on:
▪ All weekends for at least four (4) consecutive hours;
▪ All holidays for at least four (4) consecutive hours and;
▪ All afternoons when leagues are in play.
• During the Winter months (Winter Solstice – Spring Equinox):
o Turn Window shall open by 9:00AM to serve a limited menu (to be
agreed upon by both parties) and shall be provided at least until full
restaurant operation begins;
o Full restaurant operation by 11:00AM on weekdays and 9:00AM on
weekends for ten (10) consecutive hours; and
o Beverage cart operation on:
▪ All weekends for at least four (4) consecutive hours;
▪ All holidays for at least four (4) consecutive hours and;
▪ All afternoons when leagues are in play.
Said complete food services are to be provided in compliance with all applicable
health and food service regulations and shall 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. The Concessionaire shall determine and post in a
physically visible location and online on a publicly accessible website which
actual hours during each day the Restaurant and Turn Window shall be open
and Snack/Beverage cart shall be operating at least 24 hours in advance of said
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operations. Nothing shall preclude the Concessionaire from operating beyond
the definition provided above.
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. The 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 po sting 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 on an annual
basis. 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. Designated smoking areas shall be at least 25ft from
the building.
C. Unless otherwise mutually agreed to, the Concessionaire shall have the exclusive
right to (1) serve and sell alcoholic beverages on the Foster Golf Course property (if
authorized by State license) and (2) operate a beverage/snack cart on the golf course
which may serve and sell alcoholic beverages, food items, and sundries. City shall
make reasonable efforts to enforce and protect the Concessionaire’s exclusive
beverage/snack/concession rights on the property.
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 annually
review the price schedules for all food and beverages to ensure competitive pricing
with other golf course concessions and ensure low-cost/value priced items are
provided through the turn window and beverage/snack cart during golf hours and
operations.
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
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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, including building entry and roadside signage,
the Concessionaire shall pay all related costs.
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; which approval shall not be
unreasonably withheld, conditioned or delayed;
2. Vending machines unless approved by the City, which approval shall not be
unreasonably withheld, conditioned or delayed; (provided, however, that
Concessionaire shall be allowed to install and maintain one (1) cash machine in
the clubhouse lobby; and
3. Video games or gambling devices unless approved by the City, which approval
shall not be unreasonably withheld, conditioned or delayed;
J. Representatives from the City and Concessionaire shall meet quarterly to discuss
the execution of this Agreement, identify and resolve issues, and discuss
modifications and/or adjustments as necessary. The parties shall designate
representatives for these meetings, no later than one (1) month after mutual
execution of this Agreement. If the City or Concessionaire wish to designate a
different representative, notice must first be provided to the other party in
accordance with Section XVII below.
V. RELATED RIGHTS
The City shall have the right at any time to establish and revise, 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
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to imposing or revising 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.
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 e ight (8) events
annually, at no fee to the City for the use o f 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. For four (4) of the aforementioned events the City shall be required to use
Concessionaire’s food and beverage services and shall pay discounted prices for
any food, beverages or services provided to City during its use of the Banquet
Rooms. For four (4) of the aforementioned events the City shall not be obligated
to utilize the Concessionaire’s food and beverage services, however any
provision of outside food and/or beverages may not be catered for by a third
party provider.
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 an d 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. For four (4) of the
aforementioned events the City shall be required to use Concessionaire’s food
and beverage services and shall pay discounted prices for any food, beverages or
services provided to City during its use of the Covered Patio. For four (4) of the
aforementioned events the City shall not be obligated to utilize the
Concessionaire’s food and beverage services, however any provision of outside
food and/or beverages may not be catered for by a third party provider.
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 adv ance
notice as possible. City shall be required to use Concessionaire’s food and
beverage services and shall pay discounted prices for any food, beverages or
services provided to City during its use of the Banquet Area or Covered Patio.
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City shall retain all rights to make reasonable 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 adv ertised (except due to
unavailability of the particular item or running out of stock).
VII. CUSTODIAN AND SECURITY SERVICES
A. 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 consult with the Tukwila Police Department in order to
assist in public safety for all customers. 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. Concessionaire shall provide alarmed security in the
concession areas when the premises is closed.
B. The gate installed at the main entrance to the property shall be closed and
securely locked every night by either Concessionaire or City staff, whichever is
the last to leave the premises on a given night. The Concessionaire an d City shall
regularly communicate and coordinate the execution of this task. Failure to lock
the security gate by either the Concessionaire or the City on a given night shall
not create additional liability for either party in the event of damages that occur.
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VIII. UTILITIES
The City and Concessionaire agree to pay for utility charges consistent with Exhibits
“D” and “E” of this Agreement. The Concessionaire shall also install and maintain at its
expense, a private telephone in the Concessionaire office.
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 pape r including preliminary
sketches of such work, including work schedule and timeline. 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. Such approval by the Director of Parks
and Recreation shall not be unreasonably withheld, conditioned or delayed.
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. Such approval by the
City shall not be unreasonably withheld, conditioned or delayed.
C. The City’s Consent may be conditioned on compliance with any applicable City and
State laws regarding procurement of the capital improvement work, and/or
working conditions on the project.
D. All work performed shall be in accordance with approved plans, and shall be
carried out in a manner that minimizes impact upon the use of golf course to 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.
E. 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.
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F. All alterations, improvements, and construction (excluding trade fixtures) 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.
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 excepted. Maintenance shall include
cleaning, refinishing, changing of light bulbs, and painting of the interior of the
Concession Areas specifically including the restaurant, lounge, kitchen, banquet
rooms, carpet, and interior restrooms and the exterior’s covered patio, and patio
areas. Concessionaire shall maintain the Concession Areas to first class commercial
facilities standards. Any failure by the Concessionaire to maintain the Concession
Areas shall be deemed a default under the Agreement.
B. The City shall maintain the building structure (including roof, structural elements,
exterior walls, doors and windows), foundation, HVAC system (not including
kitchen range hood, exhaust and make-up air exchange and HVAC system servicing
the kitchen area), electric power lighting panels and distribution circuits, plumbing
system, 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.
B.1. Coordination of Maintenance. For the areas the City is obligated to maintain
per Section X.B of this Agreement the Concessionaire shall promptly notify
the City of any maintenance needs. All such requests shall be made to the
City, in writing, to the Parks and Recreation Director within twenty-four (24)
hours of identifying the need. Nothing within this section shall preclude the
Concessionaire from obtaining emergency repairs and/or services should
they be necessary to maintain operations of the Concession Areas safely and
legally per applicable codes, regulations, and statutes. In the event of
procuring emergency repairs and/or service the Concessionaire shall first
make reasonable efforts to contact the identified City maintenance
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coordination contact. Should the emergency repair and/or service be for a
system and/or facility that is deemed the City’s responsibility to maintain,
the City shall deduct and/or credit an agreed-upon amount for said repair
and/or service from the Concessionaire’s next Percentage Fees payment.
C. The City and Concessionaire have agreed to independent and shared responsibilities
related to the Concession Areas and all facilities located at or within the Club House
at Foster Golf Links. Except as otherwise stipulated in Exhibit D, the Concessionaire
shall provide custodial and maintenance services to the Concession Area s while the
City shall provide custodial and maintenance services to areas excluding the
Concession Areas. Shared responsibility shall mainly exist concerning the cost share
of utilities as described in Section VIII.
XI. 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 report s 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 42.56, the Public Records Act.
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
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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 May
8, 2009; 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. 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.
This paragraph shall not apply where the Concessionaire’s failure to perform i n 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 b een
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.
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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 its
goods, wares and merchandise from the Concession Areas and shall remove any
equipment or trade 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 trade fixtures or equipment to the condition of
the area before installation occurred, reasonable wear and tear excepted. No non -
trade 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.
XIII. STANDARDS OF CONDUCT
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
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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. 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 Occupati onal 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.
XV. 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 areas may be required to be turned in to the City and are also subject to
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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.
C. At least once annually the Concessionaire shall permit the City’s representatives
to conduct an on-site inspection of the Concession Areas. During said inspection, the
Concessionaire shall also provide the City with a full copy of its accounting books and
records, including electronic and/or digital Point of Sale (POS) system data files from
the restaurant and lounge areas.
XVI. 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.
XVII. 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 e ffective 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 City Clerk
Tukwila City Hall
6200 Southcenter Boulevard
Tukwila, WA 98188
And to the Concessionaire at the following address:
______________________
______________________
______________________
With a copy to:
______________________
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______________________
______________________
XVIII. 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. In circumstances
where subcontracting is not prohibited elsewhere in this Agreement, the Conces sionaire
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 of race,
color, religion, sex, age or national origin.
B. Concessionaire shall not discriminate in employment on the basis of race, religion,
creed, color, national origin, age, veteran status, sex, sexual orientation, gender
identity, marital status, political affiliation or the presence of any disability, except
for employment actions based on bona fide occupational qualification.
XX. CASUALTY 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 “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 one hundred twenty (120) 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.
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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 XII A, then City shall, subject to the
provisions of this Section, immediately commence and diligently pursue the
completion of the repair of such damage so that the Concession Areas and the Golf
Course Property is restored to a condition of similar quality, character and utility for
Concessionaire’s purposes, including restoration of all items described on Exhibit C
and Exhibit E 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 twenty
(120) 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. Concessionaire shall have no claim
against the City for any direct, incidental or consequential damages arisin g from the
City’s failure to commence or complete any repairs to 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. 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
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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.
XXII. INSURANCE
A. Fire, Earthquake, Flood & 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,
flood and other casualty coverage covering the Concession Areas and its contents,
including all personal property, fixtures, improvements. Concessionaire agrees to
hold City harmless for any loss of Concessionaire owned furniture, fixtures,
equipment etc, due to an earthquake. 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.
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
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waiver shall apply to damages to adjacent property. Notwithstanding any other
provision of this Agreement, neither City nor Concessionaire shall be liable to t he
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.
XXIII. HOLD HARMLESS, INDEMNIFICATION,
AND 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.
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
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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 represent ative
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/Partnership: It is mutually understood and agreed that no joint
venture or partnership formed as a result of this Agreement.
D. Formation of Concessionaire: Concessionaire is a Washington limited liability
company to be formed. No liability shall accrue to the members thereof by reason of
the formation of the limited liability company after execution of this Agreement.
XXV. 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, 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.
XXVI. WAIVER
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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.
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
1/365th per day of prior year’s concession fee as liquidated damages until the City has
obtained a new Concessionaire satisfactory to the City. For 2009, 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.
XXXI. ENTIRE AGREEMENT
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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.
XXXII. 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.
XXXIII. MODIFICATION
This Agreement may only be modified by written instrument signed by both parties.
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XXXIV. 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.
XXXV. 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.
XXXVI. 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.
IN WITNESS WHEREOF, this Agreement has been entered into between the City
of Tukwila and _____________________, as of the ______ day of ________________, 2023.
CONCESSIONAIRE, a Washington corporation
By:
CITY OF TUKWILA
Allan Ekberg, Mayor
ATTEST:
Christy O’Flaherty, City Clerk
APPROVED AS TO FORM:
City Attorney
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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 -- Rights in Use and Control of Facility Spaces with Apportioning of Utility
Maintenance and Custodial Costs
Exhibit E -- Foster Golf Links Kitchen Equipment List
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STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that ALLAN EKBERG 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 _________ day of __________________, 2023.
Type/Print Name
Notary Public in and for the State of Washington
residing at
My Commission expires
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this ______ day of ________________, 2023, before me personally appeared
_____________________, to me known to be the ________________________, 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 state d 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 __________________, 2023.
Type/Print Name
Notary Public in and for the State of Washington
residing at
My Commission expires
95
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EXHIBIT “A”
Architectural Floor Plan with Numerical Identification of Rooms/Spaces
96
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EXHIBIT “B”
Legal Description of Property
King County Parcel Account Number 000300004900 Record Number 01
Legal Description:
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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EXHIBIT “C”
Provided by the City in the Concessionaire’s Interests
1. Restaurant wood base molding, door, and window casings.
2. Epoxy kitchen flooring.
3. Carpeting.
4. Finished ceilings and soffits
5. Interior paint and wainscot finishes
6. One air curtain at kitchen door
7. Building security and fire alarm hardware systems
8. Power, phone, and data infrastructure
9. Standard electrical type j boxes for future connections of music system by others
10. Restaurant booth stubout walls
11. Restaurant exterior walk up service counter
12. Patio and patio lighting
13. Ducts and fans for connection to three concessionaire supplied and installed
kitchen hoods
14. Raised floor for booths
15. Raised floor for breakfast bar
16. Underslab soda sleeves
17. Underslab plumbing
18. Slab floor sinks and drains
19. Backing for restaurant shelving
20. HVAC system and controls for kitchen, restaurant, lounge, (and all other
concessionaire use or shared use areas)
21. Kitchen make up air supply
22. Kitchen ductwork
23. Roof penetrations and venting, kitchen, restaurant, lounge and all other
24. Smoker slab, shed roof, and installation connections
25. Meeting room data wiring and floorbox connection
26. Meeting room divider/operable partition
27. All water routing and piping
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28. General exterior building, grounds, parking lot, and landscape maintenance
29. Joint use benefit of “shared use areas”.
30. Exterior signage as budgeted by owner not to exceed $16,320
31. General overhead lighting fixtures in restaurant and in all other concessionaire
and shared use spaces;
32. Interior and exterior facility artwork, motif, and décor accessories procured by
owner to the extent provided in areas exclusive of the concessionaire’s spaces.
33. Lobby furniture as selected and procured by owner;
34. Grease trap as required for compliance to city code
99
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EXHIBIT “D”
Rights in Use and Control of Facility Spaces with Apportioning of Utility,
Maintenance and Custodial Costs
The city and concessionaire have agreed that shared operations of the facility require 1)
that rights and responsibilities for the use and control of spaces be established, and 2)
that operating costs responsibilities respective to those spaces which require utilities be
delineated 3) that maintenance and repair responsibilities, and 4) custodial services
responsibilities be delineated. The following table depicts these responsibilities:
Rm.
No.
Room/
Space Name
1
Right to
Use/Control
2
Utility Costs
(Note #2)
3
Maintenance
Responsibility
4
Custodial
Responsibility
100 Pro Shop City Shared City City
101 Hospitality Shared Shared City Concessionaire
102 Restaurant Concessionaire Shared Concessionaire Concessionaire
103 Lounge Concessionaire Shared Concessionaire Concessionaire
104 Kitchen Concessionaire Shared Concessionaire Concessionaire
108 Meeting Room B (Banquet) Shared Shared Concessionaire Concessionaire
110 Meeting Room A (Banquet) Shared Shared Concessionaire Concessionaire
111 Meeting Hallway Corridor Concessionaire Shared City Concessionaire
112 Restroom Hallway Corridor Shared Shared City Concessionaire
113 Mechanical City Shared City Not Required
114 Storage (Meeting Rooms) Concessionaire Shared Concessionaire Concessionaire
115 Women’s Restroom Shared Shared Concessionaire Concessionaire
116 Men’s Restroom Shared Shared Concessionaire Concessionaire
117 Electrical Data Room Shared Shared City City
119 Vestibule Front/Main Entry Shared Shared City Concessionaire
120 SRR - Sprinkler Riser Room City Shared City City
121 Lobby Shared Shared City Concessionaire
122 Concessionaire Office Concessionaire Shared Concessionaire Concessionaire
123 Storage Golf Retail City Shared City City
124 Cart Barn City Shared City City
125 Instruction Area City Shared City City
126 Men’s Restroom Exterior City Shared City City
127 Women’s Restroom Exterior City Shared City City
128 Office (Pro-Shop) City Shared City City
129 Patio, West Covered Dining Concessionaire Shared City Shared (note #1)
130 Patio, East Covered Dining Concessionaire Shared City Shared (note #1)
130A Patio, Meeting Room Shared Shared City Shared(note #1)
Parking Lots Shared Shared City City
Exterior Site Lighting Shared Shared City City
Landscape Shared Shared City City
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Exhibit “D” (Continued)
Notes of Explanation
1. Patios: The City will perform daily cleaning of the patios, its proximity, and
landscape. The Concessionaire will be responsible for waste, 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 for Phone, Data, and CATV 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. The
parties shall be responsible for their own separate gas meters and accounts.
Water: Water utility charges shall be divided equally by the City and the
Concessionaire. See Section VIII of Agreement.
Solid Waste Disposal &/or Recycling: Solid Waste Disposal and/or Recycling shall
be the responsibility of the Concessionaire.
Electric: Electricity utility charges shall be divided equally by the City and the
Concessionaire. See Section VIII of Agreement.
Sewer: Sewer utility charges shall be divided equally by the City and the
Concessionaire. See Section VIII of Agreement.
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: “Custodial” refers to routine, daily and other custodial functions,
including, but not limited to, sweeping, mopping, vacuuming, dusting, surface
cleaning, waste disposal
101
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102
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CODE 5B
CODE 5B
CODE 5B
CODE 5B
103
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104
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CODE 5B
CODE 5B
CODE 5B
CODE 5B
CODE 5B
CODE 5B
105
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6/2/2023 9:23:46AM
Account Information
City of Tukwila
glAInq Page: 1
Account No:Title:Fiscal Year:R 411.362.800.00.00 CONCESSION PROCEEDS 2018
Debit / Credit:
Status Code:
JC Required:
Standard Acct:
Account Class:
Account Type:
Cash / Inv Code:
Nominal / Real:
Budgeted:
Allotment:
Locked:
Budget Account:
Year End Estimate:
C
0
N
Y
Y
N
N
0.00
Report Group 1:
Report Group 2:
Comments:
Account History
Year Total Budget Revenues Balance
2023 0.00 0.00 0.00
2022 0.00 4,176.39 4,176.39-
2021 104,000.00 73,853.24 30,146.76
2020 48,000.00 49,112.22 1,112.22-
2019 110,000.00 103,224.10 6,775.90
2018 106,000.00 106,054.04 54.04-
2017 103,000.00 96,365.87 6,634.13
2016 98,000.00 93,798.78 4,201.22
2015 96,000.00 100,174.26 4,174.26-
2014 85,000.00 99,359.50 14,359.50-
2013 85,000.00 94,604.08 9,604.08-
2012 120,000.00 90,534.94 29,465.06
2011 120,000.00 83,215.11 36,784.89
2010 120,000.00 80,389.88 39,610.12
2009 120,000.00 19,248.45 100,751.55
2008 120,000.00 50,498.82 69,501.18
2007 120,000.00 64,585.77 55,414.23
2006 120,000.00 10,382.86 109,617.14
2005 130,000.00 54,708.15 75,291.85
2004 100,000.00 25,236.54 74,763.46
2003 40,000.00 0.00 40,000.00
2002 20,000.00 20,100.00 100.00-
2001 20,000.00 20,100.00 100.00-
2000 18,000.00 18,000.00 0.00
1999 18,000.00 18,000.00 0.00
1998 15,000.00 15,000.00 0.00
1997 15,000.00 15,000.00 0.00
Page: 1107
6/2/2023 9:25:18AM
Account Information
City of Tukwila
glAInq Page: 1
Account No:Title:Fiscal Year:R 411.317.200.00.00 LEASEHOLD EXCISE TAX 2018
Debit / Credit:
Status Code:
JC Required:
Standard Acct:
Account Class:
Account Type:
Cash / Inv Code:
Nominal / Real:
Budgeted:
Allotment:
Locked:
Budget Account:
Year End Estimate:
C
0
N
Y
Y
N
N
0.00
Report Group 1:
Report Group 2:
Comments:
Account History
Year Total Budget Revenues Balance
2023 0.00 0.00 0.00
2022 0.00 0.00 0.00
2021 3,000.00 2,895.05 104.95
2020 2,900.00 1,925.19 974.81
2019 2,900.00 4,046.40 1,146.40-
2018 3,900.00 4,432.09 532.09-
2017 3,900.00 2,830.46 1,069.54
2016 2,617.00 3,677.19 1,060.19-
2015 2,617.00 3,926.83 1,309.83-
2014 2,617.00 3,150.74 533.74-
2013 2,617.00 4,470.07 1,853.07-
2012 1,617.00 3,530.97 1,913.97-
2011 1,570.00 2,518.45 948.45-
2010 0.00 2,866.87 2,866.87-
2009 0.00 559.58 559.58-
2008 2,000.00 2,239.67 239.67-
2007 2,000.00 2,010.68 10.68-
2006 2,000.00 1,151.81 848.19
2005 0.00 2,166.40 2,166.40-
2004 0.00 222.64 222.64-
2003 0.00 0.00 0.00
2002 0.00 919.24 919.24-
2001 0.00 656.60 656.60-
2000 0.00 705.60 705.60-
1999 0.00 352.80 352.80-
1998 0.00 588.00 588.00-
1997 1,000.00 288.48 711.52
Page: 1108
City of Tukwila
City Council Community Services & Safety Committee
Meeting Minutes
June 12, 2023– 5:30 p.m. – Hybrid Meeting; Hazelnut Conference Room & MS Teams
Councilmembers Present: Mohamed Abdi, Chair; Thomas McLeod, Tosh Sharp
Staff Present: David Cline, Pete Mayer, Kris Kelly, David Rosen, Eric Lund
Chair Abdi called the meeting to order at 5:30 p.m.
I.BUSINESS AGENDA
A.Foster Golf Links Concession Agreement
Staff is seeking approval of an agreement with MMS Consultants, Inc. to continue the provision
of concessions at Foster Golf Links for another seven years.
Committee Recommendation:
Unanimous approval. Forward to June 26, 2023 Special Consent Agenda.
B.Contract: Master Plans for Joseph Foster and Tukwila Community Center Park
Staff is seeking approval of a contract with the Berger Partnership in an amount not to exceed
$80,000 for Master Plan Design services for Foster and Tukwila Community Center Parks.
Committee Recommendation:
Unanimous approval. Forward to June 26, 2023 Committee of the Whole.
II.MISCELLANEOUS
The meeting adjourned at 6:20 p.m.
MA Committee Chair Approval
Minutes by LH
109