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HomeMy WebLinkAboutNew Document RESOLUTION NO. 5 1 4 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF AUBURN AND LONGHORN BARBECUE OUTPOST, INC FOR CONCESSIONS AT THE AUBURN GOLF COURSE WHEREAS, the City of Auburn is the owner of the Auburn Golf Course located at 29630 Green River Road in Auburn, Washington; and WHEREAS, the City of Auburn is the owner of the concession buildings located at the Auburn Golf Course; and WHEREAS, the City has a need for concession services at the Auburn Golf Course and Longhorn Barbecue Outpost, Inc. has the ability to provide for those services at a cost that is acceptable to the City. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows: Section 1. The Mayor of the City of Auburn and the Auburn City Clerk are hereby authorized to execute an Agreement between the City of Auburn and Longhorn Barbecue Outpost, Inc. for concession services at the Auburn Golf Course which agreement shall be in substantial conformity with the Agreement a copy of which is attached hereto, marked as Exhibit "A" and incorporated herein by this reference. Resolution No. 5142 April 20, 2015 Page 1 of 2 Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. This Resolution shall be in full force and effect upon passage and signatures hereon. Dated and Signed this 2d day of G,BB , 2015. CITY OF AUBURN Li a . I ._.__ ANCY BA • MAYOR ATTEST: eke Danielle E. Daskam, City Clerk APPROV D AS TO FORM: A AASitti Da?riel e. Heid, ■ity Attorner • Resolution No, 5142 April 20, 2015 Page 2 of 2 SvJ 21'05- F T ERIC , h o-1 I t Ion Return Address: U 11 UlU�i��1 U 1IIIII Auburn City Clerk 20150508000558 City of Auburn FIRST AMERICAN AG 105.00 25 West Main St. PAGE-001 OF 034 Auburn, WA 98001 KING BCOUNTY, UA RECORDER'S COVER SHEET Document Title(s) (or transactions contained therein): Agreement Reference Number(s) of Documents assigned or released: .LAdditional reference#'s on page_of document Grantor(s) (Last name first, then first name and initials) 1. City of Auburn Grantee: (Last name first) Longhorn Barbeque Outpost, Inc Legal Description (abbreviated: i.e. lot, block, plat or section, township, range) GL 6 LESS CO RD TGW W 1/2 OF SW 1/4 SUBJ TO TRANS LN R/W ® Additional legal is on page 27 of the document. Assessor's Property Tax Parcel/Account Number: 0521059011 ❑Assessor Tax#not yet assigned- fib RzWEtmNOOh . FOR YALIIJi7y AND /i 2, ASSUMED By PIRsTA1.mI$STJC' W atresenusv AUBURN GOLF COURSE RESTAURANT CONCESSIONAIRE AGREEMENT This Agreement ("Agreement") is entered into by and between the CITY OF AUBURN, a municipal corporation of the State of Washington (hereinafter referred to as the "City") and LONGHORN BARBECUE OUTPOST, INC. a Washington corporation (hereinafter referred to as the "Concessionaire"). WITNESS ET H: 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, catering, and other food concession rights at the Auburn Golf Course located at 29630 Green River Road, Auburn, Washington, legally described in Exhibit A 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 the use and control of spaces as set forth in and to the extent described in Exhibit "B" attached hereto and incorporated herein by reference, and shall include the Kitchen (Room 101), the Restaurant (Room 102), the Banquet/Meeting Room(s) (Room(s) 103 (A & B)) (subject to City reserved rights), the Storage Room (next to the Banquet/Meeting Room(s)) (Room 104) (subject to City reserved rights), the Outdoor Patio (adjacent to the Restaurant and the Banquet/Meeting Room(s)), and the North Screened Area (Room 117), as well as joint/shared use of the Banquet Room Hall (next to the Banquet/Meeting Room(s)) (Room 108), the Lobby (Room 109), the Men's Restroom (Room 110), the Women's Restroom (Room 111), the Hall (Restrooms) (Room 112), the Janitorial Room (Room 113), the Mechanical/Electrical Room (Room 114), the West Veranda - Main Entry (Room 115), and the North Veranda — Side Entry (Room 116), as such rooms are shown on the Architectural Floor Plan attached as Exhibit C attached hereto and incorporated by reference. Restaurant employees and customers may also use the Golf Course Club House Parking Lot. In addition, the City grants the Concessionaire the exclusive right to operate one or more beverage/snack cart(s) ("Beverage Cart") on the golf course. The Beverage Cart may serve and sell alcoholic beverages, food items, and sundries. The Beverage Cart shall be operational on at least the following days: Friday through Sunday from April 1st through April 30th; seven (7) days per week from the first day of May through AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 1 • Labor Day; Friday through Sunday from the day after Labor Day through September 30th; provided, that the Beverage Cart need not be operational during inclement weather. The City shall provide gasoline and maintenance for the operation of the Beverage Cart, to be paid for by the Concessionaire. The City reserves the right, and Concessionaire acknowledges the City's right, for the golf course pro shop to sell drip coffee, bottled water, prepackaged snacks, health bars, and candy bars. The City reserves the right and the Concessionaire acknowledges the City's right to sell breakfast items, such as, but not limited to bagels, donuts, and orange juice when the Concessionaire is not open or is scheduled to be closed for the breakfast period. The City also grants the Concessionaire the right to schedule use of the Auburn Golf Course Tent Area when such use will not conflict with use of the Tent Area by the Golf Course or the City. II. TERM OF CONCESSION AGREEMENT & OPTIONS This Agreement shall commence on the 1st day of May, 2015, and shall expire on the 30th day of April, 2022. The Concessionaire shall also have the opportunity to extend the Concessionaire Agreement for two (2) five-year extensions in accordance with the terms and conditions as agreed to by the City and the Concessionaire in advance of each such extension. III. CONCESSION FEES AND PAYMENTS A. Beginning May 1, 2015 the Concessionaire shall pay to the City monthly Concession Fees of Five Thousand Dollars ($5,000.00). Beginning May 1, 2016 the Concession Fees shall be increased to Five Thousand and Five Hundred Dollars ($5,500.00) per month. Beginning May 1, 2017 the Concession Fees shall be increased to Six Thousand Dollars ($6,000.00) per month. The total annual Concession payment during the first three years of the agreement include payment of the lease and leasehold excise tax. Effective May 1, 2018 the Concession Fees shall be adjusted annually effective May 1 hereafter, of each year, during the term of this Agreement, in accordance with the previous Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) June to June. In addition to the Concession Fees after May 1, 2018, the Concessionaire shall be responsible to pay a leasehold excise tax in lieu of payment of property tax on the underlying base Concession Fees, which tax is added thereto at a rate of 12.84%, and in conformity with Chapter 82.29A of the Revised Code of Washington (RCW) and Chapter 458-29A of the Washington Administrative Code (WAC). B. The City and Concessionaire shall pay for utility charges in accordance with the division of rooms/facilities set forth in Exhibit "B" of this Agreement. Utility AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 2 charges include charges for water, sewer, electricity, Metro sewer utility, propane, garbage and recycling. The City shall provide phone services to the Concessionaire in accordance with the division set forth in said Exhibit "B." Additionally, the parties shall each be responsible for any CATV and Internet services provided to the rooms/facilities for which they are responsible in accordance with the division of rooms/facilities set forth in Exhibit "B" of this Agreement. C. The Concession Fees and Leasehold Tax, and any other fees or payments to be paid by the Concessionaire to the City shall be delivered to the: Finance Director Auburn City Hall 25 West Main Auburn, WA 98001 D. Any payments to utility companies or any third parties related to the operation of the Restaurant operations shall be paid when due and the accounts therefore shall be kept up to date. IV. OPERATIONS AND SERVICE 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 on site at the Restaurant. (2) Prepare the application for, and assume responsibility for all costs and expenses of, the obtaining the appropriate 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, during each day the City of Auburn Golf Course is in operation, including holidays and all weekends (except as agreed to by and between the parties); 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 AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 3 place. Food service shall not be limited at any other time without prior written approval of the City. (4) Operate the Restaurant not less than ten (10) hours per day of operation, including being open and in operation between the hours of eleven o'clock (11:00) a.m. and nine o'clock (9:00) p.m. The Concessionaire shall work with the City to ensure that at all times that the Restaurant is open, the restrooms (Rooms 110 and 111), are to be open to the public. (5) 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. (6) Provide necessary advertising to publicize the Restaurant, Lounge and Banquet Room 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. (7) The entire facility, including the outdoor patio, shall be smoke free. (8) The City shall allow the Concessionaire to operate beverage/snack cart(s) ("Beverage Cart") on the golf course. The Beverage Cart may serve and sell alcoholic beverages, food items, and sundries. The Beverage Cart shall be operational on at least the following days: Friday through Sunday from April 1st through April 30th; seven (7) days per week from the first day of May through Labor Day; Friday through Sunday from the day after Labor Day through September 30th; provided, that the Beverage Cart need not be operational during inclement weather. The City shall provide gasoline and maintenance for the operation of the Beverage Cart to be paid for by the Concessionaire. The purchase of additional Beverage Carts will be the responsibility of the Concessionaire. B. The Concessionaire shall establish all prices for goods and services provided by Concessionaire in the Concession Areas and Beverage Cart, 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. AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 4 C. The Concessionaire may not subcontract all or any portion of the Concession Areas or Beverage Cart operations. D. 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. 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. E. The 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. If the Concession Areas and the golf course have both scheduled events that will need use of the parking lot, then the event scheduled to begin first shall have priority for use of the parking lot - unless the City and the Concessionaire can reach an agreement on shared use for the events. Concessionaire shall maintain at all times readily accessible, up to-date scheduling records associated with the Restaurant and Banquet Room. F. 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 the Concessionaire shall be allowed to install and maintain one (1) Automated teller machine (ATM or cash machine) in the Concession Area, at a location approved by the City, and provided that the Concessionaire shall be responsible for making sure that the ATM/cash machine remains in proper working order (such that if the ATM/cash machine is not working , it shall be promptly repaired, replaced or removed); and (3) Video games or gambling devices unless approved by the City. V. RELATED RIGHTS A. 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, general rules of conduct regarding use of the Restaurant, provided that such rules shall be consistent with the spirit of this Agreement AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 5 and the operation of a first-class restaurant operation, and shall not materially increase Concessionaire's operating costs. B. The City reserves the right to use the Banquet Room for ten (10) events annually, at no fee to the City. The 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 the City's scheduling notice. C. The 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. The City shall use best efforts to minimize disruption, construction-related dust, and to otherwise not interfere with Concessionaire's operations in the Concession Areas. The City shall not unreasonably interfere with access to the Premises by Concessionaire, its employees, vendors, and customers. VI. PRICES AND WEIGHTS Concessionaire and its employees shall not make or permit any misrepresentation as to kind, quality, weight or price of food, beverages or merchandise offered for sale, nor refuse to sell the same, which have been displayed or advertised (except due to unavailability of the particular item or running out of stock). VII. SECURITY SERVICES Any electronic security measures of the Concessionaire Area shall be the responsibility of the Concessionaire. VIII. CAPITAL IMPROVEMENTS A. Any capital improvements or structural changes to the Golf Course Clubhouse building must be approved by the City in advance. The 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, Arts and Recreation a concept proposal paper including preliminary sketches of such work. If approved by the Director of Parks, Arts 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. AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 6 • B. All plans submitted are subject to the approval of the City prior to commencement of any alteration, improvements or construction. The City agrees to promptly review said plans, and if the alterations, improvements, and construction are acceptable, to promptly approve the same, and the plans as approved shall be attached to an executed copy of this Agreement and incorporated herein. C. All work performed shall be done to the satisfaction of the City and shall be carried out in a manner that minimizes impact upon the use of the golf course by the public. The Concessionaire shall be responsible for obtaining all governmental permits and meeting all code requirements and shall submit copies of the same to the City or its representative prior to commencing any construction on the Concession Areas. D. The City may conduct inspections of any capital improvement work at any time to assure itself that such work is in accordance with the plans approved by the City. In the event any such work is not according to plans as then approved by the City, the City shall send a Notice of Non-Compliance to the Concessionaire. In the event the Concessionaire fails to make corrections within twenty (20) days after the Concessionaire's receipt of such Notice of Non-Compliance, the City may make whatever corrections necessary to bring such work into compliance with the plans as approved, and shall charge the Concessionaire for all reasonable costs of such corrective work. E. All alterations, improvements, and construction shall become the property of the City upon termination or expiration of this Agreement and shall be installed solely at the Concessionaire's expense unless the City expressly agrees in writing to contribute toward the costs thereof. Notwithstanding any provision to the contrary contained herein, upon termination of this Agreement, Concessionaire shall have the right to de-identify the Concession Areas by removing all brand-identity elements such as proprietary signage, custom lighting, trade fixtures, and personal property related to the Concessionaire's restaurant brand. In addition, Concessionaire shall have the right to remove, upon expiration of this Agreement the items listed in Exhibit "D" hereto. X. CUSTODIAL/MAINTENANCE A. Concessionaire shall, at all times, maintain and keep the Concession Area and locations identified in Exhibit "B" as being the Concessionaire's responsibility, including the kitchen equipment, fixtures and plumbing (including but not limited to stoves, ovens, hood, water lines, sewer lines and grease trap), in a neat, clean, safe and sanitary condition, and in compliance with all applicable codes, standards of the restaurant industry and in accordance to the standards set forth in Exhibit "F" attached hereto and incorporated herein by reference. Concessionaire shall keep the glass of all windows and doors clean and presentable, furnish all cleaning supplies and materials AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 7 needed to operate the Concession Areas in a manner prescribed in this Agreement, and provide all necessary janitorial services to adequately maintain Concession Areas. The City or a representative of the City may inspect the Concession Area at any reasonable times to ensure that the terms and conditions of this Agreement are being complied with. B. 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. The Concessionaire will perform all repairs and normal periodic maintenance and servicing as recommended by the manufacturer or as required by any local fire code, for the following: range hood duct work, exhaust fans, hood fire suppression system, and kitchen make-up air ductwork. Maintenance shall include scheduled cleaning and servicing (following manufacturer's recommendations), refinishing and painting of the interior of the Concession Areas specifically including the restaurant, lounge, kitchen, banquet room, and interior restrooms and patio areas. The City or a representative of the City may inspect the Concession Area at any reasonable times to ensure that the terms and conditions of this Agreement are being complied with. C. The City shall maintain the building structure (including roof, structural elements, exterior walls, doors and windows), foundation, Heating Ventilation and Air Conditioning (HVAC) system (does not include kitchen range ventilation, make up air and exhaust system), electric power lighting panels and distribution circuits, plumbing system, including plumbing fixtures; provided, that any damages or repairs to any of the above-described building structures which are the result of the Concessionaire's negligent or intentional acts shall be the responsibility of the Concessionaire. The City acknowledges that it is responsible for the construction and installation of the plumbing system, including the dishwasher drain and any grease traps. The City shall provide and maintain for the use of the Concessionaire, its patrons and employees, the parking lots on the golf course property, which shall be used in common with patrons of the golf course. To the extent reasonably necessary, the City shall endeavor to remove accumulations of snow and ice from the parking lot and from the walkways leading to the clubhouse. D. The Concessionaire and the City shall each have a representative attend meetings as needed to discuss and resolve any maintenance problems or concerns. XI. INSTALLATION OF EQUIPMENT A. Concessionaire shall, at no expense to the City, install, on or by the date the Concession Areas are open to the public, the restaurant/lounge furnishings and kitchen equipment described on Exhibit "D" attached hereto and incorporated by AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 8 reference. All such equipment shall remain the property of the Concessionaire under the conditions and provisions of this Agreement. XII. HAZARDOUS SUBSTANCES A. As used herein, the term "Hazardous Substance" means any hazardous, toxic, or dangerous substance, waste, or material, which is or becomes regulated under any federal, state, or local statute, ordinance, rule, regulation, or other law now or hereafter in affect pertaining to environmental protection, contamination, or cleanup (collectively, "Environmental Laws"). B. The Concessionaire shall keep in a location in the Concession Areas accessible to the City during normal business hours copies of all reports regarding hazardous or toxic materials in the Concession Areas that the Concessionaire has provided to any governmental agency in the previous quarter. C. The Concessionaire shall, upon request and at the Concessionaire's sole expense, provide the City with a copy of any such report. In the event of any accident, spill, or other incident involving Hazardous Substances that the Concessionaire is required to report to any governmental agency, the Concessionaire shall immediately report the same to the City and supply the City with all information and reports with respect to the same, together with the Concessionaire's clean-up or remediation plan and schedule. If such clean-up or remediation plan is not acceptable to the City, the City may so notify the Concessionaire and, upon 48 hours prior written notice (or without notice if the City determines that an emergency situation exists) may enter on the Concession Areas to conduct the cleanup or remediation and charge the Concessionaire the costs thereof. All information described herein shall be provided to the City regardless of any claim by the 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. D. Indemnification: The Concessionaire agrees to hold harmless, protect, indemnify, and defend the City from and against any damage, loss, claim, or liability; INCLUDING reasonable attorney's fees and costs; resulting from the Concessionaire's use, disposal, transportation, generation, and/or sale of any Hazardous Substances. The City agrees to hold harmless, protect, indemnify, and defend the 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 the Concessionaire. These indemnities will survive the termination of this Agreement, whether by expiration of the Term or otherwise. AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 9 XIII. TERMINATION A. The parties may terminate this Agreement by providing the other party with ninety (90) days written notice of termination. 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 the City determines is of a nature requiring more than thirty (30) days to remedy, the Concessionaire shall not be in default so long as the City determines that the Concessionaire undertakes to remedy the default or deficiency within the 30 day period and thereafter diligently pursues completion of the remedy. C. In addition, upon providing written notice to the Concessionaire, the City may immediately 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 or found to have committed or engaged in any illegal activity as a part of the concession operations, including the willful failure to pay all taxes and required fees, whether the finding is by a court of competent jurisdiction or by the City following due process and investigation separate and apart from any formal judicial process. D. In the event that after termination or expiration of the term of this Agreement, as provided herein, the Concessionaire has not removed its property and fixtures within the time allowed under Article XIII E, 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 the 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 the 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 the Concessionaire to the City, and the balance, if any, shall be paid to the Concessionaire. Notwithstanding any provision to the contrary contained herein, the City's and the Concessionaire's rights under this Article shall be subject to the applicable laws of the State of Washington. AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 10 E. Upon termination or expiration of the term of this Agreement, the Concessionaire shall remove all it goods, wares and merchandise from the Concession Areas and shall remove any equipment or fixtures placed therein by the 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. F. Upon termination or expiration of the term of this Agreement, the Concessionaire shall surrender the Concession Areas to the City and promptly surrender and deliver to the City all keys that it may have to any and all parts of the Concession Areas. The Concessionaire shall surrender the Concession Areas to the City in as good condition as at the date of execution of this Agreement, except for the effects of reasonable wear and tear, alterations and repairs made with the concurrence of the City, and property damage caused by risks insured against under fire, extended coverage and vandalism insurance in current practice. XIV. STANDARDS OF CONDUCT A. The Concessionaire recognizes that, although it is operating the concession facilities as an independent operator for profit, the City's Department of Parks, Ads 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 the 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. The 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. All of the Concessionaire's personnel shall be dressed in neat appearing attire, which shall include a standard uniform and shirt logo for the Concessionaire's personnel that shall uniquely identify a Concessionaire's employee but which shall not in any way infer association with or depict representation of the City. XV. COMPLIANCE WITH LAWS AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 11 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, sexual orientation, marital status, families with children, physical handicaps or age. The Concessionaire shall comply with applicable laws, standards, and regulations pertaining to employment practices and employee treatment. Conditions of the Washington Industrial Safety and Health Act of 1973 (WISHA). 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. The Concessionaire agrees to indemnify and hold the City harmless from all damages assessed for the Concessionaire's failure to comply with the Acts and Standards issued thereunder. 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 D. above, any notice required or permitted hereunder must be in writing and will be effective upon the earlier of personal delivery or three days after being mailed by certified mail, return receipt requested, addressed to the Concessionaire or to the 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/Administration Auburn City Hall 25 West Main Street Auburn, WA 98001 And to the Concessionaire at the following address: AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 12 With a copy to: XVIII. ASSIGNMENT OF AGREEMENT The City and the 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. The Concessionaire shall comply with all applicable Federal, State, County, and City laws, ordinances, rules and regulations regarding nondiscrimination and 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, sexual orientation, disability or the use of a trained dog guide or service animal by a disabled person, 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, creed, sexual orientation, marital status, families with children, disability or the use of a trained dog guide or service animal by a disabled person, religion, sex, age or national origin. B. The Concessionaire shall comply with all applicable Federal, State, County, and City laws, ordinances, rules and regulations regarding nondiscrimination in employment and shall not discriminate in employment on the basis of creed, families with children, race, color, national origin, sex, sexual orientation, religion, age, marital status, or disability or the use of a trained dog guide or service animal by a disabled person, except for employment actions based on bona fide occupational qualification. XX. CASUALTY TO OR DEMOLITION OF CONCESSION AREAS AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 13 • 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 rendered partially tenantable by fire or other insured casualty as determined by the City's Building Official, in consultation with the Concessionaire, and if the damage is repairable within ninety (90) days from the date of the occurrence, (with the repair work and preparations therefore to be done during regular working hours on regular work days), which repair time-frame shall be as determined by the City's Building Official, in consultation with the Concessionaire, the City shall repair the premises with due diligence, to the extent of the insurance proceeds available, and the monthly rent shall be abated in the proportion that the tenantable portion of the Concession Areas bears to the whole thereof for the period from the date of the casualty to the completion of the repairs; Provided that even if the premises are only partially damaged, if the portion that is damaged prevents the Concessionaire from being able to use the premises for Concessionaire's intended purposes, as determined by the Concessionaire, the Concessionaire shall be relieved from its obligations hereunder to the extent that the premises are so unable to be used. B. Total Destruction. If the Concession Areas are completely destroyed by fire or other casualty, or if they are damaged by uninsured casualty, or by insured casualty to such an extent that the damage cannot be repaired within ninety (90) days of the occurrence, City shall have the option to restore the Concession Areas or terminate this Lease on thirty (30) days' written notice. If this Section becomes applicable, the City shall advise Concessionaire within thirty (30) days after the City learns of such casualty whether the City elects to restore the Concession Areas and, if so, shall commence and prosecute the restoration work with diligence. For the period from the date of the casualty until completion of the repairs (or the date of termination of the Lease, if the City elects not to restore the premises), the monthly rent shall be abated. C. Uninsured Damage. In addition, the Concessionaire has the right to terminate this Agreement if damage or destruction is caused by a peril not required to be insured against hereunder and for which insurance proceeds are not available. If insurance is unavailable either the City or the 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 AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 14 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 the 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 the Concessionaire by this Agreement. If any such liens are filed, the City may, without waiving its rights and remedies for breach, and without releasing the Concessionaire from its obligations hereunder, require the Concessionaire to post security in form and amount reasonably satisfactory to the City or cause such liens to be released by any means the City deems proper, including payment in satisfaction of the claim giving rise to the lien. The Concessionaire shall pay to the City upon demand any sum paid by the City to remove the liens. Further, the Concessionaire agrees that it will save and hold the City harmless from any and all loss, cost, or expenses based on or arising out of the asserted claims or liens, against this Agreement or against the right, title, and interest of the City in the Concession Areas or under the terms of this Agreement, including reasonable attorney's fees and costs incurred by the City in removing such liens, and in enforcing this Article. Additionally, it is mutually understood and agreed that this Article is intended to be a continuing provision applicable to future repairs and improvements after the initial construction phase. XXII. INSURANCE A. Fire, Earthquake, & Casualty Insurance: During the term of this Agreement and any extension thereof, the City shall maintain a property insurance policy on the Auburn Golf Course building in the amount of the replacement cost of the building, including the restrooms, hallways and common areas, for damage from fire, earthquake and other perils. Said insurance policy shall also insure the replacement value of the City's kitchen equipment, fixtures and other equipment provided or owned by the City and tenant improvements provided by the Concessionaire pursuant to this Agreement. The Concessionaire shall be responsible for maintaining its own fire and hazard insurance on Concessionaire owned personal property placed within the Premises. All personal property of any kind or description whatsoever in the Concession Areas shall be at the Concessionaire's sole risk, and the City shall not be liable for any damage done to, or loss of, such personal property. B. Liability Insurance: Not less than thirty (30) days prior to the date of the Concessionaire's entry onto the Concession Areas, the Concessionaire, at its own expense shall obtain and file with the City's Director of Risk Management a Certificate of Insurance evidencing commercial general liability insurance coverage ("CGL") providing coverage of at least one million ($1,000,000.00) per occurrence and two million AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 15 ($2,000,000.00) general aggregate. The Commercial General Liability insurance shall include either by endorsement or a stand-alone policy, liquor liability in an amount not less than one million dollars ($1,000,000.00) per occurrence and one million ($1 ,000,000.00) aggregate. CGL insurance shall be written on Insurance Services Office (ISO) occurrence form CG 00 01 and shall cover premises, products/completed operations, broad form property damage, independent contractors, personal injury/advertising liability, and contractual liability. The City shall be named as a named insured on the Concessionaire's Commercial General Liability insurance policy. This Certificate of Insurance and a copy of the amendatory endorsement, including, but not necessarily limited to, the named insured endorsement, evidencing the insurance requirements of the Concessionaire shall be subject to approval by the City's Director of Risk Management as to company, terms and coverage, and said approval shall not be unreasonably withheld. 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. The Concessionaire shall insure that the City is given thirty (30) calendar days prior written notice, by certified mail, of any cancellation, lapse, reduction or modification of such insurance. The insurance policies are to contain, or be endorsed to contain that The Concessionaire's insurance coverage shall be primary insurance as respect to the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Concessionaire's insurance and shall not contribute to it. The 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 the City or the 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 the City nor the 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. AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 16 XXIII. HOLD HARMLESS, INDEMNIFICATION, & INDUSTRIAL INSURANCE A. Hold Harmless & Indemnification: Each party hereto agrees to be responsible and assumes liability for its own wrongful or negligent acts or omissions, or those of its officers, agents, or employees to the fullest extent required by law. Each party agrees to indemnify, defend, and 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 Concessionaire expressly waives any immunity under industrial insurance whether arising from Title 51 of the Revised Code of Washington (RCW) or any other statute or source, to the extent of the indemnity set forth in this Article. The City expressly waives any immunity under industrial insurance whether arising from Title 51 of the Revised Code of Washington or any other statute or source, to the extent of the indemnity set forth in this Article. Extent of Indemnification: In no event shall the Concessionaire's obligations hereunder be limited to the extent of any insurance available to it. XXIV. RELATIONSHIP OF PARTIES A. Concessionaire Independent Contractor: 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 the City as granting a concession to the Concessionaire. The 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. The 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. The Concessionaire and its personnel have no authority to bind the City or to control the City's employees. As an AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 17 independent contractor, the 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 the Concessionaire or the Concessionaire's 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. XXV. PERMITS, LICENSES, TAXES AND FEES A. The Concessionaire shall obtain and at all times maintain a current Auburn 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 the Concessionaire's obligations under this Agreement at the 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 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 The 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 AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 18 • 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 the Concessionaire or entry by the City because of • breach or default by the Concessionaire, the Concessionaire shall leave behind all of the Tenant Improvements identified in Exhibit "D" except for items numbered one (1) through five (5) which shall remain with the Concessionaire. 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 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 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. ARBITRATION Any controversy or claim arising out of or relating to this Agreement, or its breach, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules then in effect. The decision of the arbitrator(s) is final and judgment thereon may be enforced by any court of competent AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 19 jurisdiction. Notwithstanding the foregoing, either party may seek injunctive relief in Washington state court. XXXIV. MODIFICATION This Agreement may only be modified by written instrument signed by both parties. XXXV. ILLEGAL PROVISIONS - SEVERABILITY Should any part of this Agreement be found void, illegal, or unenforceable, the balance of the Agreement shall remain in full force and effect. 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. IN WITNESS WHEREOF, this Agreement has been entered into by and between the City of Auburn and \-chic c\aw c„..._p c,. e,c,, ,was of the -,ir day of c , , 20 \ej . LO HORN BA•BECUE OUTPOST, INC CITY OF AUBURN 4_ G se sliit 1 lC By: David Fallen Davis ey: Nan B.ckus, Mayor ATTEST: Dpi Daskam, City Clerk AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 20 • . Ar V DQ R 4 DHeid -Eity'A'ttorney\ AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 21 LIST OF EXHIBITS Exhibit A Legal Description of Property on Which Restaurant is Located Exhibit B Rights in Use and Control of Facility Spaces with Apportioning of Utility, Maintenance and Custodial Costs Exhibit C Architectural Floor Plan Exhibit D City Property used, maintained and/or replaced by Concessionaire Exhibit E Property of the Concessionaire Exhibit F Janitorial Schedule AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 22 STATE OF WASHINGTON ) ) ss. COUNTY OF KING I certify that I know or have satisfactory evidence that NANCY BACKUS is the person who appeared before me, and said person acknowledged that she signed this instrument, and on oath stated that she was authorized to execute the instrument on behalf of and as the Mayor of the CITY OF AUBURN as the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Given under, V` kli 4)d official seal this ;)J, day of qc,,,; , 20th . c ' _S o,g;A < Name: ��o. . .�p \ a C' Notary Public in and for the State of riz - ' - =� = Washington, residing at Pusp- �o`=�= My Commission expires yr C c- i, 'r4 4-p9'. 'C re OF ,• • STATE OF WASHINGTON ) ss. COUNTY OF KING I certify that I know or have satisfactory evidence that DAVID ALLEN DAVIS is the person who appeared before me, and said person acknowledged that he signed this instrument, and on oath stated that he was authorized to execute the instrument on behalf of and as theOr--&-c.e/ of the Concessionaire, LONGHORN BARBECUE OUTPOST, INC., as 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 -7"12ctch- , 20 /6~ Name: �CvY> vu� i�- l Notary Public in and for the State of - ' N i+8p�19,, 0 M Washington, residing res �L c 5 V z • . %i A B `4 iltif 70-09- OAwPS' AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 23 EXHIBIT "A" Legal Description of Property on Which Restaurant is Located` 052105 11 Government Lot 6 less county road together with west 1/2 of southwest 1/4 subject to transmission line right-of-way as identified in King County, Washington Tax Parcel Identification Number 0521059011. *This Exhibit identifies the property on which the Restaurant is located but does not expand Concessionaire Rights to the entire property. Concessionaire Rights shall only apply to that part of the above-described property rights identified on Exhibit B as set forth therein. • AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 24 Co• N C a) N = = N G. 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L O - -2.0- O 0O « O al ., _ -0 N ,0o > Q N () >,-c Co 06 '8 • 'E ULE O J E Q N a D .. a1 .� • O N O) al U Lu C O U O J 'OV C 0 " = y O • W 0 O Tc• c DN c o c N o L N o O c N 3 cn itC N :DI O0 NO o O CC O p N o° t 0 ',E T F ui p iC o O Cm fl O• U• N. o N o N U C(O N mcu u cu m U u r L L o L d .0� .c a O• U3> 0 aw d a• L ` �U_7 ( O O w O � m = o Co v J Z Z Z U CL w m U C < O EXHIBIT "C" Architectural Floor Plan WALK-IN NORTH rWALK UP VWNDOW FREEZER SCREENED AREA WALK-IN 117 i \ COOLER \ f_a \\ NORTH 1 VERANDA RESTAURANT : • 2 SIDED FIREPLACE 116 HALL KITCHEN 112 L 101 ----` RESTAURANT WOMENS ti \, , 111 JANITORIAL 102 o LLln n I 1171 mlecNnNlcAU PATIO L? J ''='IsMEN �TIELECTRICAL r 6 ik 0 ❑ I ---- ------I A_ LOBBY LOBBY I;I I BANQUET ROOM NORTH 109 v FIREPACEI HALL 103A STORAGE 108 WEST X107 BANQUET ROOM SOUTH 1 3 VERANDA PRO SHOP 103B 115 106 I OF,rICE STORAGE , \ / \\\ // v RESTAURANT FLOOR PAN 0 AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 27 • EXHIBIT "D" City Property used, maintained and/or replaced by Concessionaire 1 . Grease traps 2. Kitchen water heater 3. Kitchen floor sinks, drains in floor 4. Stand alone Freezers/Coolers 5. Freezers/Coolers Walk-ins 6. Including interior & exterior condensers 7. Refrigeration lines 8. Condensation lines for FSE 9. All sheet & stainless metal items (stainless steel wall flashing under the hood systems) 10.Bar & Back Bar 11.Shelving and cabinetry in areas of Concessionaire responsibility 12.Interior & exterior tables and chairs 13. Interior & exterior service stations 14.Fireplace adjacent to Restaurant and Patio 15.Two-sided Fireplace in the Lobby - Hallway - the Concessionaire shall help ensure that the fireplace is turned on and off, as appropriate. AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 28 EXHIBIT "E" Property of the Concessionaire 1 . Televisions in areas of Concessionaire responsibility 2. Point of Sale "POS" system in areas of Concessionaire responsibility 3. Music System 4. Utensils, supplies, cookware, crockery, glassware, silverware, serving equipment, chaffing dishes, all banquet equipment 5. Hostess station 6. Soda lines 7. Burglar Alarm system in areas of Concessionaire responsibility 8. Data/AV/Phones/Computers Equipment in areas of Concessionaire responsibility 9. Speakers in areas of Concessionaire responsibility 10. Signage in areas of Concessionaire responsibility ' AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 29 EXHIBIT "F" Janitorial Standards for Concessionaire The Concessionaire shall at all times and at no expense to the City, keep the Concession Areas in a neat, clean, safe and sanitary condition. The Concessionaire shall at all times keep the glass of all windows and doors clean and presentable (both interior and exterior); furnish all cleaning supplies, materials and equipment needed to operate the Concession Areas in a manner prescribed in this Agreement; and provide all necessary janitorial service to adequately maintain the Concession Areas on the frequency schedule made pad of this Exhibit, which by this reference is incorporated herein. The City through its representative shall conduct periodic inspections of the Concession Area and shall notify the Concessionaire in writing to make changes in maintenance methods. The Concessionaire shall make changes and/or repairs within the time, or times, indicated by the City. The Concessionaire shall contract with a qualified pest control company to control the rodent population around the Premises. The Concessionaire may provide for janitorial services by contract with a third party, which shall be subject to this Agreement and the prior written approval of the City. The Concessionaire shall provide a list of emergency phone numbers including those of any firms performing contract maintenance to contact in case of emergency, (e.g. fire extinguishing system maintenance or alarm company). The Concessionaire shall provide fire extinguishers and other items required by the Fire Authority in the Concession Area. All kitchen equipment must be approved for use by the City's Building Division and the local Fire Authority. FREQUENCY SCHEDULE CONCESSIONAIRE AREA Including, but not limited to the following: Daily 1. Empty all trash including patio receptacles and place in dumpster. Brush and/or wipe wastebaskets. Wash wastebaskets as needed. 2. Dust all desks, tables, counters, files, telephones, and other furniture within reach. Remove any spillage as needed. 3. Wash table tops, counters and all surfaces. 4. Sweep/damp mop all epoxy floors. Remove spillage on all floors each night. 5. Replace burned out light bulbs. 6. Pick up trash, dump trash container to primary dumpster located in parking lot. Keep the surrounding area of the dumpster free of debris. AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 30 EXHIBIT "F" Janitorial Standards for Concessionaire (continued) 7. Spot clean marks and smudges from walls, especially doors, around push plates, and light fixtures. 8. Keep storage areas neat and clean. 9. Vacuum carpeted areas and all entry mats. Spot clean as required. 10. Sweep clean patio areas. 11. Clean door glass. 12. Provide litter control for any litter generated through the use of the restaurant, lounge, and banquet facilities out to service road. Weekly 1 . Perform high dusting such as upper walls, ventilator grills. Perform high dusting of piping, floor and window casings, and other surfaces not done on a more frequent basis. 2. Use damp cloth or dust rag to clean the interior and outer surfaces of all lights. 3. Dust/clean all walls. 4. Clean grease trap and drain. 5. Maintain area around compactor/dumpster off kitchen area. If utilized, maintain the compactor/dumpster and area within the fenced enclosure of the parking lot. 6. Hose down patio area. 7. Hose down dumpster area off kitchen (daily if needed). Monthly 1 . Clean interior and exterior window and door glass. Quarterly to Semi-Annually 1 . Clean carpet. Semi-Annually To Annually 1 . Pressure wash the patio prior to season use. 2. Grease holding tank pumped not less than semi-annually. Periodic 1. Range hood, bar, and refrigerator to receive normal periodic maintenance and on an as-needed basis per the manufacturer's specifications. AUBURN GOLF COURSE CLUBHOUSE CONCESSIONAIRE AGREEMENT Page 31 JSign Envelope ID:0A099CC0-EEB4-43UO-ASSbti-4/AO frt:Sts- 4Z FIRST AMENDMENT TO THE AUBURN GOLF COURSE RESTAURANT CONCESSIONAIRE AGREEMENT BETWEENTHE CITY OF AUBURN AND LONGHORN BARBECUE OUTPOST, INC. THIS AMENDMENT is made and entered into this 3' day of :A- -C—G-k 2021, by and between the CITY OF AUBURN, a municipal corporation of the State of Washington (the"City"), and LONGHORN BARBECUE OUTPOST, INC. (the "Concessionaire"),as an amendment to the Concessionaire Agreement between the parties dated the 20th day of April, 2015. RECITALS: 1. On April 20, 2015 and authorized by RES 5142, the City entered into a Concessionaire Agreement with Longhorn Barbeque Outpost,Inc.for the exclusive restaurant, lounge, catering, and other food concession rights at the Auburn Golf Course. 2. Starting on March 11, 2020 and continuing throughout 2020 and into 2021, the Governor of Washington has restricted social gatherings and has limited the indoor seating capacity of restaurants in efforts to stop or slow the spreading of COVIDI9 virus. 3. The social gathering restrictions and limitations on the indoor seating capacity has had and continues to have profound effects on those businesses subject to the Governor's orders in their ability to generate revenues and to meet their contractual obligations, including the payment of rent and other fees. NOW THEREFORE in consideration of their mutual covenants,conditions and promises, the Parties agree as follows: The following paragraph is added to the end of Section I(Concessions Rights Granted). • During any such time as the State has mandated restrictions prohibiting the indoor seating of restaurants the Concessionaire agrees to,at a minimum, provide beverage cart service as defined above. Concessionaire also agrees that it shall, at the City's direction, provide box lunches for those events identified by the City. The following subsections "E" and "F" are added to Section III (Concession Fees and Payments): E. Concession Fees adjusted for the months of January through December of 2020.The Concessionaire and City both acknowledge that at the time of execution of this amendment the Concessionaire has not paid and the City has not received any concession fees for the months of January through December of 2020 and Concessionaire is in default. To cure the default due to nonpayment or concession Tees,the t.oncessionaire will pay and me city will accept the lump sum amount of 527,513.17 plus 12.84% in leasehold excise tax in conformity with Chapter 82.29A of the Revised Code of Washington (RC W)and Chapter First Amendment to the Concessionaire Agreement between COA & Longhorn BBQ Outpost,Inc. Page 1 of 4 1Sign Envelope ID:0A099CC0-EEB4-43D0-A856-47A57FB5F942 458-29A of the Washington Administrative Code(WAC) within 30 days following the execution of this amendment by the Parties.The payment will be made to the address in section III.C. Failure to pay any portion of the above mentioned fees within 30 days of the execution of this amendment may subject the Concessionaire to the actions of Section XIII and XXIX. F. Beginning January 1,2021 and during anytime the State of Washington has imposed restrictions on indoor restaurant dining or the size of gatherings/events related to the COVID- 19 pandemic, rent shall be reduced to the following: (i) No Concession Fees will be due during those months when indoor dining for restaurants is restricted to less than 50%of the indoor dining capacity. (ii) Concession Fees will be charged at 50%of the then current rate for those months when indoor dining for restaurants is allowed at 50%or greater of the indoor dining.capacity but special gathering/events are restricted from containing more than 100 people. (iii) Concession Fees will resume to 100%of the then current rate at such time as restriction on large gathering/events has been lifted or gatherings/events containing more than 100 people is permitted. For each of the three categories, Concession Fees will be prorated on a per diem basis for those months where restrictions on indoors seating or large gatherings/events apply to a only a portion of a month. Leasehold excise tax shall apply to Concession Fee amounts described in this section,and this section shall not alter the Concessionaire's obligation to pay utility charges as stated herein. [SIGNATURES ON THE FOLLOWING PAGES] First Amendment to the Concessionaire Agreement between COA & Longhorn I3BQ Outpost, Inc. Page 2 of 4 iSign Envelope ID:0A099CC0-EEB4-43DO-A856-47A57FB81-942 Dated and Signed on this 3 day of INA.tArt l,1 , 2021 Longhorn Barb . tle Outpost, Inc. V vc,€_ Title 1M&1-r 1.-4 vJ �L�u✓k STATE OF WASHINGTON )ss. County of The undersigned Notary Public hereby cert.i i s:That on this _day of 4)1 20 L . personally appeared before me Al ,P h 4Q A 14- 1 414 (name), (title),to me known to be the individual(s)described in and who executed the within instrument, and acknowledged that he/she signed and sealed the same as his/her-free and voluntary act and deed, for the purposes and uses therein mentioned, and on oath stated that he/she was.eluly authorized to execute said document on behalf of !� br% J hoe n t36/b- CP?...bt�•4-e,5t Nc. In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above written. ,Q ,4Ft39lp�y 1PO�i� s v� ° v°O' , ,,3 +1t i Notary Pu In a for the State of Washington, ?.1* -c 7" • W� ms 's -o •. „,g� � Residing at A,1l &LIC y= = My commission expires 12-.J'240 Z) lIIl11SHlitt‘ `NG4,0•,4 • First Amendment to the Concessionaire Agreement between COA& Longhorn BBQ Outpost, Inc. Page 3 of 4 )ocuSign Envelope ID:OA099CCO-EEB4-43D0-A856-47A57FB8F942 rt d t,, 202 I bated and Signed on this day of KWO 1 .-2019t6, City of Auburn —DocuSigned by: 1. :ALurhOtAtel iC , '?", k ' Mayo Sts i Approved as to form;: e--1 cuSlgned//by: CVATONEYFKendra Comeau STATE OF WASHINGTON ) ' .)1ss. County of hlNb ). The.undersigned Notary Public hereby certifies:That on this lb day of M6I1Ylrh1 , 2.01, personally appeared before me i,C V-US _ ,(name), ((VV�� (title),to me known to be the individual(s)described in grid wh -executed the within instrument,and acknowledged that he/she signed and sealed the same as his/her free and voluntary act and deed, for the purposes and uses therein mentioned, and on oath stated that he/she was duly authorized to execute said document on behalf of The G oa�aa : . In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above written. - A4x,,ov:..k---- cPte..1-P �NAH SC 1�� a� oTA F+A !< � Notary Public in and for the State of Washington, u `'02189 �'9 11.1-11 Residing at PCUbV Y Y\ VU P" 2 ' My commission expires -101-2,11- % -4 9 0Boo Z / X10 ,,,,iz 22 �k0 _ I1i,,,;WASO .-.� I` First Amendment to the Concessionaire Agreement between COA& Longhorn BBQ Outpost, Inc. Page-4 of 4 SECOND AMENDMENT TO THE AUBURN GOLF COURSE RESTAURANT CONCESSIONAIRE AGREEMENT BETWEEN THE CITY OF AUBURN AND LONGHORN BARBECUE OUTPOST,INC. THIS AMENDMENT is made and entered into this I day ofkii_c-l.4- 2021,by and between the CITY OF AUBURN, a municipal corporation of the State of Washington(the"City"), and LONGHORN BARBECUE OUTPOST,INC. (the "Concessionaire"), as an amendment to the Concessionaire Agreement between the parties dated the 20th day of April, 2015. RECITALS:: 1. On April 20, 2015 and authorized by RES 5142, the City entered into a Concessionaire Agreement with Longhorn Barbeque Outpost,Inc.for the exclusive restaurant, lounge, catering, and other food concession rights at the Auburn Golf Course. 2. Starting on March 11, 2020 and continuing throughout 2020 and into 2021, the Governor of Washington has restricted social gatherings and has limited the indoor seating capacity of restaurants in efforts to stop or slow the spreading of COVID19 virus. 3. The social gathering restrictions and limitations on the indoor seating capacity has had and continues to have profound effects on those businesses subject to the Governor's orders in their ability to generate revenues and to meet their contractual obligations, including the payment of rent and other fees. 4. On March 3, 2021, the City and Longhorn Barbeque Outpost, Inc. amended the Concessionaire Agreement to reflect the restrictions and limitations on the food concession at the Auburn Golf Course. 5. In response to additional Governor proclamations concerning the coronavirus pandemic, the parties wish to further amend the Concessionaire Agreement. NOW THEREFORE in consideration of their mutual covenants, conditions and promises, the Parties agree as follows: Subsection"F" in Section III(Concession Fees and Payments) is amended to read as follows: "F". Beginning January 1, 2021 and during anytime the State of Washington has imposed restrictions on indoor restaurant dining or the size of gatherings/events related to the COVID- 19 pandemic, rent shall be reduced to the following: ti) No CUilet SSlot! FGVJ Will be uue UUflilf' UIUSc 1IOUltis When indoUi Ultili z;lot restaurants is restricted to less than 50% of the indoor dining capacity. (ii) Concession Fees will be charged at 50% of the then current rate for those months when indoor dining for restaurants is allowed at 50%or greater,but less than Second Amendment to the Concessionaire Agreement between COA &Longhorn BBQ Outpost, Inc.. Page 1 of 4 100$ of the indoor dining capacity.limit-- 3eeiolgtlier-i (iii) Concession Fees will resume to 100%of the then current rate at such time as indoor diningg capacity has resumed to 100%o.ot the indoo•di.nino e meit and restriction on large gathering/events has been lifted or gatherings/events containing more than 100 people is permitted. For each of the three categories, Concession Fees will be prorated on a per diem basis for those months where restrictions on indoors seating or large gatherings/events apply to a only a portion of a month. Leasehold excise tax shall apply to Concession Fee amounts described in this section, and this section shall not alter the Concessionaire's obligation to pay utility charges as stated herein. " [SIGNATURES ON THE FOLLOWING PAGES] Second Amendment to the Concessionaire Agreement between COA &Longhorn BBQ Outpost,Inc. Page 2 of 4 Dated and Signed on this t day of A-? ' I , 2021 ng torn::, arbecue Outpost,Inc. -DTitle STATE OF WASHINGTON ) )ss, County of 141;0 ) The undersigned Notary Public hereby cer tries:That on this day of d/i 201 , personally appeared before me iit44f . A Name), (title),to me known to be the individual(s)described in and who executed the within instrument, and acknowledged that he/she signed and sealed the same as his/her free and voluntary act and deed,for the purposes and uses therein mentioned, and on oath stated, hat he/she was duly authorized to execute said document on behalf of )w/6 it0.4.4614DSLpi In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above written. J s, t.,:wk tali,t 9 9 tor :1 gdu a . Notary Public in and for the State of Washington, I'd 71114 Residing at. G Wa ,4 My commission expires t1111t',,‘„\''''*. Dated and Signed on this I day of /J / I , 2019 Second Amendment to the Concessionaire Agreement between COA &Longhorn BBQ Outpost,Inc. Page 3 of 4 City of Auburn 4 -.NI" atits.4.4 Mayor: NikBackus Approved as to form: a City Attorney: Kendra Comeau STATE OF WASHINGTON ) ss. County ofV1 ) The undersigned Notary Public hereby certifies: That on this 0.111 day of Vic VII 1 20 9- personally .ppear-' befo - •e 1 hi Gtia11,6_ (name), L. -),to me' own to be the individual(s)described in and who ex icuted the within instrument,and acknowledged that he/she signed and sealed the same as his/her free and voluntary act and deed,for the purposes and uses therein mentioned, and on oa stated that e/slie was dulylitinulauthorized to execute said document on behalf of 5_ DT In Witness Whereof I have hereunto set my hand and affixed my official seal.the day and year first above written. zwieij ,, .\\,,,,,,,‘„, ��� ..ONMAT Ili1 Notary Public i an for the t of Washington, iis, ,`ooN �4, oe/% Residing at tJa .. ,..0 ., , . rte,►, 1 My commission expires 02-91.2D29---/ b s s Nay. %B1...4 125 .. , ,..... 7),''Ne•284:1 � hi. WA Second Amendment to the Concessionaire Agreement between COA&Longhorn BBQ Outpost,Inc. Page 4 of 4