HomeMy WebLinkAboutCouncil memo regarding amended Bogey's Agreement 1-15-21
Interoffice Memorandum
To: Auburn City Council
From: Josh Arndt, Real Property Analyst / City of Auburn
Date: January 15, 2021
Re: Amendments to the Concessionaire Agreement between the City of Auburn
and Longhorn Barbecue Outpost, Inc.
Auburn City Council Members,
COVID-19 has, and continues to have, profound effects on our local businesses,
specifically those in the food and beverage industry. Since March 11, 2020, the State of
Washington has imposed strict regulations when it comes to holding large events, social
gatherings, and indoor dining; up to and including entirely prohibiting them.
Longhorn Barbecue Outpost, Inc., operator of Bogey’s Public House at the Auburn
Municipal Golf Course, has struggled to meet their financial and contractual obligations
as a result of these regulations, failing to make any of the required 2020 concession fee
payments or their January 2021 payment. Together, City staff and Longhorn Barbecue
have negotiated an amendment to the Concessionaire Agreement that reduces the total
amount of concession fees owed for the 2020 calendar year to $27,513.17 based upon
the following table:
Beginning January 2021, Longhorn Barbecue’s concession fees will be directly tied to
the Governor’s mandate regulating indoor dining and large gatherings/events as follows:
• Longhorn will not owe any concession fees in months where indoor dining is
strictly prohibited.
• In months where indoor dining is allowed, Longhorn will owe 50% of their
regularly scheduled concession fee rate.
• At such time as social gathering or events of greater than 100 people can be
held, Longhorn will owe 100% of their regularly scheduled concession fee rate.
• Concession fees will be prorated on a per-diem basis when restrictions are
modified mid-month by the Governor.
While this amendment significantly reduces the revenues at the Auburn Golf Course,
staff believes that this amendment is in the best interest of the City, its residents and
patrons of the golf course.
Please direct any questions you have regarding this matter to Parks, Arts & Recreation
Director, Daryl Faber DFaber@auburnwa.gov (253) 804-5044 or Finance Director,
Jamie Thomas JThomas@auburnwa.gov (253) 804-5019
Respectfully,
Josh Arndt
City of Auburn, Real Property Analyst
CC:
Nancy Backus – Mayor
Daryl Faber – Parks, Arts & Recreation Director
Jamie Thomas – Finance Director
Dana Hinman – Administration Director
Kendra Comeau – City Attorney
First Amendment to the Concessionaire Agreement between COA & Longhorn BBQ Outpost, Inc.
Page 1 of 4
FIRST 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 day of ,
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 2021the
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 COVID-
19 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 of concession fees, the Concessionaire will pay and the City will
accept the lump sum amount of $27,513.17 plus 12.84% in leasehold excise tax in
conformity with Chapter 82.29A of the Revised Code of Washington (RCW) and Chapter
First Amendment to the Concessionaire Agreement between COA & Longhorn BBQ Outpost, Inc.
Page 2 of 4
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 has imposed restrictions on
indoor restaurant seating 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 seating for
restaurants is prohibited.
(ii) Concession Fees will be charged at 50% of the then current rate for those months
when indoor seating for restaurants is allowed in any capacity but
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 BBQ Outpost, Inc.
Page 3 of 4
Dated and Signed on this ________ day of ___________________, 2021
Longhorn Barbecue Outpost, Inc.
David Allen Davis
Title
STATE OF WASHINGTON )
) ss.
County of _______________ )
The undersigned Notary Public hereby certifies: That on this ____ day of _____________,
20____, personally appeared before me ____________________________________ (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 duly authorized to execute said document on behalf of
___________________________.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and
year first above written.
Notary Public in and for the State of Washington,
Residing at
My commission expires
First Amendment to the Concessionaire Agreement between COA & Longhorn BBQ Outpost, Inc.
Page 4 of 4
Dated and Signed on this ________ day of ___________________, 2019
City of Auburn
Mayor: Nancy Backus
Approved as to form:
City Attorney: Kendra Comeau
STATE OF WASHINGTON )
) ss.
County of _______________ )
The undersigned Notary Public hereby certifies: That on this ____ day of _____________,
20____, personally appeared before me ____________________________________ (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 duly authorized to execute said document on behalf of
___________________________.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and
year first above written.
Notary Public in and for the State of Washington,
Residing at
My commission expires