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AUBURN GOLF COURSE RESTAURANT
INTERIM 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
David Allen Davis (hereinafter referred to as the "Concessionaire").
WITNESSETH:
In consideration of the mutual promises, covenants and agreement contained herein,
the parties hereby agree as follows:
I TERM AND CONCESSION RIGHTS GRANTED
The City hereby grants to the Concessionaire for the interim term of March 1, 2015
through April 30, 2015, upon the conditions and provisions contained herein the exclusive
restaurant, lounge, catering, and beverage/snack cart concession rights at the Auburn Golf
Course located at 29630 Green River Road, Auburn, Washington, legally described as
follows:
Government Lot 6 of Section 5, Township 21 North, Range 5 East W.M., 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 description 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 Rooms 102
— Restaurant Seating Area (plus the Outdoor Patio Area adjacent thereto); Room 101 —
Restaurant Kitchen; Room 103 — Banquet Room(s) (plus Rooms 104 and 108 — Banquet
Room Accessory Rooms); and non-exclusive use Common Areas adjacent thereto — Rooms
110 and 111 — Restrooms; and Room 109 — Entry. Restaurant employees and customers
may also use the Golf Course Club House Parking Lot.
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 the spaces as described the
Restaurant-Lounge (Room 102), Kitchen (Room 101), Banquet Room (Room 103), Storage
(Room 104), Patio, Interior Rest Rooms (Rooms 110 and 111), Restroom Hallway (Room
112) Lobby/Hospitality Area (Room 109). The Concessionaire may also use the outdoor tent
area for restaurant related use when its use for that purpose is not in conflict with golf course
use or other use by the City.
II INTERIM CONCESSION FEES AND COSTS
The Concessionaire shall pay to the City Two Thousand Dollars ($2,000.00) per
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INTERIM CONCESSION AGREEMENT
month during the term of this Interim Concession Agreement, which payment shall be made
on or before the first day of each month during the term of this Interim Concession
Agreement; Provided that if the Concessionaire is unable to open the Restaurant during the
first two weeks of March, 2015, Concession Fees for the month of March shall be prorated to
cover the portion of the month during which the Restaurant was open.
The Concessionaire shall also pay for utility charges in accordance with the use of
rooms/facilities identified in Article I of this Agreement. Utility charges include charges for
water, sewer, electricity, Metro sewer utility, natural gas, CATV, Internet, garbage and
recycling.
III USE OF RESTAURANT FACILITIES
A. During the term of this Interim Concessionaire Agreement, the Concessionaire
shall be entitled to use and make ready for future long-term use the Restaurant Facilities,
including the Restaurant and Lounge facilities, the Banquet Room and the Kitchen, as well
as reasonable use of the common areas of the Golf Course Clubhouse Building, as
appropriate for use of and access to the Restaurant facilities.
B. During the term of this Interim Concessionaire Agreement, the Concessionaire
shall provide luncheon meals for the Rotary Club of Auburn, which generally holds its weekly
meetings in the Banquet Room (Room 103) on Wednesdays at noon. The fees to the
Concessionaire for providing such meals shall be in accordance with the prior
Concessionaire's agreement with the Rotary Club of Auburn, until the Concessionaire can
negotiate a new agreement with the Rotary Club of Auburn.
C. 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.
IV RELATED RIGHTS
The City shall have the right at any time to establish necessary, reasonable rules and
regulations in the use of the facility, grounds, golf course, and proximate areas provided that
the City shall give thirty (30) days written notice to Concessionaire prior to imposing such
rules and regulation. The rules and regulations may include, but are not limited to, the
following:
A. 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.
B. The City reserves the right to use the Banquet Room for events at no fee to the
City as may be mutually agreed to by the parties.
C. The City shall retain all rights to make improvements to the Club House
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INTERIM CONCESSION AGREEMENT
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.
V CUSTODIAL/MAINTENANCE
A. Concessionaire shall, at all times, keep the Restaurant Facilities, including the
Restaurant and Lounge facilities, the Banquet Room and the Kitchen, in a neat, clean, safe
and sanitary condition, and in compliance with all applicable codes and in accordance to the
customary standards of the restaurant industry.
B. The Concessionaire shall also keep the glass of all windows and doors clean
and presentable.
C. The Concessionaire shall 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. 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.
VI 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,
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 Federal Occupational
Safety and Health Act of 1970 (OSHA), and the Washington Industrial Safety and Health Act
of 1973 (WISHA). The 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.
VII 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
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INTERIM CONCESSION AGREEMENT
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
Auburn City Hall
25 West Main Street
Auburn, WA 98001
And to the Concessionaire at the following address:
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With a copy to:
VIII NO LIENS OR ENCUMBRANCES
It is understood and agreed by and between the parties 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.
IX INSURANCE
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INTERIM CONCESSION AGREEMENT
A. Fire, Earthquake, & Casualty Insurance:
(1) 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 Premises, restrooms and hallways, for damage
from fire, earthquake and other perils. Said insurance policy shall also insure the replacement
value of the kitchen equipment, other equipment provided or owned by the City and tenant
improvements provided by the Concessionaire pursuant to this Agreement. The proceeds on
a claim against said insurance policy for damage to the building, Premises, personal property
provided by the City, or tenant improvements, shall be used to repair damage to the building
and the Premises and to repair or replace any damaged personal property provided by or for
the City.
(2) The Concessionaire shall be responsible for maintaining its own fire and
hazard insurance on personal property and leasehold improvements placed within the
Premises and owned by the Concessionaire. 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 Risk Manager a Certificate of Insurance evidencing
commercial general liability insurance coverage ("CGL") providing coverage of at least
$1,000,000 per occurrence and $2,000,000 general 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 an additional insured on the Concessionaire's Commercial
General Liability insurance policy using ISO Additional Insured-Managers or Lessors of
Premises Form CG 20 11, or a substitute endorsement providing equivalent coverage. This
Certificate of Insurance and a copy of the amendatory endorsement, including, but not
necessarily limited to, the additional insured endorsement, evidencing the insurance
requirements of the Concessionaire 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 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'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. 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
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INTERIM CONCESSION AGREEMENT
contribute to it. The Concessionaire shall have the right to maintain a deductible level of up to
$5,000.
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.
XXIV HOLD HARMLESS, INDEMNIFICATION, & INDUSTRIAL INSURANCE
A. Hold Harmless & Indemnification: Each party hereto agrees to be responsible
and assumes liability for its own wrongful or negligent acts or omissions, or those of its
officers, agents, or employees to the fullest extent required by law. Each party agrees to
save, indemnify, defend, or hold the other party harmless against all liability, loss, damages,
and expenses, including costs and attorney's fees, resulting from actions, claims and lawsuits
arising or alleged to have arisen, in whole or in part, out of or in consequence of the acts or
failures to act of the other party, its employees, its subcontractors, its agents, or its assigns,
which arise in any way out of the performance of this Agreement. In the case of negligence of
both the City and the Concessionaire, any damages allowed shall be levied in proportion to
the percentage of negligence attributable to each party, and each party shall have the right to
seek contribution from the other party in proportion to the percentage of negligence
attributable to the other party.
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.
C. Extent of Indemnification: In the event that the Concessionaire is successful in
proving that any of the indemnity provided for herein is limited by RCW 4.24.115, the
Concessionaire shall defend, indemnify and hold harmless the indemnities to the full extent
allowed by RCW 4.24.115. In no event shall the Concessionaire's obligations hereunder be
limited to the extent of any insurance available to it. Likewise, in the event that the City is
successful in proving that any of the indemnity provided for herein is limited by RCW
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INTERIM CONCESSION AGREEMENT
I
4.24.115, the City shall defend, indemnify and hold harmless the indemnities to the full extent
allowed by RCW 4.24.115. In no event shall the City's obligations hereunder be limited to the
extent of any insurance available to it.
X RELATIONSHIP OF PARTIES
A. Concessionaire as 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 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.
XI 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.
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INTERIM CONCESSION AGREEMENT
XII COSTS & ATTORNEY'S FEES
In any action brought to enforce any provision of this Agreement, 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.
XIII 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.
XIV ENTIRE AGREEMENT
This Agreement 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.
XV MODIFICATION
This Agreement may only be modified by written instrument agreed to and signed by
both parties.
IN WITNESS WHEREOF, this Agreement has been entered into by and between the
City of Auburn and o ti- c4Ae QL,�+ °Sf-.:CvLc•
as of the W"t' day of 204-5:� .
CONCES IONAIRE
By: I IT
CITY OF AUBURN
Van" —P)ox],�w
B : Nancy s, Mayor
ATTEST:
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Dani Daskam, City Clerk
AUBURN GOLF COURSE CLUBHOUSE Page 8
INTERIM CONCESSION AGREEMENT
APPROVED AS TO FORM:
r�Daniel B. Heid, City Attorney
i
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INTERIM CONCESSION AGREEMENT