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HomeMy WebLinkAboutDavid Allen Davis - Concessionaire rA 3.\V s aDtS�X� 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 AUBURN GOLF COURSE CLUBHOUSE Page 1 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 AUBURN GOLF COURSE CLUBHOUSE Page 2 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 AUBURN GOLF COURSE CLUBHOUSE Page 3 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: V� l�►,o f� J&&`�C1VL� - ( P C, Sf� E C vi 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 AUBURN GOLF COURSE CLUBHOUSE Page 4 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 AUBURN GOLF COURSE CLUBHOUSE Page 5 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 AUBURN GOLF COURSE CLUBHOUSE Page 6 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. AUBURN GOLF COURSE CLUBHOUSE Page 7 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: talzj Dani Daskam, City Clerk AUBURN GOLF COURSE CLUBHOUSE Page 8 INTERIM CONCESSION AGREEMENT APPROVED AS TO FORM: r�Daniel B. Heid, City Attorney i AUBURN GOLF COURSE CLUBHOUSE Page 9 INTERIM CONCESSION AGREEMENT