HomeMy WebLinkAbout4654 Contract Number 4654
Vendor SCOTT ALEXANDER'S GOLF SHOP INC
Sub�ect Food & Beverage
Department Parks
File Class LEG 12-1
Begin Date 1/1/2007
End Date 3/31/2011
Review Date 4/15/2011
Vault Date
Comments Amendment 12/09 Amendment 1/11/2011
AMENDMENT TO
FOOD AND BEVERAGE AGREEMENT
WHEREAS, on September 13, 2007, the C�ty of Bremerton, a mumc�pal corporation of the State of
Washmgton, "C�ry" and Scott Alexander's Golf Shop, Inc , a Washmgton corporahon, "Contractor°
entered mto and Agreement to provide profess�onal restaurant and other food and beverage management
and serv�ces at the City of Bremerton Gold Mountam Golf Club wrth a termmation date of December 31,
2009, and
WHEREAS, on December 29, 2009, the C�ty of Bremerton, a mumcipal corporat�on of the State of
Washmgton, "C�ty" and Scott Alexander's Golf Shop, lnc , a Washmgton corporahon, "Contractor"
entered mto an Amendment to the Agreement to provide professional restaurant and other food and
beverage management and sernces at the C�ty of Bremerton Gold Mountam Golf Club extendmg the
term of the Agreement through December 3 l, 2010, and
WHEREAS, the parties desve to amend the Agreement to extend the term through March 31, 2011,
NOW THEREFORE, for mutual cons�deration, C�ty and Contractor agree as follows
Sect�on 3 of the Agreement entrtled "TERM" �s hereby amended to extend the
termmat�on date of the Food and Beverage Agreement to March 31, 2011
All other terms of the Agreement not spec�fically amended herem shall remam m full force and effect
CITY OF BREMERTON SCOTT ALEXANDER'S GOLF SHOP, INC
� �
, Mayor By SCOTT ALEXANDER
Its � �-1 � 1 I
DATE � I � DATE
By ARYL MATH
Its
DATE �I� � � �
ATTEST
(
o7i ,
Carol Etgen, C ty Clerk
APPROVED AS TO FORM
R ER LUBO ICH, City Attorney
R�LegalU.egal�F�les\Curtent Achve Fdes\Gold Moun�am\Food an verage Agreement Amendment (2010) doc
Amendment to Food qnd Beverage Agreemen�
� �rrnMErrr To
FOOD AND BEVERAGE AGREEIv�NT
WHEREAS, on September 13, 2007, the City of Bremerton, a mumc�pal corporahon of the State of
Washmgton, "C�ty" and Scott Ale:ander's Golf Shop, Inc., a Washmgton corporatwn, "ContracWr"
entered mto and Ageement to prov�de professional restaurant and other food and beverage management
and services at the C�ty of Bremerton Gold Mountam Golf Club, and
WHEREAS, the term of the Food and Beverege Agreement commenced on January 1, 2007 and shall
termmate on December 31, 2009, and
WHEREAS, the perties des�re to amend the Agreement to extend the term through December 31, 2010,
NOW THEREFORE, for mutual cons�derat�on, City and Conuacwr agree es follows
1} Sectlon 3 of the Agreemant ent�Hed "TERM" �s hereby amended M extend the
tertnmation date of the Food and Beverage Agreement to December 31, 2010
Z) Secdon 7 of tho Agrcement enhtled "COMPEN3ATIOIV" is hereby amended to read as
follows
A, Contractor shall cor pensate City for use of the Prem�ses for food and bevera�e be
eeenryensete�-feFSernces as follows
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1 Comcensatlon Contractor shall oav City the sum of s�x nercent (6%) of
revenuos recerved from all food and beveraite salas. net of sales tax. m eucess of one mJbon dollars
j$1.000.000.00).
2 �nal reconciliaHoa Final recona6ation and payment for each year will ba
made by January 31" of the followmg year
.
6�. Restaorant Closare — For Conditlons and Repair The restaurant shall remam open
unless the golf courses and related facdrties are closed pursuant to Sechon 7(D) and (E) of the Golf
Management Agreement or the Clubhouse is closed as a result of causes beyond the control, fault, or
negl�gence of the parties Such causes may mclude, without I�mdahon, acts of God or publ�c enemy; acts
� of the federal, state, or local govemmeats, fires, floods, ep�demics, voicamc eruptions, quarandne
Aneertdn�ent m Food and BevangtAgrcenratf
restncUons, strikes, fre�ght embargces, court orders, end unusualiy severe weather or other condrt�on that
� causes all or a portion of the Golf Club fac�lit�es to be closed for eutended penods of time Should euher
the C�ry or the Contractor fail W perfortn because of a cause descnbed m th�s subsecpon, the Ciry and tho
Contractor shall maka a mutually acceptable rev�s�on m the SCOPE OF SERV[CES and
COMPENSATION provided for m this Contract, mcludmg tecmmat�on of the Agament if the Premises
is dcemed unusable by the C�ry as a result of ma�or damage or destruct�on and the City elects not to
rebwld the same
In the avent that C�ty determmes that rt is necessary to close all or a port�on of the Clubhousa due
to regular mamtenance, repav, caprtal �mprovements, mclemeet weather, or s�m�lar condrtion, the C�ty
shall coordmate such closmg wrth the Contractor pnor w actual closmg Contractor shall comply wrth
the Dtrector's dec�swn to close all or part of the Clubhouse at no cost W the C�ty
In the event of closurc of all or a port�on of the Prem�ses as set forth m th�s subsect�on,
Contractor shall not be enUtled to any compensatwn pursuant w th�s sect�on, Sect�on 7, whethar fixed fee
or percentage fee, however, when feasible, the City and Contractor shall revise the SCOPE OF
SERVICES and COMPENSATION as notal above for partial closure of the Prem�ses, unless th�s
agreement �s termmated pursuant to Sectwn 14 (F) The City shali mcur no habdrty to Contractor for
lost revenue or other addmonal compensation as a result of any closure of ali or a port�on of the Prem�ses
as set forth m this subsect�on
All other tarms of the Agreement not spec�fically amended herem shall remam m full force and effect
� CITY OF BREMERTON SCOTT ALEXANDER'S GOLF SHOP, INC
� � � �.,�_
Mayor By SCOTT ALEXANDER
Its
DATE /�7�D DATE
By ARYL MAT
Its
DATE O %
ATTEST
�
Carol Etgen, �ry C erk
APP TO FORM
R ER LUBOVICH, City Atto
l R�I.egaN.egdlFda�Curtrnt Acuve FilalGold Mountam�Food and Beverage Ag�eemmt Amendmrnt (2009) doc
Anrendmenf w Food ard BeverogtAgrct�aU
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� FOOD AND BEVERAGE AGREEMENT
THIS AGREEMENT made and entered mto on the date fully executed by and between
the CITY OF BREMERTON, a mwucipal corporation of the State of Waslungton, heremafter
refened to as "City," and SCOTT ALEXANDER'S GOLF SHOP, INC , a Waskungton
Corporarion, heremafter referred to as "Contractor," to provide professional restaurant and other
food and beverage management and services pursuant to t}us Agreement, at the City of
Bremerton Gold Mountain Golf Club
WHEREAS, the City is the owner of Gold Mountaui Golf Club, wluch ownerslup
includes the land upon wh�ch said golf complex is Iocated, the buildtngs and otfier improvements
wluch aze a part thereof, and
WHEREAS, the Gold Mountam Golf Club consists of two 18 hole golf courses, the
Olympic and the Cascade course, ("Golf Courses" or "Courses"), a dnvmg range, and the
clubhouse contaimng a Pro Shop, restaurant, meetmg rooms and the Olympic room,
("Clubhouse") and other related facihhes and structures, collechvely also referred to herein as
("Golf Club")
WHEREAS, the C�ty prev�ously entered uito an agreement with Scott Alexander and
Daryl Matheny, Contractor's pnncipals ("Pnnc�pals"), for food, beverage, and golf management
and related services at the Gold Mountazn Golf Club, mcludmg, but not lumted to, food and
' beverage service, management of the Cascade and Olympic golf courses and dnvmg range, and
for providmg Professional Golf Associahon ("PGA'� professional golf services and lessons to
the facikty, and
WHEREAS, the agreement between the City and Contractor for these services expued
December 31, 2006 wluch has twice been extended by amendments to sazd agreement pending
negohahon of a new agreement, and
WHEREAS, the extensions were executed with the understandmg that new terms may be
negohated for a new agreement beglnnuig with the yeaz 2007, and
WHEREAS, the C�ty desues to enter mto a new agreement wrth Contractor for food and
beverage services enhtled "Food and Beverage AgreemenY' with terms effechve Januazy 1, 2007
and supersedmg the terms of the extended agreement, and
WHEREAS, the Parhes hereto have sunultaneously executed a separate agreement
entrtled "Golf Management Agreement" relahng to the management of the Cascade and Olympic
golf courses and dnvtng range and Pro Shop and for pmvidmg professional golf sernces and
lessons to the Gold Mountam Golf Club, and
WHEREAS, the Parties hereto have also sunultaneously executed a document enritled
� "Lease AgeemenY' relatmg to the lease to the Contractor of a certazn portion of the Gold
Food & Beverage Agreement
Page 1 of 16
� Mountam Golf Club ("Lease'� for operation of a Pro Shop, dnvmg range and Contractor's
pnvate cart rental busmess,
NOW, THEREFORE, m considerahon of the mutual covenants contamed herem, the
parhes agree as follows
SECTION 1 PURPOSE AND ADMINISTRATION
A The purpose of tlus Agreement �s to estabhsh a management servtces agreement
whereby contractor will provide food and beverage management and related serv►ces at City-
owned golf facihGes Ttus Agreement is not a lease, nor does it create a leasehold mterest other
than sumlar property mterest m Contractor to the City's facilihes
B Contractor will be responsible for performuig all work and/or sernces descnbed
herem The Conh�actor's performance will be momtored and reviewed by the City of Bremerton
Duector of Pazks and Recreahon, or lus or her designee, (heremafter "Duector") Contractor
shall report duectly to the Duector Reports and data requued to be provided by the Contractor
shall be delivered to the Duector Queshons of the Contractor regazdmg mterpretat�on of the
terms, prov�sions and requirements of tlus Agreement shall be addressed to the Director for
response
SECTION 2 PREMISES The facihhes of the Golf Club to be provided food and beverage
� sernces by the Contractor pursuant to ttus agreement mclude the Golf Courses and the
Clubhouse and related facihhes, heremafter ("Premises")
SECTION 3. TERM. Pursuant to IItS Revenue Procedure 97-13, the term of tlus Agreement
shall be three (3) yeazs commencmg on January 1, 2007 ("Commencement Date'� and shall
termmate on December 31, 2009, unless termmated eazher m accordance with Secrion 14
SECTION 4 SCOPE OF SERVICES
A General Serv�ces
1 The Contractor's respons�b�l�hes mclude providu�g food and beverage
sernce on the Premises mcludmg cart service on the Golf Courses and restaurant sernce �n the
Clubhouse Unless otherw�se noted, food and beverage sernce mcludes the restaurant and a11
other food and beverage sales and sernce at the Golf Club
B Spec�Tic Services In providmg the general servtces descnbed above, Contractor
shall provide not less than the followmg spec�fic services
1 Restaurant, Food and Beverage Service
a The Contractor will be responsible, and assume all costs and
expenses, for the operahon, management, and superviston of all food and beverage service
operarions on the Premises as proposed by Contractor and approved by City, including but not
lunited to, restaurant, vendwg maclunes and prov�dmg catenng for special events at the Golf
� Club Contractor shall be responsible for the furcuskung of adequate stock of food and beverage
supphes at its cost and expense
Food & Beverage Agreement
Page 2 of 16
-> b The Contractor shall be responsible for lurmg, trammg and
managuig sufficient employees to adequately staff the restaurant and lounge Conh�actor shall
provide high cal�ber quality staff properly cerUfied and permitted to prov�de food and alcohol
service as requued by state law
c The Contractor shall apply and prepaze the apphcahon and shall
assume respons�btltty for all costs and expenses of the applicat►on for an apphcable I�quor
license The Contractor shall abide by state requirements regazdmg use of alcohol at the Golf
Club The City shall execute any reasonable, appropnate documents as owner of the Golf Club
that may be req�ured m con�unchon with such apphcahon
d The Contractor shall be responsible for obtauung all necessary
licenses and pernuts for the operahon of a restaurant and lounge
2 Restaurant ManagemenL
a The Contractor shall manage the restaurant and lounge at the
Clubhouse for the City The C�ty shall provide the furniture, fixtures and equipment ("FF&E")
currently located m the Clubhouse, provided, that the Conh is providmg, and will replace as
needed, the FF&E listed m Ea�h�bit A attached hereto and by reference mcorporated herem
b The Contractor shall provide muntenance and repair services for
all lutchen apphances and fixtures, restaurant furmture, all FF&E witivn the restaurant,
Contractor owned tools and eqwpment, and all Contractor leased equipment Replacement of
C�ty owned eqmpment shall be m the sole discrehon of the City and the C�ty shall arrange for
equipment replacement m accordance with avulable fundmg
c Contractor shall provide adequate nohce and signage at all pomts
` of entry to the restaurant as well as the front entrance to the Clubhouse des�gnahng that the
J restaurant is open or closed for busmess Contractor shall adequately staff and pmvide prompt
sernce for customers to the restaurant
3 Attend Meehngs Contractor agrees to be avazlable to attend regulaz and
special meetwgs of the Golf Complex Boazd, Pazks and Recreahon Commission and C�ty
Council, and shall be prepazed to discuss issues and ideas of mterest to the Contractor and City
C Prfcmg of Sernces
1 Food and beverage menus and pnces shall be approved by the Duector
SECTION 5 OTHER DUTI�S AND RESPONSIBILITIES
A Personnel The Contractor shall provide competent personnel necessary for such
operahons and shall trazn and supernse ihem in theu work and shall pay them for theu sernces
at the Contractor's sole cost and expense Contractor shall supervise, direct and trazn staff to
perform dut�es and meet requirements for sales and services wluch aze, m the opmion of the City
and Contractor, necessary Contractor shall provide an on-gomg staff trazmng program w�th
emphasis on customer trauung
B Credit Rahng Contractor shall mau�tam a good credit ratmg m all commercial
transachons so as not to discredit the reputahon or name of the City of Bremerton
l
Food & Beverage Agreement
Page 3 of 16
� C Quarterly Revtew Contractor and City shall meet on a quarterly schedule, or
as otherwise as mutually agreed, to evaluate operahons at the Golf Club and the performance of
the parties pursuant to tivs agreement and to make mutually ageeable changes
SECTION 6 OPERATING POLICIES AND PROCEDURES The Contractor will
A Operate the restaurant pursuant to the rules and regulahons established by
the City Council and the Director
B Expel unruly persons or those under the mfluence of mtoxicants from the
Premises under Contractor's control
C Not foster nor pemut any �Ilegal achvity witlun the restaurant under
Contractor's control
D Answer and handle all complaznts and shall supernse a publ�c relahons
program In dealuig with the pubhc, Contractor will not speak towazd City pohcies or dec�sions
m a derogatory manner Contractor shall explam and support city pohc�es to staff and the
golfing pubhc
E Not use the Premises for ancillary, revenue-producmg acUvities or soc�al
achvihes, unless expressly authonzed by the City The pazhes aclmowledge that Contractor
� conducts certazn pnvate busmess operahons pursuant to the L,ease executed w�th the C�ty for
operahon of a Pro Shop, dnvmg range and Contractor's pnvate cart rental busmess and fiuther
that Contractor subcontracts lessons at the Golf Club
F Provide service to meet pubhc demand and shall keep the restaurant open
each day that the golf courses aze open for play, and at other reasonable hours as prescnbed by
the City, except Thanksgivwg and Chnshnas, at Contractors ophon, days the Greens
Supertntendent closes the course due to mclement weather and except when closed as set forth in
Sechon 7(C)
SECTION 7 COMPENSATION
A. Contractor shall be compensated for sernces as follows
1 Food and Beverage Sales
a Fixed Fee Contractor shall be pa�d the annual sum of one m:lkon
dollars ($1,000,000 00) The compensahon shall be pazd m weekly mstallments Each weekly
payment will be m an amount equal to the gross food and beverage revenue, net of sales tax for
the week, unhl gross revenues, net of sales tax, reach one m:ll:on dollars ($1,000,000 00)
b Percentage Fee In addihon, throughout the term of tlus contract,
Contractor shall be pazd mnety four percent (94%) of revenues received from all food and
beverage sales, net of sales tax, m excess of one mtlhon dollars ($1,000,000 00) but m no event
shall tivs percentage fee exceed the fixed fee m any given yeaz set forth in Sechon 7(A)(i)(a)
� above
Food & Beverage Agreement
Page 4 of 16
2 �nal reconciliahon Final reconciliahon and payment for each yeaz will
� be made by January 31 of the followmg yeaz
B W�thholdmg of Payments to Contractor In the event the Contractor is 60 days
or later m payment of lease payments associated with the Lease, City may withhold and apply all
momes due to Contractor from City under tlus Agreement to offset any such amounts due to City
from Con�actor under said Lease
C Restaurant Closure — For Cond�hons and Repa�r The restaurant shall remam
open unless the golf courses and related facihUes aze closed pursuant to Sechon 7(D) and (E) of
the Golf Management Agreement or the Clubhouse is closed as a result of causes beyond the
control, fault, or neghgence of the parties Such causes may mclude, without lumtat�on, acts of
God or pubhc enemy, acts of the federal, state, or local governments, fires, floods, epidemics,
volcazuc eruphons, quaranhne restnchons, stnkes, &eight embargoes, court orders, and
unusually severe weather or other condihon that causes all or a porhon of the Golf Club facihhes
to be closed for extended penods of hme Should either the City or the Contractor fatl to perform
because of a cause descnbed in tivs subsect�on, the City and the Contractor shall make a
mutually acceptable revision m the SCOPE OF SERVICES and COMPENSATION provided for
m tivs Contract, mcludmg temunat�on of the Agreement �f the Prevuses is deemed unusable by
the City as a result of ma�or damage or destruchon and the City elects not to rebuild the same
In the event that City detemunes that rt�s necessary to close all or a portion of the
Clubhouse due to regulaz muntenance, repau, capital improvements, mclement weather, or
� similaz cond�hon, the C�ty shall coordmate such closmg with the Contractor pnor to actual
closmg Contractor shall comply wrth the Duector's decision to close all or part of the
Clubhouse at no cost to the City
In the event of closure of all or a portion of the Premises as set forth m tlus subsechon,
Contractor shall not be enhtled to any compensahon pursuant to ttus sechon, Secuon 7, whether
fixed fee or percentage fee, however, when feasible, the City and Contractor shall revise the
SCOPE OF SERVICES and COMPENSATION as noted above for partial closure of the
Premises, unless tivs agreement is termmated pursuant to Sechon 14 (F) The City shall mcur no
habihty to Contractor for lost revenue or other addihonal compensahon as a result of any closure
of all or a pomon of the Premises as set forth m ttus subsechon
SECTION 8 CITY RESPONSIBILITIES - UTILITTES All electnc power, water, sewer,
gas/propane, street ut�l�ty, gazbage and telephone service related to ttus agreement shall be pazd
by the City If upon review the City determmes that act�on is needed to address excessrve
consumphon, Contractor w�ll promptly respond and take appropnate achon to remedy the
excessive consumption Each party shall pay mtemet and web page costs and expenses related to
theu duhes and responsibihhes under ttus Agreement, unless otherw�se agreed
SECTION 9 CAPITAL IMPROVEMENTS AND FIXTURES Contractor shall not make
any alterahons, add�rions or improvements m the Gold Mountazn Golf Club, �ncludmg the
restaurant, v�nthout first obta�mng the consent of C�ty m wntmg, wluch consent can be withheld
� at C�ty's sole discrehon All alterahons, addihons and unprovements, shall be at the sole cost
Food & Beverage Agreement
Page 5 of 16
� and expense of Contractor, and shall remazn m and be surrendered wtth the Clubhouse as a part
thereof at the termmahon of t}us Agreement except for those improvements and fixtures suppl�ed
by the Contractor wtuch at the tune of this Agreement aze idenhfied on the attached Exh�b�t A
If Contractor performs work with the consent of C�ty, as provided above, Contractor agrees to
comply wrth all laws, ordmances, rules and regulahons of the City and any other authonzed
pubhc authonty Contractor fiuther agrees that workmanstvp w�il be of a reasonable commercial
quahty, m color schemes m accordance wrth current builduig, standards, and free of inechazucs
hens Contractor further agees to save City free and harmless from damage, loss or expense
ansmg out of such work
SECTION 10 COLLECTION OF FEES, FINANCIAL REPORTING, AUBITING AND
TAXES Pursuant to the Golf Club Revenue Bond resolutrons, the City irrevocably pledged
gross revenues from the Golf Club as secunty for bond repayment Thetefore, all gross revenues
from any sowce shall first be deposrted m the C�ty's bank account and disbursed pursuant to tlus
Agreement
A. Pomt of Sale System C�ty shall be responsib(e for purchasu►g, sethng up and
mawta�ng a pomt of sale system through wluch all transacnons at the Golf Club wtll be
processed
1 C�ty's Responsibil►hes The City shall provtde a caskueru►g system for
use by the Contractor City shall provide uuhal trammg on the operahons of the casluenng
system All subsequent traullng of Contractor's staff shall be the responsibthty of the
\ Contractor The City shall also be responsible for maintenance of network, wumg, software, and
J eqwpment The City will provide repau parts as needed for eqmpment
2 Contractor's ResponsibiLt�es Contractor shall be responsible for any
addihonal hazdwaze, user l�censes, and software that Contractor chooses to u�stall The
Contractor shall also be responsible for operaring supplies such as receipt paper, toner, and
labels Contractor shall provide addrtional formal tramu►g for Contractor's employees after
mitral tra�mng sessions have been performed by the City New casluer employees and office
managers must have suitable knowledge of the Golf cash�enng system m order to perform theu
duhes m an efficient and accurate manner Ttus trauung may be provided by Contractor
personnel
3 Mod�ficaUons Any other changes, addihons, or mod�ficahons appl�cable
to the City owned caslveruig system would need mutual agreement as to payment responsibility
B Rece�phng Contractor and/or subcontractor shall collect for, and on behalf of,
the Crty all gross revenue, mcluduig but not lunited to food and beverage sales, non-sufficient
fund check retum fees, and all other fees at the Golf Club m stnct accordance with the schedule
of fees estabhshed by the C�ty, unless other mstrucrions are given m wnhng to the Contractor
Nettmg of transactions is prokubrted All revenue collected from transact�ons under ttus
agreement must be processed through the Pomt of Sale System and deposrted as provided m
subsecdon 10(C) All food sernce gross revenue, mcludtng from toumaments, group funchons
and special package offenngs, must be recorded, collected, and deposrted m a manner wtuch wtll
dispense a dated receipt to be given to each customer
/
Food & Beverage Agreement
Page 6 of 16
� C Depos�ts All deposrts must be prepazed m a hmely manner defined as %z hour
ahead of scheduled pick-up and composihon of deposit shall remaui mtact and a cleaz audit tratl
mamtazned The City wtil provtde and pay for counet serv�ce Any delays causmg addffional
"premise chazges" will be paid by Contractor All deposrts will be made mto a smgle account
established for the Golf Club Settlements and appropnate d�sbursements will be made from tlus
account Contractor shall be responsible for any loss or theft of City funds wtule the same are ui
�ts possession or control Contractor shall provide City wrth a fidelrty bond and a performance
bond as requued in tlus Agreement Contractor and any subcontractor shall comply with
accounhng procedures as may be requued by the City to comply with state laws, regulahons and
audit review reqwrements
D Reports Contractor shall provide to the City da�ly reports of food and beverage
sales achvity and receipts tn a format to be provided by the Duector and Fmance Officer, and
shall structure theu accounhng system m a method sahsfactory and acceptable to the City The
reports will be forwazded to the Director and must be received by the 2nd busmess day followmg
the day of act�vity, excludmg Fndays, Saturdays and Sundays which will be due on Tuesdays
The reports must agree with the correspondmg deposrt for the day In addihon, the Contractor
shall submit a copy of rts prev�ous yeaz's operahng statement by March 31 to demonstrate
Contractor's financial abihty to mamtam operahons under ttus Agreement
E Aud►ts All revenue and fees collected at the Golf Club aze City revenues
and sub�ect to audit by the State Audrtor, City Intemal Audrtor, or City lured Cerhfied Pubhc
Accountants Contractor shall pernut the City, from tune to hme as the City deems necessary,
� through rts designated representahves, to mspect and audrt m Bremerton, Waslvngton, at any
reasonable hme, all pertment books and records of Contractor and any other person or enhty that
has performed work m connechon with or related to Contractor's sernces under tlus Agreement
to venfy the accuracy of accountmg records and shall suppty the City with, or shall pernut the
Crty to make a copy of any books and records and any porhon thereof, upon the C�ty's request
Contractor shall ensure that such mspecuon, audrt and copyu�g nght of the Crty is a condihon of
any contract, agreement or other arrangement under wluch any other person or enhty is permitted
to perform work u► conn�t�on w�th or related to Contractor's sernces under tlus Agreement
The Contractor shall take immediate correcttve act�on on all pnor, current or future mternal
control weaknesses as d�rected by the City �
F Taxes Pursuant to the City's bond resoluhons on the Golf Club fac�htaes, the
Contractor will remrt to the City all gross revenues collected Sales tax from Contractor's
achvihes remitted to the City will be held by the City and will be returned to the Contractor
weekly or as othenvise agreed City shall retam and remrt sales taxes on revenues from food and
beverage sales As an mdependent contractor, the Contractor acknowledges that it is responsible
for payment of any local, state, state busmess and occupahon tax, or federai taxes or fees v�nth
respect to the Contractor's busmess, mcludmg sales tax, for its activ�hes The Contractor shall
pay any and all apphcable taxes when due
G Cred�t Card Costs and Fees Contractor shall be responsible for all cred�t cazd
costs and related fees mcurred for food and beverage serv�ce pursuant to tkus agreement
�
Food & BeverageAgreement
Page 7 of 16
SECTION 11 MAIN'I'ENANCE OF RECORDS The Contractor shall keep and mauitau� on
_ � a current basis all books and records, includmg the operahng accounts, to support its
management and operat�ons of the Prei►uses under tkvs Agreement The City or �ts authonzed
representaUve shall have the authonty to uispect, audit, and copy, upon reasonable nohce and
from tune to tune, any records of the Contractor regazding rts bilhngs, payments or work under
tkus Agreement Contractor shall retam these records for mspect�on, audrt, and copyuig for at
least three (3) yeazs from the date of complehon or ternunahon oF tlus Agreement, or as
otherwise requued by the Waslungton Secretary of State General Records Retenhon Schedule
for all Local Govemment Agencies m Wastungton State Conhactor shall, at all tunes, provide
the City w�th all records for the pnor three (3) years that relate to the financial matters of the
facilmes managed by Contractor under ttus Agreement
SECTION 12 AUDIT OF PAYMENTS The City, e�ther duectly or through a destgnated
representat�ve, may audrt the records of the Contractor at any tune dunng the three (3) yeaz
penod established by Sechon 11, MAINTENANCE OF RECORDS If an audit discloses that
payments to the Contractor under Sechon 7, COMPENSATION, were m excess of the amount
to wluch the Contractor was enhtled, or that the payments to the City were less than the amount
to wluch the City was enhtled, then Contractor shall repay the amount of the excess or deficiency
to the City If an audit discloses that payments to the C:ty under Sectaon 7, COMPENSATION,
were m excess of the amount to wtuch the City was enhtled, or that payments to the Conhactor
were less than the amount to wlvch the Contractor was ent�tled, then the City shall repay the
amount of the excess or deficiency to the Contractor
� SECTION 13 ASSIGNMENT Contractor shall not etther voluntanly or by operahon of law
ass�gn, transfer, mortgage, pledge, hypothecate, or encumber ttus contract or any mterest therem
and shall not subcontract the obhgahons under tkus Agreement, or any part thereof, or allow any
person (employees, agents, servants, and mvrtees of Contractor excepted) to use the Golf Club
Facihhes, or any porhon thereof, wrthout the pnor wntten consent of the C�ty Any such
assignment, subcontrachng or use wtthout comphance w�th the terms of ttus pazagraph shall be
vo�d and shall conshtute a default under the terms of tlus Contract If Contractor is a
corporahon, any transfer of ttus Contract from Contractor by merger, consohdahon, or
hquidahon, or any change m the ownerslup or power to vote m a ma�onty of the outstandu�g
vohng stock of Contractor shall conshtute an assignment for purposes of tivs paragraph Any
consent to one ass�gnment, subcontrachng, or use by any other person shall not be deemed to be
a consent to any subsequent assignment, subcontrachng, or use by another person Consent to
any such ass�gnment, subcontractmg or use shall m no way reheve Contractor of any Lability
under tlus Agreement Assignment by Contractor to a financial uvshtuuon holdmg a secunty
mterest m ttus Agreement shall not be considered to be a violahon of the consent reqmrements of
tkus Agreement Consent for any subsequent assigiunents by sazd financ�al u�shtut�on will not be
unreasonably withheld, however, any ass�gnee must have expenence and be knowledgeable in
golf and food and beverage operahons
SECTION 14 TERMINATION Th�s Contract w�ll temunate upon the happenuig of any of
the following events
� A Upon rts normal termuiatton if not renewed
Food & Beverage Agreement
Page 8 of 16
J B Upon termmahon of the Lease and/or Golf Management Agreement
C Upon the death of both of Contractor's Pnncipals
D By mutual wntten agreement
E Breach of tlus Agreement as set forth m Sechon 15 below
F Ma�or damage or destruchon o£ the golf Club property, structures or eqwpment
that ts the sub�ect of tlus Agreement, when the City dec�des not to rebuild, and that damage or
destruchon will prevent Contractor from substanhally perfornung theu obligahon under tlus
Agreement
SECTION 15 SREACH
A In the event that erther party ciauns that the other is m a substanrial breach of any
of the provisions of Uus Contract, norice of the breach shall be subnutted to the party alleged to
be m breach and the party m breach shall have thirty (30) days from receipt of the not�ce withm
w}uch to correct any act�vity or conduct clatmed by the other to have conshtuted a substanhal
breach of tlus Contract The nohce shall idenhfy the nature of the breach and the contract
provisions violated
� B In the event that the pazty m breach shall fazl to correct the acUvity clazmed to
conshtute a substanhal breach of tlus Contract withu► thuty days of receipt of the nohce of
breach, the party claimuig breach may
1 Issue a nohce of ternunahon, and/or
2 Seek �udictal remedy or specific performance, and/or
3 Pursue any other remedy ava�lable at law or equity
C The Contractor is sub�ect to immediate temvnabon upon wntten nohce by City if
1 Contractor violates any fiduciary duty to the City by nusappropnatmg or
not properly accounhng for or mishandlmg City funds as detemuned by the City or Washmgton
State Auditor, or
2 Contractor vacates or abandons the Golf Club facihhes under Contractor's
responsibilrty
D Upon rece�pt of nohce of temvnahon by Contractor, wtuch is issued by the City,
the City shall have the nght to
1 Enter and take possession of the facihhes, and/or
2 Bnng suit for and collect all fees and portions of gross revenue or any
other mocues requued to be pazd to the City wtuch shall have accrued to the tune of ternunahon
of the Contractor's nghts
� E Upon wntten not�ce of termmahon by the City, Contractor will have tlurty (30)
days to vacate the Premises unless the City elects to take immediate possession as set forth m
Food & Beverage Agreement
Page 9 of 16
� paragraph D above Termmarion shall be affected by sernng a Nohce of Termmahon by
cerhfied mail (return receipt requested) or by personal delivery upon the Contractor setting forth
the manner m which the Contractor is m default
F Neither the C�ty nor the Contractor shall have breached ttus Contract by reason of
the closmg of all or a pomon of the golf course facihhes as set forkh in Sechon 7(C))
G Examples of a breach by the Contractor wtuch warrants termmahon, if not cured,
shall mclude but not be hnuted to
1 Misappropnat�on or rrushandluig of C�ty funds
2 Contractor makes any general ass�gnment or general arrangement for the
benefit of creditors or the filmg by or agaznst Contractor of a pehhon to have Contractor
adjudicated as bankrupt, or a pehhon for reorgaruzahon or arrangement under any law relatmg to
banlauptcy (unless, m the case of a pehhon filed agaznst Contractor, the same is dismissed
wrttun sixty (60) days or the appomtment of a trustee or a receiver to take possession of
substantially all of Contractor's assets located at the Premises or of Contractor's mterest m tlus
Agreement, where possession is not restored to Contractor v�ntivn tturty (30) days or the
attaclunent, execuhon, or other �udicial seizure of substanrially all of Contractor's assets located
at the Premises or of Contractor's interest m ttus Agreement where such seizure is not dischazged
wtthm thirty (30) days
3 Contractor assigns all or part of its mterest m t}us Agreement wrthout pnor
wntten consent of the City pursuant to Sechon 13
� 4 Nonpayment of outstandmg current habihhes wrtlum m�ety (90) days and
fazlure to pay Federal, State, and local taxes and l�cense fees when due
5 Contmwng mattenhon or neglect of duhes
6 Conv►chon of a felony or convichon of a non-felony cnme of d�shonesty,
theR or deceit of either of the Pnncipals
SECTION 16 PURCHASE OF CONTRACTORS MERCHANDISE In the event the City
takes over management of the Golf Club facihhes, after expuahon of Uus Agreement or eazher
termmahon by the City, Contractor reserves the nght, tf tt so elects at tts d�scret�on, to have the
City purchase the Contractor's food and beverage merchand�se and moveable fwiuslungs
ident�fied m Eahibit A at Conh�actor's cost less depreciahon mutually agreed upon If there �s no
agreement, tivs amount shall be estabhshed by a mutually agreed upon mdependent apprazser
The City shall make payment wrthm 90 days of expirarion or ternvnahon, less any momes owmg
to the City under the terms of Uus Agreement, the Golf Management Agreement or under the
terms of the Lease The City may, at its dtscrehon, replace any of the rtems m Exh�bit A, ui
wluch case, the replaced rtems will belong to the Ctty and not be sub�ect to purchase by the City
as provided herem
SECTION 17 INDEPENDENT CONTRACTOR
A The Contractor is engaged as an mdependent contractor and will be responsible
for any federal, state, and local taxes and fees appl�cable to payments hereunder
�
Food & Beverage Agreement
Page 10 of 16
B The Contractor, rts subcontractors, and theu employees, are not employees of the
� City and aze not elig�ble for any benefits through ihe City, ►ncludmg w�thout hmrtahon federal
social secunty, health benefits, workers' compensahon, unemployment compensatton, and
retuement benefits
C The parhes agree and aclmowledge that the Contractor is an mdependent
contractor and not the agent or employee of the City of Bremerton, and that no habihty shall
attach to the Crty as a result of the acts or otrussions of the Contractor, rts agents or employees
D The Contractor shall be respons�ble for w�thholdmg and paymg all payroll taxes
for any person hued by them to perform the duries they aze requued to perform under the terms
of tlus Agreement They aze also responsible for all taxes owed to any govemmental agency as a
result of the momes paid to them under We terms of ttus Agreement
SECTION 18 INDEMNIFICATION, INSURANCE, BOND
A Indemmficahou
1 Contractor agrees to defend, mdemmfy and save hazmless the City, rts
appomted and elected officers, employees and volunteers, from and agauvct any and all habthty,
loss, cost, damage and expenses, mcludu�g costs and attomey fees m defense thereof because of
achons, clazms or lawsutts for damages resulhng from personal or bod�ly m�ury, includmg death
at any tune resultmg there from, sustazned or alleged to have been sustamed by any person or
� persons and on account of damage to property, ansmg or alleged to have ansen duectly or
indirectly out of or m consequence of or the performance of ttus Agreement, whether such
m�unes to persons or damage to pmperty is due to the willful or neghgent acts or oirussions of
Contractor, the�r subcontractors or agents Tlus provision shall be mapphcable to the extent the
City is �udicially found solely neghgent for such damage or m�ury
2 Should a court of competent �unsdiction deternune that Uus Agreement is
sub�ect to RCW 4 24 115, then, m the event of habihty for damages ansmg out of bodily m�ury
to persons or damages to property caused by or resulhng from the concurrent negLgence of the
Contractor and the City, ds officers, officials, employees and volunteers, the Contractor's
liability hereunder shall be only to the extent of the Contractor's neghgence
B Insurance Reqairements
1 The Contractor shall procure and ma�ntam for the durahon of tlus
Agreement, msurance agaznst clauns for ui�unes to persons or damage to property w}uch may
anse from, or m connection with, the performance of the work hereunder by the Contractor, its
agents, representarives, employees or subcontractors
2 The Contractor shall pmvide a Certef:cate of Insurance evidencmg
a Automob:[e L�abtlety Insurance with no less than $1,000,000
combined smgle hmrt per accident for bodily m�ury and property damage, and
b Commerc:al General Leab:l:ry Insurance wntten on an occurrence
bases with limrts no less than $1,000,000 combined smgle limit per occurrence and $2,000,000
aggregate for personal m�ury, bodily m�ury, and property damage Coverage shall mclude but
� not be lumted to blanket contractual, pmducts/completed operahons, broad form property
damage, hquor Uabihty, and employer's l�abil�ty
Food & Beverage Agreement
Page 11 of 16
� 3 Any payment of deduchble or self msured retent�on shall be the sole
responsibil�ty of the Contractor
4 The City, mcludmg its offic�als, employees, and volunteers, shall be
named as an addihonal msured on the insurance pohcy, with respect to work performed by, or on
behalf of, the Contractor and a copy of the endorsement nammg the City as add�honal msured,
approved by the Crty's Risk Manager, shall be attached to the Cert�cate oflnsurance
5 The Contractor's uLSUrance shall contazn a clause statmg that coverage
shall apply sepazately to each msured agaznst whom claim ts made or stut �s brought, except w�th
respect to the lumts of the msurer's l�abil�ty
6 The Contractor's insurance shall be the pnmary and non-contnbuhng
msurance wrth respect to the C�ty's msurance and the City shall be g�ven tluriy (30) days pnor
wntten nohce of any cancellahon, suspens�on or matenal change m coverage
7 Acceptabihty of Insurers Insurance is to be placed v�nth an tnsurer w�th
a Bests' rahng of no less than A XIII, or w�th an msurer acceptable to the City
8 Subcontractors Contractor shall mclude all subcontractors as msureds
under its pohcies or shall fumish separate cerhficates for each subconh�actor All coverage for
subcontractors shall be sub�ect to all of the reqwrements stated herem
C Bond The Contractor shall conrinuously mazntaw at its expense an employee
dishonesty bond coveru�g collechon of fees on the Premises for the benefit of the C�ty The bond
shall be m an amount not tess than SEVENTY-FIVE THOUSAND AND NO/100 DOLT.ARC
($75,000 00) The Contractor must add�honally provide broad form money and secunhes
coverage both mside and outside the Premises m an amount not less than FIVE THOUSAND
� AND NO/100 DOLLARS ($5,000 00)
D Proof of Insurance Proof of the above requuements must be prov�ded to the
City upon execut�on of this Agreement The pol�cies required herem shall prov�de not less than
thuty (30) days pnor wntten notice to the Ctty of any cancellahon, expuahon, modificanon, or
reduchon m coverage or l�abiltty lu►uts
SECTION 19 SUBCONTRACTING T'he Contractor shall not subcontract rts work under
tivs Agreement, m whole or in part, without the wntten approval of the City The City reserves
the nght to review and approve any subcontracts pnor to execuuon to ensure comphance with
the provis�ons of tivs Agreement The Contractor shall reqwre any approved subcontractor to
agree, as to the porhon subcontracted, to comply with all terms and condihons as specified m tius
Agreement Notwithstandmg City appmval of a subcontractor, the Contractor shall remazn
obl�gated for full performance hereunder, and the Ctty shall mcur no obhgahon other than ►ts
obhgahons to We Conhactor hereunder Any subcontracts approved by the City shall be
sub�ect to and shall not egtend any r�ghts granted beyond those set forth m th�s Agreement
to Contractor Contractor agrees that �f subcontractors are employed m the performance of ttus
Agreement, Contractor and its subcontractors are sub�ect to the requuements of the State of
Waslungton, Workers' Compensahon Laws
SECTION 20 CONDITION OF PREMISES The Contractor has u�spected and exanuned
� the Prem�ses and all fac�littes and fixtures thereon and accepts the same m�ts present condihon
The Contractor shall not make any alterations, changes, or add�hons to any fixriues or equipment
Food & Beverage Agreement
Page 12 of 16
owned by the City without the wntten consent of the Duector The Contractor shall not commit,
U pernut, or allow any nuisance, waste, or m�ury m, upon, or to the golf course, or to pernut the use
of the golf course for any illegal or immoral purpose
SECTION 21. NOTICE Any norice provided for under ttus Agreement shall be sut�icient if m
wntmg and dehvered personally to the followmg addressee or deposited m the Umted States
Mail, postage prepazd, certified mail, retum rece�pt requested, addressed as follows, or to such
other address as the receivmg party hereafter shall specify m wnt�ng
City Dvector of Pazks and Recreahon
City of Bremerton
345 6th Street, Suite 600
Bremerton, Wastungton 98337
Contractor
SECTION 22 PAYMENTS TO VENDORS A1VD SUBCONTRACTORS The Contractor
shall pay hmely all supphers, lessors, and contractors providmg services, maYenals or equipment
for carrymg out rts obhgahons under tlus Agreement The Contractor shall not take or fazl to
take any achon m a manner that causes the City ot any matenals that the Contractor provides
� hereunder to be sub�ect to any claim or hen of any person without the City's pnor wntten
consent
SECTION 23 BUSINESS LICENSE Contractor shall obtun a City of Bremerton busmess
license as requtred by Chapter 5 02 of the Bremerton City Code pnor to begmm�g work under
tlus Agreement
SECTION 24 CONFIDENTIALITY OF RECORDS The City will, to the extent allowed
by law, keep all of Contractor's and subcontractor's financial cost mformaUon confidenhai,
uniess requued to disclose the informarion as a result of the Wastungton Pubhc Records
Disclosure law, Ch 42 56 RCW or by court order
SECTION 25 PRIOR CONTRACT EXTENSIONS SUPERSEDED AND
TERMINAT'ED The pnor agreement between the City and Contractor for these sernces had
an expuahon date of December 31, 2006 wluch has tw�ce been extended penduig negohahon of
tivs agreement The extensions were executed with the understandmg that new ternis may be
negohated for a new agreement begmnmg wrth the yeaz 2007 Accordmgly, tlus Agreement
supersedes the terms and cond�hons of the fourth amendment extenduig the 2006 agreement
executed on January 18, 2007 and the fifth amendment extendmg the 2006 agreement executed
on or about Apnl 2, 2007 to the extent ttus Agreement is mconsistent w�th the pnor agreement
and amendments and upon execuhon of tlus Agreement, sazd agreement and amendments shall
� ternunate
Foad & Beverage Agreement
Page 13 of 16
J SECTION 26 OTHER
A. Costs aud Attorney Fees If, by reason of any default or breach on the part of
e�ther pariy m the performance of any of the prov�sions of ttus Agreement, a legal achon is
mstrtuted, the losmg party agees to pay all reasonable costs and attomey fees m connechon
therewrth It is agreed that the venue of any legal achon brought under the terms of ttus
Agreement shall be m K.itsap County
B Consttvchon Ttvs Agreement shall be construed m accordance with the laws of
the State of Waslungton The provisions of tlus Agreement have been negohated by the parties,
and when mterprehng the provisions of tlus Agreement, there shall be no presumphon of
draftsmanstup for or agamst e�ther party
C Severability The mvalidity or unenforceabihty of any provision hereof shall m
no way affect the validity or enforceabihty of any other provision
D Warver Failure to msist upon stnct comphance with any terms, covenants
or conditaons of tlus Agreement shall not be deemed a wazver of such, nor shall any waaver or
rehnqu�shment of such nght or power at any hme be taken to be a wazver of any other breach
The C�ty and the Contractor shall not be deemed to have waived any breach of ttus Agreement
by the other party except by an express waiver m wntuig An express wntten waiver as to one
breach shall not be deemed a wazver of any other breach not expressly idenhfied, even though
� the other breach is of the same nature as that wazved
E Amendment The City and the Contractor may amend t3us Agreement at any
hme only by wntten amendment executed by the Ctty and the Contractor The City and the
Contractor agree that ttus Agreement shall be amended at any hme if, m the opimon of bond
counsel to the City, such amendment ts necessary to preserve the tax exempt status of mterest on
obhgahons of the City issued to finance the Golf Club
F Enhre Agreement Tlus Agreement contazns the entue agreement between the
parties with regards to the sub�ect matter set forth hereu► There are no other representahons
with regazds to the sub�ect matter, either orally or m wntmg From January 1, 2007 unhl
execution of tlus agreement, tlus agreement supersedes the pnor agreement between the Crty and
Contractor for these services wluch had an expuahon date of December 31, 2006 and wluch has
twice been extended by amendments on January 18, 2007 and on or about Apn12, 2007 penduig
negohahon of a new agreement Upon and followmg the execuhon of [tus Agreement, thts
agreement w�ll replace the pnor agreement m rts ent�rety
G Nondiscnaunahon. Conh�actor shall not d�scnmmate m employment or sernces
to the pubhc on the basis of race, color, nahonal ongm, sex, religion, age, mantal status,
physical, mental or sensory dtsabihty except m an employment act�on based on a bona fide
occuparional qual�fication
�
Food & Beverage Agreement
Page 14 of 16
� H L�ens The Conh�actor agrees that rt shall pay, or cause to be paid, all costs and
expenses for work done and matenals dehvered to the Premises and shall keep the Prenuses free
and clear of all liens for work performed thereon
I Remedies Rights under tlus Agreement ue cumulative, the fa�lure to exerc�se
on any occas�on any nght shall not operate to fodeit such nght on another occasion T'he use of
one remedy shall not be taken to exclude or waive the nght to use another
J Washmgton law and Forum Tlus Agreement shall be construed accordmg to
the law of the State of Wastvngton Any hhgahon between the City and the Contractor ansmg
� under tlus Agreement or out of work performed under ttus Agreement shall occur, if m the state
courts, m the I{itsap County Court havmg �unsdictaon thereof, and if m the federal courts, m the
Umted States Distnct Court for the Westem Distnct of Was}ungton
CIT'Y O B TON SCOTT ALEXANDER'S GOLF SHOP, INC
� "�"'r�
CARY BOZEMAN, Mayor By S OTT ALEXANDER
Its �����
DATE � lo� - G� DATE I'L � �
�
By .4x
Its
DATE 7 �o D /
ATTEST
�1�i1� �
Paula Johnston, ity ` y C Clerk o
APPROVED AS TO FORM
RO ER LUBO ICH, City Attomey
R\LegalV.egal�Files\Current Achve Files\Gold Mountai everege Agreemen[ FINAL doc
�
Food & BeverageAgreement
Page15of16
,
� EXHIBIT A
Food and BeveraQe Moveable Furmshmes
Meat shcer
Soup wazmer
1 Sernce baz
Silverwaze service for 400
6 dozen Salt & pepper
Glassware for 300 (coffee, water, champagne, wme)
2 dozen Coffee thermoses
Bus tubs
Table skutmg 13
4 dozen Plashc pitchers
2 Desks
P O S system 3
Coat racks
Dish racks
Sheet pans
Pot & pans
Hotel pans
Misc small tools Qmsmart, Burr mixer, spats tongs
� Menu covers
8 wood lughchatrs
Box hght (pmxuna)
Portable Screen 8'x 10'
Sernngplatters lO lg -
Chafers (11)
Banquet Plates 300
B&B plates 450
Baskets misc 15
Vacuums 3
Copier E studio 45
Fax mactune Office�et v40
2 Computers wrth momtors and pnnters
6 O�ce desks _
Butane burners
2 Safes
Speed racks 3
P A system & speakers
Cordless microphone system
Pressure washer
Rug shampooer
Bus tray 20
� Dish mac}une
Food & Beverage Agreement
Page 16 of 16
Contract Number: 4654
Vendor: SCOTT ALEXANDER'S GOLF SHOP INC
Subject: Food & Beverage
Department: Parks
File Class: LEG 12-1
Begin Date: O1/O1/2007
End Date: 12/31/2010
Review Date: 09/O1/2010
Vault Date:
Comments: Amendment 12/09
i
I
AMENDMENT TO
FOOD AND BEVERAGE AGREEMENT
WHEREAS, on September 13, 2007, the City of Bremerton, a municipal corporation of the State of
Washington, "City" and Scott Alexander's Golf Shop, Inc., a Washington corporation, "Contractor"
entered into and Agreement to provide professional restaurant and other food and beverage management
and services at the City of Bremerton Gold Mountain Golf Club; and
WHEREAS, the term of the Food and Beverage Agreement commenced on January 1, 2007 and shall
terminate on December 31, 2009; and
WHEREAS, the parties desire to amend the Agreement to extend the term through December 31, 2010;
NOW THEREFORE, for mutual consideration, City and Contractor agree as follows:
1) Section 3 of the Agreement entitled "TERM" is hereby amended to extend the
termination date of the Food and Beverage Agreement to December 31, 2010.
2) Section 7 of the Agreement entitled "COMPENSATION" is hereby amended to read as
follows:
A. Contractor shall compensate City for use of the Premises for food and bevera�e be
se��ec�-€e�services as follows:
� .
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1 Com�ensation. Contractor shall pav City the sum of six percent (6%1 of
revenues received from all food and beverage sales net of sales tax in excess of one million dollars
�$1,000,00O.00Z
2. Final reconciliation. Final reconciliation and payment for each year will be
made by January 31 S` of the following year.
n�:i ,.�a...,. ,.c �..., ie9�s�-tez^at-F&��efi'. r., �t,o 0 0�< <t,e r�.,.,..,,.+,... �� �n a..�,� ,._
.,.. ...,..�.»....,. .,., ..»�., .,
�
EB. Restaurant Closure — For Conditions and Repair. The restaurant shall remain open
unless the golf courses and related facilities are closed pursuant to Section 7(D) and (E) of the Golf
Management Agreement or the Clubhouse is closed as a result of causes beyond the control, fault, or
negligence of the parties. Such causes may include, without limitation, acts of God or public enemy; acts
of the federal, state, or local governments; fires; floods; epidemics; volcanic eruptions; quarantine
Amendment to Food and Beverage Agreement
restrictions; strikes; freight embargoes; court orders; and unusually severe weather or other condition that
causes all or a portion of the Golf Club facilities to be closed for extended periods of time. Should either
the City or the Contractor fail to perform because of a cause described in this subsection, the City and the
Contractor shall make a mutually acceptable revision in the SCOPE OF SERVICES and
COMPENSATION provided for in this Contract, including termination of the Agreement if the Premises
is deemed unusable by the City as a result of major damage or destruction and the City elects not to
rebuild the same.
In the event that City determines that it is necessary to close all or a portion of the Clubhouse due
to regular maintenance, repair, capital improvements, inclement weather, or similar condition, the City
shall coordinate such closing with the Contractor prior to actual closing. Contractor shall comply with
the Director's decision to close all or part of the Clubhouse at no cost to the City.
In the event of closure of all or a portion of the Premises as set forth in this subsection,
Contractor shall not be entitled to any compensation pursuant to this section, Section 7, whether fixed fee
or percentage fee, however, when feasible, the City and Contractor shall revise the SCOPE OF
SERVICES and COMPENSATION as noted above for partial closure of the Premises, unless this
agreement is terminated pursuant to Section 14 (F). The City shall incur no liability to Contractor for
lost revenue or other additional compensation as a result of any closure of all or a portion of the Premises
as set forth in this subsection.
All other terms of the Agreement not specifically amended herein shall remain in full force and effect.
CITY OF BREMERTON SCOTT ALEXANDER'S GOLF SHOP, INC.
� ___�� ..� �����,.--�—
, Mayor By: SCOTT ALEXANDER
Its:
DATE: �� (� DATE:
By: ARYL MAT
Its:
DATE: (/ F/ /
ATTEST•
�
i'
, Carol Etgen, ity Clerk
APPR S TO FORM:
t J.–=. " _-_ ----
� R ER LUBOVICH, City Atto �
R:�L,egalU.egal�Files\Current Active Files\Gold Mountain�F'ood and Beverage Agreement Amendment (2009).doc
Amendment to Food and Beverage Agreement
Contract Number:
Vendor:
Subject:
Department:
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4654
SCOTT ALEXANDER'S GOLF SHOP INC
Food & Beverage
Parks
LEG 12-1
01/01/2007
12/31/2009
09/01/2009
FOOD AND BEVERAGE AGREEMENT
THIS AGREEMENT made and entered into on the date fully executed by and between
the CITY OF BREMERTON, a municipal corporation of the State of Washington, hereinafter
referred to as "City," and SCOTT ALEXANDER'S GOLF SHOP, INC., a Washington
Corporation, hereinafter referred to as "Contractor," to provide professional restaurant and other
food and beverage management and services pursuant to this Agreement, at the City of
Bremerton Gold Mountain Golf Club.
WHEREAS, the City is the owner of Gold Mountain Golf Club, which ownership
includes the land upon which said golf complex is located, the buildings and other improvements
which are a part thereof; and
WHEREAS, the Gold Mountain Golf Club consists of two 18 hole golf courses, the
Olympic and the Cascade course, ("Golf Courses" or "Courses"), a driving range, and the
clubhouse containing a Pro Shop, restaurant, meeting rooms and the Olympic room,
("Clubhouse") and other related facilities and structures, collectively also referred to herein as
("Golf Club")
WHEREAS, the City previously entered into an agreement with Scott Alexander and
Daryl Matheny, Contractor's principals ("Principals"), for food, beverage, and golf management
and related services at the Gold Mountain Golf Club; including, but not limited to, food and
beverage service, management of the Cascade and Olympic golf courses and driving range, and
for providing Professional Golf Association ("PGA") professional golf services and lessons to
the facility; and
WHEREAS, the agreement between the City and Contractor for these services expired
December 31, 2006 which has twice been extended by amendments to said agreement pending
negotiation of a new agreement; and
WHEREAS, the extensions were executed with the understanding that new terms may be
negotiated for a new agreement beginning with the year 2007; and
WHEREAS, the City desires to enter into a new agreement with Contractor for food and
beverage services entitled "Food and Beverage Agreement" with terms effective January 1, 2007
and superseding the terms of the extended agreement; and
WHEREAS, the Parties hereto have simultaneously executed a separate agreement
entitled "Golf Management Agreement" relating to the management of the Cascade and Olympic
golf courses and driving range and Pro Shop and for providing professional golf services and
lessons to the Gold Mountain Golf Club; and
WHEREAS, the Parties hereto have also simultaneously executed a document entitled
"Lease Agreement" relating to the lease to the Contractor of a certain portion of the Gold
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Page 1 of 16
Mountain Golf Club ("Lease") for operation of a Pro Shop, driving range and Contractor's
private cart rental business;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree as follows:
SECTION 1. PURPOSE AND ADMINISTRATION.
A. The purpose of this Agreement is to establish a management services agreement
whereby contractor will provide food and beverage management and related services at City-
owned golf facilities. This Agreement is not a lease, nor does it create a leasehold interest other
than similar property interest in Contractor to the City's facilities.
B. Contractor will be responsible for performing all work and/or services described
herein. The Contractor's performance will be monitored and reviewed by the City of Bremerton
Director of Parks and Recreation, or his or her designee, (hereinafter "Director"). Contractor
shall report directly to the Director. Reports and data required to be provided by the Contractor
shall be delivered to the Director. Questions of the Contractor regarding interpretation of the
terms, provisions and requirements of this Agreement shall be addressed to the Director for
response.
SECTION 2. PREMISES. The facilities of the Golf Club to be provided food and beverage
services by the Contractor pursuant to this agreement include the Golf Courses and the
Clubhouse and related facilities, hereinafter ("Premises").
SECTION 3. TERM. Pursuant to IRS Revenue Procedure 97-13, the term ofthis Agreement
shall be three (3) years commencing on January 1, 2007 ("Commencement Date") and shall
terminate on December 31, 2009, unless terminated earlier in accordance with Section 14.
SECTION 4. SCOPE OF SERVICES.
A. General Services.
1. The Contractor's responsibilities include providing food and beverage
service on the Premises including cart service on the Golf Courses and restaurant service in the
Clubhouse. Unless otherwise noted, food and beverage service includes the restaurant and all
other food and beverage sales and service at the Golf Club.
B. Specific Services. In providing the general services described above, Contractor
shall provide not less than the following specific services:
1. Restaurant, Food and Beverage Service.
a. The Contractor will be responsible, and assume all costs and
expenses, for the operation, management, and supervision of all food and beverage service
operations on the Premises as proposed by Contractor and approved by City, including but not
limited to, restaurant, vending machines and providing catering for special events at the Golf
Club. Contractor shall be responsible for the furnishing of adequate stock of food and beverage
supplies at its cost and expense.
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b. The Contractor shall be responsible for hiring, training and
managing sufficient employees to adequately staff the restaurant and lounge. Contractor shall
provide high caliber quality staff properly certified and permitted to provide food and alcohol
service as required by state law.
c. The Contractor shall apply and prepare the application and shall
assume responsibility for all costs and expenses of the application for an applicable liquor
license. The Contractor shall abide by state requirements regarding use of alcohol at the Golf
Club. The City shall execute any reasonable, appropriate documents as owner of the Golf Club
that may be required in conjunction with such application.
d. The Contractor shall be responsible for obtaining all necessary
licenses and permits for the operation of a restaurant and lounge.
2. Restaurant Management.
a. The Contractor shall manage the restaurant and lounge at the
Clubhouse for the City. The City shall provide the furniture, fixtures and equipment ("FF&E")
currently located in the Clubhouse; provided, that the Contractor is providing, and will replace as
needed, the FF&E listed in Exhibit A attached hereto and by reference incorporated herein.
b. The Contractor shall provide maintenance and repair services for
all kitchen appliances and fixtures, restaurant furniture, all FF &E within the restaurant,
Contractor owned tools and equipment, and all Contractor leased equipment. Replacement of
City owned equipment shall be in the sole discretion of the City and the City shall arrange for
equipment replacement in accordance with available funding.
c. Contractor shall provide adequate notice and signage at all points
of entry to the restaurant as well as the front entrance to the Clubhouse designating that the
restaurant is open or closed for business. Contractor shall adequately staff and provide prompt
service for customers to the restaurant.
3. Attend Meetings. Contractor agrees to be available to attend regular and
special meetings of the Golf Complex Board, Parks and Recreation Commission and City
Council, and shall be prepared to discuss issues and ideas of interest to the Contractor and City.
C. Pricing of Services.
1. Food and beverage menus and prices shall be approved by the Director.
SECTION 5. OTHER DUTIES AND RESPONSIBILITIES.
A. Personnel. The Contractor shall provide competent personnel necessary for such
operations and shall train and supervise them in their work and shall pay them for their services
at the Contractor's sole cost and expense. Contractor shall supervise, direct and train staff to
perform duties and meet requirements for sales and services which are, in the opinion of the City
and Contractor, necessary. Contractor shall provide an on-going staff training program with
emphasis on customer training.
B. Credit Rating. Contractor shall maintain a good credit rating in all commercial
transactions so as not to discredit the reputation or name of the City of Bremerton.
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C. Quarterly Review. Contractor and City shall meet on a quarterly schedule, or
as otherwise as mutually agreed, to evaluate operations at the Golf Club and the performance of
the parties pursuant to this agreement and to make mutually agreeable changes.
SECTION 6. OPERATING POLICIES AND PROCEDURES. The Contractor will:
A. Operate the restaurant pursuant to the rules and regulations established by
the City Council and the Director.
B. Expel unruly persons or those under the influence of intoxicants from the
Premises under Contractor's control.
C. Not foster nor permit any illegal activity within the restaurant under
Contractor's control.
D. Answer and handle all complaints and shall supervise a public relations
program. In dealing with the public, Contractor will not speak toward City policies or decisions
in a derogatory manner. Contractor shall explain and support city policies to staff and the
golfing public.
E. Not use the Premises for ancillary, revenue-producing activities or social
activities, unless expressly authorized by the City. The parties acknowledge that Contractor
conducts certain private business operations pursuant to the Lease executed with the City for
operation of a Pro Shop, driving range and Contractor's private cart rental business and further
that Contractor subcontracts lessons at the Golf Club.
F. Provide service to meet public demand and shall keep the restaurant open
each day that the golf courses are open for play, and at other reasonable hours as prescribed by
the City, except Thanksgiving and Christmas, at Contractors option, days the Greens
Superintendent closes the course due to inclement weather and except when closed as set forth in
Section 7(C). .
SECTION 7. COMPENSATION.
A. Contractor shall be compensated for services as follows:
1. Food and Beverage Sales.
a. Fixed Fee. Contractor shall be paid the annual sum of one million
dollars ($1,000,000.00). The compensation shall be paid in weekly installments. Each weekly
payment will be in an amount equal to the gross food and beverage revenue, net of sales tax for
the week, until gross revenues, net of sales tax, reach one million dollars ($1,000,000.00).
b. Percentage Fee. In addition, throughout the term of this contract,
Contractor shall be paid ninety four percent (94%) of revenues received from all food and
beverage sales, net of sales tax, in excess of one million dollars ($1,000,000.00) but in no event
shall this percentage fee exceed the fixed fee in any given year set forth in Section 7 (A)(1)(a)
above.
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2. Final reconciliation. Final reconciliation and payment for each year will
be made by January 31 sl of the following year.
B. Withholding of Payments to Contractor. In the event the Contractor is 60 days
or later in payment of lease payments associated with the Lease, City may withhold and apply all
monies due to Contractor from City under this Agreement to offset any such amounts due to City
from Contractor under said Lease.
C.. Restaurant Closure - For Conditions and Repair. The restaurant shall remain
open unless the golf courses and related facilities are closed pursuant to Section 7(D) and (E) of
the Golf Management Agreement or the Clubhouse is closed as a result of causes beyond the
control, fault, or negligence of the parlies. Such causes may include, without limitation, acts of
God or public enemy; acts of the federal, state, or local governments; fires; floods; epidemics;
volcanic eruptions; quarantine restrictions; strikes; freight embargoes; court orders; and
unusually severe weather or other condition that causes all or a portion of the Golf Club facilities
to be closed for extended periods of time. Should either the City or the Contractor fail to perform
because of a cause described in this subsection, the City and the Contractor shall make a
mutually acceptable revision in the SCOPE OF SERVICES and COMPENSATION provided for
in this Contract, including termination of the Agreement if the Premises is deemed unusable by
the City as a result of major damage or destruction and the City elects not to rebuild the same.
In the event that City determines that it is necessary to close all or a portion of the
Clubhouse due to regular maintenance, repair, capital improvements, inclement weather, or
similar condition, the City shall coordinate such closing with the Contractor prior to actual
closing. Contractor shall comply with the Director's decision to close all or part of the
Clubhouse at no cost to the City.
In the event of closure of all or a portion of the Premises as set forth in this subsection,
Contractor shall not be entitled to any compensation pursuant to this section, Section 7, whether
fixed fee or percentage fee, however, when feasible, the City and Contractor shall revise the
SCOPE OF SERVICES and COMPENSATION as noted above for partial closure of the
Premises, unless this agreement is terminated pursuant to Section 14 (F). The City shall incur no
liability to Contractor for lost revenue or other additional compensation as a result of any closure
of all or a portion of the Premises as set forth in this subsection.
SECTION 8. CITY RESPONSIBILITIES - UTILITIES. All electric power, water, sewer,
gas/propane, street utility, garbage and telephone service related to this agreement shall be paid
by the City. If upon review the City determines that action is needed to address excessive
consumption, Contractor will promptly respond and take appropriate action to remedy the
excessive consumption. Each party shall pay internet and web page costs and expenses related to
their duties and responsibilities under this Agreement, unless otherwise agreed.
SECTION 9. CAPITAL IMPROVEMENTS AND FIXTURES. Contractor shall not make
any alterations, additions or improvements in the Gold Mountain Golf Club, including the
restaurant, without first obtaining the consent of City in writing, which consent can be withheld
at City's sole discretion. All alterations, additions and improvements, shall be at the sole cost
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and expense of Contractor, and shall remain in and be surrendered with the Clubhouse as a part
thereof at the termination of this Agreement except for those improvements and fixtures supplied
by the Contractor which at the time of this Agreement are identified on the attached Exhibit A.
If Contractor performs work with the consent of City, as provided above, Contractor agrees to
comply with all laws, ordinances, rules and regulations of the City and any other authorized
public authority. Contractor further agrees that workmanship will be of a reasonable commercial
quality, in color schemes in accordance with current building, standards, and free of mechanics
liens. Contractor further agrees to save City free and harmless from damage, loss or expense
arising out of such work.
SECTION 10. COLLECTION OF FEES, FINANCIAL REPORTING, AUDITING AND
TAXES. Pursuant to the Golf Club Revenue Bond resolutions, the City irrevocably pledged
gross revenues from the Golf Club as security for bond repayment. Therefore, all gross revenues
from any source shall first be deposited in the City's bank account and disbursed pursuant to this
Agreement.
A. Point of Sale System. City shall be responsible for purchasing, setting up and
maintaining a point of sale system through which all transactions at the Golf Club will be
processed.
1. City's Responsibilities. The City shall provide a cashiering system for
use by the Contractor. City shall provide initial training on the operations of the cashiering
system. All subsequent training of Contractor's staff shall be the responsibility of the
Contractor. The City shall also be responsible for maintenance of network, wiring, software, and
equipment. The City will provide repair parts as needed for equipment.
2. Contractor's Responsibilities. Contractor shall be responsible for any
additional hardware, user licenses, and software that Contractor chooses to install. The
Contractor shall also be responsible for operating supplies such as receipt paper, toner, and
labels. Contractor shall provide additional formal training for Contractor's employees after
initial training sessions have been performed by the City. New cashier employees and office
managers must have suitable knowledge of the Golf cashiering system in order to perform their
duties in an efficient and accurate manner. This training may be provided by Contractor
personnel.
3. Modifications. Any other changes, additions, or modifications applicable
to the City owned cashiering system would need mutual agreement as to payment responsibility.
B. Receipting. Contractor and/or subcontractor shall collect for, and on behalf of,
the City all gross revenue, including but not limited to food and beverage sales, non-sufficient
fund check return fees, and all other fees at the Golf Club in strict accordance with the schedule
of fees established by the City, unless other instructions are given in writing to the Contractor.
Netting of transactions is prohibited. All revenue collected from transactions under this
agreement must be processed through the Point of Sale System and deposited as provided in
subsection lO(C). All food service gross revenue, including from tournaments, group functions
and special package offerings, must be recorded, collected, and deposited in a manner which will
dispense a dated receipt to be given to each customer.
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C. Deposits. All deposits must be prepared in a timely manner defined as Yz hour
ahead of scheduled pick-up and composition of deposit shall remain intact and a clear audit trail
maintained. The City will provide and pay for courier service. Any delays causing additional
"premise charges" will be paid by Contractor. All deposits will be made into a single account
established for the Golf Club. Settlements and appropriate disbursements will be made from this
account. Contractor shall be responsible for any loss or theft of City funds while the same are in
its possession or control. Contractor shall provide City with a fidelity bond and a performance
bond as required in this Agreement. Contractor and any subcontractor shall comply with
accounting procedures as may be required by the City to comply with state laws, regulations and
audit review requirements.
D. Reports. Contractor shall provide to the City daily reports of food and beverage
sales activity and receipts in a format to be provided by the Director and Finance Officer, and
shall structure their accounting system in a method satisfactory and acceptable to the City. The
reports will be forwarded to the Director and must be received by the 2nd business day following
the day of activity, excluding Fridays, Saturdays and Sundays which will be due on Tuesdays.
The reports must agree with the corresponding deposit for the day. In addition, the Contractor
shall submit a copy of its previous year's operating statement by March 31st to demonstrate
Contractor's financial ability to maintain operations under this Agreement.
E. Audits. All revenue and fees collected at the Golf Club are City revenues
and subject to audit by the State Auditor, City Internal Auditor, or City hired Certified Public
Accountants. Contractor shall permit the City, from time to time as the City deems necessary,
through its designated representatives, to inspect and audit in Bremerton, Washington, at any
reasonable time, all pertinent books and records of Contractor and any other person or entity that
has performed work in connection with or related to Contractor's services under this Agreement
to verify the accuracy of accounting records and shall supply the City with, or shall permit the
City to make a copy of any books and records and any portion thereof, upon the City's request.
Contractor shall ensure that such inspection, audit and copying right of the City is a condition of
any contract, agreement or other arrangement under which any other person or entity is permitted
to perform work in connection with or related to Contractor's services under this Agreement.
The Contractor shall take immediate corrective action on all prior, current or future internal
control weaknesses as directed by the City.
F. Taxes. Pursuant to the City's bond resolutions on the Golf Club facilities, the
Contractor will remit to the City all gross revenues collected. Sales tax from Contractor's
activities remitted to the City will be held by the City and will be returned to the Contractor
weekly or as otherwise agreed. City shall retain and remit sales taxes on revenues from food and
beverage sales. As an independent contractor, the Contractor acknowledges that it is responsible
for payment of any local, state, state business and occupation tax, or federal taxes or fees with
respect to the Contractor's business, including sales tax, for its activities. The Contractor shall
pay any and all applicable taxes when due.
G. Credit Card Costs and Fees. Contractor shall be responsible for all credit card
costs and related fees incurred for food and beverage service pursuant to this agreement.
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SECTION 11. MAINTENANCE OF RECORDS. The Contractor shall keep and maintain on
a current basis all books and records, including the operating accounts, to support its
management and operations of the Premises under this Agreement. The City or its authorized
representative shall have the authority to inspect, audit, and copy, upon reasonable notice and
from time to time, any records of the Contractor regarding its billings, payments or work under
this Agreement. Contractor shall retain these records for inspection, audit, and copying for at
least three (3) years from the date of completion or termination of this Agreement, or as
otherwise required by the Washington Secretary of State General Records Retention Schedule
for all Local Government Agencies in Washington State. Contractor shall, at all times, provide
the City with all records for the prior three (3) years that relate to the financial matters of the
facilities managed by Contractor under this Agreement.
SECTION 12. AUDIT OF PAYMENTS. The City, either directly or through a designated
representative, may audit the records of the Contractor at any time during the three (3) year
period established by Section 11, MAINTENANCE OF RECORDS. If an audit discloses that
payments to the Contractor under Section 7, COMPENSATION, were in excess of the amount
to which the Contractor was entitled, or that the payments to the City were less than the amount
to which the City was entitled, then Contractor shall repay the amount of the excess or deficiency
to the City. If an audit discloses that payments to the City under Section 7, COMPENSATION,
were in excess of the amount to which the City was entitled, or that payments to the Contractor
were less than the amount to which the Contractor was entitled, then the City shall repay the
amount of the excess or deficiency to the Contractor.
SECTION 13. ASSIGNMENT. Contractor shall not either voluntarily or by operation of law
assign, transfer, mortgage, pledge, hypothecate, or encumber this contract or any interest therein
and shall not subcontract the obligations under this Agreement, or any part thereof, or allow any
person (employees, agents, servants, and invitees of Contractor excepted) to use the Golf Club
Facilities, or any portion thereof, without the prior written consent of the City. Any such
assignment, subcontracting or use without compliance with the terms of this paragraph shall be
void and shall constitute a default under the terms of this Contract. If Contractor is a
corporation, any transfer of this Contract from Contractor by merger, consolidation, or
liquidation, or any change in the ownership or power to vote in a majority of the outstanding
voting stock of Contractor shall constitute an assignment for purposes of this paragraph. Any
consent to one assignment, subcontracting, or use by any other person shall not be deemed to be
a consent to any subsequent assignment, subcontracting, or use by another person. Consent to
any such assignment, subcontracting or use shall in no way relieve Contractor of any liability
under this Agreement. Assignment by Contractor to a financial institution holding a security
interest in this Agreement shall not be considered to be a violation of the consent requirements of
this Agreement. Consent for any subsequent assignments by said financial institution will not be
unreasonably withheld; however, any assignee must have experience and be knowledgeable in
golf and food and beverage operations.
SECTION 14. TERMINATION. This Contract will terminate upon the happening of any of
the following events:
A. Upon its normal termination if not renewed.
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B. Upon termination of the Lease and/or Golf Management Agreement.
C. Upon the death of both of Contractor's Principals.
D. By mutual written agreement.
E. Breach of this Agreement as set forth in Section 15 below.
F. Major damage or destruction of the golf Club property, structures or equipment
that is the subject of this Agreement, when the City decides not to rebuild, and that damage or
destruction will prevent Contractor from substantially performing their obligation under this
Agreement.
SECTION 15. BREACH.
A. In the event that either party claims that the other is in a substantial breach of any
of the provisions of this Contract, notice of the breach shall be submitted to the party alleged to
be in breach and the party in breach shall have thirty (30) days from receipt of the notice within
which to correct any activity or conduct claimed by the other to have constituted a substantial
breach of this Contract. The notice shall identify the nature of the breach and the contract
provisions violated.
B. In the event that the party in breach shall fail to correct the activity claimed to
constitute a substantial breach of this Contract within thirty days of receipt of the notice of
breach, the party claiming breach may:
1. Issue a notice oftermination; and/or
2. Seek judicial remedy or specific performance; and/or
3. Pursue any other remedy available at law or equity.
C. The Contractor is subject to immediate termination upon written notice by City if:
1. Contractor violates any fiduciary duty to the City by misappropriating or
not properly accounting for or mishandling City funds as determined by the City or Washington
State Auditor; or
2. Contractor vacates or abandons the Golf Club facilities under Contractor's
responsibility.
D. Upon receipt of notice of termination by Contractor, which is issued by the City,
the City shall have the right to:
1. Enter and take possession of the facilities; and/or
2. Bring suit for and collect all fees and portions of gross revenue or any
other monies required to be paid to the City which shall have accrued to the time of termination
of the Contractor's rights.
E. Upon written notice of termination by the City, Contractor will have thirty (30)
days to vacate the Premises unless the City elects to take immediate possession as set forth in
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paragraph D above. Termination shall be affected by serving a Notice of Termination by
certified mail (return receipt requested) or by personal delivery upon the Contractor setting forth
the manner in which the Contractor is in default.
F. Neither the City nor the Contractor shall have breached this Contract by reason of
the closing of all or a portion of the golf course facilities as set forth in Section 7(C)).
G. Examples of a breach by the Contractor which warrants termination, if not cured,
shall include but not be limited to:
1. Misappropriation or mishandling of City funds.
2. Contractor makes any general assignment or general arrangement for the
benefit of creditors or the filing by or against Contractor of a petition to have Contractor
adjudicated as bankrupt, or a petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against Contractor, the same is dismissed
within sixty (60) days or the appointment of a trustee or a receiver to take possession of
substantially all of Contractor's assets located at the Premises or of Contractor's interest in this
Agreement, where possession is not restored to Contractor within thirty (30) days or the
attachment, execution, or other judicial seizure of substantially all of Contractor's assets located
at the Premises or of Contractor's interest in this Agreement where such seizure is not discharged
within thirty (30) days.
3. Contractor assigns all or part of its interest in this Agreement without prior
written consent of the City pursuant to Section 13.
4. Nonpayment of outstanding current liabilities within ninety (90) days and
failure to pay Federal, State, and local taxes and license fees when due.
5. Continuing inattention or neglect of duties.
6. Conviction of a felony or conviction of a non- felony crime of dishonesty,
theft or deceit of either of the Principals.
SECTION 16. PURCHASE OF CONTRACTORS MERCHANDISE. In the event the City
takes over management of the Golf Club facilities, after expiration of this Agreement or earlier
termination by the City, Contractor reserves the right, if it so elects at its discretion, to have the
City purchase the Contractor's food and beverage merchandise and moveable furnishings
identified in Exhibit A at Contractor's cost less depreciation mutually agreed upon. If there is no
agreement, this amount shall be established by a mutually agreed upon independent appraiser.
The City shall make payment within 90 days of expiration or termination, less any monies owing
to the City under the terms of this Agreement, the Golf Management Agreement or under the
terms of the Lease. The City may, at its discretion, replace any of the items in Exhibit A, in
which case, the replaced items will belong to the City and not be subject to purchase by the City
as provided herein.
SECTION 17. INDEPENDENT CONTRACTOR.
A. The Contractor is engaged as an independent contractor and will be responsible
for any federal, state, and local taxes and fees applicable to payments hereunder.
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B. The Contractor, its subcontractors, and their employees, are not employees of the
City and are not eligible for any benefits through the City, including without limitation federal
social security, health benefits, workers' compensation, unemployment compensation, and
retirement benefits.
C. The parties agree and acknowledge that the Contractor is an independent
contractor and not the agent or employee of the City of Bremerton, and that no liability shall
attach to the City as a result of the acts or omissions of the Contractor, its agents or employees. .
D. The Contractor shall be responsible for withholding and paying all payroll taxes
for any person hired by them to perform the duties they are required to perform under the terms
of this Agreement. They are also responsible for all taxes owed to any governmental agency as a
result of the monies paid to them under the terms of this Agreement.
SECTION 18. INDEMNIFICATION, INSURANCE, BOND.
A. Indemnification.
1. Contractor agrees to defend, indemnify and save harmless the City, its
appointed and elected officers, employees and volunteers, from and against any and all liability,
loss, cost, damage and expenses, including costs and attorney fees in defense thereof because of
actions, claims or lawsuits for damages resulting from personal or bodily injury, including death
at any time resulting there from, sustained or alleged to have been sustained by any person or
persons and on account of damage to property, arising or alleged to have arisen directly or
indirectly out of or in consequence of or the performance of this Agreement, whether such
injuries to persons or damage to property is due to the willful or negligent acts or omissions of
Contractor, their subcontractors or agents. This provision shall be inapplicable to the extent the
City is judicially found solely negligent for such damage or injury.
2. Should a court of competent jurisdiction determine that this Agreement is
subject to RCW 4.24.115, then, in the event ofliability for damages arising out of bodily injury
to persons or damages to property caused by or resulting from the concurrent negligence of the
Contractor and the City, its officers, officials, employees and volunteers, the Contractor's
liability hereunder shall be only to the extent of the Contractor's negligence.
B. Insurance Requirements.
1. The Contractor shall procure and maintain for the duration of this
Agreement, insurance against claims for injuries to persons or damage to property which may
arise from, or in connection with, the performance of the work hereunder by the Contractor, its
agents, representatives, employees or subcontractors.
2. The Contractor shall provide a Certificate of Insurance evidencing:
a. Automobile Liability Insurance with no less than $1,000,000
combined single limit per accident for bodily injury and property damage; and
b. Commercial General Liability Insurance written on an occurrence
bases with limits no less than $1,000,000 combined single limit per occurrence and $2,000,000
aggregate for personal injury, bodily injury, and property damage. Coverage shall include but
not be limited to: blanket contractual; products/completed operations; broad form property
damage; liquor liability, and employer's liability.
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3. Any payment of deductible or self insured retention shall be the sole.
responsibility of the Contractor.
4. The City, including its officials, employees, and volunteers, shall be
named as an additional insured on the insurance policy, with respect to work performed by, or on
behalf of, the Contractor and a copy of the endorsement naming the City as additional insured,
approved by the City's Risk Manager, shall be attached to the Certificate afInsurance.
5. The Contractor's insurance shall contain a clause stating that coverage
shall apply separately to each insured against whom claim is made or suit is brought, except with
respect to the limits of the insurer's liability.
6. The Contractor's insurance shall be the primary and non-contributing
insurance with respect to the City's insurance and the City shall be given thirty (30) days prior
written notice of any cancellation, suspension or material change in coverage.
7. Acceptability of Insurers. Insurance is to be placed with an insurer with
a Bests' rating of no less than A:XIII, or with an insurer acceptable to the City.
8. Subcontractors. Contractor shall include all subcontractors as insureds
under its policies or shall furnish separate certificates for each subcontractor. All coverage for
subcontractors shall be subject to all of the requirements stated herein.
C. Bond. The Contractor shall continuously maintain at its expense an employee
dishonesty bond covering collection of fees on the Premises for the benefit of the City. The bond
shall be in an amount not less than SEVENTY-FIVE THOUSAND AND NO/lOO DOLLARS
($75,000.00). The Contractor must additionally provide broad form money and securities
coverage both inside and outside the Premises in an amount not less than FIVE THOUSAND
AND NOIlOO DOLLARS ($5,000.00).
D. Proof of Insurance. Proof of the above requirements must be provided to the
City upon execution of this Agreement. The policies required herein shall provide not less than
thirty (30) days prior written notice to the City of any cancellation, expiration, modification, or
reduction in coverage or liability limits.
SECTION 19. SUBCONTRACTING. The Contractor shall not subcontract its work under
this Agreement, in whole or in part, without the written approval of the City. The City reserves
the right to review and approve any subcontracts prior to execution to ensure compliance with
the provisions of this Agreement. The Contractor shall require any approved subcontractor to
agree, as to the portion subcontracted, to comply with all terms and conditions as specified in this
Agreement. Notwithstanding City approval of a subcontractor, the Contractor shall remain
obligated for full performance hereunder, and the City shall incur no obligation other than its
obligations to the Contractor hereunder. Any subcontracts approved by the City shall be
subject to and shall not extend any rights granted beyond those set forth in this Agreement
to Contractor. Contractor agrees that if subcontractors are employed in the performance of this
Agreement, Contractor and its subcontractors are subject to the requirements of the State of
Washington, Workers' Compensation Laws.
SECTION 20. CONDITION OF PREMISES. The Contractor has inspected and examined
the Premises and all facilities and fixtures thereon and accepts the same in its present condition.
The Contractor shall not make any alterations, changes, or additions to any fixtures or equipment
Food & Beverage Agreement
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owned by the City without the written consent of the Director. The Contractor shall not commit,
permit, or allow any nuisance, waste, or injury in, upon, or to the golf course, or to permit the use
of the golf course for any illegal or immoral purpose.
SECTION 21. NOTICE. Any notice provided for under this Agreement shall be sufficient ifin
writing and delivered personally to the following addressee or deposited in the United States
Mail, postage prepaid, certified mail, return receipt requested, addressed as follows, or to such
other address as the receiving party hereafter shall specify in writing:
City:
Director of Parks and Recreation
City of Bremerton
345 6th Street, Suite 600
Bremerton, Washington 98337
Contractor:
SECTION 22. PAYMENTS TO VENDORS AND SUBCONTRACTORS. The Contractor
shall pay timely all suppliers, lessors, and contractors providing services, materials or equipment
for carrying out its obligations under this Agreement. The Contractor shall not take or fail to
take any action in a manner that causes the City or any materials that the Contractor provides
hereunder to be subject to any claim or lien of any person without the City's prior written
consent.
SECTION 23. BUSINESS LICENSE. Contractor shall obtain a City of Bremerton business
license as required by Chapter 5.02 of the Bremerton City Code prior to beginning work under
this Agreement.
SECTION 24. CONFIDENTIALITY OF RECORDS. The City will, to the extent allowed
by law, keep all of Contractor's and subcontractor's financial cost information confidential,
unless required to disclose the information as a result of the Washington Public Records
Disclosure law, Ch. 42.56 RCW or by court order.
SECTION 25. PRIOR CONTRACT EXTENSIONS SUPERSEDED AND
TERMINATED. The prior agreement between the City and Contractor for these services had
an expiration date of December 31, 2006 which has twice been extended pending negotiation of
this agreement. The extensions were executed with the understanding that new terms may be
negotiated for a new agreement beginning with the year 2007. Accordingly, this Agreement
supersedes the terms and conditions of the fourth amendment extending the 2006 agreement
executed on January 18, 2007 and the fifth amendment extending the 2006 agreement executed
on or about April 2, 2007 to the extent this Agreement is inconsistent with the prior agreement
and amendments and upon execution of this Agreement, said agreement and amendments shall
terminate.
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SECTION 26. OTHER
A. Costs and Attorney Fees: If, by reason of any default or breach on the part of
either party in the performance of any of the provisions of this Agreement, a legal action is
instituted, the losing party agrees to pay all reasonable costs and attorney fees in connection
therewith. It is agreed that the venue of any legal action brought under the terms of this
Agreement shall be in Kitsap County.
B. Construction. This Agreement shall be construed in accordance with the laws of
the State of Washington. The provisions of this Agreement have been negotiated by the parties,
and when interpreting the provisions of this Agreement, there shall be no presumption of
draftsmanship for or against either party.
C. Severability. The invalidity or unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other provision.
D. Waiver. Failure to insist upon strict compliance with any terms, covenants
or conditions of this Agreement shall not be deemed a waiver of such, nor shall any waiver or
relinquishment of such right or power at any time be taken to be a waiver of any other breach.
The City and the Contractor shall not be deemed to have waived any breach of this Agreement
by the other party except by an express waiver in writing. An express written waiver as to one
breach shall not be deemed a waiver of any other breach not expressly identified, even though
the other breach is of the same nature as that waived.
E. Amendment. The City and the Contractor may amend this Agreement at any
time only by written amendment executed by the City and the Contractor. The City and the
Contractor agree that this Agreement shall be amended at any time if, in the opinion of bond
counsel to the City, such amendment is necessary to preserve the tax exempt status of interest on
obligations of the City issued to finance the Golf Club.
F. Entire Agreement. This Agreement contains the entire agreement between the
parties with regards to the subject matter set forth herein. There are no other representations
with regards to the subject matter, either orally or in writing. From January 1, 2007 until
execution of this agreement, this agreement supersedes the prior agreement between the City and
Contractor for these services which had an expiration date of December 31, 2006 and which has
twice been extended by amendments on January 18,2007 and on or about April2, 2007 pending
negotiation of a new agreement. Upon and following the execution of this Agreement, this
agreement will replace the prior agreement in its entirety.
G. Nondiscrimination. Contractor shall not discriminate in employment or services
to the public on the basis of race, color, national origin, sex, religion, age, marital status,
physical, mental or sensory disability except in an employment action based on a bona fide
occupational qualification.
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H. Liens. The Contractor agrees that it shall pay, or cause to be paid, all costs and
expenses for work done and materials delivered to the Premises and shall keep the Premises free
and clear of all liens for work performed thereon.
I. Remedies. Rights under this Agreement are cumulative; the failure to exercise
on any occasion any right shall not operate to forfeit such right on another occasion. The use of
one remedy shall not be taken to exclude or waive the right to use another.
J. Washington law and Forum. This Agreement shall be construed according to
the law of the State of Washington. Any litigation between the City and the Contractor arising
under this Agreement or out of work performed under this Agreement shall occur, if in the state
courts, in the Kitsap County Court having jurisdiction thereof, and if in the federal courts, in the
United States District Court for the Western District of Washington.
~B
CARY BOZEMAN, Mayor
SCOTT ALEXANDER'S GOLF SHOP, INC.
,L:J-~~
By: S~OTT ALEXANDER
Its: \,(lES\D&".Jl
DATE:
9- /~- 07
DATE:
ATTEST:
CkJ.~~)~~-';t J?
Paula Johnston, ity Clerk '1J
APPROVED AS TO FORM:
Beverage Agreement - FINAL.doc
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Page 15 of 16
EXHIBIT A
Food and Beveraee Moveable Furnishines
Meat slicer
Soup warmer
1 Service bar
Silverware service for 400
6 dozen Salt & pepper
Glassware for 300 (coffee, water, champagne, wine)
2 dozen Coffee thermoses
Bus tubs
Table skirting 13
4 dozen Plastic pitchers
2 Desks
P.O.S. system 3
Coat racks
Dish racks
Sheet pans
Pot & pans
Hotel pans
Misc. small tools: Quisinart, Burr mixer, spats tongs
Menu covers
8 wood highchairs
Box light (proxima)
Portable Screen 8'x 10'
Serving platters 10 19
Chafers (11)
Banquet Plates 300
B&B plates 450
Baskets misc. 15
Vacuums 3
Copier E studio 45
Fax machine Office jet v40
2 Computers with monitors and printers
6 Office desks
Butane burners
2 Safes
Speed racks 3
P.A. system & speakers
Cordless microphone system
Pressure washer
Rug shampooer
Bus tray 20
Dish machine
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