1-Southgate Concessionaire Agreement.pdf

CONCESSIONAIRE AGREEMENT

FOOD & BEVERAGE CONCESSIONS AT SOUTHGATE GOLF CLUB,

WITH OPTIONS FOR ADDITIONAL LOCATIONS

FOR THE CITY OF ST GEORGE GOLF DIVISION

THIS AGREEMENT is between CITY OF ST GEORGE, a Utah municipal corporation ("City"), and a Utah Limited Liability Company ("Concessionaire"), and is dated as of the date the City Recorder attests the applicable City signature (which date shall be the recordation date).

RECITALS

1. City is the owner and operator of the golf courses specified in this Agreement.

2. Concessionaire desires to operate food and beverage concessions in the restaurant areas located at the clubhouses at the specified golf courses for City' s Golf Division.

3. City desires to engage Concessionaire for such services.

AGREEMENT

In consideration of the promises and covenants hereinafter contained, the parties agree as follows:

I. Concessionaire shall operate a food and beverage concession in each restaurant area located at the Southgate Golf Club specified for City' s Golf Division as described in Exhibit "A" for an initial tenn of 5 years co1mnencing as of April I, 2021 , or the date of this Agreement if later than the aforementioned date. Concessionaire may extend this Agreement for five (5) additional one-year terms, renewable on an annual basis, subject to prior written approval by the City and completion of a mutually agreed to amendment setting forth the monthly fees to be paid by Concessionaire to City during each extended I-year term. Unless otherwise agreed to by City, Concessionaire shall provide written notice of term extensions to City by regular mail at least thirty (30) days before the expiration of the original tenn of this Agreement, or any renewal term, in order for such extension to be effective.

A. All financial commitments by City shall be subject to the appropriation of funds approved by the City Council and the limitations on future budget commitments provided under applicable Utah law, including the Utah Constitution.

B. City reserves the right to extend, amend or renegotiate this Agreement in order to facilitate any future construction and/or remodeling of the clubhouse or other facilities.

City shall provide Concessionaire with six ( 6) month written notice of its intent to extend, amend or renegotiate this Agreement to facilitate any construction or remodeling of any capital improvement projects.

C. Notwithstanding, any other tenns hereof either party may terminate this agreement after the first year of the tenn by providing the other party written notice of the election to terminate no later than 30 days after the expiration of the first year of the term.

2. Concessionaire shall have exclusive right to sell food and beverages on grounds, buildings and facilities (the "Premises") specified by City at the specified golf courses during the tenn of this Agreement. Said food and beverage concession shall consist of the services and requirements listed in Exhibit "A", Scope of Work, attached and incorporated by reference.

3. City may, at its sole discretion, offer additional food and beverage concessions at other golf courses to Concessionaire during the term of this Agreement, subject to mutual written agreement to the concession fees and other tenns for each new concession added to this Agreement. The parties may amend the tenn of this Agreement as necessary to accommodate the addition of any such new concessions without altering the contract term for the original concessions.

4. For such concession rights, Concessionaire shall pay City certain fees for services at the specified courses as stated on Exhibit "B", Schedule of Fees.

5. For such consideration, Concessionaire shall furnish all manpower, equipment and furnishings to complete the requirements and conditions of this Agreement, except as otherwise identified in this Agreement.

6. The following indemnification requirements apply to this Agreement:

A. Contractor shall indemnify, save hannless, and defend City, its officers and employees, from and against all losses, claims, demands, actions, damages, costs, charges, and causes of action of every kind or character, including attorney's fees, arising out of Contractor's intentional, reckless, or negligent performance hereunder. Contractor's duty to defend City shall exist regardless of whether City or Contractor may ultimately be found to be liable for anyone's negligence or other conduct. If City's tender of defense, based upon this indemnity provision, is rejected by Contractor, and Contractor is later found by a court of competent jurisdiction to have been required to indemnify City, then in addition to any other remedies City may have, Contractor shall pay City's reasonable costs, expenses, and attorney's fees incurred in proving such indemnification, defending itself, or enforcing this provision.

Nothing herein shall be construed to require Contractor to indemnify the indemnitee against the indemnitee's own negligence. The provisions of this section 6 shall survive the tennination of this Agreement.

B. City assumes no responsibility for any damage or loss that may occur to Contractor's property, except the obligation City assumes that it will not willfully or intentionally damage the property of Contractor. City has no responsibility for Contractor's employees.

Nothing in this Agreement shall be construed to create a partnership, joint venture, or employment relationship.

7. The following insurance requirements apply to this Agreement:

A. GENERAL INSURANCE REQUIREMENTS FOR ALL POLICIES.

(1) Any insurance coverage required herein that is written on an "occurrence" form rather than on a "claims made" form shall (i) provide full prior acts coverage or have a retroactive date effective before the date of this Agreement, and (ii) be maintained for a period of at least three (3) years following the end of the tenn of this Agreement or contain a comparable "extended discovery" clause. Evidence of current extended discovery coverage and the purchase options available upon policy tennination shall be provided to City.

(2) All policies of insurance shall be issued by insurance companies licensed to do business in the state of Utah and either:

(a) Currently rated A- or better by A.M. Best Company;

- OR-

(b) Listed in the United States Treasury Depai1ment's current Listing of Approved Sureties (Department Circular 570), as amended.

(3) Concessionaire shall furnish certificates of insurance, acceptable to City, verifying the foregoing matters concurrent with the execution hereof and thereafter as required.

(4) In the event any work is subcontracted, Concessionaire shall require its subcontractor, at no cost to City, to secure and maintain all minimum insurance coverages required of Concessionaire hereunder.

(5) All required certificates and policies shall be endorsed as needed to provide that coverage thereunder shall not be canceled or modified without providing, in a manner approved by the City Attorney, 30 days' prior written notice to City or 10 days' prior written notice for cancellation due to non-payment of premiums.

B. REQUIRED INSURANCE POLICIES. Concessionaire, at its own cost, shall secure and maintain during the tenn of this Agreement, including all renewal tenns, the following minimum insurance coverage:

(1) Workers' compensation and employer's liability insurance sufficient to cover all of Concessionaire's employees pursuant to Utah law, unless a waiver of coverage is allowed and acquired pursuant to Utah law. In the event any work is subcontracted, Concessionaire shall require its subcontractor(s) similarly to provide workers' compensation insurance for all the latter's employees, unless a waiver of coverage is allowed and acquired pursuant to Utah law.

(2) Commercial general liability (CGL) insurance with a policy endorsement naming City of St. George as an additional insured on a primary and non contributory basis in comparison to all other insurance including City's own policy or policies of insurance, in the minimum amount of $1,000,000 per occurrence with a $3,000,000 general aggregate and $3,000,000 products completed operations aggregate. These limits can be covered either under a CGL insurance policy alone, or a combination of a CGL insurance policy and an umbrella insurance policy and/or a CGL insurance policy and an excess insurance policy. The policy shall protect City, Concessionaire, and any subcontractor from claims for damages for personal injury, including accidental death, and from claims for property damage that may arise from the Concessionaire's operations under this Agreement, whether performed by the Concessionaire itself, any subcontractor, or anyone directly or indirectly employed by either of them. Such insurance shall provide coverage for Premises operations, acts of independent contractors, and completed operations.

(3) Concessionaire shall procure and keep in force fire and extended coverage insurance upon its bettennent and improvements to the property, furniture, furnishings , fixtures, and equipment owned by Concessionaire to the full insurable value of same and shall furnish City with evidence that such coverage has been procured and is maintained in full force and effect during the tenn of this Agreement.

(4) Commercial automobile liability insurance that provides coverage for owned, hired, and non-owned automobiles, with City as an additional insured, in the minimum amount of a combined single limit of $3,000,000 per occurrence OR $1 ,000,000 Liability per person, $3,000,000 Liability per occurrence, and $250,000 Property Damage.

These limits can be reached either with a commercial automobile liability insurance policy alone, or with a combination of a commercial automobile liability insurance policy and an umbrella insurance policy and/or a commercial automobile liability insurance policy and an excess insurance policy.

(5) Dram Shop Liability insurance providing coverage for any and all liability pursuant to the distribution and use of alcohol on the subject property, in the minimum amount of $3,000,000 general aggregate and $1 ,000,000 per occurrence with City as an additional insured.

8. Concessionaire shall obey all federal, state, county, and municipal laws, ordinances, regulations, and rules applicable to its operations. Said laws include, but are not limited to, the Equal Employment Opportunity laws, the Fair Labor Standards Act, Occupational Safety & Health Administration (OSHA) laws, Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Utah Immigration Accountability and Enforcement Act. Any violation of applicable law shall constitute a breach of this Agreement and Concessionaire shall hold City harmless from any and all liability arising out of, or in connection with, said violations including any attorney's fees and costs incurred by City as a result of such violation.

9. Concessionaire shall pay on or before the date due all taxes, assessments or charges which during the term hereof may become a lien upon or be levied by the State, County, City or other tax levying body on all personal property of Concessionaire located upon and all improvements made to the Premises by Concessionaire in connection with Concessionaire's use and occupancy thereof, and upon the possessory interest of Concessionaire in the Premises, which shall specifically include, but not by way of limitation, taxes levied under Section 59-4- 101, Utah Code, as amended, if applicable.

10. City may, without prejudice to any right or remedy, terminate this Agreement for cause in the event Concessionaire fails to fulfill , in a timely or satisfactory manner, any of the Tenns and Conditions set forth in this Agreement, and fails to cure any default after thirty (30) days written notice from City of such default or breach. If Concessionaire is declared to be bankrupt or insolvent according to law, or if any assigmnent of its property is made for the benefit of creditors, then in either of said cases or events this Agreement may be tenninated and City may, at its option, immediately or at any time thereafter, without demand or notice, enter into, and upon, the Premises or any part thereof, and repossess the same, and expel said Concessionaire and those claiming by, through, or under it, and remove its effects, forcibly if necessary, without being deemed guilty of trespass and without prejudice to any remedy which otherwise might be used for arrears of concession fees or preceding breach of covenant.

11. This Agreement shall be subject to tennination, in whole or in part, by Concessionaire under the following conditions:

A. City's cessation of use or abandonment of any golf course covered by this Agreement.

B. The default of City in the perfomrnnce of any material covenant contained in this Agreement to be performed by City and the failure of City to remedy its default, for a period of (60) days after receipt from Concessionaire of written notice to remedy the default.

C. Concessionaire may cancel this Agreement with sixty (60) days prior written notice to City for reasons of Concessionaire's financial duress which City may verify by an examination of Concessionaire's records in accordance with generally accepted auditing standards (GAAS). City may require that Concessionaire show a net loss during the past four (4) months of operation to establish financial distress.

12. If the Agreement is canceled or terminated as provided herein, Concessionaire shall pay City the amount due on a pro rata basis as calculated by City.

13. Concessionaire, for itself, its successors and assigns, as part of the consideration herefore, covenants that no person, solely on the grounds of race, color, national origin, age, sex, religion, or non-job related disability, shall be excluded from participation in, denied the benefits of, or be otherwise subject to discrimination in the furnishing of services hereunder, unless the characteristic is a bona fide occupational qualification.

14. REPRESENTATION REGARDING ETHICAL STANDARDS FOR CITY

OFFICERS AND EMPLOYEES AND FORMER CITY OFFICERS AND EMPLOYEES.

Concessionaire represents that it has not: (1) provided an illegal gift or payoff to a City officer or employee or fonner City officer or employee, or his or her relative or business entity; (2) retained any person to solicit or secure this contract upon an agreement or understanding for a commission, percentage, or brokerage or contingent fee, other than bona fide employees or bona fide commercial selling agencies for the purpose of securing business; (3) knowingly breached any of the ethical standards set forth in City's conflict of interest ordinance; or ( 4) knowingly influenced, and hereby promises that it will not knowingly influence, a City officer or employee or former City officer or employee to breach any of the ethical standards set forth in City's conflict of interest ordinance.

15. GOVERNMENT RECORDS ACCESS AND MANAGEMENT ACT. City is subject to the requirements of the Government Records Access and Management Act, Chapter 2, Title 63G, Utah Code Annotated or its successor ("GRAMA"). All materials submitted by Concessionaire pursuant to this Agreement are subject to disclosure unless such materials are exempt from disclosure pursuant to GRAMA. The burden of claiming an exemption from disclosure shall rest solely with Concessionaire. Any materials for which Concessionaire claims a privilege from disclosure shall be submitted marked as "Business Confidential" and accompanied by a concise statement ofreasons supporting Concessionaire's claim of business confidentiality. City will make reasonable efforts to notify Concessionaire of any requests made for disclosure of documents submitted under a claim of business confidentiality. Concessionaire may, at Concessionaire 's sole expense, take any appropriate actions to prevent disclosure of such material. Concessionaire specifically waives any claims against City related to disclosure of any materials required by GRAMA.

16. Concessionaire shall at all times comply with all federal, state, and local environmental laws and regulations as the same may apply to the Concessionaire's acts and responsibilities in connection with this Agreement and use due care with respect to such acts or responsibilities. Concessionaire acknowledges and agrees that the indemnity obligations contained in this Agreement include, but are not limited to, the obligation to indemnify, save hannless, and defend City as set forth herein with respect to environmental matters, which may include, among other things, all fines, judgments, actions, penalties, administrative proceedings, demands, damages, mitigation, remediation, and any decreases in the value of City's property as a result of Concessionaire's acts or omissions pursuant to this Agreement. Upon the occurrence or discovery of any matter having adverse environmental impacts, which matter is the act or within the responsibility of Concessionaire, Concessionaire shall immediately notify City's Director of Golf and promptly take, at its sole expense, all necessary actions to comply with all relevant environmental laws.

17. Concessionaire is not an employee of City for any purpose whatsoever.

Concessionaire is an independent contractor at all times during the perfonnance of the services specified herein.

18. All notices shall be directed to the following addresses:

City: City of St. George Attn.: Support Services Director

(For U.S. Postal Service delivery) 175 East 200 North St. George, Utah 84770

-OR-

(For hand delivery to same address)

With a copy to:

City: City of St. George Golf Division

Concessionaire:

Attn.: Director of Golf Operations 1975 S. Tonaquint Drive St. George, Utah 84770

19. This Agreement may be assigned by either party but only with the prior written consent of the other party.

20. Concessionaire's obligations are solely to City and City's obligations are solely to Concessionaire. This Agreement shall confer no third-party rights whatsoever.

21. Concessionaire certifies that it is not presently nor has ever been debarred, suspended, proposed for debannent, or declared ineligible by any governmental department or agency, whether international, national, state, or local. Concessionaire must notify City's Contracts Administrator within thirty (30) days if Concessionaire has been debarred, suspended, proposed for debannent, declared ineligible, or involuntarily excluded from participation in any contract by any governmental entity during this Agreement.

22. This Agreement embodies the entire Agreement between the parties relating to the subject matter of this Agreement and shall not be altered except in writing signed by both an authorized representative of Concessionaire and by City's Mayor or the Mayor's designee. The terms of this Agreement shall supersede any additional or conflicting tenns or provisions that may be set forth or printed on Concessionaire's work plans, cost estimate fonns, receiving tickets, invoices, or any other related standard fonns or documents of Concessionaire that may subsequently be used to implement, record, or invoice services hereunder from time to time, even if such standard fonns or documents have been signed or initialed by a representative of City. The intent of the parties is that the terms of this Agreement shall prevail in any dispute between the terms of this Agreement and the tenns printed on any such standard forms or documents, and such standard fonns or documents shall not be considered written amendments of this Agreement.

23. This Agreement shall be enforced in and governed by the laws of the state of Utah.

The parties are signing this Agreement as of the date stated in the introductory clause.

CITY OF ST. GEORGE

By~ -"'--'----'------4,...,...............,_.~""""------'t~----'ol,-'--"""'-'-

~ST AND

APPROVED AS TO FORM

City of St. George Attorney's Office

Date ~ \ 2.J, 20ZJ

Sign ~£

Print name: 8 r -1c.....,_ J P 0:::c,.,L

State of u1A ~

County of--'-"J)~A_V_\_r ____ _

Title O 1",).-, 1. c

ACKNOWLEDGMENT

:ss

The foregoing Agreement was acknowledged before me this _ !_3 _ _ day of z.o2.I ..L..L..:r~·c..,.., _ _ __ , ~ by ~ (Name of person signing Agreement)

, the

(). wv/ of a Utah Limited Liability Company

County

EXHIBIT "A"

Scope of Work

FOOD & BEVERAGE CONCESSIONS AT SOUTHGATE GOLF CLUB, WITH OPTIONS

ON ADDITIONAL FACILITIES

GENERAL CONDITIONS

A. Concessionaire, if doing business under an assumed name, i.e., an Individual, Association, Partnership, Corporation, or otherwise, shall be registered with the State Division of Corporations and Commercial Code.

B. Concessionaire shall have full time and/or part-time employees who are properly t rained to operate all equipment to be used in performance of this Agreement and to perform the services outlined in accordance with City requirements.

C. Concessionaire shall assume full responsibility for damage to City property caused by negligence or abuse by Concessionaire's employees or equipment, as determined by designated City personnel.

D. Concessionaire shall possess and keep in full force all licenses and permits required to perform the services of this agreement.

E. City reserves the right to inspect Concessionaire's financial records for concession operations at the specified locations.

RESPONSIBILITIES OF CONCESSIONAIRE

Concessionaire shall provide the services listed below and conform with the conditions of this

Agreement which shall include, but may not be limited to, the following .

A. Description of Concession

1. During the term of this Agreement Concessionaire shall be granted exclusive right, at the following Golf Course(s): Southgate Golf Club. Others to be determined.

Concessionaire shall operate a restaurant concession and sell food and beverages (including alcoholic beverages) to all patrons of said golf course(s) as well as the general public.

Concessionaire may serve beer and other alcoholic beverages at the concession provided that, Concessionaire secures required licensing and complies with all applicable laws, ordinances and regulations. Any significant change in the liquor laws of the State of Utah shall result in a renegotiation of any part of this Agreement dealing with the sale of alcohol.

2. Concessionaire accepts the concession Premises in its present physical condition, upon occupancy. Concessionaire, at its own expense and liability, shall make all improvements necessary and acquire all personal property to perform this contract. Concessionaire shall be responsible for the maintenance and repairs of its own property, for the repairs of any City equipment used in the operation of Concession, and the repairs to any City property damaged as a result of the negligence of a Concessionaire employee or customers. Concessionaire shall maintain all of its property in a quality manner throughout the term of this contract. The term

"quality" shall be defined as clean, in a safe condition, free from any defects, in compliance with

Southwest Health Department code, and otherwise maintained to the satisfaction of the City.

Concessionaire shall operate the concession in a manner not to interfere with public use of the premises.

3. In the event of conflict between the Concessionaire herein and any other Concessionaire at said golf course as to the items and merchandise to be sold by the respective Concessionaires, Concessionaire agrees that City shall make the final decision as to which items or merchandise may be sold. Concessionaire agrees to be bound by the decision of City.

B. Investment by Concessionaire

1. Concessionaire's investment into equipment and furnishings shall commence immediately upon execution of this Agreement and shall be completed no later than sixty (60) days following execution of this Agreement. The City shall provide the basic equipment and furnishings which shall be necessary to conduct business in a proper manner, and all other items necessary to the concession. Concessionaire may add additional equipment at the Concessionaire's own expense. Concessionaire shall maintain and provide City with a list of all its equipment at the concession. Said inventory list shall identify each piece of equipment by brand name, model number and serial number. Concessionaire shall provide City with written notification of changes to the equipment inventory and explanation of equipment change. Concessionaire shall provide City with a current copy of its equipment inventory upon request of the City.

2. All of the above items to be furnished by Concessionaire shall be subject to approval of the

Southwest Health Department and the Director of Golf for the City of St. George Golf Division.

Concessionaire shall make no alterations, additions or replacements without obtaining City's written approval prior to making such changes.

C. Hours of Operation

Concessionaire shall communicate with the Golf Course Head Golf Professional or his designee daily to determine appropriate hours of operation to ensure consistency and quality service to golfers and the public. Concessionaire shall have the concession open for business to the public during normal golf operating hours or at the times designated by the Golf Course Head Golf

Professional or his designee. As a general rule, City anticipates that these hours of operation will be from dawn to dusk. Exceptions to hours of operations must be approved by Golf Course

Head Professional or his designee. However, Concessionaire shall not be required to remove paying customers from the premises in the event customers are still patrons of Concessiona ire at the time of closing, unless Concessionaire so desires.

D. Type of Operation

The food and beverage concession shall be operated as a convenience to the golfing public and the public in general; therefore, all food, beverages, confections and other items sold or kept for sale under the concession shall be of high quality and must conform in all respects to applicable federal, state, Washington County, Southwest Health Department, City of St. George food laws, ordinances and regulations. All food and other merchandise kept for sale shall be subject to inspection by City. Concessionaire shall maintain continuously all required food and beverage concession licenses, shall maintain said food and beverage concession to first-class standards, and shall continuously maintain all required beer and other alcohol licenses. Concessionaire shall ensure that all employees are properly licensed with food handler permits, as required by the State of Utah and the Southwest Health Department. Concessionaire shall, at its own expense, maintain and operate the concession in a first class manner in the areas of the clubhouse for which Concessionaire is contractually responsible and shall keep the portions of the Premises that it occupies or controls in a safe, clean and inviting condition at all times satisfactory to City.

Concessionaire shall offer the following services:

1. Concessionaire shall furnish at a minimum a variety of food and beverage menu items, including hot and cold fast foods (i.e. sandwiches, hamburgers, hot dogs, french fries, fruits, vegetables and other similar light meal items) snack foods (i.e. chips, candy bars, energy bars, and other pre-packaged goods) and fountain soft drinks and related beverages. Concessionaire also shall offer healthy, fresh and appealing food and beverage choices that may not normally be available at a golf course facility.

2. Concessionaire shall provide banquet services for special events, such as tournaments, banquets, corporate events, private parties, business luncheons, breakfasts and other social gatherings. Such services shall include offering a variety of high quality, full course and light course meals that include preparation, service, clean up, etc. Tournament food services shall be coordinated with the Golf Course Head Golf Professional.

3. Concessionaire shall not prohibit individual golfers or other individuals from bringing their own food and/or non-alcoholic beverages onto the Premises. No action w ill be taken against individual golfers or the general public. Concessionaire may prohibit private food and beverage in the dining room, banquet/meeting areas and patio seating areas, and may prohibit group events from providing their own food and beverage on the Premises. Any exception to this policy prohibiting group events from bringing their own food and beverage must be approved in advance by Concessionaire.

4. Concessionaire may provide or sell beer and other alcoholic beverages at the Premises, provided that Concessionaire obtains all required licenses and permits and complies with all applicable laws, ordinances and regulations. While the City's golf staff may, but is not required to, assist in communicating to the public information about Concessionaire's beer, alcohol and other licenses or permits, Concessionaire shall be solely responsible for monitoring compliance by itself and the public with such licenses, permits, laws ordinances, and regulations.

5. Concessionaire shall operate an on-course food and beverage snack cart at Concessionaire's sole discretion and sole expense of acquiring cart and all food and beverage to be sold from snack cart. Concessionaire shall also be responsible for all maintenance and repair costs of beverage cart. Concessionaire shall coordinate snack and beverage cart services with Golf

Course Head Professional daily to determine if services are needed to ensure consistency and quality service to golfers and the public. FOOD & BEVERAGE CART IS OPTIONAL AND IS NOT

PART OF THIS RFP.

6. Concessionaire shall decorate the food and beverage concession bar and seating area with appropriate decor as it relates to golf and general relaxed feel.

7. Concessionaire shall implement a process to obtain customer satisfaction information including customer comment cards.

8. {OPTIONAL) If Concessionaire has or develops a website showcasing its food and beverage products and services Concessionaire shall coordinate with the Golf Division Director of Golf.

Included on the website will be group banquet menus and pricing that City's golf staff may reference when setting up group golf outings. City shall provide a link on its golf website to the Concessionaire's website.

E. Concessionaire's Employees

1. Concessionaire shall retain a qualified, competent and experienced manager at the golf course to supervise the concession operations. The manager shall be authorized to rep resent and act in behalf of the Concessionaire.

2. Concessionaire's employees shall be courteous, efficient, clean and neat in appearance.

Concessionaire shall not employ any person or persons in or about the Premises who shall use improper language or act in a loud or boisterous or otherwise inappropriate manner.

Concessionaire shall replace any employee working at the golf course concession whose conduct is deemed by the City to be detrimental to the best interest of the City.

F. Disposal of Garbage and Recyclable Material.

Concessionaire shall use City-provided dumpster(s) for the disposal of waste. If available, Concessionaire shall use City-provided recycling containers to dispose of recyclable materials, which include recycling cardboard, tin, aluminum, plastic and newspaper. The waster dumpsters are used for City's golf course operation but are shared with Concessionaire.

1. If City begins providing yard and green waste containers that accept food waste, Concessionaire shall, to the extent practicable, separate and dispose of its food waste in such containers.

2. Piling of boxes, cartons, barrels, or other similar items in an unsightly or unsafe manner on or about the Premises is not permitted.

G. Quality, Price and Product Control

Concessionaire shall serve and dispense high quality foods and products in adequate portions and at prices comparable to other restaurants and golf courses in the Washington County area.

All prices charged by Concessionaire shall be approved by City. Failure to promptly correct, rectify, or modify its price, quality or quantity schedules upon written notice by City may be cause for cancellation of this Agreement by City.

Concessionaire shall meet with City at the beginning of each year to discuss any concerns, priorities and goals for the upcoming year.

H. Inspection

Concessionaire shall allow City's authorized representatives access to the Premises at all reasonable hours, for the purpose of examining and inspecting the Premises for purposes necessary, incidental to, or connected with, the performance of City's obligations hereunder or in the exercise of its governmental functions. Provided, however, that City shall notify

Concessionaire 24 hours in advance of such inspection to not disrupt Concessionaire's business operations.

I. Ingress and Egress

Subject to regulations governing the use of the designated golf course, Concessionaire, its agents, employees, patrons and invitees, and its suppliers of service and furnishers of materials shall have the right of ingress and egress from the Premises.

J. Redelivery

Concessionaire shall make no unlawful or offensive use of the Premises and shall, at the expiration of the term of this agreement, or upon any earlier termination, without notice, quit and deliver up the Premises to City and those having its estate in the Premises, peaceably, quietly and in as good order and condition, reasonable use and wear thereof excepted, as the same now are or may hereafter exist.

K. Default

Any of the following shall constitute an event of default under this agreement:

l. Concessionaire fails to pay concession fees, and such failure continues for ten days after

City has notified Concessionaire in writing of such failure;

2. Concessionaire fails to perform or observe any other term or condit ion of this Agreement, and such failure continues for 30 days after City has notified Concessionaire in writing of such failure;

3. Concessionaire is declared to be bankrupt or insolvent according to law, or any assignment of Concessionaire's property is made for the benefit of creditors; or

4. Concessionaire erroneously reports gross sales, which causes the concession fees to be understated and underpaid to the City.

If an event of default occurs, City may take any of the actions stated below and any such action by City shall not be considered a trespass and shall not adversely affect any other remedy that City otherwise might have against Concessionaire:

l. Terminate this Agreement;

2. Without demand or notice to Concessionaire, enter and repossess the Premises and expel from the Premises Concessionaire and anyone claiming rights in the Premises through Concessionaire; and

3. Remove Concessionaire's property or effects from the Premises, forcibly if necessary.

L. Signs

Concessionaire shall not erect, install, operate or permit to be erected, installed or operated in or upon the Premises any sign or other similar advertising device without having obtained prior written approval of the City, which approval shall not be unreasonably withheld. All sign age shall comply with all applicable ordinances. The cost of such installation and operation shall be borne by Concessionaire.

M. Cost of Operation

Concessionaire shall bear, at its own expense, all costs of operating the concession and shall pay, in addition to the concession fees, all other costs connected with the use of portions of the

Premises that it occupies or controls, including interior maintenance, painting, security lighting and security surveillance services specific to those areas for which Concessionaire is contractually responsible, light bulb replacement, insurance, any and all taxes (including any privilege taxes), janitor service and supplies, and all permits and licenses required by law.

Concessionaire is responsible for any food spoilage losses as a result of equipment outages and is encouraged to carry insurance to protect against such loss.

N. Maintenance Repairs

Concessionaire shall, at its own expense, maintain and operate the concession in a first-class manner. Concessionaire shall bear, at its own cost and expense, all costs to maintain and repair all fixtures and equipment (including maintenance/repairs and accompanying costs on all kitchen, banquet/meeting areas, dining room, snack bar, patio, storage room, and other concession related equipment, whether provided by City or Concessionaire) with the exception of the physica l structure of the clubhouse, air management systems and utility connections.

Notwithstanding the forgoing if damage is a result of Concessionaire's use, misuse or abuse.

Concessionaire shall keep and maintain all buildings, improvements and equipment in a good state of repair and maintenance, reasonable wear and tear excepted, and shall not commit or allow waste with respect to any portion of the Premises that it occupies or controls.

Concessionaire shall at its own cost replace any and all equipment as needed.

0 . Customer Feedback

City reserves the right to either on its own or in coordination with Concessionaire evaluate the public's satisfaction with the quality, quantity, price, overall value, facility cleanliness, and other factors relating to the product and service provided by Concessionaire. Methods of evaluation include word of mouth comments to City's golf staff, questionnaires to the public and secret shopper programs. If an evaluation results in concerns with any of these categories of product or service, upon written notification from City, Concessionaire shall have 60 days to resolve the problem(s) to the satisfaction of the City. If necessary, improvements are not completed within

60 days, this Agreement may be terminated by City.

P. Damage to Premises

l. If the portion of the Premises occupied or controlled by Concessionaire is partially damaged by fire, exp losion, the elements, the public, or other casualty that is not the result of any acts by

Concessionaire, but not rendered untenable, the same shall be repaired with due diligence by

City. If the damage is so extensive that, in the opinion of the City, it renders such portion of the

Premises untenable, but capable of being repaired in thirty (30) days, the damage shall be repaired with due diligence by City, and the concession fees payable shall be proportionately paid up to the time of such damage and thereafter cease until such time as such portion of the

Premises is the result of any act by Concessionaire, all costs of the repair shall be borne by

Concessionaire.

2. In the event the portion of the Premises occupied or controlled by the Concessionaire, in the opinion of the City, is destroyed by fire, explosion, the elements, the public enemy, or other casua lty that is not the result of any act by Concessionaire, or so damaged that they shall remain untenable for more than thirty (30) days, City shall be under no obligation to repair and reconstruct such portion of the Premises, and concession fees payable under this Agreement shall be proportionately paid up to the time of such damage or destruction, and shall thenceforth cease until such time as such portion of the Premises may be fully restored. If within twelve (12) months after the time of such damage or destruction such portion of the

Premises has not repaired or reconstructed, Concessionaire sha ll give City written notice of its intention to cance l this Agreement in its entirety as of the date of such damage or destruction .

If the damage or destruction to such portion of the Premises is the result of any act by Concessionaire, Concessionaire shall be liable to City for the replacement cost (if destroyed) or for the cost of any repair or restoration (if such portion of the Premises is repaired or restored).

In the event that Concessionaire's equipment and/or furnishings are destroyed due to negligence or willful misconduct by City, and the cost of such loss is not covered by

Concessionaire's insurance, City shall reimburse Concessionaire for the fair market replacement value of such equipment and/or furnishings, and, at its discretion, may take ownership and possession of the damaged equipment and/or furnishings that were replace.

Q. Rules and Regulations

City shall have the right to adopt and enforce reasonable rules and regulations with respect to the use of the designated golf course and related facilities which Concessionaire shall observe and obey. City's Director of Golf has the authority to enforce this agreement on behalf of City and may authorize other City employees to help administer this agreement.

R. Non-Appropriation of Funds

All financial commitments by City sha ll be subject to the appropriation of funds approved by the City Council and the limitations on future budget commitments provide under applicable Utah law, including the Utah Constitution. This agreement shall be enforceable against City only if the

City Council provides the necessary funding therefore. If the funds are not appropriated or are otherwise unavailable, City may terminate this agreement, without penalty, by giving thirty (30) days written notice to Concessionaire.

S. Termination

Upon termination of t he Agreement through passage of time or otherwise, all right, title of interest of Concessionaire in or to any of t he improvements and fixtures, including carpets, that have been affixed to the real property constituting the portion of the Premises occupied or contro lled by Concessiona ire shall immediately be vested in the City. All other personal property of Concessionaire such as furniture, fixtures, and equipment installed during the term of this Agreement that has not been attached or affixed to the Premises shall remain the property of Concessionaire upon such termination of the Agreement subject, however, to the right of City or the next concessionaire to acquire, within thirty (30) days after such termination, all of Concessionaire's right, title and interest in and to all or any part of such personal property upon payment to Concessionaire of an amount equal to the fair market value of said personal property, as determined by a third-party appraisal. To augment the third-party appraisal, the original purchase value of said personal property shall be established by verified invoices showing date of purchase, amount paid, whether equipment was new or used, and date of initial use on the Premises hereunder. Provided however, and notwithstanding anything to the contrary herein, in the event that City voluntarily terminates this Agreement for reasons other than negligence or willful misconduct by Concessionaire, then Concessionaire shall be under no obligation to sell any part of its personal property to City or next concessionaire hereunder. If neither City nor the next concessionaire desires to purchases any or all of Concessionaire's personal property upon termination of this Agreement, Concessionaire shall remove such personal property from City's property within one week from when it is first notified of the election not to purchase by City and the next concessionaire.

T. Holding Over

In the event the Concessionaire shall hold over and remain in possession of the Premises under this Agreement after the expiration date without written renewal or extension of the

Agreement, it shall only create a tenancy from month to month, which may be terminated any time by City.

U. Attorney's Fees

In the event any action or proceeding is brought to collect fees and other charges due, or any portion thereof, to take possession of the Premises, to enforce compliance with this Agreement or to remedy Concessionaire's failure to observe any of the covenants of this Agreement, Concessionaire shall pay City such sum as the court may adjudge reasonable as attorney's fees and costs to be allowed in the suit, action or proceedings.

Concessionaire shall be responsible for maintaining a safe environment in the portion of the

Premises occupied or controlled by Concessionaire. Concessionaire shall immediately notify City of any unsafe conditions of the Premises, as well as any unsafe practices occurring thereon, and work with City to correct that practice or condition . Concessionaire shall obtain emergency medical care for any member of the public who is in need thereof because of illness or injury occurring on or from the portion of the Premises occupied or controlled by Concessionaire.

Concessionaire shall cooperate fully with City and law enforcement in the investigation of any accidental injury or death occurring on or from such portion of the Premises, including providing a prompt report to City.

W. Non-Waiver

Any waiver of or breach of any covenant to be performed by Concessionaire shall not be deemed a continuing waiver and shall not bar or prevent City from declaring a forfeiture for any succeeding breach of the same condition or covenant.

X. Security

Concessionaire shall be responsible for providing, at its own cost, security surveillance services and security lighting in the portion of the Premises that it occupies or controls.

Y. Accounting Records

Concessionaire shall maintain all records necessary to properly account for all monies received by Concessionaire through the operation of the concession. Concessionaire shall maintain records for at least four (4) years after this Agreement terminates or until all audits initiated within that four (4) year period have been completed, whichever is later. Concessionaire shall allow City auditors and Golf Division staff access to all records relating to this Agreement, for audit and inspection, and for monitoring of payments so that the accuracy of the records can be confirmed.

Concessionaire shall maintain a method of accounting in accordance with generally accepted accounting principles and procedures, satisfactory to City and shall correctly report and accurately reflect the gross receipts and disbursements of Concessionaire. The method of accounting, including bank accounts established for the concession, shall be separate from the accounting system used for any other business operated by Concessionaire or for recording

Concessionaire's personal financial affairs. Such method shall include the following documents:

1. Regular books of accounting such as general ledgers or City approved computer accounting programs.

2. Journals, including any supporting and underlying documents such as vouchers, checks, tickets, bank statements, etc.

3. State and federal income tax returns, and sales tax returns.

4. Cash register tapes (daily tapes may be separated but shall be retained so day-to-day sales can be identified).

5. Any other reporting records City deems necessary for proper reporting of receipts.

Catering Service for City Events (OPTIONAL SERVICE}

A. Concessionaire may provide catering services for City events as described in paragraph B below.

Catering service for City events shall not be considered a golf concession service and shall not be subject to concession fee requirements. Concessionaire are permitted to use golf course facilities to prepare food or beverages for City catering events.

B. Concessionaire shall have the option to provide catering services to City departments, divisions and City related councils and commissions ("City Catering Service") on an as requested basis at locations specified by the requesting City agency. Concessionaire shall negotiate food and beverage items and prices with the requesting City agency. If prices and service cannot be agreed upon by the parties, Concessionaire shall not be required to provide catering service. If a

City Catering Service is agreed upon, the price, food service and other details shall be described in writing. Invoices for catering service shall be submitted to City agency requesting the catering service. Catering service shall be non-exclusive, and City reserves the right to use other catering providers.

C. When providing food and beverage services for City-funded events, durable and non-disposable plates, cups and utensils shall be used whenever practicable.

EXHIBIT "B"

Schedule of Fees

FOOD & BEVERAGE CONCESSIONS AT SOUTHGATE GOLF CLUB, WITH OPTIONS

ON ADDITIONAL FACILITIES

I. Fees

A. For the first five (5) years of this Agreement Concessionaire shall pay City a monthly fee that is calculated as a percent of gross sa les ("Percent of Gross Sales") stated in the table below. The term "Gross Sales" means total sales exclusive of sales tax.

This table shall be added to the resulting agreement(s) for each course

YEAR

Percentage of GROSS

SALES LESS TAX

5% 5%

5% minimum. To be renegotiated after 2022 5% minimum. To be renegotiated after 2022 5% minimum. To be renegotiated after 2022

B. If Concessionaire elects to extend the term of this Agreement as provided in Paragraph I of this

Agreement, City and Concessionaire must mutually agree in writing to the percentage of gross sales and any other fees for the second five (5) years of this Agreement as part of the term extension process.

C. Maintenance and Repairs. Concessionaire shall pay all costs and expenses associated with maintenance and repairs of fixtures and equipment as described in Exhibit "A". City shall pay all costs and expenses associated with maintenance and repairs of the physical and exterior surfaces of the clubhouse. However, if any damage to such buildings, including their exterior surfaces, is a result of Concessionaire's use, misuse or abuse, Concessionaire shall be responsible for all costs.

II. PAYMENTS TO CITY

A. Monthly fee shall be due and payable to City on or before the 15th day of each month. A late fee of ten percent (10%) shall be assessed on any payment not received by City by the due date.

Failure to pay the fees and charges, and late fees, within thirty (30) days of the due date shall constitute a breach of the terms of this Agreement and constitute just cause for termination hereof before the expiration of the term, and such unpaid amount shall bear interest until paid at the rate of an additional 1.5% per month.

B. Concessionaire sha ll provide a recap of each day's sa les for each month. Recaps shall be due by the 15th of each month and is to be submitted with monthly…