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AG 19-085 - Pac Island Grill RETURN TO: EXT: CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM . ORIGINATING DEPT/DIV: PRCS/ . ORIGINATING STAFF PERSON:ROB ETTINGER EXT: 2002 EXT: 3. DATE REQ.BY:_ ▪ TYPE OF DOCUMENT(CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT(E.G.,RFB,RFP,RFQ) ❑ PUBLIC WORKS CONTRACT o SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT o MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES/CDBG ❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT(E.G.BOND RELATED DOCUMENTS) ❑ ORDINANCE o RESOLUTION o CONTRACT AMENDMENT(AG#): ❑ INTERLOCAL X OTHER CONCESSIONAIRE AGREEMENT PROJECT NAME:RWBF FOOD VENDOR NAME OF CONTRACTOR:PAC ISLAND GRILL ADDRESS:2012 S.320TH STREET,SUITE H,FEDERAL WAY,WA 98003 TELEPHONE 253-315-9137 E-MAIL:PACISLANDGRILL@COMCAST.NET FAX: SIGNATURE NAME:DAVID LANDON TITLE:MANAGER EXHIBITS AND ATTACHMENTS:❑ SCOPE,WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS/CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT/AMENDMENTS . TERM: COMMENCEMENT DATE:JULY 4,2019 COMPLETION DATE:MARCH 31,2025 . TOTAL COMPENSATION$ ` L e mss, (INCLUDE EXPENSES AND SALES TAX,IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE-ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE:❑YES ❑NO IF YES,MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED ❑YES ❑NO IF YES,$ PAID BY:❑CONTRACTOR❑CITY RETAINAGE: RETAINAGE AMOUNT: ❑RETAINAGE AGREEMENT(SEE CONTRACT) OR ❑RETAINAGE BOND PROVIDE ❑ PURCHASING: PLEASE CHARGE TO: 0. DOFUMENT/CONTRACT REVIEW INITIAL/DATE REVIEWED INITIAL/DATE APPROVED q/PROJECT MANAGER fj ,j7/1 ❑ DIRECTOR ❑ RISK MANAGEMENT (IF APPLICABLE) ❑ LAW 11/10,e- 2_0 1. COUNCIL APPROVAL(IF APPLICABLE) SCHEDULED COMMITTEE DATE: COMMITTEE APPROVAL DATE: SCHEDULED COUNCIL DATE: COUNCIL APPROVAL DATE: 2. CONTRACT SIGNATURE ROUTING ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: DATE REC'D: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE,LICENSES,EXHIBITS ❑ CREATE ELECTRONIC REMINDER/NOTIFICATION FOR 1 MONTH PRIOR TO EXPIRATION DATE (Include dept.support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.) INITIAL/DATE SIGNED ❑ LAW DEPARTMENT 1 /14 2_01 ❑ SIGNATORY(MAYOR OR DIRECTOR) ❑ CITY CLERKi t{ ❑ ASSIGNED AG# AG -O ❑ SIGNED COPY RETURNED DATE SENT: 5.0D-1C1 01- :OMMENTS: !"�/ 1/2018 ` CITY OF CITY HALL �.., 33325 8th Avenue South Federal Way Federal Way,WA 98003-6325 (253) 835-7000 www cltyoffederalway com CONCESSIONAIRE AGREEMENT FOR RED, WHITE AND BLUES FESTIVAL This Concessionaire Agreement("Agreement")is made between the City of Federal Way,a Washington municipal corporation("City"), and Pac Island Grill LLC, a Washington limited liability company("Contractor"). The City and Contractor(together"Parties")are located and do business at the below addresses which shall be valid for any notice required under this Agreement: PAC ISLAND GRILL LLC: CITY OF FEDERAL WAY: David Landon Robert Ettinger 2012 S. 320th Street, Suite H 33325 8th Ave. S. Federal Way, WA 98003 Federal Way, WA 98003-6325 253-529-8667—w (253) 835-2002 (telephone) 253-315-9137 - c (253) 835-2010 (facsimile) 253-529-9620 - f robe@cityoffederalway.com pacislandgrill@comcast.net The Parties agree as follows: 1. TERM.The term of this Agreement shall commence upon the effective date of this Agreement,which shall be the date of mutual execution, and shall continue until the completion of the Services, but in any event no later than March 31, 2025 ("Term"). 2. WORK. 2.1 Work. The Contractor shall provide goods, materials or services and otherwise perform the work more specifically described in Exhibit"A," attached hereto and incorporated by this reference ("Work"), performed to the City's satisfaction,within the time period prescribed by the City and pursuant to the direction of the Mayor or his or her designee. 2.2 Warranties.The Contractor warrants that it has the requisite training,skill,and experience necessary to provide the Work and is appropriately accredited and licensed by all applicable agencies and governmental entities, including but not limited to obtaining a City of Federal Way business registration. The Contractor warrants it will provide services in a manner consistent with the accepted practices for other similar services within the Puget Sound region in effect at the time those services are performed.The Contractor warrants goods are merchantable,are fit for the particular purpose for which they were obtained, and will perform in accordance with their specifications and Contractor's representations to City. The Contractor shall, at its sole cost and expense, correct all Work performed which the City deems to have defects in workmanship and material discovered within one(1)year after the City's final acceptance of the Work.This Agreement is subject to all warranty provisions established under the Uniform Commercial Code,Title 62A RCW.In the event any part of the goods are repaired,only original replacement parts shall be used; rebuilt or used parts are not acceptable. When defects are corrected, the warranty for that portion of the work shall extend for one (1) year from the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven(7)calendar days of its receipt of notice from the City of the defect.If the Contractor does not accomplish the corrections within a reasonable time as determined by the City,the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. 2.3 Time,Documentation,and Inspection.Work shall begin immediately upon the effective date of this Agreement. Work shall be subject,at all times,to observation and inspection by and with approval of the City,but the making(or failure or CONCESSIONAIRE AGREEMENT - 1 - 3/2017 4Ikhh, CITY OF CITY HALL 33325 '�.... Federal Way Feder 8th Avenue South Federal Way,WA 98003-6325 (253) 835-7000 www cityoffederalway com delay in making) such inspection or approval shall not relieve Contractor of responsibility for performance of the Work in accordance with this Agreement, notwithstanding the City's knowledge of defective or non-complying performance, its substantiality or the ease of its discovery. 2.4 Clean Up.At any time ordered by the City and immediately after completion of the Work,the Contractor shall, at its own expense,clean up and remove all refuse and unused materials of any kind resulting from the Work.In the event the Contractor fails to perform the necessary clean up,the City may,but in no event is it obligated to,perform the necessary clean up and the costs thereof shall be immediately paid by the Contractor to the City and/or the City may deduct its costs from any remaining payments due to the Contractor. 2.5 Health Department Food vendors are responsible for obtainingtheir own Temporary Food Service Permit from p P p �'Y the Seattle-King County Department of Public Health a minimum 30 days prior to the event. Health inspectors will be present at the Red, White, and Blues Festival. 3. TERMINATION.Either party may terminate this Agreement,with or without cause,upon providing the other party thirty(30) days written notice at its address set forth on the signature block of this Agreement. The Citymayterminate this Y � �' Agreement immediately if the Contractor fails to maintain required insurance policies,breaches confidentiality,or materially violates Section 12 and such may result in ineligibility for further City agreements. 4. COMPENSATION. 4.1 Amount. 4.1.1 Flat Rate Payment.The Contractor agrees to pay the City a onetime flat rate of$375.00 annually for 3- 10x10 booths. 4.1.2 Deposit Payment.The Contactor agrees to pay the City a one-time refundable deposit of$125 to ensure the Contractor meets the conditions outlined in this Agreement. To receive a full refund, Contractor must meet all of the following:(1)meet all permit requirements,(2)pass health inspection at the Event,(3)be set-up on time as outlined in Exhibit A,and(4)be in compliance with the City-approved menu as outlined in Exhibit A.If the Contractor is not in compliance with any of the above requirements, a 25%fee for each unmet requirement will not be returned from the deposit payment. 4.2 Method of Payment.The Flat Rate and Deposit Payment to the City are due from the Contractor at the time this Agreement is executed. 4.3 Contractor Responsible for Taxes. The Contractor shall be solely responsible for the payment of any taxes imposed by any lawful jurisdiction as a result of the performance and payment of this Agreement. 5. INDEMNIFICATION. 5.1 Contractor Indemnification.The Contractor agrees to release indemnify,defend,and hold the City,its elected officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers harmless from any and all claims, demands,actions,suits,causes of action,arbitrations,mediations,proceedings,judgments,awards,injuries,damages,liabilities, taxes, losses, fines, fees, penalties expenses, attorney's fees, costs, and/or litigation expenses to or by any and all persons or entities, including,without limitation,their respective agents,licensees,or representatives, arising from,resulting from,or in connection with this Agreement or the performance of this Agreement,except for that portion of the claims caused by the City's sole negligence. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115,then,in the event of liability 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, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. Contractor shall ensure that each sub-contractor shall agree to defend and indemnify the City, its CONCESSIONAIRE AGREEMENT - 2 - 3/2017 CITY OF CITY HALL 33325 8th Avenue South Fed e ra I Way Federal Way,WA 98003-6325 (253) 835-7000 www cityoffederalway corn elected officials,officers,employees,agents,representatives,insurers,attorneys,and volunteers to the extent and on the same terms and conditions as the Contractor pursuant to this paragraph. The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification. 5.2 Industrial Insurance Act Waiver. It is specifically and expressly understood that the Contractor waives any immunity that may be granted to it under the Washington State industrial insurance act,Title 51 RCW,solely for the purposes of this indemnification. Contractor's indemnification shall not be limited in any way by any limitation on the amount of damages,compensation or benefits payable to or by any third party under workers' compensation acts,disability benefit acts or any other benefits acts or programs. The Parties further acknowledge that they have mutually negotiated this waiver. 5.3 City Indemnification. The City agrees to release, indemnify, defend and hold the Contractor, its officers, directors, shareholders, partners, employees, agents, representatives, and sub-contractors harmless from any and all claims, demands,actions,suits,causes of action,arbitrations,mediations,proceedings,judgments,awards,injuries,damages,liabilities, losses,fines,fees,penalties expenses,attorney's fees,costs,and/or litigation expenses to or by any and all persons or entities, including without limitation,their respective agents,licensees,or representatives,arising from,resulting from or connected with this Agreement to the extent solely caused by the negligent acts, errors, or omissions of the City. 5.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 6. INSURANCE.The Contractor agrees to carry insurance for liability which may arise from or in connection with the performance of the services or work by the Contractor, their agents, representatives, employees or subcontractors for the duration of the Agreement and thereafter with respect to any event occurring prior to such expiration or termination as follows: 6.1. Minimum Limits. The Contractor agrees to carry as a minimum,the following insurance, in such forms and with such carriers who have a rating that is satisfactory to the City: a. Commercial general liability insurance covering liability arising from premises,operations,independent contractors,products-completed operations,stop gap liability,personal injury,bodily injury,death,property damage,products liability, advertising injury, and liability assumed under an insured contract with limits no less than $1,000,000 for each occurrence and$2,000,000 general aggregate. b. Workers' compensation and employer's liability insurance in amounts sufficient pursuant to the laws of the State of Washington; c. Automobile liability insurance covering all owned, non-owned, hired and leased vehicles with a minimum combined single limits in the minimum amounts required to drive under Washington State law per accident for bodily injury, including personal injury or death, and property damage. 6.2. No Limit of Liability. Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. The Contractor's insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. 6.3. Additional Insured,Verification. The City shall be named as additional insured on all commercial general liability insurance policies. Concurrent with the execution of this Agreement, Contractor shall provide certificates of insurance for all commercial general liability policies attached hereto as Exhibit"C"and incorporated by this reference. At City's request, Contractor shall furnish the City with copies of all insurance policies and with evidence of payment of premiums or fees of such policies. If Contractor's insurance policies are"claims made,"Contractor shall be required to maintain tail coverage for a minimum period of three(3)years from the date this Agreement is actually terminated or upon project completion and acceptance by the City. 6.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement. CONCESSIONAIRE AGREEMENT - 3 - 3/2017 ` CITY OF CITY HALL ..�.., 33325 8th Avenue South Federal Way Federal Way,WA 98003-6325 (253) 835-7000 www cityoffederatway corn 7. CONFIDENTIALITY.All information regarding the City obtained by Contractor in performance of this Agreement shall be considered confidential subject to applicable laws. Breach of confidentiality by the Contractor may be grounds for immediate termination. All records submitted by the City to the Contractor will be safeguarded by the Contractor. The Contractor will fully cooperate with the City in identifying, assembling, and providing records in case of any public records disclosure request. 8. WORK PRODUCT. All originals and copies of work product, including plans, sketches, layouts, designs, design specifications,records, files, computer disks, magnetic media or material which may be produced or modified by Contractor while performing the Work shall belong to the City upon delivery.The Contractor shall make such data,documents,and files available to the City and shall deliver all needed or contracted for work product upon the City's request. At the expiration or termination of this Agreement,all originals and copies of any such work product remaining in the possession of Contractor shall be delivered to the City. 9. BOOKS AND RECORDS.The Contractor agrees to maintain books,records,and documents which sufficiently and properly reflect all direct and indirect costs related to the performance of the Work and maintain such accounting procedures and practices as maybe deemed necessary by the City to assure proper accounting of all funds paid pursuant to this Agreement. These records shall be subject,at all reasonable times,to inspection,review or audit by the City,its authorized representative, the State Auditor, or other governmental officials authorized by law to monitor this Agreement. 10. INDEPENDENT CONTRACTOR/EMPLOYEE CONDITIONS. 10.1 Independence.The Parties intend that the Contractor shall be an independent contractor and that the Contractor has the ability to control and direct the performance and details of its work,the City being interested only in the results obtained under this Agreement. The City shall be neither liable nor obligated to pay Contractor sick leave, vacation pay or any other benefit of employment, nor to pay any social security, income, or other tax which may arise as an incident of employment, except as specifically provided in Section 4. Industrial or any other insurance that is purchased for the benefit of the City, regardless of whether such may provide a secondary or incidental benefit to the Contractor,shall not be deemed to convert this Agreement to an employment contract. If the Contractor is a sole proprietorship or if this Agreement is with an individual,the Contractor agrees to notify the City and complete any required form if the Contractor retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Contractor's failure to do so. 10.2 Safety.Contractor shall take all necessary precautions and shall be responsible for the safety of its employees, agents,and subcontractors at the work site and in the performance of the contract work and shall utilize all protection necessary for that purpose. Contractor shall comply with all applicable provisions of federal, state and municipal safety and health laws and codes,including without limitation,all OSHA/WISHA requirements, Safety and Health Standards for Construction Work (Chapter 296-155 WAC), General Safety and Health Standards (Chapter 296-24 WAC), and General Occupational Health Standards(Chapter 296-62 WAC). Contractor shall erect and properly maintain,at all times,all necessary guards,barricades, signals and other safeguards at all unsafe places at or near the site for the protection of its employees and the public, safe passageways at all road crossings,crosswalks,street intersections,post danger signs warning against known or unusual hazards and do all other things necessary to prevent accident or loss of any kind.Contractor shall protect from damage all water,sewer, gas, steam or other pipes or conduits,and all hydrants and all other property that is likely to become displaced or damaged by the performance of the Work.The Contractor shall,at its own expense,secure and maintain a safe storage place for its materials and equipment and is solely responsible for the same 10.3 Risk of Work. All work shall be done at Contractor's own risk,and Contractor shall be responsible for any loss of or damage to materials,tools,or other articles used or held for use in connection with the work. Industrial or any other insurance that is purchased for the benefit of the City,regardless of whether such may provide a secondary or incidental benefit to the Contractor, shall not be deemed to convert this Agreement to an employment contract. Even though Contractor is an independent contractor,the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure satisfactory completion CONCESSIONAIRE AGREEMENT - 4 - 3/2017 ` CITY OF CITY HALL �.... 33325 8th Avenue South Federal Way Federal Way,WA 98003-6325 (253) 835-7000 www cityoffederatway corn 11. CONFLICT OF INTEREST.It is recognized that Contractor may or will be performing professional services during the Term for other parties; however, such performance of other services shall not conflict with or interfere with Contractor's ability to perform the Services. Contractor agrees to resolve any such conflicts of interest in favor of the City. Contractor confirms that Contractor does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in the Contractor's selection, negotiation, drafting, signing, administration, or evaluating the Contractor's performance. 12. EQUAL OPPORTUNITY EMPLOYER.In all services,programs,activities,hiring,and employment made possible by or resulting from this Agreement or any subcontract,there shall be no discrimination by Contractor or its subcontractors of any level,or any of those entities'employees,agents,subcontractors,or representatives against any person because of sex,age (except minimum age and retirement provisions),race,color,religion,creed,national origin,marital status,or the presence of any disability, including sensory, mental or physical handicaps, unless based upon a bona fide occupational qualification in relationship to hiring and employment. This requirement shall apply to, but not be limited to, the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.Contractor shall comply with and shall not violate any of the terms of Chapter 49.60 RCW,Title VI of the Civil Rights Act of 1964,the Americans With Disabilities Act,Section 504 of the Rehabilitation Act of 1973,49 CFR Part 21,21.5 and 26, or any other applicable federal, state, or local law or regulation regarding non-discrimination. 13. GENERAL PROVISIONS. 13.1 Interpretation and Modification. This Agreement, together with any attached Exhibits, contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement and no prior statements or agreements,whether oral or written,shall be effective for any purpose. Should any language in any Exhibits to this Agreement conflict with any language in this Agreement,the terms of this Agreement shall prevail.The respective captions of the Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect any of the provisions of this Agreement.Any provision of this Agreement that is declared invalid,inoperative,null and void,or illegal shall in no way affect or invalidate any other provision hereof and such other provisions shall remain in full force and effect. Any act done by either Party prior to the effective date of the Agreement that is consistent with the authority of the Agreement and compliant with the terms of the Agreement,is hereby ratified as having been performed under the Agreement.No provision of this Agreement,including this provision,may be amended,waived,or modified except by written agreement signed by duly authorized representatives of the Parties. 13.2 Assignment and Beneficiaries.Neither the Contractor nor the City shall have the right to transfer or assign,in whole or in part,any or all of its obligations and rights hereunder without the prior written consent of the other Party.If the non- assigning party gives its consent to any assignment,the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. Subject to the foregoing,the rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors in interest, heirs and assigns. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto.No other person or entity shall have any right of action or interest in this Agreement based on any provision set forth herein. 13.3 Compliance with Laws. The Contractor shall comply with and perform the Services in accordance with all applicable federal,state,local,and city laws including,without limitation,all City codes,ordinances,resolutions,regulations, rules,standards and policies,as now existing or hereafter amended,adopted,or made effective.If a violation of the City's Ethics Resolution No. 91-54,as amended,occurs as a result of the formation or performance of this Agreement,this Agreement may be rendered null and void, at the City's option. 13.4 Enforcement.Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor.Adherence to completion dates set forth in the description of the Services is essential to the Contractor's performance of this Agreement.Any notices required to be given by the Parties shall be delivered at the addresses set forth at the beginning of this Agreement. Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth above. Any notice so posted in the United States mail shall be deemed CONCESSIONAIRE AGREEMENT - 5 - 3/2017 / k CITY OF CITY HALL ki .., Federal Way Feder33325 8th Avenue South Federal Way,WA 98003-6325 (253) 835-7000 www cityoffederalway com received three(3)days after the date of mailing.Any remedies provided for under the terms of this Agreement are not intended to be exclusive,but shall be cumulative with all other remedies available to the City at law,in equity or by statute.The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement,or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. Failure or delay of the City to declare any breach or default immediately upon occurrence shall not waive such breach or default.Failure of the City to declare one breach or default does not act as a waiver of the City's right to declare another breach or default. This Agreement shall be made in,governed by,and interpreted in accordance with the laws of the State of Washington.If the Parties are unable to settle any dispute,difference or claim arising from this Agreement,the exclusive means of resolving that dispute,difference,or claim, shall be by filing suit under the venue,rules and jurisdiction of the King County Superior Court, King County,Washington, unless the parties agree in writing to an alternative process. If the King County Superior Court does not have jurisdiction over such a suit, then suit may be filed in any other appropriate court in King County, Washington. Each party consents to the personal jurisdiction of the state and federal courts in King County,Washington and waives any objection that such courts are an inconvenient forum.If either Party brings any claim or lawsuit arising from this Agreement,each Party shall pay all its legal costs and attorney's fees and expenses incurred in defending or bringing such claim or lawsuit,including all appeals,in addition to any other recovery or award provided by law;provided,however,however nothing in this paragraph shall be construed to limit the Parties' rights to indemnification under Section 5 of this Agreement. 13.5 Execution. Each individual executing this Agreement on behalf of the City and Contractor represents and warrants that such individual is duly authorized to execute and deliver this Agreement.This Agreement may be executed in any number of counterparts,each of which shall be deemed an original and with the same effect as if all Parties hereto had signed the same document.All such counterparts shall be construed together and shall constitute one instrument,but in making proof hereof it shall only be necessary to produce one such counterpart. The signature and acknowledgment pages from such counterparts may be assembled together to form a single instrument comprised of all pages of this Agreement and a complete set of all signature and acknowledgment pages.The date upon which the last of all of the Parties have executed a counterpart of this Agreement shall be the"date of mutual execution"hereof. [Signature page follows] CONCESSIONAIRE AGREEMENT - 6 - 3/2017 CITY OF CITY HALL .'�.. Federal Way 33325 8th Avenue South Federal Way,WA 98003-6325 (253) 835-7000 www cityoffederalway corn CITY OF FEDERAL WAY: ATTEST: :,;,'//" 1 Ir w John , ' , Par . 11ector 'to• anie Courtney, CM g ity Clerk DATE: cS// 9 APPROVED AS TO FORM: , (-2-‘-- ,.,' aY-410-- Fla g" J. Ryan Call, City Attorney PAC ISLAND GRILL - •• • - . : : : LLC ‘,...c.ie :2 By: Printed Name: P V i4) MA/06N Title: " M s// !fir 6/-,z DATE: '-5////9 STATE OF WASHINGTON ) ss. COUNTY OF /71.nzi ) On this day personally appeared before me Dat,ia lci.aLn , to me known to be the 01.2. .j nvta A of Pe.c.Y,,4i e:,of G-r di t r.,n t,u,. ,51-)t, 631/2 . Li 6-that executed the foregoing instrument,and acknowledged the said instrument to be the free an voluntary act and deed of said corporation,for the uses and purposes therein mentioned, and on oath stated that she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this I S day of 01't1 , 20 M. Notary's signature aA')-Li >>. i'1)44-1-6-`t-d— , Notary's printed name 17'"'y 4. Gishei)-.i' Notary Public in and for the State of Washington. AMY L. WISHART My commission expires y_,1c)--ac1� Notary Public State of Washington My Commission Exp • July 29, 2ires 022 CONCESSIONAIRE AGREEMENT - 7 - 3/2017 Nib, CITY OF CITY HALL .., 33325 8th Avenue South Fe d e ra I Way Federal Way,WA 98003-6325 (253) 835-7000 www cilyoffederalway corn EXHIBIT "A" CONCESSIONAIRE SERVICES 1. Contractor shall provide concession services at a concession stand("Concession Stand")during the City's 4t of July Red, White and Blues Festival (the "Event") located at Celebration Park in a manner consistent with the accepted practices for other similar services,performed to the City's satisfaction,within the time period prescribed by the City and pursuant to the direction of the Mayor or his or her designee. 2. Hours of Operation.The Contractor must be prepared for the health inspection and electrical troubleshooting by 4:00 pm on July 4h. Concession Stands will be open to the public from 6:00 pm until 10:00 pm. 3. Products and Pricing. All food,beverage or other products offered for sale by Contractor to the public shall be approved in writing by the City prior to distribution or sale of any such products. All items submitted must be translated in English to ensure accurate menu item description. Items not on the approved menu are not to be served. If items served are not on the approved menu,the City will request removal of such item or require the closure of the booth immediately. If closure occurs the vendor will forfeit both the booth fee and deposit. If a shutdown occurs the vendor will be unable to sell items for the remainder of the event,however the vendor will be unable to breakdown and depart until after 10:15 pm. Contractor shall comply with any reasonable requests made by the City to either add or eliminate certain types of food,beverage or other products.All pricing of any food,beverage or other product as set forth below mst be competitive and must be approved in writing by the City. Contractor may not change any pricing without the City's prior written consent, which consent may be withheld for any reason. Approved Menu Items Pricing Electrical #1 Luau Combo $9.00 #2 BBQ Loli Loli Chicken $8.00 #3 Slow Smoked Kalua Pork $8.00 #4 Hawaiian Kalua Pork Sliders with $6.00 Island Slaw Musubi $6.00 Hawaiian Iced Tea $2.00 Hawaiian Sun Juice, Coke, Diet Coke, $2.00 Bottled Water Hawaiian Shave Ice Small 4.50 Hawaiian Shave Ice Large 6.00 4. Customer Service. Contractor and all of its employees, agents, or representatives shall provide the highest quality of customer service and shall treat all customers with courtesy and respect. Contractor shall honor all reasonable requests for refunds including requests from customers that are dissatisfied with any food,beverage or other product sold by Contractor or from customers who have lost money in any vending machine owned by Contractor. CONCESSIONAIRE AGREEMENT - 8 - 3/2017 CITY OF CITY HALL .'�.., eder 8th Avenue South Fed e ra I Way Federal Way,WA 98003-6325 (253) 835-7000 www cityoffederaiway corn 5. Employee Appearance.All of Contractor's employees,agents,representatives or licensees shall have a neat, clean and sanitary personal appearance and those who come in direct contact with the public shall wear clothing or identification, which distinguishes them as employees of Contractor. 6. Employee Training. Contractor shall provide a training program for its employees,agents,or representatives for the development of the skills and techniques necessary to perform its obligations under this Agreement including but not limited to promoting customer service,produce and service presentation, cleanliness,positive attitude and promoting the City Parks and Recreation Department's philosophy and policy. 7. Staffing. The Concession Stands shall be properly staffed in order to prevent undue delay to the public. Contractor shall plan its staffing in advance and anticipate to the best of its ability any events, such as holidays or special events, which may require additional staffing. In the event the City determines in its sole discretion that Contractor is not adequately staffing the Concession Stands, it may notify Contractor of that fact and Contractor shall immediately increase its staffing to meet the City's recommendation. CONCESSIONAIRE AGREEMENT - 9 - 3/2017 ACCORD DATE(MM/DD/YYW) ‘.,.,.• CERTIFICATE OF LIABILITY INSURANCE 05/01/2019 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed.If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Steve Winsberg(791334R) PHONE FAX 2121 Meridian Ave E Ste 6 (A/C,NO,EXT):253-941-9800 (A/c,NO): E-MAIL Edgewood WA 98371-1030 ADDRESS: swinsberg@farmersagent.com INSURER(S)AFFORDING COVERAGE NAIC# INSURED INSURER A: Truck Insurance Exchange 21709 INSURER B: Farmers Insurance Exchange 21652 PAC ISLAND GRILL LLC INSURER C: Mid Century Insurance Company 21687 2012 S 320TH ST STE H INSURER D: INSURER E: FEDERAL WAY WA 98003 INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAME ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDTL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMBS LTR INSD WVD (MM/DD/YYYY) (MM/DD/YYYY) X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 2,000,000 CLAIMS-MADE X OCCUR DAMAGE TO RENTED PREMISES(Ea Occurrence) $ 75,000 MED EXP(Any one person) $ 5,000 B Y N 601714591 06/20/2018 06/20/2020 PERSONAL&ADV INJURY $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 4,000,000 X POLICY [ PROJECT LOC PRODUCTS-COMP/OP AGG $ 4,000,000 OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ (Ea accident) ANY AUTO BODILYINJURY(Perperson) $ OWNED AUTOS SCHEDULED BODILY INJURY(Per accident)$ ONLY AUTOS HIRED AUTOS NON-OWNED PROPERTY DAMAGE ONLY AUTOS ONLY (Per accident) UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED RETENTION$ $ WORKERS COMPENSATION PER OTHER $ AND EMPLOYERS'LIABILITY STATUTE ANY PROPRIETOR/PARTNER/ Y/N E.L.EACH ACCIDENT $ EXECUTIVE OFFICER/MEMBER N/A E.L.DISEASE-EA EMPLOYEE 9 EXCLUDED?(Mandatory in NH) If yes,describe under DESCRIPTION OF E.L.DISEASE-POLICY LIMIT $ OPERATIONS below DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Certificate holder is also named as additional insured per attached endorsement CERTIFICATE HOLDER CANCELLATION City of Federal Way Red White&Blues Festival SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION 33325 8th Ave S DATE THEREOF,NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Steve Winsberg Federal Way WA 98003 ACORD 25(2016/03) ©1988-2015 ACORD CORPORATION.All Rights Reserved 31-1769 11-15 The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 601714591 BUSINESSOWNERS BP 04 48 01 97 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: BUSINESSOWNERS POLICY SCHEDULE* Name Of Person Or Organization: City of Federal Way Red White&Blues Festival * Information required to complete this Schedule, if not shown on this endorsement, will be shown in the Decla- rations. The following is added to Paragraph C. Who Is An Insured in the Businessowners Liability Coverage Form: 4. Any person or organization shown in the Schedule is also an insured, but onlywith respect to liability arising out of your ongoing operations or premises owned by or rented to you. BP 04 48 01 97 Copyright, Insurance Services Office, Inc., 1997 Page 1 of 1 0 Mary Jaenicke From: Rob Ettinger Sent: Tuesday, May 14, 2019 12:45 PM To: Mary Jaenicke Subject: Fwd: Pac Island Grill-Business Information Let me know if you need anything else.Thank you. Forwarded message From: "David Landon" <pacislandgrill@comcast.net> Date:Tue, May 14,2019 at 12:43 PM -0700 Subject: Re: Pac Island Grill-Business Information To: "Rob Ettinger"<Rob.EttingerPcitvoffederalway.com> Yes you have my approval David Landon Sent from XFINITY Connect App Original Message From: Rob Ettinger To: 'Pac Island Grill ' Sent: May 14, 2019 at 10:43 AM Subject: RE: Pac Island Grill-Business Information Hi Dave—Please respond with your approval when you get a chance. I will (hopefully)finalize the process after we get your approval. Thankyou— Rob Ettinger Dumas Bay Centre Manager 3200 SW Dash Point Road Federal Way, WA 98023 (253)835-2000, (253)835-2010-fax www.dumasbaycentre.com https://goo.al/maps/dMQQ6RoWSZA2 (virtual facility tour) 1 From: Rob Ettinger Sent: Tuesday, May 07, 2019 3:07 PM To: 'Pac Island Grill ' Subject: FW: Pac Island Grill-Business Information Dave—I am sorry to have to send another email, but I didn't ask the correct question of you in my last email. We need to have written permission and documentation to strike out"Hawaiian Style BBQ" on the signature page and replace it with PAC ISLAND GRILL LLC as this is exactly as it is listed on your business information. Please respond back with yes if this is ok with you. I will then take the contract back to the legal for final approval. Thank you Rob Ettinger Dumas Bay Centre Manager 3200 SW Dash Point Road Federal Way,WA 98023 (253)835-2000, (253)835-2010-fax www.dumasbavcentre.com https://goo.gl/maps/dM IQ6RoWSZA2 (virtual facility tour) From: Mary Jaenicke Sent:Tuesday, May 07, 2019 1:34 PM To: Rob Ettinger Subject: RE: Pac Island Grill-Business Information Your email did not ask for permission to cross out part of their name on the contract.So I need you to ask for permission to cross out Hawaiian Style BBQ. He only needs to respond back yes. They wouldn't be asking us to do this if they didn't legally have to have it that way. Mary Jaenicke Administrative Assistant II Et Parks Department 33325 8th Ave S,federal Way,WA 98003 Desk:253.835.6901 I Fx:253.835.69699 mary.jaenicke@cityoffedetalway.com From: Rob Ettinger Sent: Tuesday, May 07, 2019 1:19 PM To: Mary Jaenicke Subject: Re: Pac Island Grill-Business Information 2 You're the best.Thank you Mary. On Tue, May 7, 2019 at 1:18 PM -0700, "Mary Jaenicke" <Mary.Jaenicke@citvoffederalwavcom>wrote: Thanks Rob, I'm turning it in. Mary Jaenicke Administrative Assistant II Parks Department 33325 8th Ave S.Federal Way,WA 98003 Desk:253.835.6901 I Fx:253.835.69699 mare.j_aenicke@citvoffederalway.com From: Rob Ettinger Sent: Tuesday, May 07, 2019 1:12 PM To: Pac Island Grill Subject: Re: Pac Island Grill-Business Information Thank you Dave. Have a great day. Enjoy the sunshine. On Tue, May 7, 2019 at 1:11 PM -0700, "Pac Island Grill " <pacislandgrill@comcast.net>wrote: Rob, Aloha. Yes that is correct and I confirm and approve dba/Pac Island Grill Hawaiian Style BBQ LLC.Thanks Mahalo David Landon Pac Island Grill www.hawaiianstvlebbq.net 2012 S. 320th St, Suite H Federal Way, WA 98003 P:253.529.8667 F:253.529.9620 C:253.315.9137 CONFIDENTIALITY NOTICE:This e-mail, including any attachments,is for the sole use of the intended recipient(s)and may contain confidential and privileged information.Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.The information contained within is confidential and protected from disclosure by RCN 70.41.250; ROA/4.24.250;and RCA/42.17,210. Unauthorized viewing or disclosure of this information is neither permitted nor authorized.Thank you. 3 From: Rob Ettinger [mailto:Rob.Ettinger@cityoffederalway.com] Sent: Tuesday, May 07, 2019 10:25 AM To: 'Pac Island Grill ' Subject: Pac Island Grill-Business Information Good morning Dave—I hit one more small snag on the contract yesterday. I had your company name listed as PAC ISLAND GRILL HAWAIIAN STYLE BBQ LLC on parts of your contract instead of PAC ISLAND GRILL LLC,which is your legal business name. If you could please confirm via email that you approve that both names listed are doing business as PAC ISLAND GRILL HAWAIIAN STYLE BBQ LLC. With your written confirmation we should be ok moving forward. Thank you for your assistance. Thank you— Rob Ettinger Dumas Bay Centre Manager 3200 SW Dash Point Road Federal Way,WA 98023 (253)835-2000, (253)835-2010-fax www.dumasbavcentre.com https://goo.gl/maps/dMaa6RoWSZA2 (virtual facility tour) 4 To; Manage Members and Economic Interest Owners ofPac Island Grill LLC From: John R.Eltringham, sq. Oat: July l 9,201$ Re: Operation and Mana gent of Pac Island Grill LLC This memorandum outlines several im _. limited company e P Y (or LLC Portant aspects related to the creation contact liability at any )• I urge you to read the following and operation of time if you have questions or concerns. memorandum with your new careand to 1. LAWFUL ACTIVITY AND$USINESS LICENSING. When co will reflect that the LLC may carry on an legalbusiness" , completed,the LLC operating agreement principal business. This is a general statement ofpurpose,permittingthe L Y in addition to business functions related to its to its principal business, or even to change business altogether without violatingthe operating This is a LC to carry on activities ancillary typical provision. I-lowever, should you prefer, the sco a of the a nagreemen narrow this broad language,giving the LLC only the abilityto c pbe narrowed.operations.language, a matteriviLLC trative ons with a can to changed toy carry business with respect definition specifically company's purpose in order to encompassease, I suggest that you keep: a broad definition.of the to amend theagreement. activities that the business maylater ter undertake without having III With respect to business licensing,please keep in mind that the documents we have filed with the Secretary of State simply establish the LLC as a legal entity. You may still need obtain all n ermits(statenecessary licenses and P and local)required to conduct.business. 2. ACCOUNTING. It is the responsibility of the Manager of the LLC to make certain that accounting practices and auditing procedures customarily followed by similar businesses are observed in a proper and timely fashion by the LLC. Accordingly,your accounting service provider should be kept currently and tonelstently informed regarding all of your LLC's business activities. Your accounting service provider will, moreover, assist you to meet all record-keeping requirements Unposed upon your business by reason'of its formation. For example,he or she should set up a new set of books in order to keep track of the LLC's income and expenses separately from your personal income and expenses. It is 'fleet that the LLC track its own items of income and expense and that these not be P commingled with your personal matters and affairs. 3, OPERATING THE LLC. It is important that you hold the company out as ly rselves or any entity. You should therefore take the following steps withentity respect independent from you to operating the company and conducting business with third parties: a, Company letterhead,-billheads, signs,contracts,etc. should be modified or changed to reflect the full name of the LLC, including the expression denoting LLC existence(that is, any use of the business name should include the initials"L.L.C."at the end of the name). b. Business cards,if used,should similarly reflect the LLC name. c. The company's bank checking account should reflect the LLC name. You should also ensure that the LLC manager has signed a signature card for the LLC's account as its manager. d. Any company loans that you have previously taken out for the business should be transferred to and assumed by the LLC if no adverse consequences will result from such assumption of liability(including not only tax consequences but also acceleration of debts because of due-on-sale clauses). If you make personal loans to the LLC for any reason,they should be fully documented in the financial records and a promissory note issued, secured by appropriate collateral. e. If the company will have a telephone listing or a listing in any other directories,such listings should be changed to reflect the LLC name as opportunity arises. f. All contracts and other arrangements which you have regarding the business operations and any other contracts or arrangements into which you have previously entered in connection with what is now company business should be modified,assigned,or rewritten in order to reflect the fact that the LLC has replaced you entirely as the contracting party to each such contractor obligation. g. Should you now or later conduct company business in a public building,the name on the door of the company's office and on the directory or any other signs which you exhibit should reflect the LLC name. h. All insurance policies with respect to assets that will be transferred to the LLC should also be transferred to the LLC. i. Henceforth,all contracts should be entered into in the name of your LLC. Contracts, checks, and other documents should be signed in the name of your LLC followed by"By[manager name],Manager". A standard example of a proper signature format is: Pac Island Grill LLC By David Landon,Manager This is extremely important since it is clear evidence that the contract,check or other document is that of an LLC and the person signing is not intending to be personally liable. 4. LLC FORMALITIES AND THE CORPORATE VEIL. It is difficult to overstate the importance of maintaining the formal integrity of your new LLC,which is a separate legal entity from its members. In this regard, think of yourselves as having the same general protection form personal liability that a shareholder of any other corporation would. Washington law provides as follows: Members of a limited liability company shall be personally liable for any act, debt, obligation,or liability of the limited liability company to the extent that shareholders of a Washington business corporation would be liable in analogous circumstances. In this regard,the court may consider the factors and policies set forth in established case law with regard to piercing the corporate veil,except that the failure to hold meetings of members or managers or the failure to observe formalities pertaining to the calling or conduct of meetings shall not be considered a factor tending to establish that the members have personal liability for any act,debt,obligation,or liability of the limited liability company if the certificate of formation and limited liability company agreement do not expressly require the holding of meetings of members or managers. The limited liability of an LLC's members,one of the major benefits of doing business as an LLC, must be protected. An adequately capitalized and properly operated LLC insulates its owners from financial losses and liability suffered by the LLC beyond amounts invested in the LLC. However,you must formally and consistently recognize the separate existence of the LLC and operate in accordance with that recognition to retain the protections accorded through the LLC structure (as a corporation would with respect to its shareholders). Simply put, others will be required to recognize your LLC's existence and accept and honor your insulation from personal liability only if you have consistently demonstrated your recognition of the LLC's separate legal identity. If you fail to operate your business in a manner that reflects its LLC structure,courts may be inclined to"pierce the corporate veil"and impose direct,personal,liability on you. a. Official Records. All significant and extraordinary company transactions should be reflected in minutes of meetings of managers or members. All contracts, including employment contracts, buy-sell agreements, profit sharing plans, ension plans, trust agreements, loans, leases, purchase contracts, and LLC brokerage and investment accounts should be made in the name and on behalf of the LLC. In addition, Washington law specifically requires the following records be maintained at the LLC's principal place of business: • A current and a past list,setting forth the full name and last known mailing address of each member and manager, if any; • A copy of its certificate of formation and all amendments thereto; • A copy of its current limited liability company agreement and all amendments thereto,and a copy of any prior agreements no longer in effect; • Unless contained in its certificate of formation or limited liabilitycompany statement of: an p y agreement, a written o The amount of cash and a description of the agreed value of the other property or services contributed by each member(including that member's,predecessors in interest),and which each member has agreed to contribute; o The times at which or events on the happening of which any additional contributions agreed to be made by each member are to be made;and o Any right of any member to receive distributions which include a return of all or any part of the member's contribution. • A copy of the limited liability company's federal,state,and local tax returns and reports,if any,for the three most recent years;and • A copy of any financial statements of the limited liability company for the three most recent years. The records required by the statute are subject to inspection and copying at the reasonable request,and at the expense,of any member during ordinary business hours.A member's agent or attorney has the same inspection and copying rights as the member. Each manager shall'have the right to examine all of the information described for a purpose reasonably related to his or her position as a manager. The company may maintain its records in other than a written form if such form is capable of conversion into written form within a reasonable time. However,you should carefully review the materials that I have prepared in your company's minute book,as it includes places for you to record most of the above required information. b. Salary and Bonus. Your LLC will probably operate on a cash accounting basis. It will be essential for you to establish and adjust from time to time the salaries and bonuses of all of the employees of the LLC, including yourself if you decide to take a salary. Normally, the salaries of the manager should be adopted formally by the members,and each increase should be reflected in the minutes. c. Issuance of Additional Units. The Members holding Membership Voting Interests have exclusive power to authorize issuance of additional units by way of voting to issue new units or amending the Agreement(if all authorized units are issued). If you later decide to add another member,you may do so either by issuing additional units or by coming to an agreement with respect to selling your current membership units to the proposed new member. Current Members will have a preemptive right to acquire newly issued units in order to maintain their,proportionate ownership of the Company. d. Registered Agent and Office. You Formation g will note that the Certificate of Forti :providesfor an initial registered agent and registered office. The Registered Agent is the person upon whom formal suit may be served and his office must be the Registered Office. The Registered Office will be the address to which official communications from the Secretary of State will be sent. In the event of a change of Registered Agent or a change of the Registered Office address,a form must be filed with the Secretary of State. If we are not serving as your Registered Agent,please feel free to contact me in the event that the Registered Agent or Registered Office changes I will forward copies of the necessary forms. e. Annual Meetings. As suggested above, an LLC may, but need not, hold annual meetings of members and managers. One argument that has been advanced in attempts to pierce the corporate veil is that the members of a company that do not hold annual meetings are not truly treating the company as a separate entity. This argument has been made notwithstanding the fact that applicable Washington law expressly absolves LLC members from the annual meeting requirement. In order to avoid a potential claim, the safest alternative appears to be to not require an annual meeting in the operating agreement,but to hold an annual meeting anyway,or to simply have all members sign a document consenting to all actions of the company in lieu of the annual meeting. Therefore,the operating agreement specifies that there shall be no annual meeting of the members. Included with the various materials that you received, however, are consent forms that can be used in lieu of actually holding the meeting.; If you do have an annual meeting, or an appropriately called special meeting, minutes should be prepared and maintained in the,corporate books. 5. OUTLINE OF MANAGER'S RESPONSIBILITIES. Managers of every LLC must be mindful of the following specific and important duties and responsibilities: a. Payroll Taxes. If in the future the LLC hires employees, all payroll taxes must be paid by the LLC. Nonpayment may result in personal civil or criminal liability by the Manager. b. Duty to Inspect. A Manager has the absolute right to inspect all LLC books,records,documents, and property at any time. If he or she does not exercise that right, the manager may be held liable for negligence in the event that the LLC suffers loss or its creditors suffer loss byreason of failure to diligence in such exercise g matters. c. Dividends. The Manager of the LLC has the power to declare dividends to be paid with respect to membership interests. d. Other Liabilities. The manager of the LLC must be concerned with all sources of liability or opportunity for a court to pierce the corporate veil,which includes improper declaration of dividends or re- purchases of the LLC units; fraudulent entries in the books or reports; failure to properly supervise the operations of the LLC and failure to pay compensation to employees or to properly withhold payroll taxes. The manager must make certain that the LLC is in good standing with the taxing authorities and the Secretary of State of the State of Washington that . gto the affairs of the LLC continue to be conducted in compliance with law and all applicable rules and regulations of the State of Washington, any local governing authority,and any agency regulating the business in which the LLC is engaged. 6. TERMINATION AND DISSOLUTION OF LLC. The LLC should not be terminated or dissolved without prior consultation with the accounting service provider for the LLC and with us or any successor counsel whom the LLC may retain. Dissolution is accomplished only as provided by the LLC Agreement or Washington law. 7. MEMBERSHIP TRANSFERABILITY. The LLC operating agreement contains very specific articles on transferability of interests. Article XII of the operating tin agreement g g seem ent provides that an interestnnayonly be assigned or transferred by the means specifically provided for in the agreement. The salient provisions of Article XII provide as follows: • Paragraph 12.02 outlines the rights of first refusal that each member shall have with respect to another member attempting to sell his or her interest. In summary, if someone decides to sell his or her interest to a third party,that member must first obtain a written offer. The other members will then have an option(expiring ten days later)to purchase the selling member's interest for the same terms as outlined in the. offer. If the other members do not exercise the option,p on,then the selling member has thirty days to complete the sale to the third party. • Paragraph 12.04 provides that a transferee is not a full member without all other existing members' approval. This means that a third party purchasing a member's interest will have the economic rights associated with the interest,but will not get to participate in the management of the company unless the other members allow it. µ , • Paragraph 12.07 gives other members an option to purchase another member's interest if that other member's interest should become subject to an involuntary transfer (such as a bankruptcy proceeding). • Paragraph 12.07(c)provides that if a spouse of a member should happen to acquire an interest(such as by operation of community property laws,for example),then that spouse shall be subject to the terms of the e agreement. • Paragraphs 12.07(c)and(d)provide that if a spouse of a member should have happened to have acquired an interest in the company,then upon that spouse's death the member shall have an option to purchase the spouse's interest, and then the other members shall have an option if the spouse does not exercise his or her option. These paragraphs therefore ensure that if a member's spouse does happen to acquire an interest, the interest stays within the current membership group when that spouse passes away. • Paragraphs 12.07(e)provides that if a spouse of a member should have happened to have acquired an interest in the company and the member and that spouse are divorcing,then the member shall have an option to purchase the spouse's interest, and then the other members shall also have an option if the spouse does not P exercise his or her option. These paragraphs also ensure that ownership stays within a current membership group,but this time in the case of divorce. You may also want to include certain buy-sell provisions in the agreement other than the right of first refusal already included in paragraph 12.02.In this respect,there are typically four alternatives to consider. First, you may include a"tag-along"provision, which provides that if a shareholder with a certain interest(for example, a 50%or greater interest)does sell his or her interest to a third party,every shareholder with a lesser percentage interest has the option of requiring the same third party to buy his or her interest for the same proportional price. The second alternative is a call option, where a specific member is granted the right to purchase another member's interest under specified terms. The third is a put option,which grants a specific member the right to sell their interest to another member under specified terms. The fourth is a blind option,where every member has the right to give some or all other members a notice(which includes a specified offer price)offering to either sell that member's interest to the other members or alternatively to purchase the other members' interests. The other members must then decide to purchase that interest (and continue as a member)or sell their interest to the offering member. While the blind option sounds somewhat heavy-handed,it is a good way to ensure that if someone decides to end the business association with the others,this can be done without having to resort to selling the interest to outside parties. The risk a member takes in initiating the blind option,of course, is that the member does not know whether he or she will end up being a buyer or seller. CONCLUSION One of the important benefits of doing business in the LLC form is the limited liability you have for LLC obligations and liabilities. Many of the foregoing procedures are necessary in order not to lose the limited liability protections. Should you have any questions or concerns not addressed in this memorandum,please feel free to call on us. Before you take any act in contravention of the advice contained in this memo, I suggest you consult with me or other legal counsel. https://ccfs.sos.wa.gov/#/BusinessSearch/BusinessInformation BUSINESS INFORMATION Business Name: PAC ISLAND GRILL LLC UBI Number: 602 507 560 Business Type: WA LIMITED LIABILITY COMPANY Business Status: ACTIVE Principal Office Street Address: 2012 S 320TH ST STE H,FEDERAL WAY,WA,98003-5444,UNITED STATES Principal Office Mailing Address: 2012 S 320TH ST STE H,FEDERAL WAY,WA,98003-5444,UNITED STATES Expiration Date: 05/31/2020 Jurisdiction: UNITED STATES,WASHINGTON Formation/Registration Date: 05/31/2005 Period of Duration: PERPETUAL Inactive Date: Nature of Business: FOOD SERVICE &RESTAURANT REGISTERED AGENT INFORMATION Registered Agent Name: DAVID LANDON Street Address: 2012 S 320TH ST STE H,FEDERAL WAY,WA,98003-5444,UNITED STATES Mailing Address: 2012 S 320TH ST STE H,FEDERAL WAY,WA,98003-5444,UNITED STATES GOVERNORS Title Governors Type Entity Name First Name Last Name GOVERNOR INDIVIDUAL DAVID LANDON GOVERNOR INDIVIDUAL LEIANNA LANDON GOVERNOR INDIVIDUAL LORILANI LANDON 1 of 1 5/3/2019,6:06 PM