HomeMy WebLinkAbout09/22/2010 AGENDA � -- -
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CIT1( COUNCIL 345 6� Street, Suite 600, Bremerton, WA 98337 ❑ Phone (360) 473-5280
***AMENDED***
SEPTEMBER 22, 2010
CITY COUNCIL SPECIAL MEETING
1. CALL TO ORDER 5:00 P.M. in FIRST FLOOR CHAMBERS
A. Pledge of Allegiance
2. PUBLIC HEARING
A. Public Hearing regarding the Concession Agreement with the Pierce-Kitsap YMCA (2"
of 2 Public Hearings... There will be action on this item...
3. ADJOURNMENT OF SPECIAL MEETING
.................................................................................
CITY COUNCIL STUDY SESSION
TO BE HELD /N THE CHAMBERS IMMED/ATELY FOLLOW/NG THE SPECIAL MEET/NG...
The Study Session is open to the public but there will be no opportunities for input or participation;
no action will be taken, and the content of these items is subject to change...
A. NO DISCUSSION PLANNED - The following items are budgeted items or have been reviewed
by the appropriate Council Committee; and will be placed on an upcoming Council Meeting
Agenda
1. Proposed resolution authorizing a Sole Source Contract and Goods and Services
Agreement for the Purchase of a WEMCO Grit Classifier for the Westside Wastewater
Treatment Plant — Pat Coxon, Wastewater Manager; and Dianne Robinson, Public Works
Committee Chair
B. FULL DISCUSSION ITEMS
2. Commercial Broadcast Facility Lease Agreement with SEaTr�E STR�nmN� Ra�io, LLC for
the Forest Ridge Park KBRO Tower Site — Bill McKinney, Forestry Manager; and Dianne
Robinson, Public Works Committee Chair
3.
. . . �; , �
' This item has been postponed until October 20, 2010...
C. GENERAL COUNCIL BUSINESS
1. Council Committee Reports
2. Other General Council Business (As necessary...)
� Americans with Disabilities Act (ADA) accommodations provided upon request. Those requiring special
accommodations should contact the City C/erk's O�ce at (360) 473-5323 by noon on the Monday preceding the Council
meeting.
BREMERTON CITY COUNCIL
MEETING SPEAKERS LIST �
PLEASE PRINT YOUR NAME BELOW
IF YOU WISIT YOUR COMMENTS TO BE
INCLUDED IN THE RECORD
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REQUESTS FOR INFORMATION MUST BE SUBMITTED IN WRITING TO THE CLERK
THANK YOU -
DATE SUBMITTED: September 8, 2010
AGENDA BILL
CITY OF BREMERTON I
CITY COUNCIL
.......................... .................................................�
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SUBJECT: Public Hearings regarding the Committee Meeting Date: September 8, 2010
Concession Agreement with Pierce-Kitsap COUNCIL MEETING Date: ,
YMCA. (2)September 22, 2010
(special meeting)
Department: City Attorney's Office
Presenter: Roger A. Lubovich and
Wyn Birkenthal
Phone: 473-2345
SUMMARY: The proposed agreement replaces the current concession agreement between the City
and the YMCA for use of the 3.1 acre land parcel upon which the YMCA facility has been located
since 1984. The Agreement extends the YMCA's term of use for the property and incorporates the
management, maintenance and operation of the City's pool approved by Council during its September
1 st meeting. The property upon which the YMCA facility is situated is subject to the City's Park
Protection Ordinance Chapter 13.12 BMC. Although the agreement and its terms are not drafted as a
lease but as a concession, staff is recommending that its approval be processed under this code with
two public hearings before final approval.
ATTACHMENTS: Concession Agreement
FISCAL IMPACTS (Include Budgeted Amount): No additional impact
APPROVALS:
DEPARTMENT DIRECTO •
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
COMMITTEE CHAIR
COUNCIL PRESIDENT: CONSENT AGENDA ❑
� GENERAL BUSINESS ❑
CZ � 5 � , i_ --^ �� /� l PUBLIC HEARING
��t-e,n��U •
RECOMMENDED MOTION: Move to enter into the Concession Agreement with Pierce-Kitsap
YMCA and authorize the Mayor to finalize and execute the Agreement with substantially the same
terms and conditions as presented.
COUNCIL ACTION: ❑ Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action
DRAFT
9-17-2010
CONCESSION AND MANAGEMENT
AGREEMENT BETWEEN
CITY OF BREMERTON
AND
YMCA OF PIERCE AND KITSAP COUNTIES
YMCA Concession &
Management Agreement �
TABLE OF CONTENTS
RECITALS......................................................................................................................... 1
ARTICLE1. PREMISES ................................................................................................... 2
1.1 Premises Defined . ............................................................................................... 2
1.2 Interest in Premises . ............................................................................................ 2
1.3 Interest in Improvements . ................................................................................... 2
ARTICLE 2. TERM OF AGREEMENT ............................................................................ 3
2.1 Term . ................................................................................................................... 3
2.2 Option to Renew . ................................................................................................ 3
2.2.1 Exercising Option . ...................................................................................... 3
2.2.2 Pool Contingency ........................................................................................ 3
2.3 Expiration or Termination of Agreement - Improvements . ................................ 4
ARTICLE 3. CONSIDERATION ...................................................................................... 4
3.1 Consideration for Concession ............................................................................. 4
3.1.1 Concession Fee . .......................................................................................... 4
3.1.2 CPI . ............................................................................................................. 5
3.1.3 Leasehold Excise Tax . ................................................................................ 5
3.2 Pool Management by the YMCA . ...................................................................... 5
3.2.1 YMCA Responsibilities and Obligations .................................................... 5
3.2.2 Transition Period ......................................................................................... 6
3.2.3 CITY Maintenance Responsibilities and Obligations ................................. 6
3.2.4 CITY Payment . ........................................................................................... 6
ARTICLE 4. USE & OPERATION OF PREMISES ......................................................... 6
4.1 Use of Premises ................................................................................................... 6
4.1.1 Recreational Uses ........................................................................................ 6
4.1.2 Incidental Uses ............................................................................................ 6
4.1.3 Sub-Concessions ......................................................................................... 7
4.1.4 Security and Nuisance During Use ............................................................. 7
4.2 Operating Hours .................................................................................................. 7
4.3 Entry by CITY . ................................................................................................... 7
4.4 Health Inspections ............................................................................................... 8
4.5 Maintenance, Repair, & Improvements .............................................................. 8
4.5.1 Generally .....................................................................................................8
4.5.2 Sidewalks and Parking Maintenance . ......................................................... 8
4.5.3 Janitorial and Landscaping Services ........................................................... 8
4.5.4 Repair of Damage ....................................................................................... 8
4.5.5 PoolImprovements .....................................................................................9
4.6 Signs ..............:.....................................................................................................9
4.7 Utilities ................................................................................................................9
4.7.1 Utility Services and Expense ...................................................................... 9
4.7.2 Trash & Garbage ....................................................................................... 10
4.8 Parking ..............................................................................................................10
4.9 Hazardous Substances ....................................................................................... 10
4.9.1 Definition ..................................................................................................10
4.9.2 Information . .............................................................................................. 10
YMCA Concession &
Management Agreement '
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4.9.3 Indemnification . ........................................................................................ 11
4.10 Risk of Loss . ......................................................................:.............................. 11
ARTICLE 5. DEVELOPMENT OF IMPROVEMENTS ...............................................11
5.1 City Consent ...................................................................................................... 11
5.2 Development and Construction Fees & Expenses . ........................................... 11
5.3 YMCA's Development Project . ........................................................................ 11
5.4 No Liens ............................................................................................................ 12
ARTICLE 6. FINANCING & SECURITY INTERESTS ................................................12
6.1 Financing - No CITY Obligation ........................................................
.............. 1
6.2 Security Interest in Premises & Agreement/Consent ........................................ 12
6.3 LENDER's Reliance on Term and Renewal Options ....................................... 13
6.4 Surrender of the Collateral ................................................................................ 13
6.5 Notice of Default and Lender's Rights . ............................................................ 14
6.5.1 Notice of Default ....................................................................................... 14
6.5.2 Termination for Monetary Default ............................................................ 14
6.5.3 Termination for Non-Monetary Default . .................................................. 14 .
6.5.4 Termination due to Bankruptcy . ............................................................... 14
6.6 Right to Assign . ................................................................................................ 14
6.7 Disposition of Insurance . .................................................................................. 14
6.8 Right to Participate in Litigation ....................................................................... 15
6.9 Incorporation of Lender's Protection Provisions .............................................. 15
6.10 Right to Remove Collateral . ............................................................................. 15
6.11 Notices ..............................................................................................................15
6.12 Lenders Change in Loan Terms ........................................................................ 15
ARTICLE7. TERMINATION ......................................................................................... 15
7.1 Failure to Perform . ............................................................................................ 15
7.1.1 Obligation to Perform . .............................................................................. 15
7.1.2 Payments to Other Parties ......................................................................... 16
7.2 Default and Termination . .................................................................................. 16
7.2.1 CITY's Default . ........................................................................................ 16
7.2.2 YMCA's Default ....................................................................................... 16
7.2.3 Default for Other Cause . ........................................................................... 17
7.2.4 Banlcruptcy .............................:..:...............................................................17
7.3 Remedies Are Cumulative . ............................................................................... 17
7.4 Destruction of Premises & Use of Insurance Proceeds . ................................... 17
7.4.1 Generally ...................................................................................................17
7.4.1 Pool . .......................................................................................................... 17
7.5 Duties upon Termination . ................................................................................. 17
7.6 Eminent Domain . .............................................................................................. 18
7.6.1 Rights of Termination . .............................................................................. 18
7.6.2 Non-Termination ................:......................................................................18
7.6.3 Compensation ...........................................................................................18
ARTICLE 8. GENERAL CONDITIONS ......................................................................... 18
8.1 Relationship of Parties . ..................................................................................... 18
8.1.1 YMCA Independent Contractor Status ..................................................... 18
8.1.2 No Third Party Rights Created . ................................................................ 19
YMCA Concession &
Management Agreement
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8.1.3 No Joint Venture/Partnership .................................................................... 19
8.1.4 City Administration of Agreement . .......................................................... 19
8 .2 Notices ..............................................................................................................19
8 .3 Reports & Records ............................................................................................ 19
8 .3.1 Reports/Meetings ......................................................................................19
8 .3.2 Records .....................................................................................................19
8.3.3 Audits and Inspections ..............................:............................................... 20
8.4 Permits, Licenses, Taxes, & Fees . .................................................................... 20
8.4.1 Permits, Licenses, & Other pocuments .................................................... 20
8 .4.2 Taxes & Fees ............................................................................................. 20
8 .5 Insurance . .......................................................................................................... 20
8.5.1 Fire, Earthquake, & Casualty Insurance . .................................................. 20
8.5.2 Liability Insurance . ................................................................................... 20
8.5.3 Release and Waiver of Subrogation .......................................................... 21
8.6 Hold Harmless, Indemnification, & Industrial Insurance ................................. 21
8.7 Successors & Assigns . ...................................................................................... 21
8.8 Compliance with Laws . .................................................................................... 22
8 .9 Nondiscrimination .............................................................................................22
8.10 Choice of Law & Venue . .................................................................................. 23
8.11 Costs & Attorneys' Fees . .................................................................................. 23
8 .12 Modification ......................................................................................................23
8.13 Change in Law/Renegotiation ........................................................................... 23
8 .14 Force Majeure . .................................................................................................. 23
8 .15 Waiver ...............................................................................................................24
8.16 Illegal Provisions — Severability . ...................................................................... 24
8.17 Article Headings, Gender, & Number . ............................................................. 24
8 .1 S Prior Agreements . ............................................................................................. 24
8 .19 Entire Agreement . ............................................................................................. 24
8 .20 Counterparts ......................................................................................................24
8 .21 Recording ..........................................................................................................24
8.22 Approval of Agreement . ................................................................................... 25
Exhibit A— Legal Description of Premises
Exhibit B— Preliminary Building and Site Plans
Exhibit C— Quit Claim Deed from United States of America to the City of Bremerton
YMCA Concession &
Management Agreement
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CONCESSION AND MANAGEMENT AGREEMENT
THIS CONCESSION AND MANAGEMENT AGREEMENT ("AgreemenY') is entered
into effective on the date fully executed by and between the CITY OF BREMERTON, a
Washington municipal corporation (hereinafter referred to as the "CITY"), and YMCA OF
PIERCE AND KITSAP COUNTIES, a Washington non-profit corporation (hereinafter
referred to as the "YMCA"), referred to collectively as the "Parties."
RECITALS
WHEREAS, City is the owner of certain former United States Government surplus
property known as "Eastpark"; and
WHEREAS, Quit Claim Deed dated December 14, 1972, between the City and the
United States under Covenant Number Three, provides that the City may provide related
recreational facilities and services compatible with City's application through concession
agreements entered into with third parties, such as YMCA; provided, further, that prior
concurrence to such agreements is obtained, in writing, from the U.S. Secretary of the Interior or
his or her delegated representative; and
WHEREAS, The City and the Kitsap Family YMCA, an operating branch of the Armed
Services YMCA of the USA ("Kitsap Family YMCA") entered into a concession agreement for
the development and operation of a recreation facility on the Eastpark property for recreational,
meeting and community activity purposes to serve the citizens of Bremerton effective December
6, 1984 and continuing until January l, 2015; and
WHEREAS, the Kitsap Family YMCA developed, constructed, and is operating such a
recreation facility on the Eastpark property pursuant to the concession agreement; and
WHEREAS, the concession agreement was amended by the parties September 19, 1990,
August 7, 2002 and January 21, 2009; and
WHEREAS, on July 1, 2010 the Kitsap Family YMCA was merged into the YMCA of
Tacoma and Pierce County forming the YMCA of Pierce and Kitsap Counties ("YMCA") which
assumed all rights and responsibilities of the concession agreement; and
WHEREAS, the City owns the indoor swimming pool and building situated on the
Eastpark property located adjacent to the YMCA facilities commonly known as the Jarstad Pool;
and
WHEREAS, the parties desire to enter into this Concession and Management Agreement
agreement ("Agreement") to update and replace in its entirety the concession agreement entered
into effective December 6, 1984 as subsequently amended and further to include as part of the
agreement operation, management and maintenance of the City's pool;
YMCA Concession &
Management Agreement
1
WITNESSETH:
NOW, THEREFORE, in consideration of the promises, covenants, and provisions set
forth in this Agreement, the Parties agree as follows:
ARTICLE 1. PREMISES _
1.1 Premises Defined.
CITY hereby grants a ground and use concession to YMCA of land located within the
confines of Eastpark on real property legally described in Exhibit A and generally shown in the
site plan in Exhibit B attached hereto and incorporated by reference ("Concession Area") for
operation and maintenance of a recreational facility developed and constructed by the YMCA
including building(s), fixtures, appurtenances, parking and exterior landscaping ("YMCA
Recreation Center"). In addition, the YMCA agrees to operate, manage and maintain the City
owned indoor swimming pool, building and related improvements located within the confines of
Eastpark on real property legally described in Exhibit A and generally shown in the site plan in
Exhibit B commonly known as the Glen Jarstad Aquatic Center ("Pool") Operation, management
and maintenance of the City owned indoor swimming pool, building and related improvements
located within the Concession Area commonly known as the Glen Jarstad Aquatic Center
("Pool") and generally shown in the site plan in Exhibit B attached hereto and incorporated by
reference. (The Concession Area, YMCA Recreation Center and Pool are collectively referred
to as "Premises").
1.2 Interest in Premises.
This Agreement does not create an interest in land in the YMCA nor does it convey to the
YMCA exclusive possession of the land. YMCA's interest in the Premises do not include the fee
ownership or leasehold interest of the real property upon which the Improvements are located or
a fee ownership or leasehold interest of the Pool.
The CITY owns the land that is subject to this Concession Agreement as well as the
indoor swimming pool, building and related improvements located within the Concession Area.
The YMCA owns the YMCA Recreation Center which includes building(s), fixtures,
appurtenances, parking and exterior landscaping subject to the CITY's interest upon termination
or expiration of this agreement. YMCA's interest in the Concession Agreement is the right to use
the land upon which its YMCA Recreation Center is located and the right to use the CITY's Pool
and the land upon which the Pool is located. YMCA's interest in the Concession Area is subject
to the CITY'S ownership interest in the land and the Pool. CTI'Y makes no representation of title
and if, for any reason, the City's title to said property should terminate because of prior rights
reserved by the United States Government or other claimant, this Agreement sha11 terminate.
1.3 Interest in Improvements.
The Parties agree that the Premises are currently developed with permanent structures,
and that any and all current or future development and construction of Improvements on the
Premises, with the exception of the Pool, are owned by YMCA subject to any security interest of
YMCA Concession &
Management Agreement
2
lender, if any, and subject to the CITY's right, title and interest at the expiration or termination of
this Agreement pursuant to Article 2.3.
1.4 Property Trade.
If in the future, during the term of this concession, a piece of property of comparable
worth to the real property establishing the Concession Area as described in Exhibit A becomes
available and is considered by the CITY to be a valuable addition to the Bremerton Parks and
Recreation inventory, the CITY would consider a property trade with the YMCA assuming all
the requirements of the Department of Interior and the Quitclaim Deed conveying the property to
the CITY and related CITY ordinances are met. The CITY, at its sole discretion, may accept or
reject any proposal for such property trade.
ARTICLE 2. TERM OF AGREEMENT
2.1 Term. ,
The term of this Agreement shall be for a period of time commencing September 1, 2010
and continuing until December 31, 2020 upon the terms and conditions set forth pursuant to this
Agreement.
2.2 Option to Renew.
2.2.1 Exercising Option.
The CITY agrees to offer the YMCA two (2) successive ten (10) year options to renew
this Agreement, contingent upon the YMCA remaining in full compliance with the terms and
conditions of this Agreement and further contingent on the CITY accepting the level of insurance
coverage in a commercially reasonable amount for the insurance required in Section 8.5.2 for the
new ten (10) year term exercised by the YMCA and Section 2.2.2 below. To execute an option
for renewal, the YMCA, not more than 180 days and not less than 60 days prior to the expiration
of the term, shall give written notice to the CITY that the YMCA is exercising the YMCA's
option for an additional ten (10) year term. The YMCA's written notice sha11 include a sworn
affidavit that the YMCA is currently in full compliance with the terms and conditions of this
Agreement. The option will become effective upon receipt by the CITY of the YMCA's written
notice and sworn affidavit and no further process or documentation will be required, provided,
however upon the YMCA's request, the CITY shall provide a written acknowledgement that
such option has been exercised and is in effect. If the option(s) to renew are not exercised, then
the Agreement shall expire at the conclusion of the expiring term.
2.2.2 Pool Contingency.
The CITY has the option to terminate the YMCA's operation, management and
maintenance of the Pool from this Agreement upon receipt of the YMCA's notice to exercise its
option in Section 2.2.1 above or upon one 180 days prior written notice to the YMCA. Such
termination is subject to a mutual agreement on a partial reimbursement of major capital
improvements made to the Pool by the YMCA on an agreed upon pro rata basis taking into
consideration the amount of improvements and the timing during the term of the Agreement that
the improvements were made. Should the CITY exercise this option taking over responsibility
YMCA Concession &
� Management Agreement
3
for its management, operation and maintenance, and further, should the CITY decide to keep the
Pool open, the parties will into an agreement for the YMCA's access and use of the Pool.
2.3 Expiration or Termination of Agreement - Improvements.
Upon the expiration of the term(s) of this Agreement pursuant to Article 2, or upon the
termination of this Agreement pursuant to Article 7, other than as a result of condemnation
proceedings, the then existing improvements on the Premises owned by the YMCA shall revert
to and become the property of and owned by the CITY and the CITY shall have all right, title
and interest in the same subject to lenders rights as set forth in Article 6. All improvements to the
Pool made by the YMCA belong to the CITY and the YMCA shall have no interest in the same.
Title to all supplies, furnishings, inventories, removable equipment and other personal property
shall remain in the YMCA and the YMCA shall have a right to remove such items from the
Premises unless the YMCA is in default on this Agreement. If the YMCA is in default, the CITY
shall have the right to retain all property left on the Premises.
� ARTICLE 3. CONSIDERATION
3.1 Consideration for Concession.
3.1.1 Concession Fee.
As consideration for the use concession of the land and Pool granted by the CITY to the
YMCA by Article 1 herein, the YMCA shall provide fair and equitable compensation to the
CITY
a) An annual concession fee of Thirty Thousand Six Hundred and Ninety
Dollars and No/100 ($30,690.00), ("Concession Fee") as the concession value for the YMCA
Recreation Center, excluding the Pool, adjusted by annual CPI pursuant to Section 3.1.2 below,
and
b) As additional consideration, the YMCA shall operate, manage and
maintain the CITY's Pool as provided in Section 3.2 below. Recognizing that that the operation,
management and maintenance, including capital improvements made to the Pool, results in a
deficit budget balance, as long as the YMCA operates, manages and maintains the Pool as
provided for in Section 3.2, the Concession Fee shall be credited to the YMCA for such
operation, management and maintenance. In addition, the CITY shall provide an annual
operating subsidy subject to adjustment as set forth below as follows:
a) September2010 to December 31 2010 — Provide technical and
maintenance operating system assistance provided by CITY staff.
b) 2011 — Pay YMCA $24,000.
c) 2012 — Pay YMCA $24,000.
d) 2013 — Pay YMCA $27,000.
e) 2014 — Pay YMCA $30,000.
� 2015 — Pay YMCA $30,000 (thereafter adjusted by annual CPI pursuant to
Section 3.1.2 below).
YMCA Concession &
Management Agreement
4
3.1.2 CPI.
The annual concession fee shall be computed and paid quarterly by the YMCA within
thirty (30) days after expiration of each quarter. The annual concession fee shall be adjusted
every year during the term(s) of this Agreement based upon the prior years' Consumer Price
Index (CPI) for all urban consumers as published by the United States Department of Labor for
Seattle-Tacoma-Bremerton, all items (1982-84-100). For purposes of the CPI adjustment, the
base shall be the June 2010 CPI index June to June every year (i.e. June 2010- June 2011). The
CPI adjustment shall occur on the following January l of each year during the term of this
Agreement. YMCA shall make this payment to the City by the fifteenth day of the month
following the end of each month. YMCA may prepay these monthly payments on a quarterly,
semi-annual or annual basis or as otherwise approved by the CITY. There shall be no decrease in
the concession fee for a negative CPI.
3.1.3 Leasehold Excise Tax.
Pursuant to RCW 82.29.020 and the definition of "Leasehold Interest" as set forth in
RCW 82.29A.020(1), the YMCA, as a non-profit organization exempt from payment of property
taxes, is exempt from payment of Leasehold tax set forth in Chapter 82.29A RCW.
3.2 Pool Management by the YMCA.
3.2.1 YMCA Responsibilities and Obligations.
As partial consideration for the Concession Area, the YMCA agrees to operate, manage,
maintain, including capital improvements, the Pool as follows:
a) Manage and operate the Pool under the name "Glen Jarstad Aquatic
Center".
b) Provide necessary liability coverage for operating the Pool as provided in
Section 8.5.2. '
c) Hire, train and supervise all staff required to manage, operate and program
use of the Pool.
d) Provide financial assistance to enswe access to for those unable to afford
YMCA Membership according to an established policy that mirrors school lunch subsidy
guidelines.
e) Honor passes allowing Bremerton residents to use the Pool and YMCA
facilities four times per year free of cost or commitment to join the YMCA.
fl Maintain the pool infrastructure at or above industry standards.
g) Maintain water quality to meet applicable Health District standards.
h) Be responsible for all cash collection, receipting, accounting and deposits
for the Pool.
i) Continue to offer core programs including swim lessons and water fitness
programs.
j) Work with all constituencies and user groups to provide access to the
Pool. The YMCA will accommodate each existing community group that wishes to continue use
of Jarstad Aquatic Center. The days and hours of use may vary depending on the
availability of pool space within the Y activity schedule. Pricing for use of Pool space shall be
comparable to fees�rents charged for use of similar quality aquatic facilities within the South
Puget Sound area.
YMCA Concession &
Management Agreement
5
k) Seek long term capital improvement funds to keep the Pool safe and
attractive to users.
1) Allow use of the Pool as part of the YMCA's advertised day use fee for
those that are not members of the YMCA.
m) Provide notice to City of changes to fees and access to the Pool for non
YMCA members for input prior to implementation.
3.2.2 Transition Period.
The YMCA further agrees that during the period of September 1, 2010 to December 1,
2010 ("Transition Period") it shall:
a) Honor existing Pool program�rental schedule commitments.
b) Honor Pool admission prices as established by the City for the year 2010.
c) Waive registration fees to join the YMCA for City residents who enroll as
YMCA members prior to January 1 S `, 2011
d) Implement an outreach program for Pool users to inform them of the
benefits of YMCA membership and allow them to gain knowledge concerning the YMCA's
facility and available programs.
3Z.3 CITY Maintenance Responsibilities and Obligations.
The CITY agrees to:
a) Fund previously identified one time Capital Improvements limited to:
1. Filtration system upgrades.
2. Meet Federal Pool Drain safety standards. �
3. Improvements to Pool lighting.
CITY may pay for said improvements over a period of time not to exceed the 10 year
initial term of this agreement, the price and scope of these improvements to be mutually agreed
upon by both parties in writing prior to the commencement of work. The CITY shall pay interest
on the unpaid balance of the amount owed to the YMCA for these improvements at an annual
interest rate of four percent (4%).
b) Provide technical operating advice for Pool systems and equipment during
the Transition Period (September 1 to December 31, 2010).
3.2.4 CITY Payment.
The CITY shall provide an annual operating subsidy subject to adjustment as set forth in
Section 3.1.1(b) above.
ARTICLE 4. USE & OPERATION OF PREMISES
4.1 Use of Premises
4.1.1 Recreational Uses.
The YMCA will use the Premises throughout the full term of this Agreement for the
purpose of providing recreation, meetings and community activities directly related to the
operation of an indoor and outdoor recreation facility. The public is authorized to have ingress
and egress across this property other than through buildings and other structures.
4.1.2 Incidental Uses
The YMCA may provide incidental uses in the form of coaching and training services,
food and beverage services, and the sale or rental of incidental items directly related to the use of
YMCA Concession &
Management Agreement
6
the recreation facility including, but not limited to, sports, fitness and athletic equipment, soap,
shampoo, and similar shower supplies, and clothing related to recreation and fitness pursuits.
This includes hiring vendors and/or sub-concessions of interior space of the indoor recreation
facility. YMCA agrees that no alcohol will be sold or consumed on the premises.
4.1.3 Sub-Concessions
All sub-concessions will require the prior written consent of the Mayor or designee,
which consent will not be unreasonably withheld, and comply with any requirements of the U.S.
Secretary of Interior for the granting of concessions on the subject property pursuant to the
quitclaim deed, attached hereto as Exhibit C and incorporated by reference, transferring title to
the CITY to the real property upon which this concession is granted. THE U.S. SECRETARY
OF THE INTERIOR, THROUGH THE NATIONAL PARK SERVICE, WHO, BY
CONSENTING TO THIS AGREEMENT, WANES ANY RIGHT TO REVIEW AND
APPROVE SUB-CONCESSIONS WHICH DO NOT REQUIRE THE APPROVAL OF THE
CITY COUNCIL.
4.1.4 Security and Nuisance During Use
The YMCA shall take reasonable precautions in securing the Premises during the full
term of this Agreement. The YMCA shall use the Premises for no unlawful purposes and shall
not use the Premises in any manner, which would constitute a public nuisance or violate State or
CITY laws.
4.2 Operating Hours.
The availability of recreational opportunities for CITY residents is a material
consideration for this Agreement. Accordingly and during the full term of this Agreement, the
YMCA shall continuously conduct and carry on the YMCA'S permitted uses and shall keep the
Premises open for business and cause the YMCA' S business to be conducted therein during the
usual business hours consistent with other YMCA facilities, but in no event less than forty (40)
hours per week. This provision shall not apply if the Premises should be closed and the business
of YMCA is temporarily suspended on account of weather conditions, power outages, labor
strikes, lockouts, or similar causes beyond the reasonable control of YMCA, or for maintenance,
remodeling, repair, or renovation. The YMCA shall provide notice to the CITY of any closure of
more than 7 consecutive days. The YMCA covenants and agrees to provide sufficient personnel,
and to keep the Premises adequately stocked with merchandise, recreational equipment, fixtures,
and facilities so as to conduct its business in accordance with sound business practice. The
YMCA, in order to keep its business commitments, shall be in operation in accordance with
sound business practice.
4.3 Entry by CITY.
CITY may enter the Premises at all reasonable times during normal hours of business
operations to inspect; provide services required hereunder; post notices of YMCA's
noncompliance with the provisions of this concession. Any person or persons invited by the
CITY may accompany CITY. CITY has the right to use any and all means that CITY deems
proper to open doors and gates in an emergency in order to obtain entry to the Premises. Except
in an emergency, 24 hours notice shall be given by the CITY before entry by the CITY into
proprietary areas of the facility.
YMCA Concession &
Management Agreement
7
4.4 Health Inspections.
YMCA shall not knowingly commit or willfully permit to be committed any act or thing
contrary to the rules and regulations prescribed by the local board of health, or which shall be
contrary to the laws, rules or regulations of any federal, state or municipal authority. YMCA
shall allow the Bremerton-Kitsap County Health Department to make regular and ordinary
inspections of the Premises as said health department may deem proper.
4.5 Maintenance, Repair, & Improvements.
4.5.1 Generally.
YMCA shall, at its sole cost arid expense, clean and maintain the Premises, and make
repairs, restorations, and replacements to all improvements to the Premises, including the Pool,
including without limitation the heating, ventilating, air conditioning, mechanical, electrical, and
plumbing systems, structural roof, walls, and foundations, roof coverings, sprinkling and
irrigation systems, playing surfaces and the fixtures and appurtenances to the Premises as and
when needed to preserve them in "first class" condition and repair (less normal weaz from use)
throughout the full term. YMCA shall further keep in repair and maintain as necessary all
machinery, equipment and facilities necessary for the playing of sports and the comfort of
players. YMCA shall paint the exterior of the buildings (except the metal) with such frequency
as may be required to maintain their good, clean appearance. All such repairs, restorations, and
replacements will be in quality and workmanship at least equal to the original work or
installations. If YMCA fails to make such repairs, restorations, or replacements, following a
notice of default and opportunity to cure as provided for in Articles 6 and 7, CITY may make
them at the expense of YMCA and such expense will be paid by YMCA within fifteen (15) days
after delivery of a statement for such expense. YMCA shall maintain the Pool in accordance with
Chapter 246-260 of the Washington State Administrative Code covering the rules and
regulations of the Washington State Board of Health for pool operation, construction, equipment,
water quality.
4.5.2 Sidewalks and Parking Maintenance.
At its sole cost and expense, YMCA shall maintain all sidewalks and parking lots on the
Premises in good and presentable condition during the full term of this Agreement, shall be
responsible for correcting any unsafe conditions, and shall be responsible for the removal of ice
and snow from the sidewalks and parking lots as necessary for safe operation of the Premises.
4.5.3 Janitorial and Landscaping Services
At its sole cost and expense, YMCA shall keep the Premises clean, and shall provide
sufficient janitorial services to maintain a tidy appearance on and about the Premises. YMCA
shall provide landscaping maintenance services such that landscaping on the Premises remains
healthy, amactive, and well maintained.
4.5.4 Repair of Damage
Except that which may be caused by the actions, activities or negligence of the CITY or
its agents, representatives, employees, guests or invitees, in the event any damage or injury shall
occur to the Premises of any kind or nature whatsoever, YMCA shall promptly cause said
damage or injury to be fully repaired at YMCA'S own cost and expense. In the event YMCA
fails to accomplish such repairs within fifteen (15) days of receipt of written notice by the CITY,
then in that event CITY may, but is not required to, enter the Premises and accomplish such
repairs and bill YMCA who will pay the bill within fifteen (15) days after delivery of a statement
YMCA Concession &
Management Agreement
8
for such expense. Any such damage or injury to the Premises caused by the actions, activities or
negligence of the CITY or its agents, representatives, employees, guests or invitees shall be
promptly repaired by the CITY at its cost and expense.
4.5.5 PoolImprovements.
The YMCA shall be responsible for all capital improvements to the Pool in accordance with
Article 5, except for initial funding of certain improvements as provided in Section 3.2.3. The
YMCA shall maintain and make the required capital improvements to the Pool in order to
maintain the Pool in a condition equal to or greater than its condition at the beginning of the term
of this Agreement. Any improvements to the Pool made by the YMCA shall immediately
become the property of the CITY upon construction, unless otherwise agreed.
� �
, �
�
. The YMCA shall have no interest in the improvements
made to the Pool by the YMCA upon expiration or termination of this Agreement.
4 5 6 Extraordinarv Expenses Notwithstandin�any other provision of this
Agreement the need for any Extraordinary Expense shall tri egg r the provisions of this section.
An Extraordina,r� Expense is a capital .expense for the replacement. repair, or restoration of anv
im�rovement or combination of improvements on the Premises, that would exceed $125,000 in
an�vear An Extraordinary Ex�ense includes but is not limited to any expense for the
restoration or renair of the improvements as a result of damage or destruction under Section 7.4.
An Extraordinarv Expense meets the minimum threshold set forth above if the YMCA
would be obli�ated to commit to the entire expense in one �ear, even if the work itself would
extend into more than one year.
If faced with an Extraordinary Expense YMCA shall have the ri h�t, upon 30 days
written notice to terminate this A�reement as to either the Pool management, or as to the
Concession Area whichever would require the Extraordinary Expense. If the pool and the
concession area both require ExtraordinarY E�enses the YMCA may terminate the entire
Agreement Upon termination the City will be under no obligation to reimburse the YMCA for
any costs not previously a�reed to which are incurred bv the YMCA for either the Pool or
Improvements to the Concession Area.
Following the notice the parties m� but shall not be required to, ne�otiate for an
extension of the A�eement term to allow recovery of the Extraordinarv Expense, for sharin� of
the Extraordinarv Expense or for anyother compromise that would a11ow the narties to keev the
AQreement in effect.
4.6 Signs.
YMCA may place and maintain signs upon the Premises in accordance with the sign
ordinance of the CITY. �
4.7 Utilities.
4.7.1 Utility Services and Expense
' The YMCA will pay for all water, gas, garbage, sewage, electricity, telephone, and other
utilities and communications services used by YMCA on the Premises, whether or not such
services are billed directly to YMCA. YMCA will also procure, or cause to be procured, without
cost to the CITY, any and all necessary permits, licenses, or other authorizations required for the
YMCA Concession &
Management Agreement
9
lawful and proper installation and maintenance upon the Premises of utility appurtenances and
� appliances for use in supplying such utilities and services to and upon the Premises. The CITY,
upon request of YMCA, and at the sole expense and liability of the YMCA, will join with
YMCA in any application required for obtaining or continuing any such services, provided that
such services do not violate any other applicable provision of this Agreement. The CITY shall
not be held liable for any injury, loss, or damage caused by or resulting from any interruption or
failure of utility services due to any cause whatsoever, except the CITY's sole negligence.
YMCA shall not be entitled to any offset, reduction, or return of consideration as a result of any
interruption or failure of services.
4.7.2 Trash & Garbage.
The YMCA shall place all trash and garbage into such areas and containers as are
designed and intended to accommodate the trash and garbage generated within or on the
Premises. The YMCA shall not allow trash and/or garbage to accumulate such that a nuisance or
health hazard results.
4.8 Parking.
4.8.1 Concession Area Parking. YMCA maintains parkin� lots A and B as depicted
on Exhibit B and shall have primarv use of those lots. However, those lots shall be made
available to members of the public usin�Eastpark at nonpeak hours in a manner not inconsistent
with or interfering with the YMCA's primarv use•
4.8.2 Pool Parking. Under the management provisions of this A�reement, YMCA
shall maintain parkin� lot C and shall have the primarv use of that lot. However, this lot shall be
made available to the public using Eastnark at nonpeak hours in a manner not inconsistent with
or interfering with YMCA's use and operation of the Pool.
4.8.3 Additional Parking. YMCA shall have the ri�ht in common with the public to
use lot D as depicted on Exhibit B to support its use of the concession area and pool. YMCA's
use of this lot shall not be inconsistent or interfere with any�rimarv use ri ts previously granted
to the ice arena concession area.
4.9 Hazardous Substances.
4.9.1 Defmition.
As used herein, the term "Hazardous Substance" means any hazardous, toxic, or
dangerous substance, waste, or material, which is or becomes regulated under any federal, state,
or local statute, ordinance, rule, regulation, or other law now or hereafter in affect pertaining to
envirorunental protection, contamination, or cleanup.
4.9Z Information.
YMCA shall keep upon the Premises, in a location accessible to CITY, on request during
normal business hours, copies of all reports regarding hazardous or toxic materials in the
Premises that YMCA has provided to any governmental agency in the previous quarter. YMCA
shall, upon request and at YMCA'S expense, provide CITY with a copy of any such report as to
which CITY request a copy. In the event of any accident, spill, or other incident involving
hazardous or toxic matter that YMCA is required to report to any governmental agency, YMCA
shall immediately report the same to the CITY and supply CITY with a11 information and reports
with respect to the same, together with YMCA'S clean-up or remediation plan and schedule. If
such clean-up or remediation plan is not acceptable to CITY in CITY'S sole discretion, CITY
YMCA Concession &
Management Agreement
10
may so notify YMCA and, upon 48 hours prior written notice (or without notice if so required by
an emergency) may enter on the Premises to conduct the cleanup and/or remediation and charge
YMCA the costs thereof. For non-emergency cleanup and/or remediation, prior to the CITY
exercising its right to cleanup and/or remediation on the Premises, the parties will mutually agree
upon a consultant for determining the method of cleanup and/or remediation. All information
described herein shall be provided to CITY regardless of any claim by YMCA that it is
confidential or privileged, provided that the CITY shall not publish or disclose the information to
any third party except as pursuant to Chapter 42.56 RCW.
4.9.3 Indemnification.
YMCA agrees to hold harmless, protect, indemnify, and defend CITY from and against
any damage, loss, claim, or liability, INCLUDING Attorney's fees and costs, resulting from
YMCA' S use, disposal, transportation, generation, and/or sale of any Hazardous Substances. T'he
CITY agrees to hold harmless, protect, indemnify, and defend YMCA from and against any
damage, loss, claim, or liability, including attorney's fees and costs, resulting from (a) Hazardous
Substances existing on the Premises as of the EFFECTIVE DATE of this Agreement; or (b)
Hazardous Substances thereafter used, disposed of, or generated on the Premises by the CITY.
These indemnities will survive the termination of this Agreement, whether by expiration of the
Term or otherwise.
4.10 Risk of Loss.
All personal property of any kind or description whatsoever in the Premises shall be at
the YMCA's sole risk, and CITY shall not be liable for any damage done to, or loss of, such
personal property. However, YMCA is not responsible for any losses or claims of damaged or
stolen property under the care and control of the CITY.
ARTICLE 5. DEVELOPMENT OF IMPROVEMENTS
5.1 City Consent.
The YMCA shall not make any material alterations or improvements to the Premises
including the Pool and any changes to the landscaping, without the CITY'S prior written
consent, which consent will not be unreasonably withheld. The YMCA sha11 be solely
responsible for providing adequate funding for any alterations or improvements as provided in
this Agreement and such alterations or improvements shall be made without cost to the CITY,
except for initial funding of certain improvements to the Pool as noted in Section 3.23 above.
5.2 Development and Construction Fees & Expenses.
The YMCA shall be responsible for obtaining and paying for necessary permits, fees, and
expenses associated with any development and construction of Improvements. In addition,
YMCA shall be responsible for any additional costs for inspections billed to the CITY by any
government agency, including but not limited to the City of Bremerton, Kitsap County, or the
State of Washington.
5.3 YMCA's Development Project.
The development and construction of any Improvements on the Premises is YMCA's
development project and is not a CITY public works project. YMCA is the developer and the
CITY is not an owner, partner, joint venturer, nor maintains any other business relationship with
YMCA Concession &
Management Agreement
11
the YMCA regarding the indoor recreation facility other than as grantor of a concession and user
of the Premises. The CITY is not involved with, nor has any responsibilities for, the bidding,
contracting or operations of the Premises and will occupy no space in the Premises. The project
signage and all literature, advertising by either the CIT'Y or YMCA shall not indicate in any
manner that this is a CITY project, contract, or other misleading statement indicating that this
project is a CITY public work project directly or indirectly.
5.4 No Liens.
Except liens and encumbrances of any lender pursuant to Article 6 herein, it is mutually
understood and agreed that the YMCA shall have no authority, express or implied, to create or
place any lien or encumbrance of any kind or nature whatsoever upon, or in any manner to bind,
the interest of the CITY in the Premises or to charge the rentals payable hereunder for any claim
in favor of any person dealing with YMCA, including those who may furnish materials or
perform labor for any construction or repairs, and each such claim shall affect and each such lien
shall attach to, if at all, only the right and interest granted to YMCA by this Agreement. If any
such liens aze filed, CITY may, without waiving its rights and remedies for breach, and without
releasing YMCA from its obligations hereunder, require YMCA to post security in form and
amount reasonably satisfactory to CITY or cause such liens to be released by any means CITY
deems proper, including payment in satisfaction of the claim giving rise to the lien. YMCA shall
pay to CITY upon demand any sum paid by CITY to remove the liens. Further, YMCA agrees
that it will save and hold the CITY harmless from any and all loss, cost, or expenses based on or
arising out of the asserted claims or liens, except those of the lender pursuant to the provisions of
this Agreement, against this Agreement or against the right, title, and interest of the CITY in the
Premises or under the terms of this Agreement, including reasonable attorney's fees and costs
incurred by CITY in removing such liens, and in enforcing this paragraph. Additionally, it is
mutually understood and agreed that this paragraph is intended to be a continuing provision
applicable to future repairs and improvements after the initial construction phase.
ARTICLE 6. FINANCING & SECURITY INTERESTS
6.1 Financing - No CITY Obligation.
YMCA shall be solely responsible for all financing requirements for all construction,
maintenance, repairs, or subsequent improvements to the Premises. The CITY shall be under no
obligation directly or indirectly to pay for any labor, material, or improvement associated with
the facility except as provided herein or mutually agreed upon. The YMCA shall, in applying
and obtaining financing, inform any lender that the CITY has no financial obligations associated
with the construction, maintenance, repairs or subsequent improvements to the Premises.
6.2 Security Interest in Premises & AgreementlConsent.
With the exception of the Pool, the CITY consents to the grant, transfer, pledge and
assignment of any and all right, title, claim, interest of YMCA in and to this Agreement and in
the Premises, including improvements and personal property on the Premises ("Collateral") to
lender for financing purposes, including the re-financing of any loans and leasing of equipment.
Article 6 shall be inapplicable to the Pool, therefore, lender shall have no security or any other
interest in the Pool whether or not Improvements are made to the Pool by the YMCA. The CITY
YMCA Concession &
Management Agreement
12
shall recognize lender's first priority security interest in the Collateral and the CITY hereby
subordinates any and all interest of the CITY in said Collateral to lender. YMCA acknowledges
that the CITY will not grant any security interest to any lender in CITY real property nor will the
CITY allow any encumbrance of any kind or nature whatsoever upon, or in any manner on its
title to CITY real property. In the event of default by YMCA to lender, in addition to all its
rights and remedies available at law and equity, lender may enforce and/or foreclose its security
interest/interests in the Collateral. CITY agrees that in connection with any such default, and all
without further consent of CITY, lender may:
a) Acquire YMCA's interest in the Collateral either by a deed in lieu of foreclosure
or actual foreclosure;
b) Rent and/or grant a ground and use concession of the Premises subject to this
Agreement pending foreclosure of the Collateral by lender;
c) Assign, sell and/or transfer the Collateral in whole or in part to any person or
entity;
d) Take possession of any or all of the Collateral, obtain right of substitution for
YMCA and operate said Collateral; andlor
e) Appoint a receiver.
fl All other rights and remedies at law or in equity.
Any assignment or transfer under Article 6.2 is subject to Article 8.7. Lender shall have
no interest in improvements located on the Premises at the time of expiration of the term or terms
of this Agreement pursuant to Article 2, at which time, all improvements shall become the
property of the CITY.
6.3 LENDER's Reliance on Term and Renewal Options.
The City acknowledges that the YMCA, in making application for financing, may be
required to have an assurance that the terms of this Agreement will extend beyond the term of
the financing term. By its signature to this Agreement, the CTTY confirms its authority to
provide the Agreement with an initial term of ten (10) years and four (4) months with two (2) ten
(10) year options to extend the Agreement for a total of thirty (30) years and four (4) months
with the renewal options conditioned solely upon the YMCA maintaining current payrnents and
remaining in full compliance with the terms and conditions of this Agreement. Lender may, but
is not obligated to exercise YMCA's right to renew and extend the terms of this Agreement.
Additionally, the CITY acknowledges that, after any original financing commitments by the
YMCA have been satisfied, these financing provisions shall be applicable to all future advances
or financing required by the YMCA and used solely for the improvements and repairs of the
Premises or re-financing such obligations periodically thereafter.
6.4 Surrender of the Collateral.
No surrender of Collateral or the Premises to lender subject to this Agreement or any
other act of YMCA shall be deemed to terminate this Agreement. CITY will not terminate this
Agreement voluntarily by agreement with YMCA unless lender has been previously notified in
writing and has consented to the termination in writing. This Agreement shall not be amended or
modified unless lender has been previously notified in writing and has consented to such
amendment or modification in writing.
YMCA Concession 8�
Management Agreement
13
6.5 Notice of Default and Lender's Rights.
6.5.1 Notice of Default.
If YMCA defaults under this Agreement or if any event occurs which would give CITY
the right to terminate, modify, amend or shorten the term of this Agreement, CITY shall take no
steps to exercise any right it may have under this Agreement without first giving lender written
notice of such default in accordance with Article 6.11 below. A copy of each and every notice of
default served or sent by CITY or its agent to or upon YMCA pursuant to this Agreement shall
be sent contemporaneously to lender in accordance with Article 6.11 below. Such notice of
default shall specify the event or events of default then outstanding and the time period at the end
of which the indicated action would become effective.
6.5.2 Termination for Monetary Default.
If the notice of default given by CITY to lender relates to a monetary default and YMCA
has not cured such monetary default within 30 days after lender receives the notice and YMCA'S
failure to cure results in CITY desiring to terminate this Agreement, CITY may terminate this
Agreement pursuant to Article 7 if such monetary default is not cured by either YMCA or lender
within forty-five (45) days after lender receives the notice of default.
6.5.3 Termination for Non-Monetary Default.
If the notice of default given by CITY to lender relates to a non-monetary default and
YMCA has not cured, or diligently pursued curing, such non-monetary default within thirty (30)
days after lender receives the notice, CITY may terminate this Agreement pursuant to Article 7 if
such non-monetary default is not cured by either YMCA or lender within sixty (60) days after
lender receives notice of default.
6.5.4 Termination due to Bankruptcy.
CITY shall not terminate this Agreement because of YMCA'S breach of any terms of this
Agreement relating to the solvency of YMCA or the institution of any bankruptcy, insolvency,
receivership or related action by or against YMCA as long as lender cures any default under this
Agreement by YMCA as provided herein, except that lender shall not be required to cure any
defaults relating to solvency of YMCA.
6.6 Right to Assign.
Lender shall have the right to assign its interest in the Collateral. Upon the_purchaser's,
assignee's or transferee's assumption of lenders assigned interest and agreement to perform and
be bound by all of the terms of this Agreement, lender shall be relieved from further liability
under this Agreement. If a lender finances the purchaser, assignee or transferee, said lender shall
be subject to all obligations as set forth in this Agreement. Any successor lender shall be bound
by the terms and conditions of this Agreement.
6.7 Disposition of Insurance.
Should the Collateral suffer any loss which is covered by casualty insurance, and the
insurance proceeds are used to restore any improvements made by YMCA, CITY agrees that
YMCA and lender shall have the right to such proceeds so long as none of CITY' S property,
utilities or other services therein are damaged or such damages are repaired. In the event the
CITY'S land is substantially damaged and YMCA'S improvements have been repaired, CITY
shall only participate in the insurance proceeds to the extent necessary to repair and restore
CITY'S land and any of CITI"S improvements on or in the ground to the same condition the
YMCA Concession &
Management Agreement
14
land was at the commencement of this Agreement, or in the same condition at the time of the
casualty. Other than as described herein, CITY shall have no claim to insurance proceeds that are
attributable to YMCA's interest in the Collateral.
6.8 Right to Participate in Litigation.
Lender shall have the right to participate in any litigation, arbitration or dispute directly
affecting the Collateral or interest of YMCA or lender therein, including, without limitation, any
suit, action, azbitration proceeding, condemnation proceeding or insurance claim. CITY, upon
instituting or receiving notice of any such litigation, arbitration or dispute will promptly notify
lender of the same.
6.9 Incorporation of Lender's Protection Provisions.
Lender shall be a beneficiary of all rights of YMCA herein including but not limited to
the warranty, indemnity, hold hannless, choice of law and venue, costs and attorney's fees as
provided herein.
6.10 Right to Remove Collateral.
In the event lender exercises its rights under its Collateral and realizes upon the
Collateral, CITY agrees that lender is entitled to remove the Improvements on the Premises,
including but not limited to building facility, furniture, movable trade fixtures and equipment,
from the Premises at any reasonable time and that the Collateral shall remain personal property
even though the trade fixtures may be affixed to or placed upon the Premises. In the event lender
so realizes on its Collateral, CITY waives any right, title, claim, lien or interest in the Collateral.
6.11 Notices.
All notices, copies of notices, consents or other communications to lender given under
this Agreement to lender must be in writing and shall be effective when received. Such
communications shall be given in person to an officer of lender, addressed to lender at an address
as provided by lender. YMCA shall keep the CITY informed of the name, address, and
telephone number of any current lender or lenders for the purpose of the CITY providing notice
to the same under this Agreement.
6.12 Lenders Change in Loan Terms.
It is understood that current or future lenders may require terms or conditions on loans for
future or additional financing needs of YMCA, which may require changes to the terms or
conditions of this Agreement. In such case, the CITY will give reasonable consideration to such
changes to this Agreement, and may, at its sole discretion, accept or reject the same. Any
modifications to this Agreement are subject to approval of the U.S. Secretary of Interior pursuant
to Article 8.21.
ARTICLE 7. TERMINATION �
7.1 Failure to Perform.
7.1.1 Obligation to Perform.
Nothing herein shall imply any duty upon CITY to do any work, which under any
provision of this concession YMCA may be required to perform, and the performance thereof by
YMCA Concession &
Management Agreement
15
CITY shall not constitute a waiver of YMCA's default. CITY shall not in any event be liable for
inconvenience, annoyance, and disturbance in its activities in Eastpark.
7.1.2 Payments to Other Parties
Except as otherwise expressly provided hereunder, all obligations of the YMCA under
this Agreement will be performed by YMCA at YMCA's sole cost and expense. If YMCA fails
to pay any sum of money owed to any party other than CITY for which YMCA is liable
hereunder, or if YMCA fails to perform any other act on its part to be performed hereunder, and
such failure continues for ten days after notice thereof by CIT'Y, CITY may, without waiving or
releasing YMCA from its obligations, make any such payrnent or perform any such other act to
be made or performed by YMCA. YMCA shall pay CITY, on demand, all sums so paid by CITY
and all necessary incidental costs, together with interest thereon at the lesser of 1%2 percent per
month or the maximum rate permissible by law, from the date of such payment by CITY,
provided, however, YMCA shall have the right to contest any such obligation, upon such terms
and conditions as the CITY may reasonably insist, in order to protect its interests herein.
7.2 Default and Termination.
This Agreement and the concession granted herein may be terminated for default as
follows:
7.2.1 CITY's Default.
CITY will not be in default unless CITY fails to perform an obligation within thirty (30)
days after notice by YMCA, which notice must specify the alleged breach; provided that if the
nature of CITY's obligation is such that more than thirty (30) days are reasonably required for
cure, then CITY�will not be in default if CITY commences to cure within thirty (30) days of
YMCA's notice and thereafter diligently pursues completion and completes performance within
a reasonable time.
7.2.2 YMCA's Default.
The occurrence of any one or more of the following events constitutes a default under
this Agreement by YMCA: (1) YMCA shall be in default of the performance of any covenants,
conditions, or provisions of this Agreement, other than the covenants for the payment of
consideration required by this Agreement, where such failure continues for a period of thirty (30)
days after written notice is given by CITY provided that if the nature of YMCA's obligations is
such that more than thirty (30) days are reasonably required for cure, YMCA will not be in
default if YMCA commences to cure within thirty (30) days of CITY's notice and thereafter
diligently pursues completion and completes performance within a reasonable time; or (2)
YMCA shall be adjudged a bankrupt, make a general assignment for the benefit of creditors, or
take the benefit of any insolvency act, or if a permanent receiver and trustee in bankruptcy shall
be appointed for YMCA's estate and such appointment is not vacated within thirty (30) days; or
� (3) Premises become vacant or deserted for a period of thirty (30) days; or (4) if this Agreement
shall be assigned or the Premises concessioned other than in accordance with the terms of this
AGREEMENT and such default is not cured within twenty (20) days after written notice to
YMCA; or (5) YMCA shall fail to make any payment when due, or fail to make any other
payment required hereunder when due, when that failure is not cured within thirty (30) days after
mailing of written notice thereof by CITY; or (6) YMCA shall fail to comply with the same
concession agreement term or covenant on three occasions during any 10 year term, even if such
breach is cured within the applicable cure period. The CIT'Y's right to terminate pursuant to this
YMCA Concession &
ManagementAgreement
16
Article for failure of CONSCESSIONAIRE to cure a default is subject to the lender's right to
cure pursuant to Articles 6.5.2 and 6.5.3.
7.2.3 Default for Other Cause.
Subject to lender's interest(s) as provided in Article 6, this Agreement may be
immediately terminated for other cause by a party if the other party substantially fails to perform
its obligations under this Agreement, through no fault of the terminating party, and the non-
performing party does not commence correction of the failure of performance within thirty (30)
days of the terminating party's sending notice to the non-performing party.
7.2.4 Bankruptcy.
Subject to lender's interest(s) as provided in Article 6, the Parties agree that if the YMCA
is adjudged bankrupt, either voluntarily or involuntarily, then this AGREEMENT, at the option
of the CITY, may be terminated effective on the day and at the time the bankruptcy petition is
filed.
7.3 Remedies Are Cumulative.
Remedies under this Agreement are cumulative; the failure to exercise on any occasion
any right shall not operate to forfeit such remedy.
7.4 Destruction of Premises & Use of Insurance Proceeds.
�.4.1 Generally.
Unless otherwise mutually agreed by the Parties, in the event the Improvements on the
Premises are destroyed or injured by fire, earthquake, or other casualty, then YMCA shall
proceed to rebuild and restore the Improvements, or such part thereof as may be injured as
aforesaid. In the event of any loss covered by the insurance policies described and required
pursuant to Article 8.5.1 herein, unless this Agreement shall be terminated as provided herein,
the proceeds of such insurance policies shall be used by YMCA first to rebuild and restore the
Premises and replace the improvements which may be damaged or destroyed by such casualty.
7.4.1 Pool.
With respect to the Pool, the CITY shall maintain appropriate property coverage as set
forth in Section 8.5 below and the CITY shall have the option to proceed to repair, rebuild and/or
restore the Improvements at its discretion or to keep any applicable insurance proceeds. In the
event the CITY elects not to repair, rebuild and/or restore the Pool, the City shall provide YMCA
written notice of such within thirty (30) days after such damage or destruction and all provisions
contained in this Concession Agreement relating to the Pool shall terminate. All remaining
provisions relating to the YMCA Recreation Center shall remain in effect.
7.5 Duties upon Termination.
Upon termination of this agreement, and unless otherwise arranged, YMCA shall remove
from the Eastpark all its personal property, goods, and effects. In the event that the YMCA fails
to perform this duty at termination, the CITY may cause such removal to be made and said
personal property, goods, and effects to be stored, the cost and expense to be paid by the YMCA.
It is mutually understood and agreed that the real property constituting the Premises of this
Agreement is the real property of the CITY and that a11 improvements to said real property sha11
revert to the CITY at the termination of this Agreement, subject to the rights of lender as
provided in this Agreement in the event of termination for default.
YMCA Concession &
Management Agreement
17
7.6 Eminent Domain. '
The following rules shall govern the rights and duties of the Parties in the event of
interference with the use of the Premises by YMCA by right of eminent domain or private
pwchase in lieu thereof.
7.6.1 Rights of Termination.
If the whole of the Premises shall be taken for any public or quasi-public use under any
statute or by right of eminent domain, or by private purchase in lieu thereof, then this Agreement
shall automatically terminate as of the date that title shall be taken. If more than twenty-five
percent (25%) of the Premises sha11 be so taken and if the taking renders the remainder thereof
unusable for the purposes for which the Premises were concessioned, then CITY and YMCA
shall each have the right to terminate this Agreement on thirty (30) days notice to the other given
within ninety (90) days after the date of such taking. Provided, however, that if the CITY is
exercising its rights of eminent domain, a fair value shall be placed on this Agreement as if it had
not been terminated and the Premises with the compensation thereof awarded solely to YMCA,
or lender pursuant to its security interest, if any.
7.6.2 Non-Termination.
If any part of the Premises shall be so taken and this Agreement is not terminated, then, if
the CITY is exercising its right to eminent domain, the CITY shall, at its own cost and expense,
restore the remaining portion of the Premises to the extent necessary to render it reasonably
suitable for the purposes for which it was concessioned. Otherwise, the Parties shall resort and
share in the compensation on the basis of their interests and losses.
7.6.3 Compensation.
The compensation awarded or paid upon such a total or partial taking of the Premises
and/or this Agreement shall belong to and be apportioned between the CITY and YMCA in
accordance with their respective interests as determined by a court of competent jurisdiction.
Additionally, YMCA may prosecute any claim directly against the condemning authority for the
costs of removal of the goodwill, stock, trade fixtures, furniture and other personal property
belonging to YMCA. CITY shall have no claim to condemnation proceeds that are attributable to
YMCA's interest in the Collateral, nor shall YMCA or lender have any interest in CITY's
condemnation proceeds, if any.
ARTICLE 8. GENERAL CONDITIONS
8.1 Relationship of Parties.
8.1.1 YMCA Independent Contractor Status.
The Parties intend that an independent relationship shall be created by this Agreement.
Nothing contained herein shall create the relationship of principal and agent or of partnership or
of joint venture between the parties hereto, and neither the method of computation of
consideration nor any other provision contained herein shall be deemed to create any relationship
between the parties hereto other than the relationship of CIT'Y as granting a ground and use �
concession to the YMCA. YMCA has the experience, ability, and resources to develop and
operate an indoor recreation facility and is performing independent functions and responsibilities
within its field of expertise. YMCA and its personnel are independent contractors and not
employees of the CITY. No agent, employee, servant, or representative of the YMCA shall be
deemed to be an employee, agent, servant or representative of the CITY. YMCA and its
YMCA Concession &
Management Agreement
18
personnel have no authority to bind the CITY or to control the CITY's employees. As an
independent contractor, YMCA is responsible for its own management. The CITY's
administration and enforcement of this Agreement shall not be deemed an exercise of managerial
control over YMCA or its personnel.
8.1.2 No Third Party Rights Created.
It is mutually understood and agreed that this Agreement is solely for the benefit of the
Parties hereto and gives no right to any other party except as provided by Article 6 herein.
8.1.3 No Joint Venture/Partnership.
It is mutually understood and agreed that no joint venture or partnership formed as a
result of this Agreement.
8.1.4 City Administration of Agreemen�
This agreement shall be administered, on behalf of the City, by the Director of Parks and
Recreation or other person designated by the Mayor.
8.2 Notices.
Except as provided in Article 6 herein, any notice required or permitted hereunder must
be in writing and will be effective upon the earlier of personal delivery or three days after being
mailed by certified mail, return receipt requested, addressed to YMCA or to CITY at the address
for that party designated herein. Either party may specify a different address for notice purposes
by written notice to the other, except that CITY may in any event use the Premises as YMCA's
address for notice purposes. Each of the below noted addressees shall be responsible for
notifying the other addressees of any changes of address and all notices will be effective when
delivered to the last known address provided by said addressee. All notices shall be delivered to
the following addresses:
CITY YMCA
City of Bremerton YMCA of Pierce and Kitsap Counties
Attn: Director of Parks and Recreation Attn:
680 Lebo Boulevard
Bremerton, WA 98310 Bremerton, WA 98337 �
8.3 Reports & Records.
8.3.1 Reports/Meetings.
When requested by the CITY, YMCA shall furnish periodic reports and documents on
matters related to YMCA's performance under this Agreement. The reports and documents sha11
be furnished in the time and form requested by the CITY. When requested by the CITY, the
CITY and the YMCA shall meet to review both parties performance under this Agreement to
assure its purpose and goals are being met.
8.3.2 Records.
YMCA sha11 maintain accounting records of finance and operations pursuant to this
Agreement in accordance with Generally Accepted Accounting Principles (GAAP) and in
accordance with any applicable requirements of the United States Department of the Interior.
YMCA Concession &
Management Agreement
19
8.3.3 Audits and Inspections.
YMCA's records and documents with respect to all matters covered by this Agreement
shall be subject at all times to inspection, review or audit by CITY during the performance of this
Agreement. �
8.4 Permits, Licenses, Taxes, & Fees.
8.4.1 Permits, Licenses, & Other pocuments.
The YMCA shall possess a current Bremerton Business License and shall obtain all
regulatory licenses and permits, including all construction and building permits, necessary to
fulfill YMCA's obligations under this Agreement at YMCA's sole expense. Each party agrees to
execute such additional or other documents as may be required to fully implement the intent of
this Agreement.
8.4.2 Taxes & Fees.
As an independent contractor, the YMCA shall be solely responsible for all taxes, fees
and charges incurred, including but not limited to license fees, business and occupation taxes,
workers' compensation and unemployment benefits, all federal, state, regional, county and local
taxes and fees, including leasehold excise tax pursuant Chapter 82.29A RCW, ad valorem taxes,
taxes imposed on personal property, all other assessments for improvements or benefits which
are assessed on the Premises, income taxes, property taxes, permit fees, operating fees,
surcharges of any kind that apply to any and all persons, facilities, property, income, equipment,
materials, supplies or activities related to the YMCA's use of the Premises and obligations under
this Agreement.
8.5 Insurance.
8.5.1 Fire, Earthquake, & Casualty Insurance.
The YMCA agrees that, at all times during the full term of this Agreement and at its own
expense, YMCA shall, at its sole cost and expense, maintain in full force and effect adequate
fire, earthquake, and other casualty coverage covering the Premises and its contents, including all
personal property and improvements, except for the Pool. The CITY shall maintain appropriate
property coverage for the Pool.. Such policy shall include a replacement cost endorsement.
YMCA will shall obtain and file with the CITY's Risk Manager a Certificate of Insurance
evidencing such coverage. All such inswance coverage shall include a ten-day cancellation
notice to YMCA and the CITY. Adequacy of coverage is defined as insurance sufficient to
restore the Premises to its pre-casualty condition.
8.5.2 Liability Insurance.
Prior to the commencement date of this Agreement, YMCA, at its own expense shall
obtain and file with the CITY's Risk Manager a Certificate of Insurance evidencing general
comprehensive liability insurance coverage ("CGL") providing coverage of at least $1,000,000
per occurrence for bodily injury and $1,000,000 per occurrence for property damage. This
Certificate of Insurance shall be subject to approval by the CITY's Risk Manager as to company,
terms and coverage, and said approval shall not be unreasonably withheld. The CGL shall name
the CITY as an additional insured and must fully protect the CITY from any and a11 claims and
risks and losses in connection with any activities or omissions by the YMCA by virtue of this
Agreement. The CGL policy shall remain in full force and effect at the YMCA's sole expense
for liability for property damage or personal injury that may occur in connection with activities
YMCA Concession &
Management Agreement
20
or omissions by the YMCA, and provide coverage for the full term of this Agreement. YMCA
shall insure that the CITY's Risk Manager is given thirty-calendar days prior written notice, by
certified mail, of any cancellation, lapse, reduction or modification of such insurance.
8.5.3 Release and Waiver of Subrogation.
Any policy of insurance camed by either CITY or YMCA pursuant to any obligation
under this Agreement, shall, to the extent available, contain a waiver of subrogation clause on the
part of the insurer. Such waiver shall apply to damages to adjacent property. Notwithstanding
any other provision of this Agreement, neither CITY nor YMCA shall be liable to the other party
or to any insurance company (by subrogation or otherwise) insuring the other party for any loss
or damage to any building, structure or tangible personal property of the other occurring in or
about the Premises or Eastpark, even though such loss or damage might have been occasioned by
� the negligence of such party, its agents or employees, if such loss or damage is covered by
inswance issued by an insurance carrier authorized or licensed by the Insurance Commissioner
of the State of Washington to issue lines of insurance, benefiting the party suffering such loss or
damage or was required under the terms of this Agreement to be covered by insurance by the
party covering the loss.
8.6 Hold Harmless, Indemnification, & Industrial Insurance.
YMCA shall defend, indemnify and hold the City, its officers, officials, employees,
agents and volunteers harmless from any and all claims, injuries, damages, losses or suits,
including all legal costs and attorney fees, arising out of or in connection with the performance
of this Agreement, except for that portion of the injuries and damages caused by the City's sole
negligence.
The City's review or acceptance of any of the work when completed shall not be grounds
to avoid any of these covenants of indemnification.
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 Consultant
and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability
hereunder shall be only to the extent of the YMCA's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE YMCA'S WANER OF
IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE
PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE
THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER.
The provisions of this section shall survive the expiration or termination of this
Agreement.
8.7 Successors & Assigns.
The CITY and YMCA each agree to be bound to the other party in respect to all
covenants, agreements, and obligations contained in this contract. Except as provided in Article 6
YMCA Concession &
Management Agreement
21
herein, neither party shall assign the contract in part or as a whole, without the written consent of
the other, which consent shall not be unreasonably withheld. Except as provided in Article 6
herein, the YMCA shall not subcontract any of the Premises, services, facilities, or equipment, or
delegate any of its duties under this Agreement without the prior written approval of the CITY,
which approval shall not be unreasonably withheld. The CITY acknowledges that the YMCA
shall be autliorized to sub-Concession Areas within the Premises to food and beverage
purveyors, equipment sales, and similar supporting concessions as set forth in Article 4.1.3.
When requested, approval by the CITY of a subcontract or assignment shall not be unreasonably
withheld. In the event of an assignment, subcontracting, or delegation of duties, the YMCA shall
remain responsible for the full and faithful performance of this Agreement and the assignee,
subcontractor, or other obligor shall also become responsible to the CITY for the satisfactory
performance of the services, facilities, or equipment assumed. The CITY may condition approval
upon the delivery by the assignee, subcontractor, or other obligor of its covenant to the CITY to
fully and faithfully complete the requirements or responsibility undertaken under this
Agreement. Notwithstanding the foregoing, provided YMCA is not in default, the YMCA may
assign its interest in this Agreement without seeking CITY's consent to a parent or subsidiary.
Except as otherwise provided herein, all of the covenants, conditions, and provisions of this
Agreement are binding upon and inure to the benefit of the Parties and their respective heirs,
personal representatives, successors, and assigns. IN THE EVENT THE YMCA SEEKS
CONSENT OF THE CITY OF AN ASSIGNMENT OF THIS AGREEMENT IN ITS
ENTIRETY, SUCH ASSIGNMENT SHALL REQUIRE THE PRIOR NOTIFICATION AND
REVIEW, APPROVAL OR WANER OF THE U.S. SECRETARY OF THE INTERIOR
THROUGH THE NATIONAL PARK SERVICE, WHO, BY CONSENTING TO THIS
AGREEMENT WAIVES THE RIGHT TO REVIEW AND CONSENT TO AN ASSIGNMENT
OF THIS AGREEMENT WHICH IS LESS THAN AN ASSIGNMENT IN ITS ENTIRETY.
8.8 Compliance with Laws.
The YMCA, its officers, employees, and agents shall comply with applicable federal,
state, county, and local laws, statutes, rules, regulations, and ordinances, in performing its
obligations under this Agreement. Such compliance shall include abiding by all applicable
federal, state and local policies, including Section 8.9 below, to ensure equal employment
opportunity based on ability and fitness to all persons. The YMCA shall comply with applicable
laws pertaining to employment practices and employee treatment. Conditions of the Federal
Occupational Safety and Health Act of 1970 (OSHA), the Washington Industrial Safety and
Health Act of 1973 (WISHA), and standards and regulations issued under these Acts must be
complied with. The YMCA agrees to indemnify and hold harmless the City from a11 damages
assessed for the YMCA's failure to comply with the Acts and Standards issued thereunder. The
YMCA is also responsible for meeting all pertinent local, state and federal health and
environmental regulations and standards applying to any operation in the performance of this
Agreement.
8.9 Nondiscrimination.
Parties shall not discriminate in employment or services to the public on the basis of race,
color, creed, national origin, sex, religion, age, marital status, sexual orientation, or honorably
discharged veteran or military status, or the presence of any sensory, mental, or physical
YMCA Concession &
Management Agreement
22 ,
disability and as otherwise provided by state and federal law, except for employrnent actions
based on bona fide occupational qualification.
8.10 Choice of Law & Venue.
This Agreement shall be interpreted according to the laws of the State of Washington.
Any judicial action to resolve disputes arising out of this Agreement shall be brought in Kitsap
County Superior Court.
8.11 Costs & Attorneys' Fees.
, In any action brought to enforce any provision of this Agreement, including actions to
recover sums due or for the breach of any covenant or condition of this Agreement, or for the
restitution of the Premises to the CITY or eviction of the YMCA during the term or after
expiration thereof, the substantially prevailing party shall be entitled to recover from the other
party all reasonable costs and reasonable attorney's fees incurred, including the fees of
accountants, appraisers, and other professionals, at trial or on appeal, and without resort to suit.
8.12 Modification.
This Agreement may only be modified by written instrument signed by both Parties. The
Director of Parks and Recreation has the authority to interpret and make minor modifications to
this agreement, relative to the use or operation of the Premises, consistent with its purpose and
intent. Any major modifications or modifications having a financial impact on the City shall
require City Council approval. All modifications to this Agreement are subject to approval of the
U.S. Secretary of Interior pursuant to Article 8.22. THE U.S. SECRETARY OF THE
INTERIOR, THROUGH THE NATIONAL PARK SERVICE, WHO, BY CONSENTING
TO THIS AGREEMENT, WAIVES ANY RIGHT TO REVIEW AND APPROVE ANY
AMENDMENTS TO THIS AGREEMENT WHICH DO NOT EFFECT THE TERM OR
PROPERTY USE RESTRICTIONS SET FORTH IN THE QUITCLAIM DEED
TRANSFERRING THE SUBJECT PROPERTY TO THE CITY.
8.13 Change in Law/Renegotiation.
The Parties agree that changes in federal, state or local laws or regulations that materially
modify the terms and conditions of the Agreement and result in a detrimental change in
circumstances or a material hardship for either party in performing this Agreement may be the
subject of a request by a requesting party to renegotiate this Agreement or negotiate Agreement
amendments and the responding party agrees to renegotiate fairly with the requesting party.
8.14 Force Majeure.
Provided that all other requirements of this Agreement are met, any party shall not be
deemed to be in default and shall not be liable for failure to perform under this Agreement if that
party's performance is prevented or delayed by acts of God including landslides, lightning, forest
fires, storms, floods, freezing and earthquakes, civil disturbances, acts of the public enemy, wars,
blockades, public riots, breakage, explosions, accident to machinery, equipment or materials,
unavailability of required materials, governmental restraint or other causes, whether of the kind
enumerated or otherwise, which are not reasonably within the control of that obligated party
("Force Majeure"). If as a result of a Force Majeure event, an obligated party is unable wholly or
partially to meet its obligations under this Agreement, it shall give the other party promptly
YMCA Concession &
Management Agreement
23
�
written notice of the Force Majeure event, describing it in reasonable detail. The obligated
party's obligations under this Agreement shall be suspended, but only with respect to the
particular component of obligations affected by the Force Majeure and only for the period during
which the Force Majeure exists.
8.15 Waiver.
Failure to enforce any provision of this Agreement shall not be deemed a waiver of that
provision. No waiver of any right or obligation of either party hereto shall be effective unless in
writing, specifying such waiver, executed by the party against whom such waiver is sought to be
enforced. Waiver of any right or power arising out of this Agreement shall not be deemed waiver
of any other right or power.
8.16 Illegal Provisions — Severability.
Should any part of this Agreement be found void, illegal, or unenforceable, the balance of
the Agreement shall remain in full force and effect.
8.17 Article Headings, Gender, & Number.
Article paragraph headings are not to be construed as binding provisions of this
concession; they are for the convenience of the Parties only. The masculine, feminine, singular
and plural of any word or words shall be deemed to include and refer to the gender and number
appropriate in the context.
8.18 Prior Agreements.
This Agreement and its Exhibits replaces in in its entirety the Concession Agreement
executed by the parties effective December 6, 1984, the first amendment to said agreement
executed September 19, 1990, the second amendment to said agreement executed August 7,
2002, the third amendment to said agreement executed January 21, 2009 and all other related
prior agreements.
8.19 Entire Agreement.
This Agreement and its Exhibits constitutes the entire agreement between the Parties, and
the Parties acknowledge that there are no other agreements, written or oral, that have not been set
forth in the text of this Agreement.
8.20 Counterparts.
This Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
8.21 Recording.
Upon the execution of this Agreement the CITY will cause a memorandum of this
Agreement to be recorded with the land use records of Kitsap County, Washington.
YMCA Concession &
Management Agreement
24
8.22 Approval of Agreement.
This Agreement is subject to the approval of the U.S. Secretary of the Interior pursuant to
the Quitclaim Deed transferring title to the CITY to the real property upon which this concession
is granted.
IN WITNESS WHEREOF, this Agreement has been entered into between the City of
Bremerton and YMCA of Pierce and Kitsap on the date fully executed below.
CITY OF BREMERTON
By: Patty Lent, Mayor
Date:
ATTEST: APPROVED AS TO FORM
Carol Etgen, City Clerk Roger A. Lubovich, City Attorney
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
On this day, before me, Patty Lent, Mayor of the CITY OF BREMERTON, the municipal
corporation that executed the foregoing instrument, and acknowledged the said instrument to be
the free and voluntary act and deed of said municipal corporation, for the uses and purposes
therein mentioned, and on oath stated that (s)he was authorized to execute the instrument on
behalf of said municipal corporation.
GIVEN under my hand and official seal this day of , 2010.
Notary Public in and for the State of
Washington, residing at
My appointment expires:
YMCA OF PIERCE AND
KITSAP COUNTIES
By: , President
YMCA Concession &
Management Agreement
25
Date:
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
On this day, before me, , President of the YMCA OF PIERCE AND
KITSAP COLJNTIES, a Washington non-profit corporation that executed the foregoing
instrument, and acknowledged the said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath stated that (s)he was
authorized to execute the said instrument on behalf of said corporation.
GIVEN under my hand and official seal this day of , 2010.
Notary Public in and for the State of
Washington, residing at
My appointment expires:
Aaaroved bv•
U.S. DEPARTMENT OF INTERIOR
By: , Regional Director
Pacific Northwest Region, National Park Service
Date:
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
On this day, before me, , Regional Director of the PACIFIC
NORTHWEST REGION, NATIONAL PARK SERVICE, for the U.S. Deparhnent of Interior
that executed the foregoing instrument, and acknowledged the said instrument to be the free and
voluntary act and deed of the U.S. Department of Interior, for the uses and purposes therein
mentioned, and on oath stated that (s)he was authorized to execute the said instrument on behalf
of said department.
GIVEN under my hand and official seal this day of , 2010. .
YMCA Concession &
Management Agreement
26
Notary Public in and for the State of
Washington, residing at
My appointment expires:
LIST OF EXHIBITS
Exhibit A— Legal Description of Premises
Exhibit B — Site Plan
Exhibit C— Quit Claim Deed from United States of America to the City of Bremerton
YMCA Concession &
Management Agreement
27
EXHIBIT "A"
LEGAL DESCRIPTION FOR YMCA FACILITY
A portion of the Southeast quarter of the Southwest quarter, Section 12, Township 24 North,
Range 1 East, Willamette Meridian, which is more particulazly described as follows:
Beginning at the south quarter corner of said Section 12, from which the north quarter
corner of said Section 12 bears N 2°26"37" E 5255.88 feet, N 2°26"37" E 870.22 feet
along the north-south centerline of said Section 12; thence leaving said centerline, N
87°33'22" W 114.90 feet to the True Point of Beginning; thence continuing N 87°33'22"
W 204.60 feet; thence S 48° 19' 15" W 279.83 feet; thence S 41 °40'45" E 89.53 feet;
thence S 30°46'08" W 64.71 feet; S 27°21'03" E 81.87 feet; thence S 81 °02' 15" E 28.24
feet; thence S 8°45'22" W 5.91 feet to the northerly line of the description for the Ice Rink
Facility; thence along said northerly line S82°26'07" E 132.84 feet; thence N 9°07',-11" E
34.97 feet to a Point "A"; thence S80°25'S1" E 200.45 to a Point "B"; thence leaving said
northerly line, N 9°34'09" E 65.46 feet; thence N 80°25'S1" W 88.43 feet; thence N
11 ° 16'S5" E 326.11 feet to the True Point of Beginning.
Except that portion lying within Homer R. Jones Drive, being a 43 feet wide sfip, more or
less, as measured from backs of existing sidewalks. �
Subject to a nonexclusive 10-foot wide right of entry reserved unto grantor and assigns for
construction, maintenance and repair of adjacent facilities, the south line of which is the
above described Point "A" to Point "B".
Consisting of approximately 2.45 acres.
LEGAL DESCRIPTION FOR POOL FACILITY
A portion of the Southeast quarter of the Southwest quarter, Section 12, Township 24 North,
Range 1 East, Willamette Meridian, which is more particularly described as follows:
Beginning at the south quarter corner of said Secrion 12, from which the north quarter
corner of said Section 12 bears N 2°26"37" E 5255.88 feet, N 2°26"37" E 870.22 feet
along the north-south centerline of said Section 12; thence leaving said centerline, N
87°33'22" W 319.50 feet to the True Point of Beginning; thence S 48°19'15" W 370.00
feet; thence N 41 °40'45" E 146.70 feet more or less to the easterly right of way for Schley
Boulevard; thence northerly on a curve along said easterly right of way 164.91 feet; thence
leaving said easterly right of way, S 40°38'02" E 60.59 feet; thence N 47°56'37" E 214.91
feet; thence S 41 °40'45" E 138.71 feet to the True Point of Beginning.
Consisting of approximately 1.31 acres.
YMCA/Pool Legal Descriptions
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` . + :`� I( �� 10' MAINTENCE � � ' . ��`
��� � � , .` :� EASEMENT '� .�� . ., , _
� � J - � ;f � /CB R/NK • ,;; '�-' oa/�o G.F./S.J.
s � �' ` �,' a �� I FACILITY ..� `` : � ,
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' ' The UNITBD STATSS OF M�RICA, act�ng•by aad Lhrough'Cha ' .
�' Secretary of ehs Intati.nr, acting by and.thxougt� tfis Norehweat Pe- .
- gional Airector� Du�eau oP Outdoor Reaseatiota, undmc and pursuaat
`� '• to the power aad avthority cpntaine3 is� tha prov3sions of tha Fed- .
� , eraI Propesxty and, Admi.n3strative Services Act og 1949 (63 Stut. 377), '
� , • •
�� as amended� and particul.arly'as smended by► Public Law 485; 91ct
. � Cpngress, and xeguiations snd ordete promu7.gated•Chereunder (hexa#.n- •
�• aEter'desig�a.tcd „ �raatox!') • f�sx a�d iu coasider�tioa of ehe Per- .
� peWal use o# t3�a heraisaaftez de'scribed pzemi8es ae and for public• �•
Q� , . .
� , . ..
pazk aad pubiic recreact ion area purpasas, by tha Cfty o£ Bremexkon,
a uivaiaipal,coxpoxati.oa, locatad ia Kl.tsap �onaty� State of Waeh-
' iagton (hareina�ter des ig�aAtsd "6Yanesa"), does horaby rslease,and • ,'
, • qu�taXaim Co Gsentea� end ta SCS aucceaeare and nsaigae, Lo '
tha reservaCions, axcept ions, restxictiossa,. cond�,tione, aad covensnte ' .
hareia�sftez expreased Aad As� forth� all GranLcn'e xight, title, and •
{ . ' , • � . " . . • . :
' intereat,in'aad Lo.xhat cerC�in tract of real prapertq des2gpated•ss
• Area "A," consiating ot �PProx3mately Y7.6 acYeo;_located in Kttaap
. Co'pn�y, Stata o£ Waehingtan, aad more parti.cularlq deacrilied in , •
� Ekhibit "A;" aLtschad heYeto aad by xefBxenca tt►ada a past hereoS.
� , , T� UAV� AND TO liOLD Che hereinbefora describad'psoperCy, • .
• , sub�ect to the zeasrvations� exceptioaa�,re.st�eietiane, coaditiops, '
ana coveaante hareia eicpseased aad set foYt3i wito tha C�rantea, its ��
. . . �
� . . svcceasora anii assigns, • forevex. . � � ' 1�..,
Vi
" ' RESBAVING, H04tEVER; naCa the Gzantor .�cil coal, oil, gae, ' ,�
aad othez minexals on sa 3.d real psoperCy with the rigt►C • �
• 3
• ' ' }
I '' to pxoepect fox, miae, azid raawva the sacte under applicabie Iawa, � � �
. rulea, itnd ragul�tians gr.c�czibed• by•the 5acresarq of the Intesiar. , i
. - • . • i
' Purauaat to au�hoxity coatained in qbe I+ederal Property j
•� aad Admi�nietrax:ve 9ozvices Act a�.19h9,�as ameaSed; and applicable � �
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; . . . . . : : .�<,' . ' . . . . , � � REEi '"12FR1889 �
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CONCESSION AGREEMENT����� � �'� EXHIBIT C "°° '°J
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{ �� re�lea, zegulatioas and ''�rders prumuigstad Lhereunder, the Ceneral
�
. Servicea AdwinistraCioia datarmined tha,pxoperty to be anrplvs to the
needa of the i)aited Statea oF Amerfoa and assi�ed tt►e propezty to
�• the l?epeYtmerit oE the 7siterior Por fus'ther conveyanco�CO the Grantee: .•
� '' It � i,e agreed and underetood by and betiaeea eha Grartor and .
Graatee� and the 4Yarit ee b3► ite acceptance of this•deod� does ackaow-
ledge ita uacieretanding of t�e agreemeat, and does coveaaat artd agree
for it�.elf, and iCe auccessors aad assigne, fozeper,'as followei . '
'. • 1. This prcpaxtY 8hali ba used and mainCafaed for tke
pubiic pvrposes for wh3.d� it ivas coaveyed in pezpetuity as aee fozth :
�n th@ pYCgtam �f utilization 'and plan contaiaed ia the applicatlou
• datad danuaxy 8, 19�1,. as,supplemented oa Janvairy 24 19?I, eu�itzed
yy Che Greatee and acaepte8 b3► tbe Grantor on Jans�aryt 25 I471, whicA .
t . . , • .
• program and plan may tis amended�from time La t3me at the requeat of , •
eitber tbe GranCaz or Graatee, with tlie writteu co�acurreace of the
� •other party, aad such am+e�adments aha12 ba added to and become a'par� . �
{' . , . . . .
af the osigit►al applic�►�i�+. . • • • • •
, • 2. Tha Gxaatea shall, witbia aix (b) moathe og tbe date
• of Che deed of conveyar.xaa, �eaC aad mainta3aa a pe:manent aign�or
� mazker aear �he point of priac3pal access to the conveyed aFea indiCSC- •
ing tbat the groparty is a park or seezeation•area end l�ag-been ac- '
' �quire8 fram tha Fede�ral Government for uae by t2►� genazal public. . �
3. Th� prap�ti► ahall not be sold, 2esaed, assigaed,.or ,
etherrwiea diepared ot excePt to anotbe= eligihie gov�nmental'agency �
' • that the Secretarp of 'r�e �tiB=�OY' 8�ees 'ia�writiag can assure the ,
continued use ead ma�.�nte�nce of 'the property fox public park or �
pubiic recreational pu�poaea aubjeet to the s�uce terms and doadittons .
in tt►e ariginal iastr+a�t o£ aomeyance. '�Ibwcwer, riothing in tTii� � •
' provision shall precluc3e the Grantee from providing.related reciea-
tiomal fac`iliti�s�d ��►�ea cou�pati$la with the approved appl�ice-�
, , 2 , . . .
• � � � � � . � ' • � ' REEI"12fR1890 �
.._. . .....,.____.____ �-.-._ ._..__..._� :�--.. -- _ _.L. �..... .. .._..__ ----.�_..
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� ' 4:r-
,�xiot►�'�.thtaugh,•,coilCes8�3nn• agfreemenYe anteied• inEo wi.th third parCiea,.
� pz�:fd�a':pti�`�c�ncuicr�ce� ta snch:•a�ee�ents is obtained .ia• writiac►S
� f'rb�: tY'i� :Se�Y�t��k: o�:>the. �ater.ior,.,' . . • � . .
. ' ' k. pacrnq the date of thi�a comfeyaaae;.the Cranzee, ita.suc- .
' . cesaors and asei8ns, ��11 aubmit bie�i.al reporta Co t4�e.Secretary
of' the Interi.or, aetting forth xhe e�ae made of the prop4xty duriag
� ' tha preceding Lwo-yeas pe?eiodi apd other pertineuG data estsblish- �
iag ita conCinnous us � for the pnrposes aet Porth above, �or t,ea •.
• coasecutive'reports aa►d ae £ur.thez datermined bq the Secxetaxy•of .
� Che•Iaterior. . . • � ' .
"' S�. T.ttis Grantox aball l�ave the r3ght 'dusiag the exieteace .
of a�oiq ltstio�ial emerg�cq declared by tho President of tha Uaited
. , ' States�of Ameriaa, or tRa CcaBrese.theaeea�, to the full uareetsicted
� posseeaiou, contxol, and ume of the p�temises, or aay part tberea� • ,
• wiC'6ont charga; pzovid�d tbe Graator�.shall bear Che entira.co�t of •
{ ' msiateaance bf all property so ueed. , ' ' •�
, '� 6. A's part og t.he coasidezation for thie �Desd� til�e Craatee
cavenants aad agrees for 'itseli+, ite succenaors and assigne, that , �
� (1) the pYag�am for ox iu coanaction ioith whicli tbi.a Deed ie made •'
, , wili be caadnotied in compliaace With, arid the Graatea� its evicee�'
eors aa�d�aasigns, wilt compiy wiW'a1i iequ3retaepte impoaed by or
puzsnant eo'the xegniationa af the Depaitment,of •the Intariox'as •
in effect oa the dat� of •thie Deed (43 C:F.R. Part 17) 38sued � '
under the p:ovisioas of Title VI oE tha C3'vil Righta Act o£'1964; '
(2) thia covanaat a3�11 be eubjeet ia all xespacts to the provi- • ' '
.sious of esid regulati�sue; {3) the Grantee, ita s.uccassore and
aesf�ns, wil2 pzomptiy �8� ��. �n��s ��� such aotioa• as •
may be nec�ssary Lc efEect�ta thie (4) tha Uaited .
• Statea shall have the right to saek judici�l euforcemeut of this
' � covenant, an� (5) tha•Gxaatea, its sucaesaora and asaigna, will •
' • (a) obtsaia r'zdm eacb otuer persoa (a�y legaa eti►City) wi►v, L•hrough •, . '�
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• coatractuai ox other arraa8emente wi.th the Grantee, LCa successora '
( or asaigna, 3a authariaed to prwide asrt►icee or benefite uader said
' pscgram� a written agreeai�emt pursaant Lo Which.avch other peraoa
' etiall, with rCspeet to Che aervicee or benaf'ita wbich he ie author-: •
, • ized to pYOVide, undertake fios h3meelP the sama obligations ae those ''.
impased upoa tl�o Grante�, ita aucceaeors ana assigas, by this cove-
. nattt, and (b!) furpish a•copy nf auch agYeemeat to the Secretary o£ '
• tha 7,aterior, or his succeeear; and�that thia covemant ehali run '
with the land hareby aomreyed; sad ahAll ia aay event, without re-
, gazd �o techaical class ii`i,catian or deei�nation, legal or olherWise, �
be �binding'to tke fullest exteat parmi.ttad by la� aad equity for the
• benafit of, aad`ist favor of the Graator aad eator.ceabla by ths Qran-
• �$g,�;nsti t1�e Gx$atep,, � ite suc�easors aad asaigns. ' '
. • � .
� • ' • 7'. In the even't th�ere is a breach of anq of .the conditioas .
. and c�tveaante herein canteined by t'he Grantee, ite aucceesors and ae- ,
� s3gas, whether caused by �he legal� or other inabilitq of ti�e Gsant�ee, .
( : its auacassoxs• and asaigns, to•gel�form said cbnditione and covennata, •
� or otherwiee, a12 rigfst � title and interest ixt and to the said prem-
� .. ioee sh�iZl xeverC to aad • become• tke propsrty of tt►a GrBator at ita •
. opC3,�i, •w]iicb tn addi�ion to 'all oL6es remediea for guch breach
. � ��ii �►e the •right o� ��z7* vPoa eaid premisas � aad •tba Grantea, • ;
itia successars and aesigas. sh�il forfeiC a7.2, right; tXtla aad iater•• ' �
. • . . ,, . i
est in• saiil •pr�miaea aad ia any �aad a1T oE tbe te�aenta, herpdita- • ' � '
' meata• a�ad appurte.naacae thereumto�belonging; pxovided, howevsr, I
• tbae the fsilnre �f �ha�SecxeLarq ot the•Departmen� of rlie Iatarior i
• ' .i
. . Eo xequira �n any bae or more 9.astances complete p8rformaaae oE �ay.• � !
. . �
aP the condltione or cavenanta ehall not be'coaserued ae a waivez� � . �
. , , . ;
• � , or relinqui�bo�ent of •stsch futura performaace,, but Che obligationa . ' � �
. ' �
. of the Crantee, its e�uocessora aad asaigna� with respeck to such ' �
futnra perfoxmance ahall coatinue in full �aricee ar�d e�fect: •�
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� , . •
� iN WxTN�sg ���'pg, the G=antor bas caused fheee pre;enta `
+ to be exacuted',in its nauie and• on ies behal'f thie the .�`• �Y
• of.L7���.., � 197�� .
' �—� UNITSD STATES OF N�RYCA
. , . • p�tifl,g by aad �hrough the .
, . . Secratarq oP tha:Xnterior: ,
B � • .
. . . Acting Segional ectos -
� : � ' . � . • Dlortliw�t•�egt:on . .
. • • Ruxetiu cE Outdoos Reareatio:► . .
STATB. OF WASH7NGT01� ) ae. � . . • • ' . • . ,
• ' Couonty ai' •,,;•�.f�„ - � • • . ' ' ,
• . . On -thie „t�� dsy of �,��L. ' _�. �� 19.CL� �efore , _ •
me� •the�sup's.Cr•iber'. Pexgdnal:ly apF
�ared° ' ��. ALLBti, to m9. lcnocai �aad,
. . •kaoFa.,:�o�be ��59 Ac��it&• xtegi�onai, riizector:j:Noitti�aeet•.Regio�►; as�reau
� • o£.Outdddr�Rncr�a�i�i,`.of •�ha'UniLea'Sta�eB DePartment o� •tha YnteX- • .
'. .•io�e•�•.�•��#e��tal ag�Y}�y. of •�tis, •United. Siat�s of Amet�ca, and .
� firiown,�ttr• me• �o i+e, el'ie� `�a�• ?exetia�.d�8cr.ib�ed. iis and wha exe�uted
� . 'the::�8ie�8oing�::iaxa.�iva��t:�s.•such�AcCti�g•ReStona7. DiTector.a�ore�ai.d, .
. . . as:: a�x� �a'r�a:. a'eaa og "tba 'uaited Sfatea�• cig • America, #os �aud oa }ie�
-. •lis;f'�o� the' SA'�'etary� a��. tha 7CuterieY,• dix];y� desi$�►ated; empo�q�red,•: �'i ...
� aisd• a��ha��.$ed'•�v tb do: 3lY. e�i.d Scet�st,�y�jr;,: �nd he .acl�nowT;ed�¢!'�►C �,�
' ha ex�cu�ed ;th� �farc�a �ix� • inatrumc�C •£oY� � ' a behal� o ' �� .
( � �• �.��at�ea. cf••Ama�ri�ca;.far tbR pss�p�sea au �'�u her.e d �,�° �,� �.
� ' . • • . ' . " •'� � n"' � . .
. • op r• '• li.c' �a�-'�!! � q�,�.+��"
' • ' S�at�.o� �WAB.� 8�• . ,�+ .
Q s'
. . ats�'F'��. `��1�/�'`� ��''"„�';,,5��''` '
�• . fmcegoia8- ��BYatice is herebq accepted and'Lb� under-
' s�gne,d•..�greea•,'by� t1►is� a�ceptaace; to Ss��nme snd be bouad by all 'Lhe � . .
• . . 'obiigat�iops: eonditioassi, covenafltm� �ad°agseenletaCs•.Chere3a caatais}ed. .
, .. . . . . ' • The• CI'lR QF BR�N, a muni.a�.pal '
��� : . • • .. cor�o�attoi►, located in Ki.��ap , •
. , . , . Cpuoty, $�ate of Wastt�n
. B %,,���
. • • �,����e�� ;� tad yor . .
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w .a ' ' $ ' .
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. � y . •' * c � �,: °+^. :. �.�. . . ' , �etio P�idezgasC, 5uper
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� r 4. o� �.�' • ' , ' ' 8ad �ecXeatian . .
. `��:': �o M `S�:�O e. :q'r . . S •
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r ��.� rh a`�`��g�,f. E,� . . .
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( ' , �~° ii,� � � '�',���. �� � , • • • . . . .
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s�s oF wasHnacxox ) ' � • � . � �
. . �. ) as . . . , .
•. County of Kl.t,sap ) . � . , ,�/ • . .
. . . Oa thie,�C�L.� day of ���L - , 19fL,, b�fora me, .
the uaderaiSaed OFfic+ar, p'ar'sanally appeaxed G2enn iC. Jaratad aad� ..
. J►iadreal�Pcaderassx, to m� kao+� and known to me to be the �ama;pexaone .
whoea n8ine�•�ra.aubscribed to the foxegbing'accepCSace, who being bq •
me• duly eworn, �Iid depos e and eay that �ha, Gleim• 8. Jaretad, 'i's ttie •
'Mayor•, and tbat he•, And�c ew F.end��st, is tt►e Saperinteud�mt of, the
pgpa=tmept• o£ Pazke ead Bcscreat3oa of the City of Breaerton,, Washi.ng- ,
tion, tkat tl�ey are dulq deaisnated. empcwered, anei suthoiized�by a•
� resalnt4on adop�ed by�,ttze Cit�x Council o� �tke City •af Brem �ce�t
� Washington, on Aecember 30, 1970, to execute the-forefP�B P`. '•
snc�e and to ai8a their naa►ee,theseta; aad tbat they a�d tbe� �i,.;:.��...,'r', .
�e� thereto and acka000^le dge that �the y executed t�e, fur�$o, '�n� ��..,� ••
Q� ,'�d Y� 1Mti� ��.�. . .
' stis�mettC fos and ou betu�:lf o� the City 'of Bi . {.,• ES �•.` ': • '
. £ar the pnrposes a�td ns�s eherein�deso�i � d` •,•' a��w,�• •�`'�;���: •'
. -- � «���:, ' . :i� � .
� . . ' State of Waa �� �ost._3� - V� o` f� . .
• . ' - aC: �'/JY�6��'�'..Z°, s,,ry���,i+%:-s�,�;,�•••`•►�. ,.
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. .- Dasuribed to sonth aide of aidewalk along sonth aid0 oY Maganson W�,1► .. '. ..
' ' az►d Sc�IeY Boulsvard• • . • . . .. ,
� '�, .• Ba�it�aiag at a ccaoret�a a►ott�aenL: at fi�e aenter � of 3ectioa 12� Tota� �., •'•, `' '..
. sh�i.p 2k �JorL3i; �a$e 1 Eaet, .W.M., eaid cont�er o� esid &actioa 12 ,.
�� • ba�ng eP'BS�'��Y aL tha latersection o8 tlte �oatar linea CY :: .'• . ..;.�
. ' . Sahloy Bcn3svard a n d 2 c� e l.� i h A� e� 8 3 t � h e n c s S a o x t h 2° 0 1.�? S" l� i o a� • ~' �.. •:�
� 7�$1,a..e�t �eet to the t�a�e po� of �B�a tbeac@� sout�.a°o�d�5�� .. .. , til
, T�st 1A 5 o.70 taet t o a car�r e t� � e n t s a i d a w a u m e n t b � i n B o n •
• . the Seot�on ]�se dividi�6 Soat3.one 32 aad• � at a poiat apgraocime►tely :. •.. .'.�
• �here tb�e- centarlis►e o� S�e'�► 8ou7svar� �ntsra,e�ts esid Ss � L i 4 o» �._�..
• 1iz�e; t,hercas gout�► 1 Wse'0 P1i2.23 fae�, awre or ��ees, tfl �..
• ' nor�h �e of stat�e �ecandsr9 �u�v No• 3033 thence �b 7o z7'1►0" :. ;. :.:, ', � . �:�
Is�est alooag t�e northes]a► s�ade a� said Hightimy'299•68 teet; .�henca .; ..�,'
. . gouth 1g�92�?A" b�st along zsestar�y ei�de •o� sai.d Sigk►r�ay 5� Yeet3 .. .''
, ....�ica in a northaeatsrly direat3on a�ong td►e aurther3y eide aY said' , '..�
' Highp�q oon a curve o�• radius 5b7.97 Yeet a dl.etanoe ot 227:32 Sest; :. '`• �: :
� a].ong eaid - Hi6h�a3► �o�t�h !tb idast 13b.+^,� teet; t�►eaaa :. ''
� North• 8T Wes�E 7.E� �ee�; tbeace along the �ZY eide �; .• .
o ��� i�aeb 163.21 geet �Ehenoe.Nort� ' . •.
. . of said �ii.gh�a3+ DTos�th l�? 11�. � j •. •..
' 1�3 kTest 58..1t3 �'set� more or le�s� to a poi.nt on t1�,baok of �..• , �
�„ L ..;
. t� • eide�alic a�.oag the sd4tth 8ido oY Hamer & Joaea 1Trivo; 'CheACe , ...�
- ao�oas said dxive North 23�05' 29" Eaet b3 fset� moa�s . o�c ]see� to . ..
' . a poi.at an the baok af t3ie eidet�ic on the naa�th ed.ds; tbeace along ., ' .' .,•.•�
( • the back of the ai�deeta�l.1; on a c�nroe to tk►e x3ght oan a rad�s oY ti ••�. , s
k8.lt5 teet a distance o!� 1�-1a2 Peeb; t�henoe a1�ott8 baok ot eidoiaa2k •, .:.�
- Moa�ts � west 72�0, �ee'�; taenae a7�ong �ek o# aiaewalk oa �. :: .. ..
• � a aurve to the.rig}rt �r3.th a radi.as ot 1y61.5 �ee't�, a dietaace oY :� . ;•,•
. . 21b.?8 Yeet� t�hence alosa6 baok o� s3dee�alk I+lorth 12 P�sti ':: , ....
�h ' '
.� 105056 iaet; tt►enae •alo�ag bsatic o�f esaewallc on a acr�►e to t1�e riglit'�: �, ,•.
� •• rii.th a radias oY 651.5 �eet a die�tce ot 22?•4.7 Yeet� cnr►ti�nus ;.. . .�• �
• along .i�ack ot aide� on a curv�ti to the• right s�rlth r�+di�as 1�1.31 �' �'�' • • .
.. Seet a distanae o� 273• ?9 �eet; td�eace �orLh 68°1�l'' 39" 8as� 23b.26 . . . ... . . • � .
••� Seet crase3ng Homex R. Jom.es Drive at 9.n�t,ersect,ion rrith Schle� ..
' •, �on3�evard; �haace oa► a cuis�g'e to tlie ]sf'� wi:t3► a radiue aY L�7•72 • .
'���� Yeet a cllsta�ce oi 63.29 �'eet; � south 29 Eas� 78.5 . ,�
• �eat; �senae Swtas 87°5 35" I3ast ]39.5 teet mooce o�r 3eas f,� �t,rue ' . .. . . : . : , , ' • !
" poi�at of bog�, �� �PP�t°� 18.1 acros, �a:ccap � an ' • : . : • . i
. � • � �ea aes�ataa � ��Mus�i.dpal Lurea a.�or�aa � �,�z . .. :
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. 11n asoa dmoiBna't�+d as '��°i'P� � o� the sits of the Eas'tpar� .' : '
Hous� �3 Td6S�1-1�50111+ 3�► thr� City oY Hremertor�� Coun'�y► o�
' . . ISi.tmop� St?�te o� i�sl�iugtons �� Pas�tiaularl3Y �saMbcd, as to3loc�s� • ..
i�hit� bears ldoxth 2�07.i2S" �� the �.. .
� �Begi�n5 �ati a'po� � and 13s �8�.21�'��►a ��: ' ' . : .
. . • • ' ' ' � sec�ion eorner oY Seatipne - , .
� �t� �ldmette Merid��, � 20•feet�. � � • : ,
t oi begi.mni�a�
4� _ 8��52�� � oY 3�Y �;' theace l�iorth 2�01�25° 8aet'.
` • . �roo'�rl�•marg� oY Sdil.e7► �� � �: .
' �s tieater],y n�argl�
350 Paetr a1onB• goplt�a �et 100 feet; .•• � .
�' Nortd► 87°58'3S" Wee� 30 toc�3 't,ka�'°°Y� t3ieaaa aoutd? 2°07'`25p :
9 � t�ast 183• • ' '
.; , ��� ���� y�ch parauel ta ana 20 8eet ao�th.ot t�us •. .. •
.. . a�th ],i,ae oY Seation a,33 �he�..south 87°52:�n g�t ]AO Yeot to
�� . the trae po�.nt of be�6a. ���°� °� �� more or losat '.
' Sub�eat to eaeea►enta tcac roa3 P�P� �� � east bbnwdai9 aa►d ,.. �.
along the saatth liue oY ,said Soati�n 123 t° ' .. � . . . ' : .
. � B,eeome�st�dat�ed 29 Nooember 1913.to O�y�aAia Pousr ComP-anp►, � s D ��AehiaB'�3. .':
in Valnme 89 of Deade� PaBe 53 �r�� �&'LteaP ,,
•' gaseme�rE dated 26 APF� �� tO �et Soond Poo'iar &�t Co�uBe�9� • ..
recordod �n Hook 168� Pe�e 223i recorda of Kitsap Gonnt,Y� � •• •.
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