HomeMy WebLinkAbout5460 - - BREMERTON
John Hanson
Bremerton Historic Ships
300 Washington Beach Avenue
Bremerton,WA 98337
October 25,2024
Letter of Agreement Extension of License Agreement Between City of Bremerton and
Bremerton Historic Ships
Dear Mr.Hanson,
The Purpose of this Letter of Agreement is to acknowledge reciept of the Bremerton Historic
Ship's request for a 5 year extension as available under section 2.2 of the Concessionaire
agreement.
This letters serves to document that the City has received request for the Option to Extend under
section 2.2 of the agreement and recognizes that the new term of the agreement is through
December 31,2029,but that no other condition or term of the agreement is modified.
Sincerely,
�rZ2�G!z Jane
Melinda Monroe
Contracts Administrator
Enclosure:
Concession Agreement between the City of Bremerton and Bremerton Historic Ships
Association
Cc: Kylie Finnell, City Attorney
Tim Barker,Director of Parks and Recreation
Legal
Finance 1345 6th Street Ste 100,Bremerton,WA 98337*Phone(360)473-5306*Fax(360)473-5200
Working fir and with our residents to establish Bremerton as Puget Sound's most beautiful and livable waterfront city?
Contract Number:
Vendor:
Subject:
Department:
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Begin Date:
End Date:
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Vau1t Date:
5460
BREMERTON HISTORIC SHIPS ASSOCIATION
Concession Agreement
Parks
LEG 12-1
1/1/2015
12/31/2024
Comments:
CONCESSION AGREEMENT
BETWEEN THE CITY OF BREMERTON
AND BREMERTON HISTORIC SHIPS ASSOCIATION
This Concession Agreement is entered into between the CITY OF BREMERTON, a
Washington Municipal Corporation ("CITY") and the BREMERTON HISTORIC SHIPS
ASSOCIATION, a Washington Nonprofit Corporation ("CONCESSIONAIRE") on the date
fully executed below refened to hereinafter as ("Agreement").
WHEREAS, the CITY is owner of the property commonly known as the Louis Mentor
Boardwalk ("Boardwalk"), and
WHEREAS, CONCESSIONAIRE has constructed a building of approximately 1574
square feet to provide tourist related concession services including a gift shop on the Boardwalk,
and
WHEREAS, the parties desire to enter into a concession agreement to memorialize the
terms of use of the Boardwalk relating to the gift shop building, and
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1. CONCESSION
1.1 Concession of Pa�emises.
1.1.1 Premises Described. CITY hereby grants a surface and use concession to
CONCESSIONAIRE of approximately 3,976 square feet of surface area located on the
Boardwalk (said surface area hereinafter referred to as "Concession Area"). This concession is
granted for the maintenance and operation of a permanent structure of approximately 1574
square feet, including rooflines, ("Gift Shop") as well as for related fixtures and appurtenances,
including the gang plank for access to USS Turner Joy, for the purpose of providing tourist
related concession services including a gift shop related to the USS Turner Joy (hereinafter
referred to as "Improvements"). The Concession Area and Improvements (collectively referred to
as "Premises") are further described in Exhibit A, attached hereto and incorporated by this
reference. Securing areas adjacent to the permanent structure with fencing or other means may
be performed upon approval of the CITY pursuant to Article 4.1.3 below. Use of areas adjacent
to the permanent structure may be allowed only upon approval of the CITY at the CITY's sole
discretion. The common address of the Premises is 300 Washington Beach Bremerton WA,
98337.
1.1.2 Interest Defined. lt is understood and agreed that Concession Area is not leased to
the CONCESSIONAIRE, and that CONCESSIONAIRE is a licensee only.
CONCESSIONAIRE'S interest in the Premises does not include a leasehold or an ownership
interest in the Boardwalk or a leasehold or fee interest in or ownership of real property upon
Bremerton Historic Ships Association
— Concession Agreement
which the Premises are located. CONCESSIONAIRE's interest in this Agreement is subject to
the CITY's right to maintain the Boardwalk in the tidelands upon which it is located. Should the
CITY lose its right to maintain the Boardwalk in the tidelands, then this Agreement shall
automatically terminate. The parties agree that any and all current or future development and
construction of Improvements on the Concession Area are owned by CONCESSIONAIRE
subject to the CITY's right, title and interest at the expiration or termination of this Agreement
pursuant to Article 2.4.
1.1.3 Right of Entry by CONCESSIONAIRE. In addition to the Concession Area
described above, the CITY grants CONCESSIONAIRE a right of entry for ingress and egress to
and from the public right-of-way (Second Avenue) over and upon the Boardwalk to access the
Premises. CONCESSIONAIRE's use of the rights of entry granted herein shall not be used in a
manner inconsistent with or interfere with the CITY's use of the property. CONCESSIONAIRE
shall not install any structures or other improvements on the rights of entry without the CITY's
prior written approval. Such approval shall be at the CITY's sole discretion. The rights of entry
shall terminate upon the expiration or termination of this Agreement.
1.2 Possession, Quiet Enjoyment & Covenants. Except as noted herein and as provided in
Article 3.1.1 and Article 4 herein, the CONCESSIONAIRE shall be entitled to exclusive
possession of the Premises. CONCESSIONAIRE shall peaceably and quietly have, hold, and
enjoy the Premises at all times during the full term of this Agreement. The Boardwalk being a
public access area, CONCESSIONAIRE shall have non-exclusive possession and use to that
portion of the Boardwalk area of the Concession Area outside the Gift Shop as provided in
Article 4.1.3.
ARTICLE 2. TERM OF AGREEMENT
2.1 Term. The term of this Agreement shall be ten (10) years, commencing January 1,
2015, the Effective Date of this Agreement and ending December 31, 2024, unless
terminated sooner under the terms of this Concession.
2.2 Option to Extend. CONCESSIONAIRE shall have the option of extending this
concession for up to two (2) additional five (5) year terms upon delivering written notice to
the CITY sixty (60) days prior to the expiration of the term.
2.3 Right to Terminate Early. If CONCESSIONAIRE exercises its option to extend the
concession under Article 2.2, the parties shall have the following additional rights under this
agreement during the extended term. Either party shall have the right to terminate the
concession at any time during the concession option term upon giving the other party one (1)
year prior written notice of termination. This concession may also be terminated pursuant to
Article 5.
2.4 Improvements - Expiration or Termination of Agreement. Unless otherwise mutually
agreed to by the Parties, upon the expiration of the term(s) of this Agreement or upon the
termination of this Agreement, other than as a result of condemnation proceedings, the then
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Bremerton Historic Ships Association
— Concession Agreement
existing Improvements on the Concession Area will become the property of and owned by the
CITY and the CITY shall have all right, title and interest in the same.
ARTICLE 3. CONSIDERATION
3.1. Consideration for Concession.
3.1.1 Consideration. As consideration for the ground and use concession granted by the
CITY to the CONCESSIONAIRE by Article 1 herein, the CONCESSIONAIRE shall maintain
and operate the USS Turner Joy and the Premises as a tourist facility open to the public at
reasonable times and to maintain meeting rooms on a reservation basis for groups, organizations,
and businesses.
3.1.2 Leasehold Excise Tax. Pursuant to RC W 82.29A.020(1) and RC W
84.36.060(1)(a), this concession does not fall within the definition of a leasehold interest for the
purpose of a leasehold tax and therefore is not subject to a leasehold tax.
ARTICLE 4. USE & OPERATION OF PREMISES
4.1 Use of Premises.
4.1.1 Gift Shop. The CONCESSIONAIRE will use and occupy the Premises throughout
the full term of this Agreement for the purpose of providing tourist related concession services
including a gift shop related to the USS Turner Joy.
4.1.2 Security and Nuisance During Use. The CONCESSIONAIRE shall take
reasonable precautions in securing the Premises during the full term of this Agreement. The
CONCESSIONAIRE shall use the Premises for no unlawful purposes and shall not use or
occupy the Premises in any manner, which would constitute a public nuisance or violate State or
CITY laws.
4.1.3 Security Gate and Public Access. CONCESSIONAIRE may install a fence
and gate or similar structure on the Boardwalk at or near the entrance of the Concession
Area. The design, location and method of installation shall require the CITY's prior approval.
Recognizing that the Boardwalk is a public access area, the gate shall be open during normal
business hours, except holidays and other days, or portions thereof, as approved by the CITY,
to allow full general public access on the Boardwalk area of the Concession Area outside the
Gift Shop, both inside and outside the gated area.
4.1.4 Use by the CITY. The CITY shall have the right to use part of the Concession
Area outside of the area of the Gift Shop for public events such as the Blackberry Festival
and other public purposes to the extent such use does not significantly interfere with the
CONCESSIONAIRE's use of the Premises.
4.2 Entry by CITY. CITY may enter the Premises (excepting the CONCESSIONAIRE's
building) at all times to inspect and perform structural work on the boardwalk as required
Bremerton Historic Ships Association
— Concession Agreement
pursuant to Section 4.4.1 below, perform maintenance of the utilities located thereon, and to
restrict access as necessary to perform this work; provide other services required hereunder; and
post notices of CONCESSIONAIRE's noncompliance with the provisions of this concession, all
without being deemed a constructive eviction. Any person or persons who may have an interest
in the purpose of CITY's visit may accompany the 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 the case of an emergency, if the CITY deems it necessary to enter the
CONCESSIONAIRE's building, the CITY shall give the CONCESSIONAIRE at least twenty-
four (24) hour notice of such entry and the CITY further agrees that such entry will be at such
time as is mutually a�neeable to the Parties.
4.3 Health Inspections. CONCESSIONAIRE 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. CONCESSIONAIRE shall allow the Bremerton-Kitsap County Health
Department to make regular and ordinary inspections of the Premises as said health department
may deem proper.
4.4 Mainten�nce, Repair, & Improvements
4.4.1 Maintenance. CONCESSIONAIRE shall, at its sole cost and expense, clean and
maintain the Premises, and make repairs, restorations, and replacements to the Premises,
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 wear from use)
throughout the full term. CONCESSIONAIRE 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 CONCESSIONAIRE fails to make such repairs, restorations,
or replacements, CITY may, but is not required to, enter the Premises and make them at the
expense of CONCESSIONAIRE and such expense will be paid by CONCESSIONAIRE within
fifteen (l 5) days after delivery of a statement for such expense. Nothing in Article 4.4 of this
Agreement or its related subsections shall be construed to obligate the CONCESSIONAIRE to
maintain that portion of the premises identified as the Boardwalk except as provided herein.
CONCESSIONAIRE's obligations as it relates to that portion of the Premises identified as the
Boardwalk shall be limited to cleaning the surface of the Boardwalk and maintenance of
CONCESSIONAIRE's improvements situated thereon. The CITY shall remain obligated to
maintain the overall integrity of the Boardwalk including any and all major structural repairs.
4.4.2 Surface Area Maintenance. At its sole cost and expense, CONCESSIONAIRE
shall maintain any walkway or other public areas on the Premises in good and presentable
condition during the full term of this Agreement, shall be responsible for correcting any unsafe
conditions caused by the CONCESSIONAIRE, and shall be responsible for the removal of ice
and snow from the walkways and other public areas on the Boardwalk situated within the
Concession Area.
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Bremerton Historic Ships Association
— Concession Agreement
4.4.3 Janatorial Services. At its sole cost and expense, CONCESSIONAIRE shall keep
the Premises clean, and shall provide sufficient janitorial services to maintain a tidy appearance
on and about the Premises.
4.4.4 Repair of Damage. In the event any damage or injury shall occur to the Premises
of any kind or nature whatsoever, CONCESSIONAIRE shall promptly cause said damage or
injury to be fully repaired at CONCESSIONAIRE's own cost and expense. In the event
CONCESSIONAIRE 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 CONCESSIONAIRE who will pay the bill within
fifteen (l 5) days after delivery of a statement for such expense.
4.4.5 I�provements. The CONCESSIONAIRE shall 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.
4.4.6 Alterations of Premises after Construction. CONCESSIONAIRE shall not
make any material alteration to that portion of the Premises identified as the Boardwalk, or to
any part of the Premises that would have a structural impact to or the use of the Boardwalk,
without the CITY's prior written consent.
4.5 Signs. CONCESSIONAIRE may place and maintain signs upon the Premises in accordance
with applicable sign and zoning codes of the CITY.
4.6 Utilities.
4.6.1 Utility Services aad Expense. The CONCESSIONAIRE will pay for all water,
gas, garbage, sewage, electricity, telephone, and other utilities and communications services used
by CONCESSIONAIRE on the Premises, whether or not such services are billed directly to
CONCESSIONAIRE. CONCESSIONAIRE 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
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 CONCESSIONAIRE, and at the sole expense and liability of the
CONCESSIONAIRE, will join with CONCESSIONAIRE 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. CONCESSIONAIRE shall not be entitled
to any offset, reduction, or return of consideration as a result of any interruption or failure of
services.
4.6Z Trash & Garbage. The CONCESSIONAIRE 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 CONCESSIONAIRE shall not allow trash
and/or garbage to accumulate such that a nuisance or health hazazd results.
Bremerton Historic Ships Association
— Concession Agreement
4.7 Hazardous Substances.
4.7.1 Definition. 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 environmental protection, contamination, or cleanup.
4.7.2 Information. CONCESSIONAIRE 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 CONCESSIONAIRE has provided to any
governmental agency in the previous quarter. CONCESSIONAIRE shall, upon request and at
CONCESSIONAIRE'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 CONCESSIONAIRE is required to report to any governmental agency,
CONCESSIONAIRE shall immediately report the same to the CITY and supply CITY with all
information and reports with respect to the same, together with CONCESSIONAIRE'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 may so notify CONCESSIONAIRE and, upon 48 hours prior
written notice (or without notice if so required by an emergency) may enter on the Premises to
conduct the clean-up or remediation and charge CONCESSIONAIRE the costs thereof. All
information described herein shall be provided to CITY regardless of any claim by
CONCESSIONAIRE 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
or as otherwise required by law.
4.7.3 Indemnification. CONCESSIONAIRE 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 CONCESSIONAIRE's use, disposal, transportation,
generation, and/or sale of any Hazardous Substances. This indemnity will survive the termination
of this Agreement, whether by expiration of the term or otherwise.
4.8 Risk of Loss. All personal property of any kind or description whatsoever on or within the
Premises shall be at the CONCESSIONAIRE's sole risk, and CITY shall not be liable for any
damage done to, or loss of, such personal property.
4.9 No Liens. It is mutually understood and agreed that the CONCESSIONAIRE shall have no
authority, express or implied, to create or place or to allow to be created or placed 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 CONCESSIONAIRE, including those who may furnish materials or perform
labor for any construction or repairs, and each such claim shall affect and each such lien shall
attach to, if at all, only the right and interest granted to CONCESSIONAIRE by this Agreement.
If any such liens are filed, CITY may, without waiving its rights and remedies for breach, and
without releasing CONCESSIONAIRE from its obligations hereunder, require
CONCESSIONAIRE 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
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BremeMon Historic Ships Association
— Concession Agreement
satisfaction of the claim giving rise to the lien. CONCESSIONAIRE shall pay to CITY upon
demand any sum paid by CITY to remove the liens. Further, CONCESSIONAIRE agrees that it
will save and hold the CITY harmless from any and all loss, cost, or expenses based on or arising
out of the asserted claims or liens against this Agreement or against the right, title, and interest of
the CITY in the 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.
ARTICLE 5. TERM�NATION
5.1 Failure to Perform
5.1.1 Obligation to Perform. Nothing herein shall imply any duty upon CITY to do
any work, which under any provision of this concession CONCESSIONAIRE may be required to
perform, and the performance thereof by CITY shall not constitute a waiver of
CONCESSIONAIRE's default.
5.1.2 Payments to Other Parties. Except as otherwise expressly provided hereunder,
all obligations of the CONCESSIONAIRE under this Agreement shall be performed by
CONCESSIONAIRE at CONCESSIONAIRE's sole cost and expense. If CONCESSIONAIRE
fails to pay any sum of money owed to any party other than CITY for which
CONCESSIONAIRE is liable hereunder, or if CONCESSIONAIRE fails to perform any other
act on its part to be performed hereunder, and such failure continues for ten (10) days after notice
thereof by CITY, CITY may, without waiving or releasing CONCESSIONAIRE from its
obligations, make any such payrnent or perform any such other act to be made or performed by
CONCESSIONAIRE. CONCESSIONAIRE 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'/Z percent
per month or the maximum rate permissible by law, from the date of such payment by CITY.
5.2 Default. This Agreement and the concession granted herein may be terminated for default
as follows:
5.2.1 CITY's Default. CITY will not be in default unless CITY fails to perform an
obligation within thirty (30) days after notice by CONCESSIONAIRE, 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 CONCESSIONAIRE's notice and thereafter
diligently pursues completion and completes performance within a reasonable time.
5.2.2. CONCESSIONAIRE's Default. The occurrence of any one or more of the
following events constitutes a default under this Agreement by CONCESSIONAIRE:
(1) CONCESSIONAIRE shall be in default of the performance of any covenants,
conditions, or provisions of 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
CONCESSIONAIRE's obligations is such that more than thirty (30) days are reasonably
required for cure, CONCESSIONAIRE will not be in default if CONCESSIONAIRE
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Bremerton Historic Ships Association
— Concession Agreement
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) CONCESSIONAIRE shall be adjudged 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 CONCESSIONAIRE's estate and such appointment
is not vacated within thirty (30) days; or
(3) Except for regularly scheduled maintenance of the Premises or other work requiring
the Premises to be closed, Premises becomes vacant or deserted for a period of thirty (30) days;
or
(4) If this Agreement is assigned or the Premises is concessioned by
CONCESSIONAIRE other than in accordance with the terms of Article 7.4. l; or
(5) CONCESSIONAIRE fails to make any payment when due, or fails to make any other
payment required hereunder when due.
The CITY may terminate this Agreement when such default continues for a period of
thirty (30) days after written notice is given by CITY, provided that if the nature of
CONCESSIONAIRE's obligations is such that more than thirty (30) days are reasonably
required for cure, CONCESSIONAIRE will not be in default if CONCESSIONAIRE
commences to cure within thirty (30) days of CITY's notice and thereafter diligently pursues
completion and completes performance within a reasonable time. Upon a default, the CITY may
terminate this Agreement and remove CONCESSIONAIRE by summary proceedings or
otherwise. '
5.2.3 Default for Other Cause. 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.
5.3 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.
5.4 Destruction of Premises & Use of Insurance Proceeds. Unless otherwise mutually agreed
by the parties, in the event the Premises are destroyed or damaged by fire, earthquake, or other
casualty, then CONCESSIONAIRE shall proceed to rebuild and restore the Premises, or such
part thereof, as may be destroyed or damaged as aforesaid. In the event of any loss covered by
the insurance policies described and required pursuant to Article 6.1.1 herein, unless this
Agreement shall be terminated as provided herein, the proceeds of such insurance policies shall
be used by CONCESSIONAIRE first to rebuild and restore the Premises and replace the
improvements, fixtures, and equipment, which may be destroyed or damaged by such casualty.
This Article shall not apply to that portion of the Premises identified as the Boardwalk.
5.5 Duties upon Termination. Upon termination of this Agreement, and unless otherwise
arranged, CONCESSIONAIRE shall remove from the Premises all its personal property, goods,
and effects. In the event that the CONCESSIONAIRE 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 CONCESSIONAIRE. It is mutually understood
Bremerton Historic Ships Association
— Concession Agreement
and agreed that the Boazdwalk is the property of the CITY and that all improvements to said
property shall revert to the CITY at the termination of this Agreement.
5.6 Eminent Domain. The following rules shall govern the rights and duties of the parties in
the event of interference with the possession of the Premises by CONCESSIONAIRE by right of
eminent domain or private purchase in lieu thereof.
5.6.1 Rigbts 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 shall be so taken and if the taking
renders the remainder thereof unusable for the purposes for which the Premises were
concessioned, then CITY and CONCESSIONAIRE 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
during the initial term, a fair value shall be placed on this Agreement and the Premises with the
compensation thereof awarded solely to CONCESSIONAIRE.
5.6.2 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 CONCESSIONAIRE in accordance with their respective interests as determined by a
court of competent jurisdiction. Additionally, CONCESSIONAIRE 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 CONCESSIONAIRE. CITY shall
have no claim to condemnation proceeds that are attributable to CONCESSIONAIRE's interest
in the Premises, nor shall CONCESSIONAIRE have any interest in CITY's condemnation
proceeds, if any.
5.7 Interes4 Limited. CONCESSIONAIRE's interest in this Agreement is subject to the
CITY's right to maintain the Boardwalk in the tidelands upon which it is located. Should the
CITY lose its right to maintain the Boardwalk in the tidelands, then this Agreement shall
automatically terminate.
ARTICLE 6. INSURANCE AND INDEMNIFICATION
6.1 Insurance.
6.1.1 Fire & Casualty Insurance. The CONCESSIONAIRE agrees that, at all times
during the full term of this Agreement and at its own expense, CONCESSIONAIRE shall, at its
sole cost and expense, maintain in full force and effect adequate fire, and other casualty coverage
covering the Premises and its contents, including all personal property, fixtures, improvements.
Such policy shall include a replacement cost endorsement. CONCESSIONAIRE shall obtain and
file with the CITY's Risk Manager a Certificate of Insurance evidencing such coverage. All such
insurancc coverage shall include a ten-day cancellation notice to CONCESSIONAIRE and the
CITY. Adequacy of coverage is defined as insurance sufficient to restore the Premises to its pre-
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Bremerton Historic Ships Association
— Concession Agreement
casualty condition. The CONCESSIONAIRE shall not be required to insure that portion of the
Premises identified as the Boardwalk.
6.1.2 LiabiGty Insurance. Prior to the commencement date of this Agreement,
CONCESSIONAIRE, 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 occunence for bodily injury and $500,000 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 all claims and risks and losses in connection with any activities
or omissions by the CONCESSIONAIRE by virtue of this Agreement. The CGL policy shall
remain in full force and effect at the CONCESSIONAIRE's sole expense for liability, for
property damage or personal injury that may occur in connection with activities or omissions by
the CONCESSIONAIRE, and provide coverage for the full term of this Agreement.
CONCESSIONAIRE shall notify the CITY's Risk Manager immediately of any cancellation,
lapse, reduction or modification of such insurance. Failure to provide such notice shall be
deemed to be a breach of the terms of this Agreement.
6.1.3 Release and Waiver of Subrogation. Any policy of insurance carried by
CONCESSIONAIRE pursuant to any obligation under this Agreement, shall, to the extent
available, contain a waiver of subrogation clause on the part of the insurer. Such waiver shall
apply to damages to adjacent property. Notwithstanding any other provision of this Agreement,
neither CITY nor CONCESSIONAIRE shall be liable to the other party or to any insurance
company (by subrogation or otherwise) insuring the other party for any loss or damage to any
building, structure or tangible personal property of the other occurring in or about the Premises
or the Boardwalk, even though such loss or damage might have been occasioned by the
negligence of such party, its agents or employees, if such loss or damage is covered by insurance
issued by an insurance carrier authorized or licensed by the Insurance Commissioner of the State
of Washington to issue lines of insurance, benefiting the party suffering such loss or damage or
was required under the terms of this Agreement to be covered by insurance by the party covering
the loss.
6.2 Hold Harmless, Indemnification, & Industrial Insurance.
6.2.1 Hold Harmless & Indemnification. Each party hereto agrees to be responsible
and assumes liability for its own wrongful or negligent acts or omissions, or those of its officers,
agents, or employees to the fullest extent required by law. Each party agrees to save, indemnify,
defend, or hold the other party harmless against all liability, loss, damages, and expenses,
including costs and attorney's fees, resulting from actions, claims and lawsuits arising or alleged
to have arisen, in whole or in part, out of or in consequence of the acts or failures to act of the
other party, its employees, its subcontractors, its agents, or its assigns, which arise in any way
out of the performance of this Agreement. In the case of negligence of both the CITY and the
CONCESSIONAIRE, any damages allowed shall be levied in proportion to the percentage of
negligence attributable to each party, and each party shall have the right to seek contribution
from the other party in proportion to the percentage of negligence attributable to the other party.
10
Bremerton Historic Ships Association
— Concession Agreement
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 dama�es to property caused by or resulting from the concurrent negligence of
CONCESSIONAIRE and the CITY, its officers, officials, employees, and volunteers, the
CONCESSIONAIRE's liability hereunder shall be only to the extent of the
CONCESSIONAIRE's negligence.
6.2.2 Industrial Insurance. IT IS FURTHER SPECIFICALLY AND EXPRESSLY
UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES
THE CONCESSIONAIRE'S WANER OF IMMUNITY UNDER INDUSTRIAL
1NSURANCE, TITLE 51, RCW, SOLELY FOR THE PURPOSES OF THIS
INDEMNIFICATION. This waiver has been mutually negotiated by the parties. The provisions
of this Article shall survive the expiration or termination of this Agreement.
ARTICLE 7. GENERAL CONDITIONS
7.1 Relationship of Parties.
7.1.1 CONCESSIONAIRE - 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 CITY as granting a ground and use concession to the CONCESSIONAIRE.
CONCESSIONAIRE has the experience, ability, and resources to develop and operate a gift
shop and related activities and is performing independent functions and responsibilities within its
field of expertise. CONCESSIONAIRE and its personnel are independent contractors and not
employees of the CITY. No agent, employee, servant, or representative of the
CONCESSIONAIRE shall be deemed to be an employee, agent, servant or representative of the
CITY. CONCESSIONAIRE and its personnel have no authority to bind the CITY or to control
the CITY's employees. As an independent contractor, CONCESSIONAIRE is responsible for its
own management. The CITY's administration and enforcement of this Agreement shall not be
deemed an exercise of managerial control over CONCESSIONAIRE or its personnel.
7.1.2 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.
7.1.3 No Joint Venture/Partnership. It is mutually understood and agreed that no joint
venture or partnership formed as a result of this Agreement.
7.2 Notices. Except as provided in Article 5 herein, any notice required or permitted hereunder
must be in writing and will be effective upon the earlier of personal delivery or three (3) days
after being mailed by certified mail, return receipt requested, addressed to CONCESSIONAIRE
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
11
Bremerton Historic Sl:ips Association
— Concession Agreement
the Premises as CONCESSIONAIRE's address for notice purposes. All notices shall be
delivered to the following addresses:
City of Bremerton
Attn: Director of Parks and Recreation
680 Lebo Boulevard
Bremerton, WA 98310
Telephone: 360-473-5305
Bremerton Historic Ships Association
Attn: Director
300 Washington Beach
Bremerton, WA 98337
Telephone: 360-792-2457
7.3 Permits, Licenses, Taxes, & Fees.
7.3.1 Permits, Licenses, & Other pocuments. The CONCESSIONAIRE shall possess
a current Bremerton Business License and shall obtain all regulatory licenses and permits,
including all construction and building permits, necessary to fulfill CONCESSIONAIRE's
obligations under this Agreement at CONCESSIONAIRE's sole expense. Each party agrees to
execute such additional or other documents as may be required to fully implement the intent of
this Agreement.
7.3.2 Taxes & Fees. As an independent contractor, the CONCESSIONAIRE shall be
solely responsible for all taxes, fees and charges incurred, including but not limited to license
fees, business and occupation taxes, workers' compensation and unemployment benefits, all
federal, state, regional, county and local taxes and fees, including leasehold excise tax pursuant
Chapter 82.29A RCW, if applicable, 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
CONCESSIONAIRE's obligations under this Agreement.
7.4 Miscellaneous.
7.4.1 Successors & Assigns. The CITY and CONCESSIONAIRE each agree to be
bound to the other party in respect to all covenants, agreements, and obligations contained in this
contract. Neither party shall assign the contract in part or as a whole, without the written consent
of the other. The CITY acknowledges that the CONCESSIONAIRE shall be authorized to sub-
CONCESSION areas within the Premises to food and beverage purveyors, equipment sales, and
similar supporting concessions. When requested, approval by the CITY of an assignment shall
not be unreasonably withheld. In the event of an assignment, subcontracting, or delegation of
duties, the CONCESSIONAIRE 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 or other obligor of its covenant
to the CITY to fully and faithfully complete the requirements or responsibility undertaken under
this Agreement. 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.
12
Bremerton Historic Ships Assuciation
— Concession Agreement
7.4.2 Bankruptcy. Parties agree that if the CONCESSIONAIRE 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.
7.4.3 Co�pliance with Laws. The CONCESSIONAIRE, its officers, employees, and
agents shall comply with applicable federal, state, county, and local laws, statutes, rules,
regulations, and ordinances, in performing its obligations under this Agreement. Such
compliance shall include abiding by all applicable federal, state and local policies to ensure equal
employment opportunity based on ability and fitness to all persons regardless of race, creed,
color, national origin, religion, sex, sexual orientation, physical handicaps or age. The
CONCESSIONAIRE 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 CONCESSIONAIRE agrees to
indemnify and hold harmless the CITY from all damages assessed for the CONCESSIONAIRE's
failure to comply with the Acts and Standards issued thereunder. The CONCESSIONAIRE is
also responsible for meeting all pertinent local, state and federal health and environmental
regulations and standards applying to any operation in the performance of this Agreement.
7.4.4 Nondiscri�►ination. Parties shall not discriminate in employment or services to
the public on the basis race, color, national origin, sex, religion, age, marital status, disability, or
sexual orientation, except for employment actions based on bona fide occupational qualification.
7.4.5 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.
7.4.6 Costs & Attorneys' Fees. In the event of litigation to enforce any of the terms or
provisions herein, each party shall pay all its own costs and attorney's fees.
7.4.7 Approvals and Modification. The administration of this Agreement and any
approvals required by the CITY as provided in this Agreement shall be by the Mayor or his/her
designee. This Agreement may only be modified by written instrument approved by the City
Council and signed by both parties.
7.4.8 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.
7.4.9 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,
13
Bremerton Histo�ic Ships Association
— Concession Agreement
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 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.
7.4.10 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.
7.4.11 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.
7.4.12 Entire Agreement. This Agreement and its attached Exhibit 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.
7.4.13 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.
IN WITNESS WHEREOF, this Agreement has been entered into between the City of
Bremerton and Bremerton Historic Ships Association on the date fully executed below.
CITY OF BREMERTON
By: � �--
Patty Lent, ayor
BREMERTON HISTORIC SHIPS ASSOCIATION
By: '
John � son, President
Date �� l � �l �
3
Date
�� Zo i .S�
(Notary Acknowledgement on next page)
14
Bremerton Historic Ships Association
— Concession Agreement
STATE OF WASHINGTON
COUNTY OF KITSAP
)
) ss.
)
On this 1\�� day of (1r��,�� , 2015, before me personally appeared JOHN
HANSON, to me known to be the President of BREMERTON HISTORIC SHIPS
ASSOCIATION, a Washington non-profit corporation, that executed the within and 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 he was
authorized to execute and in fact executed said instrument on behalf of the corporation.
Given under my hand
this �\� day of � A , 20l 5.
�`� `v ' •' v �"Y
���s_
• �� \ �gION Etp�R � �
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tL �`�� � y; Z y e �nt Name �.� �
�• p�g��G : Notary Public in and fo e
•. .
s� 9 . 15 .�� • ,�2 State of Washington residin at \
� • • �
,� •..
�OF WP�'�� My Commission expires 1�5 11'�
STATE OF WASHINGTON
COUNTY OF KITSAP
)
) ss.
)
On this /J� � day of �C�? [� I , 2015, before me personally appeared PATTY
LENT, to me known to be the Mayor of the CITY OF BREMERTON, a Washington municipal
corporation, that executed the within and 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 she was authorized to execute and in fact executed
said instrument on behalf of the municipal corporation.
Given under my hand and official seal this
��P�:S�V�
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� � �pTARy '�
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:� PUgI\G ; .
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�IA��•': �� i
Roger A. Lubovich,
� day of , 2015.
�
Type/Print Name
Notary Public in and for the
State of Washington residing at� n�/�
My Commission expires g9- I$• 1 �'i
ST:
/ �
Shannon Corin, City Clerk
R:\Legal\Legal\Files\Current Active Files\Bremerton liistoric Ships Association\Concession Agreemen�3 2015 - Final doc
IS
Bremerton Historic Ships �4ssociation
— Concession Agreement
Exhibit "A"
Turner Joy Concession Boundary
Upon the Bremerton Boardwalk
Boundary description: A portion of Tax Lot#242401-2-007-2008
SEC.24,TWN 24 N, R 1 E,WM.situated in Kitsap County.
A portion of the State Lease Agreement Description#22-080016.This portion is upon the north end of the Boardwalk
and described as follows;
The North most 54.5 feet and West boundary is offset 16.7 feet from the west edge of the Bremerton Boardwalk.
Building Area = 1,574 Sq. FT.Concession Boundary Area = 3,976 Sq. Ft.
N Line
Bremerton Boardwalk
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