Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
ORIG. AND AMEND. 1
AMENDMENT I TO THE CONCESSION AND MANAGEMENT AGREEMENT BETWEEN +CITY OF BREMERTON AND YMCA OF PIERCE AND KITSAP COUNTIES Amendment 1 to Agreement between City of Bremerton and YMCA of Pierce and Kitsap Counties THIS FIRST AMENDMENT TO THE CONCESSION AND MANAGEMENT AGREEMENT ("Agreement") 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, the parties entered into a Concession and Management Agreement effective October 10, 2011; and WHEREAS, the parties desire to amend the Concession and Management Agreement to extend the term thereof and to otherwise modify the Agreement as expressly provided herein. NOW THEREFORE, for valuable consideration and by mutual consent of the parties, the Agreement is amended as follows: ARTICLE 2. TERM OF AGREEMENT 2.1 Term. Shall be amended Section 2.1 entitled Term, is modified to extend the original Term of the Agreement so that the term now ends on June 30, 2021. This extension does not change the Option to Renew or any exercise of this option. This document will become a supplement of the Concession and Management Agreement and all provisions will apply hereto. It is understood that this Amendment shall be effective when fully executed by both parties. The parties whose names appear below warrant that they are authorized to enter into an agreement that is binding on the parties of this Amendment. In addition, to the extent applicable, the Parties warrant that they have or will inform the surety of this change and shall take appropriate action to modify any bonds required under the agreement to address this change. Amendment 1 to Agreement between City of Bremerton and YMCA of Pierce and Kitsap Counties WITNESSETH: 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. EXECUTED IN DUPLICATE ORIGINALS. CITY OF BREMERTON By: Gi Wheeler, Mayor Date: VA-1 Ll 1 20 ze* ATTEST: Angel over, City Clerk YMCA OF PIERCE AND KITSAP t_' 0 U,NTIES�, �- By:UUkKO f. 64 V6 PresiAet Date: APPROVED AS TO FORM 1vv1 1► Mychael Raya, Assistant City Attorney Notaries on Next Page Amendment 1 to Agreement between City of Bremerton and YMCA of Pierce and Kitsap Counties STATE OF WASHINGTON ) ss. COUNTY OF KITSAP ) On this day, before me, Greg Wheeler, 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. 2020. GIVEN under my hand and official seal this �_ day ofD%cr ANGELA E HOOVER NOTARY PUBLIC #130025 STATE OF WASHINGTON COMMISSION EXPIRES SEPTEMBER 8, 2023 STATE OF WASHINGTON ) ,Ptei fe ) ss. COUNTY OF 4R+S77kP ) Notary P lic in and for the State of Washington, residing at My appointment expires: On this day, before me, a'1CI=I' e I vI S President of the YMCA OF PIERCE AND KITSAP COUNTIES, 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 se4tjhis dayofmoyewl� V2020. ..�����iNig �n ILA �.' c10TAR� Notary Public in and the, State of op "' • 4"" Washington, residing at !C� (�P}VYIGi ill N:A 1#� pUg�-1C' = Z: My appointment expires: i9 Zl Zi'2 �-21- #It OP WW Amendment 1 to Agreement between City of Bremerton and YMCA of Pierce and Kitsap Counties =� � Contract Number: Vendor: Sub�ect: Department. File Class: Begin Date: End Date: Review Date: Vault Date: Comments : 5093 YMCA of Pierce & Kitsap Co Concession & Management Agreement Parks LEG 12-1 9/1/2010 12/31/2020 1/1/2020 CONCESSION AND MANAGEMENT AGREEMENT BETWEEN CITY OF BREMERTON AND YMCA OF PIERCE AND KITSAP COUNTIES YMCA Concession & Management Agreement TABLE OF CONTENTS RECITALS ARTICLE 1 PREMISES 1 1 Premises Defined 1 2 Interest m Premises 1 3 Interest in Improvements 1 4 Property Trade ARTICLE 2 TERM OF AGREEMENT 21 Term 2 2 Option to Renew 2 2 1 Exercising Option 2 2 2 Pool Contmgency — Opt�on to Termmate 2 3 Expiration or Termmation of Agreement - Improvements 2 4 Purpose of Use ARTICLE 3 CONSIDERATION 3 1 Consideration for Concession 3 1 1 Concession Fee and Subsidy 3 1 2 CPI 3 1 3 Leasehold Excise Tax 3 2 Pool Management by the YMCA 3 2 1 YMCA Responsibilrties and Obligations 3 2 2 Transrtion Period 3 2 3 CITY Mamtenance Responsibilities and Obligations ARTICLE 4 USE & OPERATION OF PREMISES 4 1 Use of Premises 4 1 1 Recreational Uses 4 1 2 Incidental Uses 413 Sub-Concessions 4 1 4 Security and Nuisance during Use 4 2 Operating Hours 4 3 Entry by CITY and NPS 4 4 Health Inspections 4 5 Maintenance, Repair, & Improvements 4 5 1 Generally 4 S 2 Sidewalks and Parkmg Mamtenance 4 5 3 Janrtorial and Landscapmg Services 4 5 4 Repair of Damage 4 5 5 Pool Improvements 4 5 6 Extraordinary Expenses 4 6 Signs 4 7 Utilrties 4 7 1 Utility Serv�ces and Expense 4 7 2 Trash & Garbage . 4 8 Parkmg 4 8 1 Concession Area Parking ,1 2 2 2 3 3 3 3 3 3 3 4 4 4 4 4 5 5 5 5 6 6 7 7 7 7 7 8 8 8 8 8 8 9 9 9 9 10 10 10 10 11 11 11 YMCA Concession 8c i Management Agreement 4 8 2 Pool Parkmg 4 8 3 Additional Parking 4 9 Hazardous Substances 4 9 1 Definrtion 4 9 2 Information 4 9 3 Indemnification 4 10 Risk of Loss ARTICLE 5 DEVELOPMENT OF IMPROVEMENTS 5 1 CITY Consent 5 2 Development and Construction Fees & Expenses 5 3 YMCA's Development Pro�ect 5 4 No Liens ARTICLE 6 FINANCING & SECURITY INTERESTS 6 1 Financing - No CITY Obl�gation 6 2 Security Interest m Premises & Agreement/Consent 6 3 Lender's Reliance on Term and Renewal Options 6 4 Surrender of the Collateral 6 5 Notice of Default and Lender's R�ghts 6 5 1 Notice of Default 6 5 2 Termmation for Monetary Default 6 5 3 Termmation for Non-Monetary Default 6 5 4 Termination due to Bankruptcy 6 6 Right to Assign 6 7 Disposition of Insurance 6 8 Right to Participate m Lrtigation 6 9 Incorporation of Lender's Protection Prov�sions 6 10 Right to Remove Collateral 611 Notices 6 12 Lenders Change in Loan Terms ARTICLE 7 TERMINATION 7 l Failure to Perform 7 1 1 Obligation to Perform 7 1 2 Payments to Other Part�es 7 2 Default and Termmat�on 7 2 1 CITY's Default 7 2 2 YMCA's Default 7 2 3 Default for Other Cause 7 2 4 Bankruptcy 7 3 Termmat�on Due to Right of Reversion 7 4 Destruction of Premises & Use of Insurance Proceeds 7 4 1 YMCA Recreat�on Center 7 4 2 Pool 7 5 Duties upon Termmation 7 6 Eminent Domam 7 6 1 R�ghts of Termination 7 6 2 Non-Termination 11 11 11 11 11 12 12 12 12 12 12 13 13 13 13 14 15 15 15 15 15 15 15 16 16 16 16 16 16 17 17 17 17 l7 17 17 18 l8 18 18 18 l8 19 19 19 19 YMCA Concession & Management Agreement i� 7 6 3 Compensation 7 6 4 Revers�on of Interest not Eminent Domam 7 7 Remedies Are Cumulative ARTICLE 8 GENERAL CONDITIONS 8 1 Relationsh�p of Parties 8 1 1 YMCA Independent Contractor Status 8 1 2 No Third Party Rights Created 8 1 3 No Joint Venture/Partnership 8 1 4 City Administration of Agreement 8 2 Notices 8 3 Reports & Records 8 3 1 Reports/Meehngs 8 3 2 Records 8 3 3 Audits and Inspections 8 4 Permits, Licenses, Taxes, & Fees 8 4 1 Permits, Licenses, & Other pocuments 8 4 2 Taxes & Fees 8 5 Insurance 8 5 1 Fire, Earthquake, & Casualty Insurance 8 5 2 Liability Insurance 8 5 3 Release and Wa�ver of Subrogat�on 8 6 Hold Harmless, Indemnification, & Industrial Insurance 8 7 Successors & Assigns 8 8 Compliance wrth Laws 8 9 Nondiscrimination 8 10 Choice of Law & Venue 8 11 Costs & Attorneys' Fees 812 Modification 8 13 Change m Law/Renegot�ation 8 14 Force Ma�eure 815 Waiver 8 16 Illegal Provisions — Severability 8 17 Article Headings, Gender, & Number 8 18 Prior Agreements 8 19 Entire Agreement 8 20 Counterparts 8 21 Recording 8 22 Approval of Agreement Exhibrt A— Legal Description of Premises ` Exhib�t B— Prelimmary Bu�ldmg and Site Plans Exh�brt C— Qurtclaim Deed from Unrted States of America to the City of Bremerton 19 19 19 20 20 20 20 20 20 20 21 21 21 21 21 21 21 21 21 22 22 22 23 23 24 24 24 24 25 25 25 25 25 25 26 26 26 26 YMCA Concession & �u Management Agreement CONCESSION AND MANAGEMENT AGREEMENT THIS CONCESSION AND MANAGEMENT AGREEMENT ("Agreement") is entered into effective on the date fully executed by and between the CITY OF BREMERTON, a Washington mumcipal corporation (heremafter referred to as the "CITY"), and YMCA OF PIERCE AND KITSAP COUNTIES, a Washmgton non-profit corporation (heremafter referred to as the "YMCA"), referred to collectively as the "Parties " RECITALS WHEREAS, City is the owner of certain former Umted States Government surplus property known as "Eastpark", and WHEREAS, Qurtclaim Deed dated December 14, 1972, between the Crty and the Unrted States under Covenant Number Three, provides that the City may provide related recreational facilrties and services compatible wrth City's application through concession agreements entered into wrth third parties, such as YMCA, provided, further, that prior concurrence to such agreements is obtamed, m wrrting, from the U S Secretary of the Interior or his or her delegated representative, and WHEREAS, The Nat�onal Park Service (NPS) is the designated representative of the U S Secretary of the Interior for the purposes of the Qurtclaim Deed dated December 14, 1972, between the C�ty and the Umted States, and W�IEREAS, The C�ty and the Kitsap Family YMCA, an operatmg branch of the Armed Services YMCA of the USA ("Krtsap Family YMCA") entered into a concession agreement for the development and operation of a recreation facility on the Eastpark property for recreational, meetmg and community activity purposes to serve the citizens of Bremerton effect�ve December 6, 1984 and continumg until January 1, 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 WI�EREAS, on July 1, 2010 the Krtsap Family YMCA was merged mto the YMCA of Tacoma and Pierce County formmg the YMCA of Pierce and Krtsap Counties ("YMCA") which assumed all rights and responsibilit�es of the concess�on agreement, and WHEREAS, the City owns the indoor swimmmg pool and buildmg srtuated on the Eastpark property located ad�acent to the YMCA facilrties commonly known as the Jarstad Pool, and WHEREAS, the parties desire to enter into this Concession and Management Agreement ("Agreement") to update and replace in rts entirety the concession agreement entered into effective December 6, 1984 as subsequently amended and further to mclude as part of the agreement operation, management and mamtenance of the City's pool, WITNESSETH: NOW, THEREFORE, m 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 for a recreational center located wrthin the confines of Eastpark on real property legally described in E�ibrt A ("Property") and generally shown m the srte plan m Exhibrt B attached hereto and incorporated by reference ("Concession Area") for operation and mamtenance of a recreational facility developed and constructed by the YMCA mcludmg building(s), fixtures, appurtenances, parkmg and exterior landscaping ("YMCA Recreation Center") In addition, the YMCA agrees to operate, manage and maintain the City owned mdoor swimming pool, building and related improvements located wrthin the confines of Eastpark on real property legally described m Exhib�t A and generally shown in the site plan m Exhibit B commonly known as the Glen Jarstad Aquatic Center ("Pool"), said exl�ubrts attached hereto and mcorporated by reference (The Concession Area, 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 does not include the fee ownership or leasehold mterest of the real property upon which the improvements are located or a fee ownership or leasehold mterest of the Pool The CITY owns the land that is sub�ect to this Concession Agreement as well as the mdoor swimmmg pool, buildmg and related improvements located wrthin the Concession Area The YMCA owns the YMCA Recreat�on Center which includes buildmg(s), fixtures, appurtenances, parkmg and exterior landscaping sub�ect to the CITY's mterest upon termination or expiration of this agreement YMCA's interest m the Concession Agreement is the right to use the land upon which rts 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 m the Concess�on Area is sub�ect to the CITY'S ownership interest m the land and the Pool The CITY makes no representation of title and if, for any reason, the City's trtle to said property should terminate because of prior rights reserved by the Unrted States Government or other cla�mant, this Agreement shall terminate CITY promises to perform its obligations under the Qu�tclaim Deed dated December 14, 1972, between the City and the Unrted States, attached hereto as Exhibrt C, and mcorporated by reference, (heremafter "Qurtclaim Deed") THIS AGREEMENT AND THE OBLIGATION OF THE PARTIES HERETO, AS WELL AS THE YMCA'S AND THE CITY'S INTEREST IN THE PROPERTY ARE SUBJECT TO THE QUITCLAIM DEED 2 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 sub�ect to any security mterest of lender, if any, and sub�ect to the CITY's right, title and interest at the expirat�on or termmation of this Agreement pursuant to Article 2 3 1.4 Property Trade. If in the future, durmg the term of this concession, a piece of property of comparable worth to the real property establishing the Concession Area as described m Exhibrt A becomes available and is considered by the CITY to be a valuable addition to the Bremerton Parks and Recreation mventory, the CITY would consider a properly trade with the YMCA assuming all the requirements of the Department of Interior and the Qurtclaim Deed conveymg the property to the CITY and related CITY ordmances are met The CITY, at its sole discretion, may accept or re�ect 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 commencmg September l, 2010 and contmuing 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, conhngent upon the YMCA remaining m full compliance wrth the terms and condrtions of this Agreement To execute an option for renewal, the YMCA, not more than 180 days and not less than 60 days prior to the expirat�on of the term, shall g�ve written notice to the CITY that the YMCA is exercising the YMCA's option for an additional ten (10) year term The option will become effective upon receipt by the CITY of the YMCA's written notice and sworn affidavrt 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 m effect If the option(s) to renew are not exercised, then the Agreement shall expire at the conclusion of the expirmg term 2.2.2 Pool Contingency — Option to Terminate. 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 m Section 2 2 1 above or upon 90 days prior written notice to the YMCA Such termination is sub�ect to a mutual agreement on a partial reimbursement of ma�or capital improvements made to the Pool by the YMCA on an agreed upon pro rata basis taking mto consideration the amount of improvements and the timmg during the term of the Agreement that the improvements were made Should the CITY exercise this option taking over responsibility for its management, operation and maintenance, and further, should the CITY decide to keep the Pool open, the parties will enter into an agreement for the YMCA's access and use of the Pool �j 2.3 Expiration or Termination of Agreement - Improvements. It is mutually understood and agreed that the real property constrtutmg the Premises of this Agreement is the real property of the CITY Upon the expiration of the term(s) of this Agreement pursuant to Article 2, or upon the termmation 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 sub�ect to lenders rights as set forth m Article 6 Lenders rights (if any) in and to any part of the Premises shall at all times be sub�ect to the rights of the Umted States Government pursuant to the Quitclaim Deed All improvements to the Pool made by the YMCA belong to the CITY and the YMCA shall have no mterest m the same Supplies, furnishmgs, mventories, removable equipment and other personal property ("collectively, "Personal Property") at the Pool provided by the CITY shall belong to the CITY Personal Property at the Premises shall belong to the YMCA and the YMCA shall have a right to remove such rtems from the Premises at any time In the event of the expiration or earlier termination of this Agreement, any such Personal Property not removed from the Premises shall be deemed abandoned, and the City, at any time thereafter, may, in its sole discretion, remove and/or store the same at the expense of the YMCA or be deemed the owner of such Personal Property and retain the same 2.4 Purpose of Use. The Premises are intended for use by YMCA members as well as the general public, regardless of religion, sub�ect to reasonable fees (i e, consistent wrth fees charged for similar facilrties in the area) that may be applicable to such use The mission of the YMCA is to put Christian principles mto action through programs that build a healthy spirit, mind, and body for all The YMCA brmgs together crtizens of the commumty to participate m programs designed to enrich lives These programs mclude physical education and health, camping and teen programs, nurturing family and parent-ch�ld relations, child care, recreation and therapy for the disabled and infirm, and nurturmg and developmg volunteerism The Premises will be used in a manner that will meet the mission of the YMCA and enable the public to en�oy the programs the YMCA offers ARTICLE 3. CONSIDERATION 3.1 Considerahon for Concession. 3.1.1 Concession Fee and Subsidy. As considerat�on 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) Concession Fee. 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, ad�usted by annual CPI pursuant to Section 3 1 2 below, and b) CITY Subsidy. As addit�onal consideration, the YMCA shall operate, manage and maintam the CITY's Pool as prov�ded in Section 3 2 below Recogmzing that that the operation, management and mamtenance, including caprtal improvements made to the Pool, 4 results in a deficit budget balance, as long as the YMCA operates, manages and maintains the Pool as provided for m Section 3 2, the Concession Fee owed to the CITY, as ad�usted by the annual CPI, shall be credrted in full to the YMCA for such operation, management and mamtenance and no Concess�on Fee shall be paid to the CITY In addition, the CITY shall provide an annual operating subsidy sub�ect to ad�ustment as set forth below as follows 1) September 2010 to December 31, 2010 — Provide technical and maintenance operatmg system assistance provided by CITY staff 2) 2011 — Pay YMCA $24,000 3) 2012 — Pay YMCA $24,000 4) 2013 — Pay YMCA $27,000 5) 2014 — Pay YMC�1$30,000 6) 2015 through the remammg term, including options, of this Concession — Pay YMCA $30,000 (thereafter ad�usted annually by the CPI pursuant to Section 3 1 2 below) c) Any fees required to be paid in subsections (a) and (b) above shall be computed and paid quarterly wrthin thirty (30) days after expirat�on of each quarter d) Should the YMCA no longer operate, manage and ma�ntain the Pool as provided for in Section 3 2, the Concession Fee shall no longer be credited to the YMCA but rather shall be paid in full to the CITY by the YMCA, as ad�usted by the annual CPI, and the CITY shall no longer pay an annual operating subsidy to the YMCA 3.1.2 CPI. The annual concession fee shall be ad�usted every year durmg the term(s) of this Agreement based upon the prior years' Consumer Price Index (CPI) for all urban consumers as published by the Unrted States Department of Labor for Seattle-Tacoma-Bremerton, all rtems (1982-84-100) For purposes of the CPI ad�ustment, the base shall be the June 2010 CPI mdex June to June every year (i e June 2010- June 2011) The CPI ad�ustment shall occur on the followmg January 1 S of each year during the term of this Agreement There shall be no decrease m the concession fee for a negative CPI 3.1.3 Leasehold Excise Tax. Pursuant to RCW 82 29A 020 and the definrtion of "Leasehold Interest" as set forth m 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 m 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, mamtam, mcluding caprtal improvements, the Pool as follows a) Manage and operate the Pool under the name "Glen Jarstad Aquaric Center" b) Provide necessary liabiliTy coverage for operating the Pool as provided m Section 8 5 2 c) Hire, tram and supervise all staff required to manage, operate and program use of the Pool d) Provide financial assistance to ensure access to for those unable to afford YMCA Membership according to an established policy that mirrors school lunch subsidy guidelines 5 e) Honor passes allowmg Bremerton residents to use the Pool and YMCA facilities four times per year free of cost or commitment to �om the YMCA � Mamtam the pool mfrastructure at or above mdustry standards g) Mamtam water quality to meet applicable Health District standards h) Be responsible for all cash collection, receiptmg, accounting and deposits for the Pool i) Continue to offer core programs includmg sw�m lessons and water fitness programs �) Work wrth all constituencies and user groups to provide access to the Pool The YMCA will accommodate each existmg 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 wrthm the Y activity schedule Pricmg for use of Pool space shall be comparable to fees\rents charged for use of similar quality aquatic facilities withm the South Puget Sound area 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 Crty of changes to fees and access to the Pool for non YMCA members for mput prior to implementation All fees charged by the YMCA must be reasonable so as to encourage participation by the general public YMCA will make available the rates for the Pool use to non-members in writmg at the facility 3.2.2 Transition Period. The YMCA further agrees that durmg the period of September 1, 2010 to December 1, 2010 ("Transrt�on Period") rt shall a) Honor existmg 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 St , 2011 d) Implement an outreach program for Pool users to mform them of the benefits of YMCA membership and allow them to gain knowledge concerning the YMCA's facility and available programs 3.2.3 CITY Maintenance Responsibilities and Obligations. The CITY agrees to a) Fund previously identified one time capital improvements l�mited to 1) Filtration system upgrades 2) Meet Federal Pool Dram safety standards 3) Improvements to Pool light�ng CITY may pay for said improvements over a period of time not to exceed the 10 year inrtial term of this Agreement, the price and scope of these improvements to be mutually agreed upon by both parties in writmg prior to the commencement of work The CITY shall pay mterest 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 operatmg advice for Pool systems and equipment during the Transition Period (September 1 to December 31, 20I0) � 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 providmg recreation, meetings and commumty activrties directly related to the operation of an indoor and outdoor recreation facility consistent with its mission The public is authorized to have mgress and egress across this property other than through buildmgs and other structures 4.1.2 Incidental Uses The YMCA may provide incidental uses that are consistent with and supportive of the uses set forth in Section 4 1 1 above m the form of coachmg, body therapy and rehabilrtation, nutrition and diet coaching, medical and other mmd, body and soul traming serv�ces, food and beverage services, and the sale or rental of mcidental rtems directly related to the use of the recreation facility mcluding, but not limrted to, sports, fitness and athletic equipment, soap, shampoo, and similar shower supplies, and clothmg related to recreation and fitness pursuits The followmg recreational and/or incidental uses and/or services thereto are hereby expressly permitted by NPS and the City (i) personal trainmg and strength coaching (ii) physical therapy and massage therapy, (iii) occupational therapy, (iv) hand therapy, (v) foot therapy and other podiatry related services, (vi) chiropractic services, (vi�) cardiac rehabilrtation and diabetes prevention, (viii) medical emergency related services, (ix) nutrition and dietary consultation, (x) espresso stands/health food bars (includmg �uices and smoothies), (xi) vendmg machines, and (xii) exercise classes of all kinds includmg but not limrted to pilates and silver sneakers This express permission for such mcidental uses necessarily includes permtssion for the hirmg of and/or contractmg wrth vendors and related service providers and for sub-concessions of these mcidental uses to provide such services in the interior space of the indoor recreation facility Subconcess�on contracts may be had with public school districts, private schools, communrty colleges, non-profit corporations, and sport-related special mterest for-profit groups (i e, martial art classes, scuba divmg classes) for the use of YMCA facilrties for such mc�dental purposes YMCA agrees that no alcohol w�ll be sold or consumed on the premises The provisions of this subsection shall apply to the CITY m the same manner as they do to the YMCA should the CITY, as may be permitted pursuant to this Agreement, assume sole responsibilrty for management, operation and maintenance of the Pool from the YMCA 4.1.3 Sub-Concessions All sub-concessions shall comply with and be sub�ect to any requirements of the U S Secretary of Interior for the granting of concess�ons on the sub�ect property pursuant to the Quitclaim Deed The subconcession agreements shall require such compliance in writing m the subconcession agreements and shall mclude as exhibrts this Agreement, the Qurtclaim Deed, and the NPS-approved Program of Utilization Wrrtten approval by the Crty and written concurrence by the U S Secretary of Inter�or, through the NPS, shall not be required for subconcessions expressly permitted in Section 4 1 2 above For all other subconcessions, written approval by the City and written concurrence by the U S Secretary of the Interior, through the NPS, shall be required and the Crty and NPS shall complete their review of the subconcession wrthin thirty (30) calendar days after receipt from Crty, and any matters not commented upon wrthin such 30- day period shall be deemed approved 7 4.1.4 Security and Nuisance during Use The YMCA shall take reasonable precautions m securing the Premises durmg 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, wh�ch would constitute a public nuisance or violate State or CITY laws 4.2 Operating Hours. The availability of recreational opportumties 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 busmess and cause the YMCA' S business to be conducted therem during the usual business hours consistent wrth other YMCA facilrties, but m 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 mamtenance, remodeling, repair, or renovation The YMCA shall provide nohce 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 m accordance with sound business practice The YMCA, in order to keep its busmess commitments, shall be in operation in accordance with sound busmess practice 4.3 �ntry by CITY and NPS. CITY may enter the Prem�ses at all reasonable times durmg normal hours of busmess 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 not�ce shall be given by the CITY before entry by the CITY mto proprietary areas of the facility YMCA shall allow NPS access, at reasonable times, to mspect any part of the Premises sub�ect to this Agreement 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 ordmary 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 and expense, clean and maintain the Premises, and make repairs, restorations, and replacements to all improvements to the Prem�ses, mcluding the Pool, mcluding wrthout limrtation the heatmg, ventilatmg, air condrtiomng, mechamcal, electrical, and plumbmg systems, structural roof, walls, and foundations, roof covermgs, spnnklmg and irrigation systems, playmg surfaces and the fixtures and appurtenances to the Premises as and 8 when needed to preserve them m"first class" condrtion and repair (less normal wear from use) throughout the full term YMCA shall further keep in repair and mamtam as necessary all machinery, equipment and facilrties necessary for the playing of sports and the comfort of players YMCA shall paint the exter�or 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 origmal work or installations If YMCA fails to make such repairs, restorations, or replacements, followmg a notice of default and opportumty 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 wrthin fifteen (15) days after delivery of a statement for such expense YMCA shall maintain the Pool m accordance with Chapter 246-260 of the Washington State Administrative Code covermg the rules and regulations of the Washmgton State Board of Health for pool operation, construction, equipment, water quality 4.5.2 Sidewalks and Parking Maintenance. At rts sole cost and expense, YMCA shall mamtam all sidewalks and parkmg lots on the Premises in good and presentable condition durmg the full term of this Agreement, shall be responsible for correctmg any unsafe conditions, and shall be responsible for the removal of ice and snow from the sidewalks and parkmg lots as necessary for safe operation of the Premises 4.5.3 Janitorial and Landscaping Services , At rts sole cost and expense, YMCA shall keep the Premises clean, and shall provide sufficient �amtorial services to mamtain a tidy appearance on and about the Premises YMCA shall provide landscapmg mamtenance services such that landscaping on the Premises remains healthy, attractive, and well mamtained 4.5.4 Repair of Damage Except that which may be caused by the actions, activrties or negligence of the CITY or its agents, representatives, employees, guests or mvitees, m the event any damage or in�ury shall occur to the Premises of any kmd or nature whatsoever, YMCA shall within fifteen (15) days cause said damage or m�ury to be fully repaired at YMCA'S own cost and expense, provided that if more than fifteen (15) days are reasonably required to repair, then YMCA will not be m default if YMCA commences to repair withm fifteen (15) days of CITY's notice and thereafter diligently pursues completion and completes performance within a reasonable time In the event YMCA fails to accomplish such repairs, then m 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 for such expense Any such damage or in�ury to the Premises caused by the actions, activrties or negligence of the CITY or rts agents, representatives, employees, guests or invrtees shall be promptly repaired by the CITY at rts cost and expense 4.5.5 PoolImprovements. The YMCA shall be responsible for all capital improvements to the Pool m accordance wrth Article 5, except for mrtial funding of certain improvements as provided m Section 3 2 3 The YMCA shall mamtain and make the required caprtal improvements to the Pool in order to mamtain the Pool m a condrtion equal to or greater than rts condrtion at the begmnmg 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 mterest in the improvements made to the Pool by the YMCA upon expiration or termmation of this Agreement 0 4.5.6 Extraordinary Expenses. Notwrthstandmg any other provision of this Agreement, the need for any Extraordinary Expense shall trigger the provisions of this section An Extraordmary Expense is a capital expense for the replacement, repair, or restoration of any improvement, or combination of improvements on the Premises, that would exceed $125,000 in any year An Extraordmary Expense mcludes, but is not limited to any expense for the restoration or repair of the improvements as a result of damage or destruction under Section 7 4 An Extraordinary Expense meets the mimmum threshold set forth above if the YMCA would be obligated to commrt to the entire expense in one year, even if the work rtself would extend into more than one year If faced with an Extraordmary Expense, YMCA shall have the right, upon 90 days prior written notice, to terminate this Agreement as to either the Pool management, or as to the Concession Area, whichever would require the Extraordmary Expense If the pool and the concession area both require Extraordmary Expenses, the YMCA may termmate the entire Agreement Upon termination, the City will be under no obligation to reimburse the YMCA for any costs, not previously agreed to, which are incurred by the YMCA for either the Pool or improvements to the Concession Area Followmg the notice, the parties may, but shall not be required to, negotiate for an extension of the Agreement term to allow recovery of the Extraordmary Expense, for sharing of the Extraordinary Expense, or for any other compromise that would allow the parties to keep the Agreement in effect 4.6 Signs. YMCA may place and mamtam signs upon the Premises in accordance with the sign ordmance of the CITY The YMCA will provide signage staring to the effect that the public is welcome to use the facilities, provided, such usage will be sub�ect to the YMCA's membership and non-membership fee schedules and use regulations 4.7 Utilities. 4.7.1 Utility Services and Expense The YMCA will pay for all water, gas, garbage, sewage, electricity, telephone, and other utilrties and commumcations 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 permrts, l�censes, or other authorizations required for the lawful and proper installation and maintenance upon the Premises of utility appurtenances and appliances for use in supplymg such utilrties and services to and upon the Premises The CITY, upon request of YMCA, and at the sole expense and liability of the YMCA, will �oin with YMCA in any application required for obtaimng or continumg any such services, provided that such services do not violate any other applicable provision of tlus Agreement The CITY shall not be held liable for any m�ury, loss, or damage caused by or result�ng from any mterruption or failure of utilrty services due to any cause whatsoever, except the CITY's sole negligence YMCA shall not be entrtled to any offset, reduction, or return of consideration as a result of any interruption or failure of services 10 4.7.2 Trash & Garbage. The YMCA shall place all trash and garbage mto such areas and containers as are designed and intended to accommodate the trash and garbage generated wrthm 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 parking lots B and C as depicted on Exhibrt B and shall have primary use of those lots However, those lots shall be made available to members of the public usmg Eastpark at nonpeak hours m a manner not inconsistent wrth or mterfering wrth the YMCA's primary use 4.8.2 Pool Parking. Under the management provisions of this Agreement, YMCA shall maintain parkmg lot A and shall have the primary use of that lot However, this lot shall be made available to the public usmg Eastpark at nonpeak hours m a manner not inconsistent with or mterfering with YMCA's use and operation of the Pool 4.8.3 Additional Parking. YMCA shall have the right m common wrth the public to use lot D as depicted on Exhibrt B to support its use of the concession area and pool YMCA's use of this lot shall not be mconsistent or interfere with any primary use rights previously granted to the ice arena concession area 4.9 Hazardous Substances. 4.9.1 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, ordmance, rule, regulation, or other law now or hereafter in affect pertaining to environmental protection, contamination, or cleanup 4.9.2 Information. YMCA shall keep upon the Premises, in a locat�on accessible to CITY, on request durmg normal busmess hours, copies of all reports regard�ng hazardous or tox�c 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 wrth a copy of any such report as to which CITY request a copy In the event of any accident, spill, or other mcident 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 all information and reports wrth respect to the same, together wrth YMCA'S clean-up or remediation plan and schedule If such clean-up or remediation plan is not acceptable to CITY m CITY'S sole discretion, CITY may so notify YMCA and, upon 48 hours prior wrrtten notice (or wrthout not�ce 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 remediahon, prior to the CITY exercismg its right to cleanup and/or remediation on the Prem�ses, the parties will mutually agree upon a consultant for determmmg the method of cleanup and/or remediation All mformation described herein shall be provided to CITY regardless of any claim by YMCA that it is 11 confident�al or privileged, provided that the CITY shall not publish or disclose the mformation to any third party except as pursuant to Chapter 42 56 RCW 4.9.3 Indemnification. YMCA agrees to hold harmless, protect, mdemnify, 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 The CITY agrees to hold harmless, protect, indemmfy, and defend YMCA from and against any damage, loss, claim, or liability, including attorney's fees and costs, resulting from (a) Hazardous Substances existmg on the Premises as of the EFFECTIVE DATE of this Agreement, or (b) Hazardous Substances thereafter used, d�sposed of, or generated on the Premises by the CITY These indemmties will survive the termmation of this Agreement, whether by expiration of the Term or otherwise 4.10 Risk of Loss. All personal property of any kmd 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, wrthout the CITY'S prior written consent, which consent will not be unreasonably withheld The YMCA 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, except for mrtial fundmg of certain �mprovements to the Pool as noted in Section 3 2 3 above 5.2 Development and Construction Fees & Expenses. The YMCA shall be responsible for obtaimng and paymg for necessary permrts, fees, and expenses associated wrth any development and construction of Improvements In addrtion, YMCA shall be responsible for any additional costs for inspections billed to the CITY by any government agency, mcluding 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 pro�ect and is not a CITY pro�ect, except for imtial funding of certain improvements to the Pool as noted m Section 3 2 3 above YMCA is the developer and the CITY shall be responsible to ensure that the YMCA's Improvements and/or programs on the Premises are m compliance wrth this Agreement, provided, the C�ty is not an owner, partner, �omt venturer, nor maintains any other business relationship wrth the YMCA regardmg the mdoor recreation facility other than as grantor of a concession and user of the Premises and any supervision or mspection or other responsibility that the City may have for any part of the YMCA's pro�ect or programs on the Premises shall not be deemed, in any way, ownership, partnership, nor any other business relationship m existence with the YMCA The CITY is not 12 involved with, nor has any responsibilities for, the bidding, contractmg or operations of the Premises and will occupy no space m the Premises The pro�ect signage and all lrterature, advertising by either the CITY or YMCA shall not indicate in any manner that tl�us is a CITY pro�ect, contract, or other misleading statement mdicating that this proJect is a CITY public work pro�ect directly or mdirectly 5.4 No Liens. Except liens and encumbrances of any lender pursuant to Article 6 herem, rt 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 kmd or nature whatsoever upon, or m any manner to bind, the interest of the CITY in the Premises or to charge the rentals payable hereunder for any claim m favor of any person dealing wrth YMCA, mcludmg 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 mterest granted to YMCA by this Agreement If any such l�ens are filed, CITY may, without waivmg its rights and remedies for breach, and without releasmg YMCA from rts obligations hereunder, require YMCA to post security m form and amount reasonably satisfactory to CITY or cause such liens to be released by any means CITY deems proper, including payment m 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, trtle, and interest of the CITY m the Premises or under the terms of this Agreement, includmg reasonable attorney's fees and costs mcurred 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 contmumg provision applicable to future repairs and improvements after the m�tial construction phase ARTICLE 6. FINANCING & SECURITY INTERESTS 6.1 Financing - No CITY Obligation. YMCA shall be solely responsible for all financmg requirements for all construction, mamtenance, repairs, or subsequent improvements to the Premises The CITY shall be under no obligation directly or mdirectly 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 obtaimng financing, mform any lender that the CITY has no financial obligations associated wrth the construction, mamtenance, repairs or subsequent improvements to the Premises 6.2 Security Interest in Premises & Agreement/Consent. Wrth the exception of the Pool, the CITY consents to the grant, transfer, pledge and assignment of any and all right, trtle, claim, mterest of YMCA m and to this Agreement and m the Premises, mcluding improvements and personal property on the Premises ("Collateral") to lender for financmg purposes, including the re-financmg of any loans and leasing of equipment, provided, any such transfer or assignment of Collateral shall be m compliance with and sub�ect to all of the terms of this Agreement Art�cle 6 shall be mapplicable to the Pool m that the YMCA shall not at any time encumber the Pool, therefore, lender shall have no security or any other mterest m the Pool whether or not Improvements are made to the Pool by the YMCA The CITY shall recognize lender's first priority security �nterest in the Collateral and the CITY 13 \ hereby subordmates any and all interest of the CITY m sa�d 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 kmd or nature whatsoever upon, or in any manner on its t�tle to CITY real property In the event of default by YMCA to lender, m addrtion to all rts rights and remedies available at law and equ�Ty, lender may enforce and/or foreclose rts secur�ty interest/interests in the Collateral CITY agrees that m connection wrth any such default, and all wrthout further consent of CITY, lender may a) Acquire YMCA's mterest m the Collateral either by a deed m lieu of foreclosure or actualforeclosure, b) Rent and/or grant a ground and use concession of the Premises sub�ect 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, and/or e) Appomt a receiver � All other rights and remedies at law or m equrty Provided, in the event that lender desires to assign this Agreement and/or select a party other than the YMCA to operate the Premises sub�ect to this Agreement (including without limrtation by rentmg and/or grantmg a ground and use concession of the Premises sub�ect to this Agreement pending foreclosure of the Collateral by lender), the City shall first obtam wr�tten concurrence by the U S Secretary of the Interior, through the NPS If there will be no modifications to the terms of this Agreement, NPS shall complete rts review of the proposal withm thirty (30) calendar days after receipt from the City NPS' failure to comment upon the proposal within such 30-day period shall be deemed approval of said proposal It is understood that current or future lenders may require terms or conditions on loans for future or addit�onal financmg needs of YMCA, which may require changes to the terms or conditions of this Agreement Any modifications to this Agreement are sub�ect to approval of the U S Secretary of Interior pursuant to Article 8 12 Any assignment or transfer under Article 6 2 is sub�ect to Article 8 7 Lender shall have no interest in improvements located on the Premises at the time of expiration or the earlier termmation of the term or terms of this Agreement pursuant to Article 2, at which hme, 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, m makmg 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 CITY confirms its authority to provide the Agreement with an mitial 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 wrth the renewal options condrtioned solely upon the YMCA mamtainmg current payments and 14 remaining m 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 financmg provisions shall be applicable to all future advances or financmg 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 sub�ect to this Agreement or any other act of YMCA shall be deemed to termmate this Agreement CITY will not termmate this Agreement voluntarily by agreement wrth YMCA unless lender has been previously notified m wrrtmg and has consented to the termmahon in wrrting This Agreement shall not be amended or modified unless lender has been previously notified m wrrting and has consented to such amendment or modification m wrrtmg 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 rt may have under this Agreement wrthout first givmg lender written notice of such default m accordance wrth Article 6 11 below A copy of each and every notice of default served or sent by CITY or rts 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 outstandmg and the time period at the end of which the mdicated 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 wrthm 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 wrthin 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 wrthm thirty (30) days after lender receives the notice, CITY may termmate this Agreement pursuant to Article 7 if such non-monetary default is not cured by erther YMCA or lender wrthm sixty (60) days after lender receives notice of default 6.5.4 Termination due to Bankruptcy. CITY shall not termmate this Agreement because of YMCA'S breach of any terms of this Agreement relahng to the solvency of YMCA or the instrtution of any bankruptcy, insolvency, receivership or related action by or agamst YMCA as long as lender cures any default under this Agreement by YMCA as provided herem, 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 rts interest m the Collateral Upon the purchaser's, assignee's or transferee's assumption of lenders assigned mterest and agreement to perform and 15 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 sub�ect 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 msurance, and the msurance 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, utilrties or other services therem are damaged or such damages are repaired In the event the CITY'S land is substantially damaged, CITY shall only participate m the msurance proceeds to the extent necessary to repair and restore CITY' S land and any of CITY' S improvements on or m the ground to the same condition the land was at the commencement of this Agreement, or m the same condrtion at the time of the casualty Other than as described herem, CITY shall have no claim to msurance proceeds that are attributable to YMCA's mterest m the Collateral 6.8 Right to Participate in Litigation. Lender shall have the right to participate m any litigation, arbitration or dispute directly affecting the Collateral or interest of YMCA or lender therem, includmg, without limitation, any surt, action, arbrtration proceeding, condemnation proceedmg or insurance claim CITY, upon mstitutmg or receivmg notice of any such lrtigation, arbrtration 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, indemmty, hold harmless, choice of law and venue, costs and attorney's fees as provided herem 6.10 Right to Remove Collateral. In the event lender exercises rts rights under rts Collateral and realizes upon the Collateral, CITY agrees that lender is entitled to remove the Improvements on the Premises, including but not limrted to building facility, furnrture, movable trade fixtures and equipment, from the Premises at any reasonable time and that the Collateral shall remam personal property even though the trade fixtures may be affixed to or placed upon the Premises In the event lender so realizes on rts Collateral, CITY waives any right, trtle, claim, lien or interest m the Collateral 6.11 Notices. All not�ces, copies of notices, consents or other commumcations to lender grven under this Agreement to lender must be m writing and shall be effective when recerved Such communications shall be given m person to an officer of lender, addressed to lender at an address as provided by lender YMCA shall keep the CITY mformed of the name, address, and telephone number of any current lender or lenders for the purpose of the CITY providing not�ce 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 addrtional financing needs of YMCA, which may require changes to the terms or �� condrtions of this Agreement In such case, the CITY will give reasonable consideration to such changes to this Agreement, and may, at rts sole discretion, accept or re�ect the same Any modifications to this Agreement are sub�ect to approval of the U S Secretary of Interior pursuant to Article 8 12 ARTICLE 7. TERMINATION 7.1 Failure to Perform. 7.1.1 Obligation to Perform. Nothing herem 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 CITY shall not constitute a waiver of YMCA's default CITY shall not m any event be liable for inconvemence, annoyance, and disturbance in its activ�ties m 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 CITY, CITY may, without waiving or releasmg YMCA from its obligations, make any such payment 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 wrth 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 condrtions as the CITY may reasonably msist, in order to protect rts interests herein 7.2 Default and Termination. This Agreement and the concession granted herem may be termmated for default as follows 7.2.1 CITY's Default. CITY will not be m default unless CITY fa�ls to perform an obligation withm 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 wrthin thirty (30) days of YMCA's notice and thereafter dil�gently 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, cond�tions, 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 �f YMCA commences to cure within thirty (30) days of CITY's notice and thereafter diligently pursues completion and completes performance wrthin a reasonable time, or (2) YMCA shall be ad�udged 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 17 be appointed for YMCA's estate and such appomtment is not vacated with�n 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 withm thirty (30) days after mailmg of written notice thereof by CITY The CITY's right to terminate pursuant to this Article for failure of CONSCESSIONAIRE to cure a default is sub�ect to the lender's right to cure pursuant to Articles 6 5 2 and 6 5 3 7.2.3 Default for Other Cause. Sub�ect to lender's mterest(s) as provided m Article 6, this Agreement may be immediately terminated for other cause by a party if the other party substantially fails to perform rts 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 wrthm thirty (30) days of the termmatmg party's sending notice to the non-performmg party 7.2.4 Bankruptcy. Sub�ect to lender's interest(s) as provided in Article 6, the Parties agree that if the YMCA is ad�udged bankrupt, erther voluntarily or mvoluntarily, then this AGREEMENT, at the option of the CITY, may be termmated effective on the day and at the time the bankruptcy petition is filed 7.3 Termination Due to Right of Reversion This Agreement shall termmate upon the Unrted States Government's exercise of rts right of reversion due to a declaration of a national emergency by the President of the Umted States as set forth m Sect�on 5 of the Qurtclaim Deed or m the event of a breach of condrtions as set forth m Section 7 of the Quitclaim Deed In the event of such reversion, the Premises and all improvements located thereon (mcluding without limitation the YMCA Recreat�on Center) shall revert to the Unrted States of America free and clear of any encumbrances and wrthout compensation to YMCA, City, any lenders, or any other entities 7.4 Destruction of Premises & Use of Insurance Proceeds. 7.4.1 YMCA Recreation Center. Unless otherwise mutually agreed by the Parties, m the event the improvements on the YMCA Recreation Center are destroyed or in�ured by fire, earthquake, or other casualty, then YMCA shall proceed to rebuild and restore the Improvements, or such part thereof as may be m�ured as aforesaid In the event of any loss covered by the msurance policies descr�bed and required pursuant to Article 8 5 1 herein, unless this Agreement shall be termmated as provided herein, the proceeds of such insurance pol�cies shall be used by YMCA first to rebuild and restore the Prem�ses and replace the improvements which may be damaged or destroyed by such casualty 7.4.2 Pool. Wrth respect to the Pool, the CITY shall maintam appropriate property coverage as set forth m 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 msurance 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 wrthm thirty (30) days after such damage or destruction and all provisions 18 contained in this Concession Agreement relating to the Pool shall terminate All remammg provisions relatmg to the YMCA Recreat�on Center shall remain m effect 7.5 Duties upon Termination. Upon termination of this Agreement, and unless otherwise arranged, the personal property and improvements will be sub�ect to section 2 3 of this Agreement 7.6 Eminent Domain. The following rules shall govern the rights and duties of the Parties m the event of mterference wrth the use of the Premises by YMCA by right of emment domam or private purchase 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 m 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 takmg 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 wrthm nmety (90) days after the date of such taking Provided, however, that if the CITY is exerc�smg rts rights of emment domain, a fair value shall be placed on this Agreement as if rt had not been termmated and the Premises wrth the compensation thereof awarded solely to YMCA, or lender pursuant to its security mterest, 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 domam, the CITY shall, at its own cost and expense, restore the remaming portion of the Premises to the extent necessary to render rt reasonably surtable for the purposes for which rt 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 m accordance wrth their respective interests as determined by a court of competent �urisdiction Addrtionally, YMCA may prosecute any claim directly agamst the condemmng authority for the costs of removal of the goodwill, stock, trade fixtures, furmture and other personal property belongmg to YMCA CITY shall have no claim to condemnation proceeds that are attributable to YMCA's mterest m the Collateral, nor shall YMCA or lender have any interest m CITY's condemnation proceeds, if any 7.6.4 Reversion of Interest not Eminent Domain. The Unrted States Government's exercise of rts right of reversion due to a declaration of as set forth in Sect�ons 5 and 7 of the Qurtclaim Deed, shall not be deemed an exercise of Eminent Domam 7.7 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 19 ARTICLE 8. GENERAL CONDITIONS 8.1 Relationship of Parties. 8.1.1 YMCA Independent Contractor Status. The Parties mtend that an mdependent relationship shall be created by this Agreement Nothing contained herein shall create the relationship of principal and agent or of partnership or of �oint venture between the parties hereto, and nerther the method of computation of consideration nor any other provision contained herein shall be deemed to create any relationslup between the parties hereto other than the relationship of CITY as granting a ground and use concession to the YMCA YMCA has the experience, ability, and resources to develop and operate an mdoor recreat�on facility and is performmg mdependent functions and responsibilities within its field of expertise YMCA and its personnel are mdependent 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 rts personnel have no authority to bmd the CITY or to control the CITY's employees As an independent contractor, YMCA is responsible for its own management The CITY's admimstration and enforcement of this Agreement shall not be deemed an exercise of managerial control over YMCA or rts 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 herem 8.1.3 No Joint Venture/Partnership. It is mutually understood and agreed that no Jomt venture or partnership formed as a result of this Agreement 8.1.4 City Administration of Agreement. 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 requ�red or permitted hereunder must be in writing and will be effective upon the earlier of personal del�very or three days after bemg mailed by certified mail, return receipt requested, addressed to YMCA or to CITY at the address for that party designated herein Erther party may specify a d�fferent address for not�ce purposes by written notice to the other, except that CITY may m any event use the Premises as YMCA's address for notice purposes Each of the below noted addressees shall be responsible for not�fying 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 followmg addresses CITY Crty of Bremerton Attn Director of Parks and Recreation 680 Lebo Boulevard Bremerton, WA 98310 YMCA YMCA of Pierce and Krtsap Counties Attn Pres�dent and CEO 1614 South Mildred Street, Suite 1 Tacoma, WA 98465 ►� 1 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 shall 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 rts purpose and goals are bemg met 8.3.2 Records. YMCA shall mamtain accountmg records of finance and operations pursuant to this Agreement in accordance wrth Generally Accepted Accountmg Prmciples (GAAP) and m accordance with any applicable requirements of the United States Department of the Interior YMCA will reasonably cooperate with the CITY in providing documentation that may be required by the CITY to be filed wrth required compliance reports to the NPS 8.3.3 Audits and Inspections. YMCA's records and documents wrth respect to all matters covered by this Agreement shall be sub�ect 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 Busmess License and shall obtam all regulatory licenses and permrts, mcludmg all construction and buildmg permrts, 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 'd'axes & Fees. As an independent contractor, the YMCA shall be solely responsible for all taxes, fees and charges mcurred, mcluding 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, mcluding 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 kmd that apply to any and all persons, facilrties, property, mcome, 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 rts sole cost and expense, maintain in full force and effect adequate fire, earthquake, and other casualty coverage covering the Premises and its contents, mcluding all personal property and improvements, except for the Pool The CITY shall maintam appropriate property coverage for the Pool Such policy shall include a replacement cost endorsement YMCA will shall obtain and file wrth the CITY's Risk Manager a Certificate of Insurance evidencing such coverage All such msurance coverage shall mclude 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 21 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 msurance coverage ("CGL") providmg coverage of at least $1,000,000 per occurrence for bodily in�ury and $1,000,000 per occurrence for property damage This Certificate of Insurance shall be sub�ect 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 msured and must fully protect the CITY from any and all claims and risks and losses in connection with any activities or omissions by the YMCA by virtue of this Agreement The CGL policy shall remam in full force and effect at the YMCA's sole expense for liability for property damage or personal m�ury that may occur m connection wrth activrties 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 wrrtten notice, by certified mail, of any cancellat�on, lapse, reduction or modification of such msurance 8.5.3 Release and Waiver of Subrogation. Any policy of insurance carried by erther 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 ad�acent property Notwithstanding any other provision of this Agreement, nerther CITY nor YMCA shall be liable to the other party or to any msurance company (by subrogation or otherwise) msurmg the other party for any loss or damage to any buildmg, structure or tangible personal property of the other occurrmg m 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 insurance issued by an insurance carrier authorized or licensed by the Insurance Commissioner of the State of Washington to issue ]mes of msurance, benefiting the party suffermg such loss or damage or was required under the terms of this Agreement to be covered by msurance 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, mcludmg all legal costs and attorney fees, arising out of or in connection wrth the performance of this Agreement, except for that portion of the m�uries 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 mdemmfication Should a court of competent Jurisdiction determme that this Agreement is sub�ect to RCW 4 24 115, then, m the event of liability for damages arising out of bodily inJury to persons or damages to property caused by or resultmg 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 herein, neither party shall assign the contract m part or as a whole, without the written consent of the other, which consent shall not be unreasonably wrthheld Except as provided m 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 authorized to sub-Concession Areas withm the Premises to food and beverage purveyors, equipment sales, and similar supportmg concessions as set forth m Article 4 1 3 When requested, approval by the CITY of a subcontract or assignment shall not be unreasonably wrthheld, condrtioned or delayed 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, facil�ties, or equipment assumed The CITY may condrtion 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 Notwrthstanding the foregoing, provided YMCA is not in default, the YMCA may assign rts mterest in this Agreement wrthout 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 bindmg upon and mure to the benefit of the Part�es and their respechve heirs, personal representatives, successors, and assigns All assignments (including without l�mitation those to a parent or subsidiary) are sub�ect to the review and approval of the National Park Service in its legal discretion NPS shall complete rts review of all assignments that involve no modifications of the terms of this Agreement wrthin thirty (30) calendar days after receipt from City, and any matters not commented upon wrthin such 30-day period shall be deemed approved 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 ordmances, m performing its obligations under this Agreement Such compliance shall include abidmg by all applicable federal, state and local policies, includmg Section 8 9 below, to ensure equal employment opportumty based on ability and fitness to all persons The YMCA shall comply wrth applicable laws pertaimng to employment pract�ces and employee treatment Condrtions 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 wrth The YMCA agrees to indemnify and hold harmless the City from all damages assessed for the YMCA's fa�lure to comply with the Acts and Standards issued thereunder The YMCA is also responsible for meeting all pertinent local, state and federal health and 23 environmental regulations and standards applymg to any operation in the performance of this Agreement 8.9 Nondiscrimination. Parties shall not discrimmate m employment or services to the public on the basis of race, color, creed, national origin, sex, religion, age, marital status, sexual orientat�on, or honorably discharged veteran or milrtary status, or the presence of any sensory, mental, or physical disabilrty and as otherwise provided by state and federal law, except for employment actions based on bona fide occupational qualification From and after the Effective Date of this Agreement, CITY and YMCA shall comply wrth all federal laws relatmg to nondiscrimination m connection wrth any use, operation, program, or activrty on or related to the Premises, mcluding but not limrted to the followmg laws and regulations as such may be amended from time to time (a) the regulations of the U S Department of the Interior at 43 CFR Part 17, (b) Trtle VI of the Civil Rights Act of 1964, (c) the Age Discrimination Act of 1975, (d) Section 504 of the Rehabilrtation Act of 1973, (e) the Archrtectural Barrrers Act of 1968, and ( fl the Americans wrth Disabilrties Act of 1990, PROVIDED, th�s provision shall not be mterpreted to impose on the YMCA any greater obligation or burden than YMCA already has under such laws with respect to improvements constructed pr�or to the Effect�ve Date of this Agreement 8.10 Choice of Law & Venue. This Agreement shall be interpreted accordmg to the laws of the State of Washington Any �udicial action to resolve disputes arising out of this Agreement shall be brought �n Kitsap County Superior Court 8.11 Costs & Attorneys' Fees. In any action brought to enforce any provision of this Agreement, mcludmg actions to recover sums due or for the breach of any covenant or condrtion of this Agreement, or for the restitution of the Premises to the CITY or evichon of the YMCA during the term or after expiration thereof, the substantially prevailing party shall be entitled to recover from the other pariy 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. Except as otherwise expressly stated herem, 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 mmor modifications to this Agreement, relative to the use or operation of the Prem�ses, consistent wrth rts purpose and intent Any maJor mod�ficat�ons or modifications having a financial impact on the City shall require City Council approval All modifications are sub�ect to approval of the NPS in its legal discretion NPS shall complete rts review of all modifications that do not alter the uses set forth in Sections 4 1 1 and 4 1 2 above, the area governed by th�s Agreement, nor the rights of the NPS under th�s Agreement, wrthin th�rty (30) calendar days after receipt from City, and any matters not commented upon wrthin such 30-day period shall be deemed approved 24 8.13 Change in Law/Renegotiation. The Parties agree that changes m federal, state or local laws or regulations that materially modify the terms and conditions of the Agreement and result m a detrimental change in circumstances or a material hardsh�p for either party m performing this Agreement may be the sub�ect of a request by a requesting party to renegotiate this Agreement or negotiate Agreement amendments and the respondmg party agrees to renegotiate fairly with the requestmg 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 �s prevented or delayed by acts of God includmg landslides, lightmng, 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 restramt or other causes, whether of the kind enumerated or otherwise, which are not reasonably wrthm the control of that obligated party ("Force Ma�eure") If as a result of a Force Ma�eure event, an obligated party is unable wholly or partially to meet rts obligat�ons under this Agreement, rt shall give the other party promptly written notice of the Force Ma�eure event, describing it m 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 Ma�eure and only for the period durmg which the Force Ma�eure 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 obligat�on of erther party hereto shall be effective unless in writing, specifying such waiver, executed by the party agamst whom such wa�ver is sought to be enforced Waiver of any right or power arismg 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 remam in full force and effect 8.17 Article Headings, Gender, & Number. Article paragraph headmgs are not to be construed as bindmg provisions of this concession, they are for the convemence of the Parties only The masculme, femmme, singular and plural of any word or words shall be deemed to include and refer to the gender and number appropnate in the context 8.18 Prior Agreements. This Agreement and rts Exhibrts replaces in rts 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 25 8.19 Entire Agreement. This Agreement and its Exhibits const�tutes 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 m 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 mstrument 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 8.22 Approval of Agreement. This Agreement is sub�ect to the approval of the U S Secretary of the Interior pursuant to the Qurtclaim Deed transferring trtle 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 Krtsap on the date fully executed below EXECUTED IN DUPLICATE ORIGINALS CITY OF BREMERTON � c���� By Patty e t, Mayor Date b- /O—/ ATTEST Carol Et en, Crty Clerk YMCA OF PIERCE AND KITSAP COUNTIES � �Zc,��'�"� By v,►� ��cl� , President Date ((�, py, (� .��;� _.. � �� � ' ��` � — �"" . �, . � � , • r _ . Notaries on Next Page � STATE OF WASHINGTON ) ) ss COUNTY OF KITSAP ) On this day, before me, Patty Lent, Mayor of the CITY OF BREMERTON, the mumcipal corporation that executed the foregoing mstrument, and acknowledged the said mstrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therem mentioned, and on oath stated that (s)he was authorized to execute the instrument on behalf of said mumcipal corporation GIVEN under my hand and official seal this �� day o �C�-obe� , 2011 ,oua V � �A V Notary Public in and for the State of �lG�; ••.• r S� , �� Washmgton, residing at oryl�('� �� �. �� d� � T A R y' �� M y a p p o i n t m e n t e x p i r e s o? - 1 g� I �, . * . , ; pUBL�G � �'•� ��:•� � � � 1&� STATE OF WA ���� �I ss COUNTY OF �P 1 On this day, before me,�� � President of the YMCA OF PIERCE AND KITSAP COLJNTIES, a Washington non-profit corporahon that executed the foregomg mstrument, and acknowledged the said mstrument to be the free and voluntary act and deed of sa�d corporation, for the uses and purposes therem mentioned, and on oath stated that (s)he was authorized to execute the said mstrument on behalf of said corporation GIVEN und��ny,�nd and official seal this � da of ����1/ , 2011 ��`�� �• `�F ���''� �• ,0. �,,���,.,,, �� : ; •t•�,.�• , k '• :.� .. : t' � : : Notary ublic in and the State of _ : � � � : - Washmgton, residmg at �(L�1M-G� ; '; �=; PUBLIC a� My appointment expires �r-} Zl � LIST OF E�������� ����~ .•� •. WAS � � '���,,,�,� ���` Exhibrt A— Legal Description of Premises Exhibit B — Site Plan Exhibrt C— Qurtclaim Deed from Unrted States of America to the City of Bremerton 27 EXHIBIT "A" LEGAL DESCRIPTION FOR YMCA FACILIT� A porhon of the Southeast quarter of the Southwest quarter, Section 12, Townsl�up 24 North, Range 1 East, Willamette Merid�an, which is more particularly descnbed as follows Begmnmg at the south quarter corner of said Section 12, from wluch 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 leavmg said centerlme, N 87°33'22" W 114 90 feet to the True Pomt of Begmrung, thence contmumg 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 lme of the description for the Ice Rink Facilrty, thence along said northerly hne S82°26'07" E 132 84 feet, thence N 9°07' 11" E 34 97 feet to a Pomt "A", thence S80°25'S1" E 200 45 to a Pomt "B", thence leavmg said northerly lme, 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 Pomt of Begmnmg Except that portton lying wrtl�un Homer R Jones Dnve, bemg a 43 feet wide stnp, more or less, as measured from backs of existmg sidewalks Sub�ect to a nonexclus�ve 10-foot wide nght of entry reserved unto grantor and assigns for construchon, mamtenance and repair of ad�acent facilrties, the south lme of which is the above descnbed Pomt "A" to Pomt "B" Consistmg 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 Mendian, wh�ch is more particularly described as follows Beginnmg 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 centerlme of said Section 12, thence leavmg said centerlme, N 87°33'22" W 319 50 feet to the True Pomt of Begmmng, 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 nght of way 164 91 feet, thence leavmg 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 Pomt of Begmrung Consishng of approximately 1 31 acres YMCA/Poo! Legal Descriptions 0 0 n i � �,�' / � FOR YMCA AGREEMENT - JARSTAD POOL PORTION OF GOVERNMENT LOT 2 (SE 1 /4, SW 1 /4) SEC 12,T 24N ,R 1 E,W M CITY OF BREMERTON KITSAP CO , WA 08/10 — G F /5 J � , , f 1 . Q,UITCLAIM DEED . The UNITED STATES OF AM�RICA� acting by and through Che � � � Secratar3► of thts In�eriar� acCing by and through tha Northwest Pe- gional Diractor� IIu�eau o� (hsCdaor Recreatiot�, undar and pursuant td the powez and author ity conCained in the provi.sione of the 8ed- eral Property and Adw�nistrative Servicea Act o£ 1949 (63 Stat. 377), as amended, and psrticuL Rr1y a� amended hy Pubii,c Lsw 485, 91st � GQi1$T@8�� and xe�ulat#.ons snd ordere pxomul.gatad Chezeunder (hexein- � a��ez d�eiguated "�rant ar�'), fdr and iu coneideraCion of the pex- � etival use a# tt�e h�rc�inaf Lex described remi�es as and fos ublio ,» P P P CJ9 pazk and publ�c recrea� iou area purposae, by �he City a� Bremexton, a muuic�pa2 coxpoxaetoa, laaarad i.n 1CiC3ap Couaty, Stata of Wash� ing�ou (hereinaEter des iguutad ��GYanCBp�� dooa horeby zol.esse a�td Q1L,�ta�.AL61 xo Grantea, s�d to i.Ce sueceesore a�.1d �aei.gng� �ub�ect to tha reservatious, except ians, xestxictf.aaa,. oond�,tion�, Rnd covenanta herefaaEtez exrxeased assd da� Earth, all Gran�an's L:Lght, xiC2�, and intexest in aad to t�at carCain �ract of re.al pzQpexty deslg�ated us Area "A," co�is�ing o� �epproximaie�y r7.5 ucren�_located in Kitaap Caunty, StaCe o£ Waehington, and ward parti�ularly desari.bed ia ExhiUit "A," attached heYeto and bq ref.exenas uiada a part hereaP. TO 1lAV� �� To tioL� tha berainbefoze describad propertp, subject Ca the ze�ervat:Lone, axceptians, reatri.etione, conditioAS, and covenante hereta e�sessed a�nd sst farth uato tha Grantea, its svacassors and assigns, farevax. � , RE5L'RV3NG, HOLTEVER, unCo t}�a Grantox aIl coal, oil, gas, aad other mtaexals on sa id real praparcx, Cogether wi.th the righC to pro9peat �or, mine� smd xamove the sa�e nnc3er applicable lawa, rules, nnd rag;ul�ti,ons prescr3,bad by tha Sscretary of the Interior. Pursuant Co authoz'ity containeci iti� xhe E�ederal 3'roperty and Administxat:ve 9orv�.ces Act o� �94g $g amended, and appliaable , CONCESSION AGREEMENT � � '� L V � � �J REEi �'12FRi889 EXHTBIT C i • / � , / � � • sules, reguJ.ations and ''b�ders promulg,atad thereunder, rhe General Sexvicea Adwinisfiratian datermined tha proparty to be eu�rpins to tha needa of the Uaited S tates oP �Uvterica and �ssfgned the property to Che Depaxtment of the Interior for furChar aoaveyanco Co the Grantee. � It i.s agreed and undareCood by aad batween tha GranCar and Graatee, and the Grant es by ite acoeptaace of thie deed, does acknow- ledge i.ts aaderatanding of ti�e agreemeut, and does covenant and agree �oz itself, end its auccessoxs aad assigne, forevar� as foliowe: 1. Thie property shall be used and mainCained for tlte publia purposes ior wh3.ch it was conveye3 in perpetuity ae set fozth in the pxogsaw o� util iza�ion and plaa conCained �.a the applicatian dated January 8, 1971, as supplemented on January 14, 19?L, submi�tad , by Gha Graatee and ace�pted by the GranCor oa Janvary 25, I971, which program and plan may bs amended fxom ri�e �o time a� the requeat ot p�ther the GranGor or Grantea, with tlie writCeu concurrenne o£ the other paxty, and suah amendroents ahall be added ta and becoma a part f of the originax applicta.�ion. 2. Tha Gran�ea aha11, wiChin s3.x (6} manthe of the data of the deed of coaveyaz�ca, exect and maintain a peYmanent aiga or maxker near the poinr o£ princl.pal accesa to Che aomieyed a�rea 1.�di.�aC- iag tha� the prnpexty is a park or reoreation area and has 'heen ac- quired fram the Fedezal �avexnmenC for use by th� genaxal public. 3, Th;e pxoperty shall aot be aoXd, leaeed, assigned, or atherwiae 319po�ed o£ except to anotheT eligible govarameatal a�ency that the 5ecretary of 'Che ?siterior agrees in wri.ting can assure the contLnued use and matz►teaance of the property for publia gark ar , public recreatianal puxposea subject �o the eame+ terme and conditions in the originAl instrument o£ conveyaaae. tlowc.wez, nothing in this provisfon shall preclude the Grantee fram providing relatBd recrea- �ional facilitt�s �d services compati.�la w3.th the apprwed appl.ica- 2 � . REEI"12�R1890 0 { „ 0 � ti�e�n� thrau�gSt aonces9 �.on agxeemenEe entered inCo wi.Ch third parties, prq�'i�ded` picidr eat�cur�c�enae to eucl► agxeetnente is obtained in wr�.ting fxoc� Ch� Sec�et��y. a£ the. Interior. k. prom the d�te o� thl.s comteysuce, the Grantea, ita suc- . ceasors and assigns, s'ha13. submlt bienniaY reparts Co the Secret$ry of the Iateri,or, setting forth tha ose made of tha propezty duting tha preceding two-ye��r perlod, aad other pertinen� data establish- ing ita conCinuous us ��or �he purposea set for�h above, £or tea consecutive reports a�d as £urthex deCermined by the Secxatary�af Che Interior. 5� The Granto�c �h�11 have the r3,ght during the existenae of any itati.onai emergeacy declared by khe Pzesident af tho tJnited States of America, o� the Cangre�e th�rep�, to Che full unreetxicted poesesaian, control, and use a� the pxemises, or any part xhereof w3.thout charga; pzovi ded the Graatos shal7, bear khe sntire co�L o� IIssiateaance o� all pr opexty so uaed. 6. As part o� the conaidexation �ox thie Aeed� the Gxanres caven+�ata and agrees for 'itselL, its euccesaors and assigna, that ' (I,) the prograro Ear ox in coanection �a,�th which tbia Deed i� made will be condut�Ced in camplia�ca with, and the Gxantee� it8 suces�� sors aad assigns� will �comply with a1i reyu3reme�ta imposed by or puraua�tt to the regulations of the Department of the xnteriox ae in e£fect ou the dat� of th�s Dead (43 C.F.R. Part 17) issued under tha provisions of TiCle VI of tha Civi1 Righta Act o£ 1964; ' (2) this covsnant sha 11 be eubjecC ia aIl respecCs to tha provi- s1.ox�s of said regulat3one; (3) Che Grantes, its succesaore and aesigns, wil]. promptly take and coaki,nue ta takes such actian as may ba nec�ssary to �f£ectt�aCe this covanant; (4) the United States sfia21 have th� rigiit t� seak �udici�l enfoxcacnent o€ Chia covananC, an�3 (5) tha Gxantee, fta succesaors and aeaigns, wi11 (a) oboain ixdw eacb otlier person (any lega;. en�3.ty) wnv, �hxough 3 - REEI'�.2FR�,�891 0 0 r �� 0 � contractual or other arrangemeate wi.th the Grantee, LCS successora or assig�s, ie auChoriaed to provida sexvicas or benefiCs under said pro�raas� a writiten egr eemeat pursuant to which avch otheY pexaon at:all, with xespect to the sarvicea oz bene£�its which he ia author- 3.zed to provide, uudertn ke �or h3maelP the sama obligations ae thoae impased upoa tho Grant e�, ita anccessoxa and aseigas, by this oove- nant, ead (h) fur�ish a copy bf such agraemen� ta the Secretary of the xnteriaz, or hia sucaessar; and that this cove+nsnt ahall run wixh the land i:er�by aonveyed, a»d ahAll in any event, without re- gard �o teahni,cal clasai�i,cation or deaignation, legal or o�herwisa, be binding to xhe full�est extent parmi,tted by law end equity foz xhe beae.fit of, and 3n favor of the Grantor end eafozceable by tha Gran» �or ag,ainst the Gzantec�, ite successors and asaigns. 7. In the even� thexe is a breach of any of tha condit�oae and covenants beretn caatained by the Gxantee, its aucceasore and as- aigna, whethar caused by �he legal ar other ina�iliCy o� the Gxantee, i�s sueaessoxe and ass ig�s, to perfarm sai.d conditiona and covenants, or athexwiae, rtl2 righ� � title and intereat i.n and tio the eaid gzem- isee ah�ll xeverG to aad becoma the pzoperty of the CrBntox at ita op�f.on, whieh in addi,�ian to all otber remedieg for s�ch bxeach s�a11 have the xight o� entry upaa eai,d pzemisea, and the Granteo, 3.Ca gucaesaor� and assigas, s,hall #orfeit ali r3.ght, ti.tlo aad inCer- est i.a said pr�cnisea and ia any �nd a11 0£ the tetieaente, hcsredita- ments and appuztenances thereu�to belonging; pxovided, howaver, that the �ailuxe �£ Che Secretazy oP the DepBxtm�nt of tke Tntexior to xequira in anp oae or mare iastancetv complete perforawnce of any oP tha conditione or cavenaats ahali not be conatrued ae a waiver ox rel�aqui.�hc�ent of �uch future perfarmance, but the ob2igations of the Grantee, its eucaessors and assigns, with xespect to �uch future perforu�ance sha11 aontinue in fvll f�Yrce and ePfect. 4 `` ' REEt ° 12�Bie92 � 3 i � � r f � � w Y���gg ���pp�, the Gxantor has caus�sd Eheae presente , to be executed in ita narne and on its behalf Chie Che �' day o# G��� s 1g 7 / � �`� UffITED STATES Ol� At�EItYCA Acting by and Chrough the , Secretary of Che xnteri.or B G /G��'�,�.� Acting Regional rector Northwest ftegLon Ruteau oR Outdoor ItecxeaLion STATB OF Wl1SHINGTON � 8s. �ounty o� � � Qn thie �',�a�'.._ day of /�ri�fL , 19,,�,, befor� ma, the subs.cxittex � personal2y appeaxed E, �3. AL'LI:N, xo mA knowa and kaown to be the Ack�n� �te8�ona1 Dixeatox�, NarthwesC Region, 33areau of Ou'tddor R�cr�a�ion,' of �he Uni.Cad SLatE�s Department o� the Ynte�- ior, a go�ernmental age�GY of the United Statea of Ame�r�ca, and � t�y m8 kp be tba a�+mn p�xean d�cribed its and wiio executed the Pbr�&o�ng ��ttument t�s BuCh Actiaig ROgiOnal D�T�Ctax a�oreyaid, as ,th�, acx and dee,d oE the uni.ead Sta�ea o� America, £or and an beR half o$' �he 5�creCary of the xtiteriar, du�,y designated� empaW��+ad;� ���„�� and at�khax`ized so to do by ar�id� SearteCa�Y, and he ac�Cnow�ed'�"�h�►C,� he ex�cu�ed,Che �fnra�o�xa8 ��tx��C �oY and n bchaif o ��. •.� Statee of Amarica, for t�tA purpoaeq an u hera d_ �.�� �, �' �, �� �`� ; v+ " *� �'� '�t • � � � ax r 1i.c an� +� Q �r� . S�ate o� W�BH 8�n•'L . . ,��., ,� a 1* �" . '� ;� �•�-�,,,,,,,,, ,, ,,, The i'oxegoi.ng� conveyanae is hereby xccepCed and tba under- ai,�ed �grees, by thia gaceptauce, to assume snd be bownd by all tt�e oblig�tions� aonditiona , conenan,te� and agneemepta Che�ei.n aoarained. AT'i'EST: ,.-� ..- ,, ,.+� ,• a c� o •y� rJ ,. � ` , y � �*�tR N, , 6„ � . ti.� 4� � �'�� � • � ,, n g, 4 � o V �,, �. � , r, o Ft � . �'� : �' c � :+- . , �a s . ` �a G , � , � � �4tt'� 6 y � " : > �` p��' � ` '`Y , ' a ' ��,��� �r r a0 �R �w'� E.! � ; , �� � �CI'�ag..P'� \`\' r ` ,i�r� � ���� ��ti 5 The CITY 0� BREMERTON, a municipa� cozpoxation, located i.n Kitsap CounCy $tate of Waah�n�� ay xuscsicw r�.�au��.8�.0�� tendent, Depar�ment $nd itee�e��ian REEi "1�FRie93 ____.� ____ , _ _ __________ , ---.-_--- -- - \ � �o ; u ance and Co aign thai,r namea t eze � „ ��+,�.,,,,,. , names �hereto and acknowledge t�at they executed tk�a for�go�n ��.q� •a, . ti....� stru�menC for and an beha�lf o� tne di�y of Ere ton, Wash� ����� ., O� for the puxposae as�d uses therein deacril�d, ; J� ���'�y � ///� � . __�� t,�' � �; � ; r 5TATE OF WASHINGTON ) � � 98 . County of Kitsap ) On thie day of ,�, ����.�.. � 14lL� be£ore ma, .ZLIL_ � -- the undersign�d 0£ficar, peraanally appeared G2ean K. Jaratad and AndreW Pender�ast� Co mes kno'ws� and known to me to be th9 mame pexsona whoes namea �re subscrib ed to the foregbiag accaptance� wha betng by ma duly aworn, did depos e and say that he, Clann K. JarsCad, is �he Mayox, and thak he, Andr ew Pendergast, ia tha Superi.s►tendent of Cha Deparkment a£ Parlca and RoasceCioa of the City of Bremerton, Washiug- tcn� GbaC they are dulq defsignaCed, empowered, and authori2ed by a xeaolution adop�ed by ttae City Counail o� the BiCy af Bremexton, Wash3.ngCOn, on Aecember 30, ].97Q, to eacecute ehe foregoing accept- h to• aad Chat xhey ei.gnsd thai�� State of Was a�: ��S'�i�; � �w .. �.uo; �'�i� ��� `� � .9 ' r� . ''• �� p• ' � r- 6 BEEt'�.2FBf.894 / rp I ' /; I 1 A v��, n�sc�aox ._..... n�a►� ����� D�scr�.bad fo south sido of aii3ea�alk alang south aide of Magnuson Way and 5chTay BouZevard. gepirm�iug at a concrst�e mozrucaaat; a� the oenter of Secti�on 12, To�. ' sb�.p 21s �1ort�►, �ga 1 F�st� '41.�1. eaid ceater o� eaid Soction 12 baing approximately a�L tha �s►tsrsec�ion o8 th0 contar ltnea c�Y ' Scbloy Bou].evard and Texa7.f'E3i Avenue; 't�k+once South 2 t�ost ?.�1�.10$� �est �to the true� poiat o� beg�e�ixs�3 thancs Bouth 2�01�25u Y:ast 1050.70 �'oet t�o a concreta asonumeat, sa�.d uwuument l�oing oa the 8ea�or� liae dividir�g 5ect3�one 12 and 13 a� a point apgsaximately z�haro tb�se cant�rlisie o� Scl�.sy Boulevard intexeeata said 8sc��oz► ].�ssg; thence Soufi,}� 1 W�at 242.23 fset, more or �ess, to north sic3s a� Stats Secaandary t3lg�sxa�Y No. 3a3; thence North 70 27i1��N l:�eet a3.ong the northerly side oY eaid Iiigh�ay 299 teet; thenae Sout3� 19�92�20" t:sat a].or�g s�rest,sr�,p ai.de o� said Higla�aaq 5Q fget; �honco in a north�eater3y d3rectian aloz►g tba nflrtharly o3�de o� said 13i�hc�r�y on a curva o� radias 5�? •97 teet a d3.stance o� 227.32 fee�; t�so�ca along said HighLa�y Nomth !tb°,�y].�1i0" tdoat 136 .28 Peet; �6�honae North 87 Wost ?.d0 Peets t,heaae along tha �northeasfisacly aide oS sa�d �iigh�ray North d�? �Aoa� 163.21 feot; thenoe No�th 1�,3°18=,I�O�� i�.�at 58.1�3 �'eet� more o�r 1e�s, t,o a point on t�ta,back of tt�e aidet�allt along the, �ao�nh $ido o£' �Samer x. Jonea Ih'�4fly thence � ao�coos sa3.d d�r3vo Idorth 23 05' 29" �et 1A3 �'eet� more ox 1eea, to a pois�t on the baok o� tha e3dettallc on the north side; tt�nce along the back oP the side�al� on a curv'e ta the right on a radius oY 1�8.6$ Yea� a diatance o� 1t�+•� �'68t; tl�ence �lorag bacl� oY eidawslk ' rrorth i!� Weat 7Zo� �'ep�; '�tence a3ang back o� eidet9alk on a curve ta the r3ght rr�.th a�adius oY l�61.5 �ee�; a dietance of . 216.78 feot9 �Lhenca alorlg bsck o� aide�a].k North 12 Eaet ' 1o5,5fi �aot; td�ence al.ozag bacic o� aidawalic on a cuiroe to the rigt�t tr?th a rgdius o£ 6�1.5 �aet a die�ance oY 227.�+7 �sat� continus ,, along back of aidewalk on a curvo to the r3gh� taith radiina 1.�1.31 Seat a d3at,anaa of 273 .?9 �'eet; td�ence North 68 39" Eas� 21b.2b �eet crosaiug tiomer S. Jones Ax'�qe a� �.n�t�eraection t7it1� Schloy �oulevard; �henaa oa a cu�e 'Eo 'Ghe l.�£t yr.l.fi�k► e racl�.us af 1�2?.72 3e�t a diatance of b3.23 �'ee'�3 ��enca Soutiz 29 �xr�� 78eS �eet; t�once South 8?�5 35" �aat 139 ,5 Yeet� mare ax `sosa cr� �xue po3nt o£ bog5�n�►g, aontaining apPrwcimatc�l.y 18.1 acras, .e:tcap ��a rirea u'esignatad aa "Muxai-c3.pa1 Eucea" doscribed as fa3.�ovsa , EXHIBIT A , ; � I 5 � � �Efk `12F�18�� / �. � , � . 1 � a � � LEOAS� D�CftT�TIQ13 - lIR�A uAu (Contiz►uQd) 1►n a�aa daaignatad aa "Mux�i.aipal �xo�'� pn the site oY ttia �aotparit I�ous�xsg �ro3oat� ir19SK-1�5041� in tha City of Bremerta�n, Coun�y o� Ki.t�ap, St+�ta o� l•Jash�agton, �nore part�.cu�.axl�' �escribod a� fo3.loc�s i Ba�inn�� at a point which bears Noxth 2o01s25" Eaet fro�n the � . secfi�ion caz�ner o� Sectians 12 a�d ].3, Townehip 21� Nor� RFnge Enat Lf:1�lt�mette Meridion, a d�stance oY 20 feet; tk�enco �Tortla � f' 87°52°56p �tast 20 feet to �0 true poiut oY beg�u►ing anci tkte ` t;oat�x�.y margin of 3�eY ���3 theace lIorth 2 East 350 �eet along td�e �reater�,y ma�sgin o£ 8ch].oy Eflu�evarsi; thence ' Nort,ti 8? t+Jaat 3� footf thenas South 2�O1i25" [Iost �00 geet; , t�onc� Sen�th 21t West 183 ��3 thenao South 2�O�i25u . �?�s� 80 foat to a 7�ine W�� �� p���l '�O � 20 �eet aor�td► o� �t►e n� lins of 8ection 1,33 '�a�� s�g87��t� acr� moss or 3oss. �hs true point of beB�a Sub�eat to oaseaaents for road pur�oees along �a ear��t bonndary and ' �long t,hc� soa�th line of eaid Secti.�n 12; to Eeaement dated 29 Novomber 1913 to O�,Y�P� �o�� �0��� recorded �.n Valw�a 89 0� Doads, Paga 53aand�cords o� IC1.teap G�un�y� T�?ashingto�t; Easeaient da�Led 26 1�pr�. �929 to Puget Sour�d Poorer & I.i.�ht �� � reaordoa ia Book 168, Page 223, roao�d� oY KLtetap Count,y , . , G c 0 a � a � � Flfrd far Ra4brd ` '�� �.L��-`' R � OS THEOOORE wR f D Co nhr A 4COt '�" REEI�'3.2F�18�6 � � s. , .,.,. �, , .r � A DATE (MM/DD/YYYY) AGENCY PHONE (A/C, No, Ext): COMPANY E-MAIL ADDRESS: FAX (A/C, No): CODE:SUB CODE: AGENCY CUSTOMER ID #: INSURED LOAN NUMBER POLICY NUMBER EFFECTIVE DATE EXPIRATION DATE THIS REPLACES PRIOR EVIDENCE DATED: LOCATION/DESCRIPTION COVERAGE/PERILS/FORMS AMOUNT OF INSURANCE DEDUCTIBLE NAME AND ADDRESS AUTHORIZED REPRESENTATIVE CONTINUED UNTIL TERMINATED IF CHECKED MORTGAGEE ADDITIONAL INSURED LOSS PAYEE LOAN # THIS EVIDENCE OF PROPERTY INSURANCE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE ADDITIONAL INTEREST NAMED BELOW. THIS EVIDENCE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS EVIDENCE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE ADDITIONAL INTEREST. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. PROPERTY INFORMATION COVERAGE INFORMATION REMARKS (Including Special Conditions) CANCELLATION ADDITIONAL INTEREST ACORD 27 (2009/12) 1 of © 1993-2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS EVIDENCE OF PROPERTY INSURANCE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ACORDTM EVIDENCE OF PROPERTY INSURANCE YMCAPIE 11/18/2020 USI Insurance Services NW 601 Union St. Suite 1000 Seattle, WA 98101 206 441-6300 1617813 kevin.swiryn@usi.com Great American Insurance Company YMCA of Pierce and Kitsap Counties 4717 S 19th St Ste 201 Tacoma, WA 98405-1167 PAC327464100 12/31/19 12/31/20 Location #1 REFER TO SOV Tacoma, WA 98465-2122 Blanket Building Limit $246,416,560 $10,000 Blanket Business Personal Property $30,596,750 $10,000 Blanket Business Income $62,351,719 24 Hours 100% Coinsurance, Agreed Value Special Form, Replacement Cost Earthquake Limits Everest Indemnity #8400007695-191 $10,000,000 $50,000/5% City of Bremerton 345 6th St., Ste 100 Bremerton, WA 98337 X 1 S 1105202 TOEJU Client#: 1617813 YMCAPIE ACORD. CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 12/24/2020 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER, IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer any rights to the certificate holder in lieu of such endorsement(s). PRODUCER USI Insurance Services NW 601 Union St. Suite 1000 Seattle, WA 98101 206 441-6300 INSURED a 206 731-1200 INSURERS) AFFORDING COVERAGE JAN 0 4 2020 IINSURER A: Great American Insurance Company YMCA of Pierce and Kitsap Counties City of Bremerton acoma, WA 98405=1167 4Risk Management T 717 S 19th St Ste 201 COVERAGES CERTIFICATE Nl1MRFR• INSURER B : Ohio CaSUalty Insurance Company D: E: NAIC # 16691 24074 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSR ADDL SU8 POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER MMIDD MM/DD LIMITS A A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE OCCUR WA STOPGAP* X X X X PAC327464101 CAP327464201 12/31/2020 12/31/2020 07/01/2021 07/01/2021 EACH OCCURRENCE $1,0009000 PREMISES Ea RENTED $100,000 X MED EXP (Anyone person) $ 5,000 PERSONAL & ADV INJURY $110001000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY ECOT Fx] LOC OTHER: AUTOMOBILE LIABILITY X ANYAUTO OWNED SCHEDULED AUTOS ONLY AUTOS HIRED NON -OWNED X X AUTOS ONLY AUTOS ONLY GENERAL AGGREGATE $3,000,000 PRODUCTS - COMP/OP AGG $3,000,000 STOPGAP* COMBINED tSINGLE LIMIT $11000,000 1,0001000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ $ A B X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE X X NIA X X UMB327464301 ECO215935894 12/31/2020 12/31/2020 07/01/2021 07/01/2021 EACH OCCURRENCE $10OOO OOO �( AGGREGATE $1 O 00O 000 DED X RETENTION $1U 000 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y/ N ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below $5M x $10M PER OTH- S UTE I JER $5 000 000 E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Certificate Holder is named as Additional Insured as it relates to General Liability in accordance with the terms and conditions of the policy. City of Bremerton , 345 6th St., Suite 100 BremertonWA 98337 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) 1 of 1 The ACORD name and logo are registered marks of ACORD #S30741601/M30740345 pp�p