HomeMy WebLinkAboutYMCA concession extension 3rd amendment - Final CLEAN version.docxThird Amendment to the Concession and Management Agreement YMCA of Pierce
and Kitsap Counties
THIRD AMENDMENT TO THE
CONCESSION AND MANAGEMENT
AGREEMENT BETWEEN
CITY OF BREMERTON
AND
YMCA OF PIERCE AND KITSAP COUNTIES
DocuSign Envelope ID: 953B9A54-9A47-4236-B9D4-AA6AA5E07692
Third Amendment to the Concession and Management Agreement YMCA of Pierce
and Kitsap Counties
THIS THIRD AMENDMENT (“Third Amendment”) TO THE CONCESSION AND
MANAGEMENT AGREEMENT ("Agreement") is made effective as of October 1, 2021 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") below, collectively referred to collectively as the
"Parties."
RECITALS
WHEREAS, the parties entered into a Concession and Management Agreement effective
October 10, 2011 (the “Agreement”); and
WHEREAS, the parties agreed December 4, 2020, to extend the original term of the current
Concession and Management agreement to June 30, 2021 (the “First Amendment”); and
WHEREAS, on March 1, 2021, the YMCA exercised its right to terminate the Agreement
relative only to the Glenn Jarstad Aquatic Center (“Pool Management”) pursuant to certain
termination notice (“Notice”) under Section 4.5.6 of the Agreement, and by letter, dated
March 5, 2021, the City accepted said Notice pursuant to Section 4.5.6 and Section 2.2.2 of
the Agreement;
WHEREAS, during the 90 days’ notice of termination period that expired May 31, 2021,
the YMCA and the City entered into negotiations concerning terms and conditions of a
possible pool management agreement going forward, addressing, in particular, certain
known Extraordinary Expenses, as that term is defined in the Agreement;
WHEREAS, Section 4.5.6 of the Agreement contemplates that following such Notice, the
Parties may attempt to negotiate a path forward on new or different terms. Unfortunately,
the Parties were unable to reach agreement during said Notice period;
WHEREAS, effective May 31, 2021, the Parties agreed in that certain Second Amendment
to and Reinstatement of the Agreement, fully and formally executed June 30, 2021, (the
“Second Amendment”) to extend the term of the operations portion of the Concession Area
& YMCA Recreational Center (as defined in the Agreement) to December 31, 2021 and to
extend the Pool Management Agreement to September 30, 2021 due to a desire to continue
discussion for a short period of time; and
WHEREAS, furthermore, the Parties desire to extend the Pool Management portion of the
Agreement (as defined in the Agreement) through December 31, 2021 in order to align with
the current expiration date of the operations portion of the Concessions Area and YMCA
Recreational Center (as defined in the Agreement) and to allow for continued discussion
pursuant to Section 4.5.6 of the Agreement, which the parties have agreed will take place
through mediation.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by the Parties, the Agreement is amended as follows:
DocuSign Envelope ID: 953B9A54-9A47-4236-B9D4-AA6AA5E07692
Third Amendment to the Concession and Management Agreement YMCA of Pierce
and Kitsap Counties
1. Recitals; Definitions. All of the above recitals are incorporated herein and made a part
hereof as if first stated herein. All of the defined terms herein shall have the meaning ascribed
thereto in the Agreement unless otherwise defined herein.
2. Amendment. The City acknowledges and agrees that on March 1, 2021 the YMCA
timely exercised its right to terminate the Pool Management portion of the Agreement under
Sections 4.5.6 of the Agreement by the giving of certain Notice described above, and that on
March 5, 2021, the City, by letter to the YMCA, confirmed and accepted such termination Notice
relative to the Pool Management. The City further acknowledges that the effective date of such
termination Notice was May 31, 2021. Notwithstanding such termination, the Parties previously
agreed, in the certain Second Amendment described above, to reinstate the Pool Management
portion of the Agreement effective May 31, 2021. The Parties now hereby agree to extend the
term of the Pool Management portion of the Agreement again to expire December 31, 2021(the
“Extended Term”), to allow the parties to serve the community while also allowing the parties to
negotiate a longer term for the Pool management portion of the Agreement, or otherwise reach a
final disposition in this matter. The Concession Area/YMCA Recreation Center operations
portion of the Agreement remains unchanged, as determined in the Second Amendment and will
expire December 31, 2021.
3. Management Expenses & Termination Due to the procedural posture of this
Amendment, and the rights already exercised by the YMCA and the City under Sections 4.5.6 ,
the Parties agree that the YMCA will not be responsible for Extraordinary Expenses, whether by
virtue of this Amendment or otherwise, nor shall it be required to incur or expend or be
responsible for any Extraordinary Expense amounts (as defined in Section 4.5.6 of the
Agreement) merely by virtue of or during the extended terms of this Amendment. For the
avoidance of doubt, the YMCA shall not lose any rights, but shall retain all rights, available to it
by virtue of having given the Notice, including but not limited to those related to Extraordinary
Expenses. Further, should the Parties not reach agreement during the Extended Term on pool
management and Extraordinary Expenses for a more permanent pool management arrangement
going forward after the expiration of this Extended Term, then: (i) the YMCA’s right of
termination, already exercised, will nonetheless be honored, unaltered, unamended, and
unaffected by this Amendment and will not need to be re-exercised; and (ii) the new effective
date of the Notice will be deemed extended to December 31, 2021.
In the event of any conflict between the terms of this Amendment and the terms of the
Agreement, the terms of this Amendment shall control and be binding on the Parties hereto.
Nothing in this Amendment shall alter or amend the Agreement other than as stated herein.
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.
Signature page to follow
DocuSign Envelope ID: 953B9A54-9A47-4236-B9D4-AA6AA5E07692
Third Amendment to the Concession and Management Agreement YMCA of Pierce
and Kitsap Counties
CITY OF BREMERTON
YMCA OF PIERCE AND KITSAP
COUNTIES
Signature:_______________________
Signature:_______________________
Title:___________________________
Title:___________________________
Date:___________________________
Date:___________________________
Approved as to Form:
Approved as to Form:
City of Bremerton Attorney
Attorney
DocuSign Envelope ID: 953B9A54-9A47-4236-B9D4-AA6AA5E07692
9/30/2021
Charlie Davis President and CEO
9/30/2021
Greg Wheeler Mayor