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HomeMy WebLinkAboutFifth Amendment Final (3.17.22).docx FIFTH AMENDMENT TO THE CONCESSION AND MANAGEMENT AGREEMENT BETWEEN CITY OF BREMERTON AND YMCA OF PIERCE AND KITSAP COUNTIES DocuSign Envelope ID: 99E543AC-0F2F-45B9-8DE3-3863B565C3FB THIS FIFTH AMENDMENT (“Fifth Amendment”) TO THE CONCESSION AND MANAGEMENT AGREEMENT ("Agreement") is made effective as of March 19, 2022 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 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, effective October 1, 2021, the Parties agreed in that certain Third Amendment of the Concession and Management Agreement (the “Third Amendment”) to extend the Pool Management portion of the Agreement through December 31, 2021 in order to align with the expiration date of the operations portion of the Concession Area and YMCA Recreational Center and to allow for continued discussion pursuant to Section 4.5.6 of the Agreement, which the parties agreed would take place through mediation. WHEREAS, effective January 1, 2022, the Parties agreed in that certain Fourth Amendment of the Concession and Management Agreement (the “Fourth Amendment”) to extend the terms of both the Pool Management portion of the Agreement (as defined in the Agreement) as well as the operations portion of the Concession Area and YMCA DocuSign Envelope ID: 99E543AC-0F2F-45B9-8DE3-3863B565C3FB Recreational Center (as defined in the Agreement) (collectively, the “Facilities”) through March 18, 2022. The Parties agreed to continue discussion pursuant to Section 4.5.6 of the Agreement; and WHEREAS, furthermore, the Parties desire to extend the term of the Agreement for the Facilities through May 6, 2022 in order to continue discussion pursuant to Section 4.5.6 of the Agreement. However, should the parties reach agreement on mutually acceptable terms, and the terms are subsequently ratified by the Bremerton City Council and YMCA’s Board of Directors, respectively, and approved by NPS pursuant to Section 8.12 of the Agreement, this temporary extension shall terminate and the new agreed upon terms, if any, shall be controlling as of the latest date of the aforementioned approval(s). 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: 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. Currently, the term of the entire Agreement expires March 18, 2022 (the “Extended Term”). The Parties now hereby agree to extend the terms of the Pool Management portion of the Agreement, as well as the Concession Area/YMCA Recreation Center operations portion of the Agreement, again to expire May 6, (the “New Extended Term”), to allow the Parties to serve the community while also allowing the Parties to negotiate a longer term for both portions of the Agreement, or otherwise reach a final disposition in this matter. 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 New Extended Term on pool management and Extraordinary Expenses for a more permanent pool management arrangement going forward after the expiration of this New 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 DocuSign Envelope ID: 99E543AC-0F2F-45B9-8DE3-3863B565C3FB date of the Notice will be deemed extended to May 6, 2022. The YMCA desires, and the City agrees, that the YMCA’s agreed total contribution during this New Extended Term shall be limited to a total of $4,133 per month toward repair and/or replacement of existing systems and Extraordinary Expenses. This shall include, but not be limited to, items such as water pump(s), leaks, HVAC system, etc. This amount shall be spread equally by the YMCA on a monthly basis toward repair/replacement work, should it become necessary. General operational maintenance remains the sole obligation of the YMCA and is not included in the above agreed maintenance contribution monthly limitation. General operational maintenance includes things such as, but not limited to, general operating supplies, water quality testing and related supplies, cleaning and janitorial supplies, lighting and electrical maintenance, utilities, pool equipment, pool filtration maintenance, chemical feed system maintenance, heating system maintenance and electrical system maintenance but specifically excludes leaking roofs, water penetration in the walls, and brick/masonry work and other repairs of a structural nature. Should repair, additional maintenance, and/or replacement of existing systems that exceed the YMCA’s $4,133 maximum monthly contribution become necessary, the obligation to pay for, compensate the YMCA for, or otherwise proceed with such repairs and/or replacement shall not transfer to the City; provided however, the City may, at its sole option, pay for and proceed with such repairs and/or replacement at its own expense. In addition, either party may elect to terminate this lease with ten (10) business days notice to the other, or such shorter period as may be reasonably necessary to protect the health and safety of the public and patrons of the Pool and Recreational Center. For the avoidance of doubt, neither the YMCA nor the City shall have any obligation to repair, maintain, and/or replace any existing systems, even if such refusal results in the closure of the facility due to said necessary repairs. If safety concerns exist regarding either the Glenn Jarstad Aquatic Center or the Concession Area and YMCA Recreational Center (as defined in the Agreement), either the YMCA or the City may, at its reasonable discretion, close the facility for said safety concerns. Furthermore, any press release regarding closure of either part of the facility shall be jointly and mutually agreed upon by the Parties prior to its joint release. 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: 99E543AC-0F2F-45B9-8DE3-3863B565C3FB 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: 99E543AC-0F2F-45B9-8DE3-3863B565C3FB 3/18/2022 President and CEO 3/18/2022 Mayor