HomeMy WebLinkAbout1 - Original Submission_ Sixth Amendent FINAL 3.23.2022SIXTH AMENDMENT TO THE
CONCESSION AND MANAGEMENT
AGREEMENT BETWEEN
CITY OF BREMERTON
AND
YMCA OF PIERCE AND KITSAP COUNTIES
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THIS SIXTH AMENDMENT (“Sixth Amendment”) TO THE CONCESSION AND
MANAGEMENT AGREEMENT ("Agreement") is made effective as of May 6, 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 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; and
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; and
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; and
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; and
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
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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, effective March 19, 2022, the Parties agreed in that certain Fifth Amendment
of the Concession and Management Agreement (the “Fifth Amendment”) to extend the
terms of the Facilities through May 6, 2022, in order to continue discussion pursuant to
Section 4.5.6 of the Agreement. The Parties further agreed that should mutually acceptable
terms be reached and 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, the new agreed upon terms contained in this Sixth Amendment shall be
controlling as of the last date of the aforementioned approval(s); and
WHEREAS, the Parties desire to extend the term of the Agreement for the Facilities
through March 31, 2024, with five (5) one-year options to renew and amend and update
certain portions of the Agreement. The intent of this extension is that the YMCA will wind
down operations at this site and during this time attempt in good faith to locate an acceptable
alternative site and fundraise in furtherance of relocating to the alternative site. At the end
of the extended Term, the City will regain possession of the Pool Facility and Recreation
Center.
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; Amendment. 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. The Agreement shall be
amended as follows:
2. Article 2 of the Agreement shall be amended as follows:
2.1 Term. Section 2.1 of the Agreement is hereby amended to read as follows:
The term of this Agreement as it applies to the Facilities, shall be extended to expire on
March 31, 2024, subject to the options to renew set forth below.
2.2 Option to Renew. Section 2.2 of the Agreement is hereby amended to read as
follows:
2.2.1 Exercising Option.
The YMCA shall have five (5) successive one (1) year options to renew this
Agreement, contingent upon the YMCA remaining in full compliance with the terms and
conditions of this Agreement. To execute an option for renewal, the YMCA, not more than 180
days and not less than 120 days prior to expiration of the then current term, shall give written
notice to the City that the YMCA is exercising the YMCA’s option for an additional one (1) year
term. The option will become effective upon receipt by the CITY of the YMCA’s written notice
and sworn affidavit and written acknowledgement by the City that such option has been properly
exercised. If the option(s) to renew is not timely and properly exercised, then the Agreement
shall expire at the conclusion of the then expiring term. Options for the YMCA Recreation
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Center (as defined in the Agreement) may be exercised independently of an option to renew the
Pool Management so that the Recreation Center can remain open and under the operation and
management of the YMCA even if the Pool is closed (temporarily or permanently) or no longer
being managed by the YMCA for any reason.
2.2.2 Pool Contingency – Option to Terminate. Section 2.2.2 of the
Agreement is hereby amended to read as follows:
The CITY has the option to terminate the YMCA’s operation, management and
maintenance of the Pool from this Agreement upon receipt of the YMCA’s notice to exercise its
option in Section 2.2.1 above or upon 90 days prior written notice to the YMCA, provided
however, that the YMCA will receive reimbursement for the unamortized portion of the cost of
any capital improvements that the YMCA puts into the Facilities between the date of this
Agreement (October 10, 2011) and the date of the termination, on an agreed upon pro rata basis
taking into consideration the amount of improvements and the timing during the term of the
Agreement that the improvements were made. Should the CITY exercise this option taking over
responsibility for the Pool’s management, operation and maintenance, and further, should the
City decide to keep the Pool open, the parties may, but shall not be required to enter into an
agreement for the YMCA’s access and use of the Pool. Furthermore, the Option to Terminate is
subject to the terms and conditions of Article 4.5.1.
2.3. Section 2.3 of the Agreement shall remain unchanged.
2.4. Section 2.4 of the Agreement shall remain unchanged.
3. Article 3 of the Agreement shall be amended as follows:
3.1. Section 3.1.1 b) of the Agreement entitled “City Subsidy” is hereby amended to
read as follows:
3.1.1 b) CITY Subsidy. As additional consideration, the YMCA shall operate, manage
and maintain the CITY’s Pool as provided in Section 3.2 below. Recognizing that the operation,
management and maintenance, including previous capital improvements made to the Pool,
results in a deficit budget balance, as long as the YMCA operates, manages and maintains the
Pool as provided for in Section 3.2, the Concession Fee owed to the City, as adjusted by the
annual CPI, shall be credited in full to the YMCA for such operation, management and
maintenance and no Concession Fee shall be paid to the CITY. In addition, the City will provide
an annual operating subsidy subject to adjustment, as set forth below, as follows: 2022 through
the remaining term, including options, of this Concession - pay YMCA $37,288.00, thereafter
adjusted annually by the CPI pursuant to Section 3.1.2 below. Conversely, should the YMCA
cease to operate, manage and maintain the Pool as provided for in Section 3.2 and the
management and operation of the Pool by the YMCA is terminated pursuant to the terms of this
Agreement, the Concession Fee, as provided for in Section 3.1.1 a) of the Agreement, and as
adjusted by the annual CPI, will be credited on a pro rata basis as described above, and thereafter
said effective date of termination, the City will no longer pay an annual operating subsidy to the
YMCA.
Section 3.1.1 c) of the Agreement shall remain unchanged.
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Section 3.1.1 d) of the Agreement is hereby deleted in its entirety and governed by the
new Section 3.1.1 b) above.
Section 3.1.2 (CPI) is hereby amended to read as follows: “The annual concession fee
shall be adjusted every year during the term of this Agreement based upon the prior year’s
Consumer Price Index (CPI) for all urban consumers as published by the United States
Department of Labor for Seattle-Tacoma-Bellevue, all items (1982-84=100). For purposes of
the CPI adjustment, the base shall be the June 2021 CPI index, from June to June every year
thereafter during the term of this Agreement. The CPI adjustment shall occur on the following
January 1st of each year during the term of the Agreement. There shall be no decrease in the
concession fee for a negative CPI.
Section 3.1.3 shall remain unchanged.
Section 3.2.1 e) of the Agreement regarding public access to the Pool and entitled
“YMCA Responsibilities and Obligations” is removed in its entirety and replaced with the
following:
e) Public Access: The YMCA shall provide additional public access to its facility
which shall include, but not be limited to, the following:
- Free access to all Bremerton residents on April 30th, 2022 (YMCA National Healthy
Kids Day)
- Any Bremerton resident can purchase a day pass or family pass to use the YMCA
Recreation Area and Pool
- Any Bremerton resident can utilize up to three (3) free YMCA guest passes per year,
per household
- The YMCA shall honor passes/vouchers allowing Bremerton residents to use the Pool
and YMCA facilities twelve (12) times per year, on a monthly basis, free of cost or
commitment to join the YMCA.
- Tracking: The parties shall collaborate in order to determine the best and most efficient
method to track how often Bremerton residents are utilizing this increased public access.
This data shall be furnished by the YMCA to the CITY on a quarterly basis.
- The Parties agree that public access can be reexamined and increased based on several
factors including, but not limited to, the following:
- Pursuant to Article 4.5.1 of this Agreement, if the City is made aware of and
decides to financially undertake a repair that it would not otherwise be obligated to
expend funds on.
- If the City increases the subsidy in Article 3.1.1 b) provided to the YMCA.
- For any other reason, benefit, or change to this Agreement the Parties deem
appropriate to reexamine this public access portion.
Section 3.2.1 k) of the Agreement, regarding capital improvement funds and entitled
“YMCA Responsibilities and Obligations” is hereby amended as follows:
k) The YMCA shall have no obligation to seek long term capital improvement funds.
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Section 3.2.2 is deleted in its entirety.
Section 3.2.3 is deleted in its entirety.
Except as amended herein, all other provisions of Section 3.2 shall remain unchanged.
4. Article 4 is hereby amended as follows:
Sections 4.1 and 4.2 of the Agreement shall remain unchanged.
Section 4.3 of the Agreement is hereby deleted in its entirety and replaced with the
following: During the term of this Agreement, on a reasonably determined as needed basis, the
City may inspect the facility and its systems at the City’s sole cost and expense with reasonable
notice to the YMCA and at reasonable times, so as not to disrupt the patrons of the Facilities,
provided, any such notice shall be in writing and delivered to the YMCA at least 24 hours in
advance of any such inspection, detailing the scope of the inspection, the reason therefor, and
providing the YMCA the opportunity to have a YMCA Representative present during the
intended inspection. Any person or persons invited by the City may accompany City if the person
is reasonably necessary for the inspection. The YMCA reserves the right to object to any visitors
invited by the City if the objection is reasonably grounded and/or the YMCA reasonably has a
concern for safety, welfare or other harm that might result from the inspection/visitor. In the
event of an emergency, 24 hours notice shall not be required by the City. YMCA shall allow
NPS access, at reasonable times, to inspect any part of the Facilities subject to this Agreement.
In the event any damage results from the City’s inspection, the YMCA shall have no obligation
to repair such damage from its Contribution Limitation, and the City will take all reasonable
precaution so as not to damage the condition of the Facilities during such inspections.
Section 4.4 of the Agreement shall remain unchanged.
Section 4.5 of the Agreement entitled “Maintenance, Repair, & Improvements” is
hereby amended as follows:
4.5.1 Generally.
a) The YMCA desires, and the City agrees, that the YMCA’s agreed total
contribution during the Term of this Agreement shall be limited to a total of $50,000 per year
(which averages approximately $4,133 per month) (“Contribution Limitation”) toward routine
repair and/or replacement of existing systems done in the ordinary course of business of
operations (“Operation Expense”). The YMCA shall have no obligation to contribute anything
toward capital expenses or beyond the Contribution Limitation for Operation Expense. Examples
of Operation Expense include, but are not be limited to, items such as water pump(s), leaks,
HVAC system, heating, ventilating, air conditioning, mechanical, electrical, plumbing systems,
structural roof, walls, foundations, roof coverings, sprinkling and irrigation systems, playing
surfaces, subfloor etc. The YMCA anticipates spending on Operation Expense for repair and/or
replacements as and when they become necessary, up to the Contribution Limitation. Provided,
however, the YMCA may refuse to make any particular repair or replacement in any given month
if the total amount of the repair and/or replacement is reasonably anticipated to exceed the
monthly averaged contribution amount identified above (individually or collectively with other
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expenses anticipated or spent that month) and/or the annual contribution amount indicated above
(taking into account the amount of months and/or anticipated expenses between that time and the
end of that expense year).
b) General operational maintenance remains the sole obligation of the YMCA.
General operational maintenance is ordinary maintenance and repairs of a minor nature in size,
scope and expense. This might include, by way of example, and not intended to be exhaustive,
general operating supplies, water quality testing and related supplies, cleaning and janitorial
supplies, lighting and electrical maintenance, utility service, pool filtration maintenance,
chemical feed system maintenance. It would not include, and hereby specifically excludes,
leaking roofs, water penetration in the walls, brick/masonry work, heating and electrical
maintenance on the pool itself, and other repairs more of a structural nature.
c) Should the cost of Operation Expense exceed the YMCA’s Contribution
Limitation (such expenses referred to herein as an “Extraordinary Expense”), either party may
elect to terminate this Agreement 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 Concession Area (which shall include both the Pool and the YMCA Recreation Center),
and neither party shall have any obligation to the other for such anticipated Extraordinary
Expenses or the obligation to make such anticipated repairs or replacements. 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. Notwithstanding, the City may, at its sole option, pay for and proceed with
such repairs and/or replacement at its own expense. In addition, 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 on shorter notice to the other. Upon termination, the
City will be under no obligation to reimburse the YMCA for any costs which are incurred by the
YMCA for either the Pool or improvements to the Concession Area except as provided herein.
Neither the CITY nor the YMCA shall be required to incur or expend or be financially obligated
to undertake any Extraordinary Expense amounts, even if the result of the lack of repair and/or
funding of the Extraordinary Expense will result in closure of Pool, the Concession Area, or both.
Despite submitting a termination notice to the other party, the parties may, but shall not be
required to, negotiate for an extension of the Agreement term to allow for expenditure and
recovery of the Extraordinary Expense, for sharing of the Extraordinary Expense, or for any other
compromise that would allow the parties to keep the Agreement in effect.
d) In the event that the Facilities, in whole or in part, are closed, or this Agreement
terminates earlier than the expiration of the Term, any press release regarding closure of either
part of the facility shall be jointly and mutually agreed upon by the Parties prior to its release and
it shall be presented to the public as a joint release.
e) Should the Pool be closed prior to expiration of the Term of this Agreement, for
financial reasons, safety or health reasons, or otherwise pursuant to the terms of this Agreement,
the YMCA shall retain the ability to keep open and operate the Recreation Center for any amount
of time that remains under the Term, including Options to Renew under Article 2.2.1.
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f)YMCA shall further keep in repair and maintain as necessary all machinery,
equipment and facilities necessary for the playing of sports and the comfort of players.
Section 4.5.2 and 4.5.3 are hereby modified to state at the beginning of each, “Subject to
the Contribution Limitation set forth above,”… and the remainder of the provisions will be
unchanged.
Section 4.5.4 is hereby deleted in its entirety and replaced with the following: “Except as
otherwise provided for herein, any damage or injury to the Premises caused by the action,
inaction, activities or negligence of the City or its agents, representatives, employees, guests or
invitees shall be promptly repaired by the City at its sole cost and expense; similarly, except as
otherwise provided for herein, any damage or injury to the Premises caused by the action,
inaction, activities or negligence of the YMCA or its agents, representatives, employees, guests
or invitees shall be promptly repaired by the City at its sole cost and expense.
4.5.5 Pool Improvements. Section 4.5.5 of the Agreement is hereby deleted in its
entirety and replaced with the following: “The YMCA shall have no obligation to make capital
improvements to the Pool. However, should the YMCA make capital improvements to the Pool,
any such improvements shall immediately become the property of the CITY upon construction,
unless otherwise agreed. The YMCA shall have no interest in the improvements made to the
Pool by the YMCA, past or future, upon expiration or termination of this Agreement.”
4.5.6 Extraordinary Expenses – Section 4.5.6 of the Agreement is deleted in its
entirety.
Sections 4.6 through 4.10 shall remain unchanged.
Except as amended herein, Article 4 shall remain unchanged.
5.Article 5. Article 5 is amended as follows:
a.Section 5.1 is amended as follows: The first sentence of Section 5.1 shall remain.
The remainder of Section 5.1 shall be deleted in its entirety.
b.Section 5.2 is amended as follows: The first sentence of Section 5.2 shall remain.
The second sentence of Section 5.2 shall be made subject to the Contribution
Limitation set forth above.
c.Section 5.3 remains unchanged.
d.Section 5.4 remains unchanged.
6.Article 6. The entirety of Article 6 is hereby deleted.
7.Article 7. Article 7 is hereby amended as follows:
a.Section 7.3 is amended to include the following additional sentence at the end of the
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provision: “In the event this Agreement is terminated due to a right of reversion, the
City agrees to hold harmless and release the YMCA from any damages resulting from
such termination and reversion. This provision shall survive the expiration or earlier
termination of this Agreement.”
b. Section 7.4.1 is hereby amended to read as follows: “In the event the improvements
on the YMCA Recreation Center are destroyed or injured by fire, earthquake or other
casualty, then the YMCA shall have the option to terminate this Agreement and retain
any loss proceeds resulting from insurance coverage. The YMCA shall have no
obligation to rebuilt or restore the Premises and/or replace the improvements
damaged or destroyed by such casualty."
Except as amended herein, Article 7 shall remain unchanged.
8. Article 8. Article 8 is amended as follows:
a. Section 8.9 of the Agreement is hereby amended to read as follows:
8.9 Nondiscrimination
Parties shall not discriminate in employment or services to the public on the basis of age
(40+), sex, race, creed, color, national origin, sexual orientation/gender identity, marital status,
military status, or the presence of any physical, mental or sensory disability, and as otherwise
provided by state and federal law. The Parties shall not discriminate on the basis of disability in
programs and activities, which it operates pursuant to the requirements of the Americans with
Disabilities Act of 1990, and ADA Amendments Act. This policy extends to both employment
and admission to participation in the programs, services and activities of the Parties. Reasonable
accommodation for employees or applicants will be provided.
From and after the Effective Date of this Agreement, CITY and YMCA shall comply with all
federal laws relating to nondiscrimination in connection with any use, operation, program, or
activity on or related to the Premises, including but not limited to the following 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) Title VI of the Civil Rights Act of 1964, (c) the Age
Discrimination Act of 1975, (d) Section 504 of the Rehabilitation Act of 1973, (e) the
Architectural Barriers Act of 1968, and (f) the Americans with Disabilities Act of 1990;
PROVIDED, this provision shall not be interpreted to impose on the YMCA any greater
obligation or burden than YMCA already has under such laws with respect to improvements
constructed prior to the Effective Date of this Agreement.
A new Section 8.23 shall be added to the end of Section 8, which reads as follows:
8.23. Dispute Resolution.
“8.23.1 Policy. The Parties shall use good faith efforts to resolve all claims, disputes
and other matters in question between the Parties arising out of or relating to this Agreement
(each a “Matter in Dispute”) using the procedures set forth herein. The Parties shall proceed in
good faith to resolve all Matters in Dispute as expeditiously as possible.
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8.23.2 Mediation Process. Either party by delivering written notice to the other, may
request mediation of any Matter in Dispute that the Parties have been unable to resolve using.
Unless otherwise agreed by the Parties, the mediation shall be conducted by a JAMS-appointed
mediator in the Seattle, Washington office of JAMS. Each party shall bear its own costs
associated with any mediation, and shall split the fees of the mediator evenly. The mediation
shall be nonbinding.
Except as amended herein, Article 8 shall remain unchanged.
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 and
in the previous four amendments to the Agreement.
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.
Signature page to follow
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CITY OF BREMERTON
Signature:____________________
Title:________________________
Date:_______________________
Approved as to Form: City of Bremerton Attorney
YMCA OF PIERCE AND KITSAP
COUNTIES
Signature:_______________________
Title:___________________________
Date:___________________________
Approved as to Form: Attorney
DocuSign Envelope ID: 9E74442F-D152-470C-8AA2-FCC6E943E7C4
4/8/2022
President and CEOMayor
4/11/2022