HomeMy WebLinkAbout4294 Contract Number: 4294
Vendor: BREMERTON ICE ARENA INC
Subject: Ice Arena Building & Operation of - Eastpark
Department: Parks
File Class: LEG 12 -1
Begin Date: 8/9/2002
End Date: 8/8/2022
Review Date: 9/1/2021
Vault Date:
Comments: (4) 10 yr options to renew 60 -180 day notice to
exercise option; lst Amendment 5/2/12; Renewed 4/30/14
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL.
SUBJECT: Agreement to Renew Bremerton Study Session Date: 3/26/14
Ice Arena Concession Agreement _. C COUNCIL MEETING Date: 4/2/14
Department: Parks and Recreation
Presenter: Wyn Birkenthal
Phone: 473 -5752
SUMMARY: In August of 2002 the City entered into a Concession Agreement with the Bremerton
Ice Arena, INC. to provide a building pad and other considerations to enable the construction and
operation of an' Ice Arena on park land commonly known as East Park. Pursuant to the proposed
agreement, the Concessionaire exercises its option to renew the term of the Agreement through
August 8, 2022. The City finds the Concessionaire is in compliance with terms of the agreement and
is operating the Arena in a responsible fashion.
ATTACHMENTS: Agreement to Renew Concession Agreement; First Amendment to Concession
Agreement; and Concession Agreement Between City of Bremerton and Bremerton Ice Arena, Inc.
FISCAL IMPACTS (Include Budgeted Amount):. NA
STUDY SESSION AGENDA: px No Presentation ❑ Full. Presentation
STUDY SESSION ACTION: ❑x Consent Agenda ❑ General Business ❑ Public Hearing
RECOMMENDED MOTION:
Move to approve the proposed Agreement to Renew Concession Agreement and authorize the
Mayor to finalize and execute the agreement with substantially the same terms and conditions as
presented.
COUNCIL ACTION: [Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action
Form Updated 01/25/13.
AGREEMENT TO RENEW CONCESSION AGREEMENT
THIS "Agreement to Renew Concession Agreement" ( "Renewal ") is entered into the
day of April, 2014, by and between the City of Bremerton, a Washington municipal
corporation ( "City ") and Bremerton Ice Arena, Inc., a Washington corporation, n/k/a Bremerton
Ice Center, LLC, a Washington limited liability company ("Concessionaire"). City and
Concessionaire are referred to collectively as "Parties ".
WHEREAS, the City and Concessionaire entered into that certain Concession Agreement
dated effective August 9, 2002, and that certain "First Amendment to Concession Agreement'
dated effective May 2, 2012 (collectively "Agreement'); and
WHEREAS, the Parties desire to renew and extend the term 'of the Agreement.
NOW, THEREFORE, for and in consideration of the mutual benefits contained herein,
the Parties hereby agree as follows:
1. Concessionaire exercises its option to renew the term of the Agreement, and the City
accepts said renewal.
2. Concessionaire hereby swears under penalty of perjury, under the laws of the state of
Washington that the Concessionaire is currently in full material compliance with the
terms and conditions of the Agreement.
3. The term of the Agreement is renewed, extended and effective, through August 8,
2022.
4. The Parties waive the notice requirements for the first renewal term.
CITY OF BREMERTON BREMERTON ICE CENTER, LLC
By: v By
Patty Le ayor anne L. Haselwood, Manager
'DATE: April 30 ; 2014 DATE: April f� , 2014
Jann TEST- . APPROVED AS TO FORM:
on Corin, City Clerk Roger A. Lubovic
RMegal\Legal\Files \Current Active Files\Bremerton Ice Arena\Bremerton Ice Arena - Concession Agreemeni \Concession Renewal 34 1 -
14.docx
Agreement to Renew Concession Agreement Page 1
26873 -1
3/11/2014
STATE OF WASHINGTON )
ss.
COUNTY OF KITSAP )
On. this day, before me, Patty Lerit, 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 she was authorized to execute the instrument on behalf
of said municipal corporation.
GIVEN under my hand and official seal this day of April, 2014
`ev oee 4 aaaea�a'�
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Notary Public in and for the tate of
Washington, residing at ev
public o e
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My appointment expires:
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STATE OF WASHINGTON )
. ss.
COUNTY OF KITSAP )
On this day, before me, Joanne L. Haselwood, Manager of the BREMERTON ICE
CENTER, LLC, a Washington limited liability company that executed the foregoing instrument,
and acknowledged the said instrument to be the free and voluntary act and deed of said company,
for the uses and purposes therein mentioned, and on oath stated that she was authorized to
execute the said instrument on behalf of said company.
GIVEN under my hand and official seal this day of April, 2014
DI G/ 6, . Notary Public in and for the State of
; • �M�SSIaH " y ��, Washington, residing at �w F C�rLst.-
00 �'O �. % My appointment expires: '3- l q - 7-"
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Agreement to Renew Concession Agreement Page 2
26873 -1
.3/11/2014 '
Contract Number 4294
Vendor. BREMERTON ICE ARENA INC
Subject: Ice Arena Building & Operation of - Eastpark
Department. Parks
File Class LEG 12 -1
Begin Date 8/9/2002
End Date. 8/8/2012
Review Date- 2/1/2012
Vault Date-
Comments. (4) 10 yr options to renew 60 -180 day notice to
exercise option, 1st Amendment 5/2/12
FIRST AMENDMENT TO
CONCESSION AGREEMENT
THIS FIRST AMENDMENT TO CONCESSION AGREEMENT ( "Agreement ") is
entered into effective the j day of , 2012, by and between the CITY OF
BREMERTON, a Washington municipal corporation (hereinafter referred to as the "CITY "), and
BREMERTON ICE ARENA, INC a Washington corporation, n/k/a BREMERTON ICE
CENTER, LLC, a Washington limited liability company (hereinafter referred to as the
CONCESSIONAIRE "), referred to collectively as the "Parties "
WHEREAS, on August 9th, 2002, the CITY and BREMERTON ICE ARENA, INC
entered into an Agreement for the development and operation of the indoor ice arena facility, and
WHEREAS, operation of the indoor ice arena facility was assumed by BREMERTON
ICE CENTER, LLC, which has been operating the ice center for approximately 7 years, and
WHEREAS, the Parties desire to amend the Agreement to allow for the sale and
consumption of alcoholic beverages on the premises as authorized pursuant to Section 13 04 140
of the Bremerton Municipal code,
NOW THEREFORE, the Agreement is hereby amended as follows
1 Section 4 12 of the Agreement entitled "Incidental Uses" is hereby amended as follows
4.1.2 Incidental Uses
The CONCESSIONAIRE may provide incidental uses in the form of coaching and
training services, food and beverage services, and the sale or rental of incidental items directly
related to the use of the ice arena facility including, but not limited to, ice sports, fitness and
athletic equipment, soap, shampoo, and similar shower supplies, and clothing related to ice arena
and fitness pursuits This includes hiring vendors and/or sub - concessions of interior space of the
indoor ice arena facility
2 The term "CONCESSIONAIRE" throughout the Agreement means the Bremerton
Ice Center, LLC
3 All other terms of the Agreement not specifically amended herein shall remain in full
force and effect
CITY OF BREMERTO BRE RTON ICE CIVNTER LLC
By Patty e t, Mayor B JoanneL / Haselwood, Wanager
DATE DATE
1
Bremerton Ice Arena —
First Amendment
ST - APPROVED AS TO FORM
Shannon Corm, Interim City Clerk Rd ><c h, City
STATE OF WASHINGTON )
) ss
COUNTY OF KITSAP )
On this day, before me, Patty Lent, 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 she was authorized to execute the instrument on behalf
of said municipal corporation
GIVEN un� ��y� d and official seal t day of 1 2012
"N �►•� /� //
•' / N ublic in and for t e State of
nota
ry e Washington, residing at
G Public e My appointment expires
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STATE OF WASHINGTON )
) ss
COUNTY OF KITSAP )
On this day, before me, Joanne L Haselwood, Manager of the BREMERTON ICE
CENTER, LLC, a Washington limited liability company that executed the foregoing instrument,
and acknowledged the said instrument to be the free and voluntary act and deed of said company,
for the uses and purposes therein mentioned, and on oath stated that she was authorized to
execute the said instrument on behalf of said company
GIVEN un and official seal this 620 day of , 2012
E GA IPF
y Y • Not ary Public in and for the tate f
typtAR
•�•r Washington, residing at
$� My appointment expires
p,, �irm�p Gyyp S
R \Legal\Legal\Fdes \Current Active File0remerton Ice Arena - Concession Agreement\First Amendment to Concession Agreement (4 -6 -2012) - Final doc
2
Bremerton Ice Arena —
First Amendment
� A-m SHIERS
® LAW TRACY E DIGIOVANNI: digiovannt@shterslaw.com
® FIRM Melissa L Summers, Legal Assistant summers @shierslaw corn
600 Kitsap Street, Suite 202, Port Orchard, Washington 98366
(360) 876 -4455 Facsimile (360) 876 -0169 • www shierslaw com
April 27, 2012 t
Roger Lubovich APR 6 U 2012
City of Bremerton k . 345 6th Street, Suite 600 Aly O rtQ�
Bremerton, WA 98337/ �1'y'S Office
Re Bremerton Ice Center LLC
Our File No 26873 -1
Dear Roger
Enclosed please find the original "First Amendment to Concession Agreement" which has been
signed by the Bremerton Ice Center LLC Once you, the City Clerk and Mayor Lent sign, please
deliver to me a conformed copy
Please contact me with any questions Thank you for your assistance with this matter
Sinc ely,
TRACY DIGIOVANNI
FRANK SHIERS (1920 -2000) TRACY E DIGIOVANNI KENNETH L KAMBICH
GARY T CHREY KIM D ZAK MICHAEL D UHLIG
JEFFREY COX MATTHEW G HOLYOAK
Contract _Number:
Vendor:
Subject:
Department:
File Class:
Begin Date:
End Date:
Review Date:
Vault Date:
Comments:
4294
BREMERTON ICE ARENA INC
Concession - Ice Arena Building/Operation - Easepark
Parks
LEG 16-3
08/09/2002
08/08/2012
02/01/2012
4 ten yr options to renew
60-180 days notice to exercise option
CONCESSION AGREEMENT
BETWEEN
CITY OF BREMERTON
AND
BREMERTON ICE ARENA, INC.
TABLE OF CONTENTS
RECITALS ......................................................................................................................... 1
ARTICLE 1. GROUND AND USE CONCESSION ......................................................... 2
1.1 Concession of Premises ............................................................................................ 2
1.2 Possession, Quiet Enjoyment & Covenants Real ..................................................... 3
1.3 CITY Payment to CONCESSIONAIRE .................................................................. 3
ARTICLE 2. TERM OF AGREEMENT ............................................................................ 3
2.1 Term .......................................................................................................................... 3
2.2 Option to Renew ....................................................................................................... 3
ARTICLE 3. CONSIDERATION ...................................................................................... 4
3.1. Consideration for Concession .................................................................................. 4
3.1.1 Premises Use in Lieu of Cash ........................................................................... 4
3.1.2 Leasehold Excise Tax ....................................................................................... 4
3.2 Ice arena Equipment/Personal Property Use ............................................................. 5
3.3 Timing of Consideration Payment ............................................................................ 5
3.4 Premises Use by CITY .............................................................................................. 5
3.4.1. Types of Use ..................................................................................................... 5
3.4.2 Maintenance & Utility Costs/Clean-Up After Use ............................................ 5
3.4.3 Damage, Claims, & Liability ............................................................................. 6
3.5 Scheduling Premises Use by CITY ........................................................................... 6
3.5.1 Summer Quarter ................................................................................................. 6
3.5.2 Fall, Winter, and Spring Quarters ...................................................................... 6
3.6 CiTY's Increased Premises Use ............................................................................... 6
ARTICLE 4. USE & OPERATION OF PREMISES ......................................................... 6
4.1 Use of Premises ......................................................................................................... 6
4.1.1 Indoor Ice Arena and Recreational Uses ............................................................ 6
4.1.2 Incidental Uses ................................................................................................... 7
4.1.3 Sub-Concessions ................................................................................................ 7
4.1.4 Security and Nuisance During Use .................................................................... 7
4.2 Operating Hours ........................................................................................................ 7
4.3 Entry by CITY .......................................................................................................... 8
4.4 Health Inspections ..................................................................................................... 8
4.5 Maintenance, Repair, & Improvements .................................................................... 8
4.5.1 Maintenance ....................................................................................................... 8
4.5.2 Sidewalks and Parking Maintenance ................................................................. 8
4.5.3 Janitorial and Landscaping Services .................................................................. 9
4.5.4 Repair of Damage .............................................................................................. 9
4.5.6 Improvements .................................................................................................... 9
4.5.7 Alterations of Improvements after Construction ............................................... 9
4.6 Signs .......................................................................................................................... 9
4.7 Utilities ...................................................................................................................... 9
4.7.1 Utility Services and Expense ............................................................................. 9
4.7.2 Trash & Garbage .............................................................................................. 10
4.8 Parking .................................................................................................................... 10
4.9 Hazardous Substances ............................................................................................. 10
CONCESSION AGREEMENT i
4.9.1 Definition ......................................................................................................... 10
4.9.2 Information ...................................................................................................... 10
4.9.3 Indemnification ................................................................................................ 11
4.10 Risk of Loss .......................................................................................................... 11
ARTICLE 5. DESIGN & CONSTRUCTION OF PREMISES ........................................ 11
5.1 Design ..................................................................................................................... 11
5.2 Building & Site Plans .............................................................................................. 11
5.3 ConstructiordSite Work/Fencing ............................................................................. 12
5.4 Construction Deadlines ........................................................................................... 12
5.5 Failure to Meet Construction Deadlines/Time of Essence ...................................... 12
5.6 Stormwater Drainage, Sewer, & Water Lines ......................................................... 12
5.7 Development and Construction Fees & Expenses .................................................. 12
5.8 CONCESSIONAIRE's Development Project ......................................................... 13
5.9 No Liens .................................................................................................................. 13
ARTICLE 6. FINANCING & SECURITY INTERESTS ................................................13
6.1 Financing - No CITY Obligation ............................................................................ 13
6.2 Security Interest in Premises & Agreement/Consent .............................................. 14
6.3 LENDER's Reliance on Term and Renewal Options ............................................. 14
6.4 Surrender of the Collateral ...................................................................................... 15
6.5 Notice of Default and Lender's Rights ................................................................... 15
6.5.1 Notice of Default .............................................................................................. 15
6.5.2 Termination for Monetary Default ................................................................... 15
6.5.3 Term/nation for Non-Monetary Default .......................................................... 15
6.5.4 Termination due to Bankruptcy ....................................................................... 15
6.6 Right to Assign ....................................................................................................... 16
6.7 Disposition of Insurance ......................................................................................... 16
6.8 Right to Participate in Litigation ............................................................................. 16
6.9 Incorporation of Lender's Protection Provisions .................................................... 16
6.10 Right to Remove Collateral .................................................................................. 16
6.11 Notices .................................................................................................................. 17
6.12 Lenders Change in Loan Terms ........................................................................... 17
ARTICLE 7. TERMINATION ......................................................................................... 17
7.1 Failure to Perform ................................................................................................... 17
7.1.1 Obligation to Perform ...................................................................................... 17
7.1.2 Payments to Other Parties ................................................................................ 17
7.2 Default and Termination ......................................................................................... 18
7.2.1 CITY's Default ................................................................................................ 18
7.2.2 CONCESSIONAIRE's Default ....................................................................... 18
7.2.3 Default for Other Cause ................................................................................... 18
7.2.4 Bankruptcy ...................................................................................................... 19
7.3 Remedies Are Cumulative ...................................................................................... 19
7.4 Destruction of Premises & Use of Insurance Proceeds ........................................... 19
7.5 Duties upon Termination ........................................................................................ 19
7.6 Eminent Domain ..................................................................................................... 19
7.6.1 Rights of Termination ...................................................................................... 19
7.6.2 Non-Termination .............................................................................................. 20
CONCESSION AGREEMENT ii
7.6.3 Compensation .................................................................................................. 20
ARTICLE 8. GENERAL CONDITIONS ......................................................................... 20
8.1 Relationship of Parties ............................................................................................ 20
8.1.1 CONCESSIONAIRE Independent Contractor Status ......................................20
8.1.2 No Third Party Rights Created ........................................................................ 21
8.1.3 No Joint Venture/Partnership ........................................................................... 21
8.1.4 City Administration of Agreement .................................................................. 21
8.2 Notices .................................................................................................................... 21
8.3 Reports & Information ............................................................................................ 22
8.4 Permits, Licenses, Taxes, & Fees ........................................................................... 22
8.4.1 Permits, Licenses, & Other Documents ........................................................... 22
8.4.2 Taxes & Fees .................................................................................................... 22
8.5 Insurance ................................................................................................................. 22
8.5.1 Fire, Earthquake, & Casualty Insurance .......................................................... 22
8.5.2 Liability Insurance ........................................................................................... 22
8.5.3 Release and Waiver of Subrogation ................................................................. 23
8.6 Hold Harmless, Indemnification, & Industrial Insurance ....................................... 23
8.6.1 Hold Harmless & Indemnification ................................................................... 23
8.6.2 Industrial Insurance .......................................................................................... 24
8.7 Successors & Assigns ............................................................................................. 24
8.8 Compliance with Laws ........................................................................................... 24
8.9 Nondiscrimination ................................................................................................... 25
8.10 Choice of Law & Venue ....................................................................................... 25
8.11 Costs & Attorneys' Fees ....................................................................................... 25
8.12 Modification .......................................................................................................... 25
8.13 Change in Law/Renegotiation ............................................................................... 25
8.14 Force Majeure ....................................................................................................... 26
8.15 Waiver ................................................................................................................... 26
8.16 Illegal Provisions - Severability ............................................................................ 26
8.17 Article Headings, Gender, & Number .................................................................. 26
8.18 Entire Agreement .................................................................................................. 26
8.19 Counterparts .......................................................................................................... 26
8.20 Recording .............................................................................................................. 26
8.21 Approval of Agreement ....................................................................................... 27
8.22 Duplicate Originals .............................................................................................. 27
Exhibit A - Legal Description of Premises
Exhibit B - Preliminary Building and Site Plans
Exhibit C - Appraisal and Compensation Information
Exhibit D - Quit Claim Deed from United States of America to the City of Bremerton
CONCESSION AGREEMENT iii
CONCESSION AGREEMENT
THIS CONCESSION AGREEMENT ("Agreement") is entered into effective the
9th day of August, 2002 (hereinafter referred to as the "EFFECTIVE DATE"), by and
between the CITY OF BREMERTON, a Washington municipal corporation (hereinafter
referred to as thc "CITY"), and BREMERTON ICE ARENA, 1NC. a Washington
corporation (hereinafter referred to as the "CONCESSIONAIRE"), referred to
collectively as the "Parties."
RECITALS
WHEREAS, the CITY is owner of the property commonly known as Eastpark;
and
V~rHEREAS, thc CITY owns undeveloped land within thc confines of the
Eastpark available for development of an indoor icc arena facility; and
WHEREAS, the CONCESSIONAIRE has the experience, ability, and resources
to develop and operate an indoor ice arena facility; and
WHEREAS, the Parties intend this Agreement to be a ground and use concession
ailowing the CONCESSIONAIRE to develop, construct, and operate an indoor icc arena
facility, for profit, on certain undeveloped land within thc confines of Eastpark and which
said land will remain property of the CITY; and
WHEREAS, the Parties agree that no joint venture or partnership is formed as a
result of this Agreement; and
WHEREAS, thc CONCESSIONAIRE will be responsible for the dcsigu and
construction of an indoor ice arena facility, adequate parking and exterior landscaping on
the CITY's real property, which visually blend with the setting, which are to bc
constructed within the confines of Eastpark, and all improvements to the rca1 property
will become property of the CITY at the termination of this Agreement; and
WHEREAS, the CITY shall have the right to approve the final design of the
improvements and shall have a continuing fight to approve the exterior color of any
structure on the property; and
WHEREAS, the CONCESSIONAIRE will be responsible for obtaining all
necessary financing for the development and operation of the indoor ice arena facility;
and
WHEREAS, it is mutually understood by the Parties that any lender who
provides the CONCESSIONAIRE, or successor or assign approved by the CITY,
financing, re-financing, credit lines or equipment leases, for the development and
ongoing operations of the improvements and business operations will require this
CONCESSION AGREEMENT
Agreement as protection and security for lender ("lender") The term "lender" shall also
mean the successors and assigns of the lender; and
WHEREAS, the CITY will acknowledge and consent to lender taking a first
position security interest in this Agreement and the Improvements, lender taking an
assignment of the right, title, claim and interest of CONCESSIONAIRE in this
Agreement, lender obtaining the right of substitution for CONCESSIONAIRE, lender
taking possession of the concession and improvements, lender operating the indoor ice
arena facility pursuant to the terms of this Agreement, and/or lender selling, assigning
and/or transferring CONCESSIONAIRE'S interest in this Agreement, the term
"CONCESSIONAIRE" shall also mean successors or assigns of CONCESSIONAIRE as
approved by the CITY;
WlTNESSETI-I:
NOW, THEREFORE, in consideration of the promises, covenants, and
provisions set forth in this Agreement, the Parties agree as follows:
ARTICLE 1. GROUND AND USE CONCESSION
1.1 Concession of Premises
CITY hereby grants a ground and use concession to CONCESSIONAIRE of
approximately one hundred forty-four thousand four hundred fifty-six square feet
(144,456 sq. ft.) of undeveloped land located within the confines of Eastpark (hereinafter
referred to as "Concession") on real property legally described in Exhibit A attached
hereto and incorporated by reference for development, construction, maintenance, and
operation, for profit, of an indoor ice arena facility including building(s), fixtures,
appurtenances, parking and exterior landscaping (hereinafter referred to as
"Improvements"), and generally shown in the preliminary building and site plan in
Exhibit B attached hereto and incorporated by reference. (Collectively referred to as
"Premises") (Premises does not include the fee ownership or leasehold interest of the real
property upon which the Improvements are located). The CITY represents and warrants
that the Premises are currently zoned for the uses contemplated hereunder and no further
proceedings are required therefor. CONCESSIONAIRE hereby agrees to the terms and
conditions of this Agreement. The Parties agree that the Premises are currently
undeveloped with no permanent structures, and that any and all development and
construction of improvements to the Premises are owned by CONCESSIONAIRE during
the term of this Agreement, subject to any security interest of lender, if any. Upon the
expiration of the term(s) of this Agreement pursuant to A~icle 2, or upon the termination
of this Agreement, other than as a result of condemnation proceedings, the then existing
improvements on the Premises will become the property of and owned by the CITY
subject to lenders rights as set forth in Article 6. The conunon address of the Premises is
1950 Homer Jones Bremerton WA, 98310.
If in the future, during the term of this concession, a piece of property of
comparable worth to the real property described in Exhibit A and the concession
CONCESSION AGREEMENT 2
consideration described in Exhibit C and considered a valuable addition to the Bremerton
Parks and Recreation inventory becomes available, the CITY would consider a property
trade with the CONCESSIONAIRE assuming all the requirements of the Department of
Interior and the Quitclaim Deed conveying the property to the CITY and related CITY
ordinances are met. The CITY, at its sole discretion, may accept or reject any proposal
for such property trade.
1.2 Possession, Quiet Enjoyment & Covenants Real
Except as provided in Articles 3 & 4.3 herein, the CONCESSIONAIRE shall be
entitled to exclusive possession of the Premises, except the parking areas, upon
commencement of the development and construction of the Improvements as set forth by
Article 5.4 herein. Upon taking possession of the Premises, and on performing all the
covenants and conditions herein, the CONCESSIONAIRE shall peaceably and quietly
have, hold, and enjoy the Premises at all times during the full term of this Agreement.
Every covenant in this Agreement shall be deemed and treated to be a covenant running
with the Premises during the full term of the Agreement, and shall extend to the heirs,
legal representatives, successors, and assigns of the Parties. No change in CITY's
ownership of the Premises, or rights to the payments hereunder, however accomplished,
shall operate to enlarge the obligations or reduce the rights of CONCESSIONAIRE. No
change in CITY's ownership of the Premises shall be binding upon CONCESSIONAIRE
for any purpose until CONCESSIONAIRE shall have been given written notice thereof.
1.3 CITY Payment to CONCESSIONAIRE
In addition to the concession granted herein and as an incentive to
CONCESSIONAIRE to locate an indoor ice arena facility within the City of Bremerton
and to help defray the costs of relocating the facility from the initially proposed site in
Kitsap County and in consideration of additional future use of the Premises by the CITY
as set forth in Article 3, the CITY shall pay CONCESSIONAIRE $175,000 as follows:
$100,000 upon issuance of a building permit for the ice arena structure, and $75,000
upon completion of the roof of the structure.
ARTICLE 2. TERM OF AGREEMENT
2.1 Term
The term of this Agreement shall be 10 years, commencing upon the EFFECTIVE
DATE of this Agreement.
2.2 Option to Renew
The CITY agrees to offer the CONCESSIONAIRE four (4) successive ten (10)
year options to renew this Agreement, contingent upon CONCESSIONAIRE remaining
in full compliance with the terms and conditions of this Agreement and further contingent
on the CITY accepting the level of insurance coverage required in Section 8.5.2 for the
new 10 year term exercised by CONCESSIONAIRE, which acceptance will not be
unreasonably denied. To execute an option for renewal, the CONCESSIONAIRE, not
more than 180 days and not less than 60 days prior to the expiration of the term, shall
give written notice to the CITY that the CONCESSIONAIRE is exercising the
CONCESSION AGREEMENT 3
CONCESSIONAIRE's option for an additional ten (10) year term. The
CONCESSIONAIRE's written notice shall include a sworn affidavit that the
CONCESSIONAIRE is currently in full compliance with the terms and conditions of this
Agreement. The option will become effective upon receipt by the CITY of
CONCESSIONAIRE's written notice and sworn affidavit and no further process or
documentation will be required, provided, however upon CONCESSIONAIRE's request,
the CITY shall provide a written acknowledgement that such option has been exercised
and is in effect. If the option(s) to renew are not exercised, then the Agreement shall
expire at the conclusion of the expiring term.
ARTICLE 3. CONSIDERATION
3.1. Consideration for Concession.
3.1.1 Premises Use in Lieu of Cash
As consideration for the ground and use concession granted by the CITY to the
CONCESSIONAIRE and the payment of $175,000 by the CITY to CONCESSIONAIRE
pursuant to Article 1.3, the CONCESSIONAIRE shall provide fair and equitable
compensation to the CITY based upon an appraisal of the Premises at the effective date
of this Agreement conducted on behalf of the CITY by a certified appraiser pursuant to
the Appraisal and Compensation Information described in Exhibit C attached hereto and
incorporated by reference. In lieu of cash payments, the annual compensation provided
by the CONCESSIONAIRE to the CITY shall be in the form of hours of use of the
Premises as established in Exhibit C. Premises use by the CITY shall be governed by
Article 3.3 herein. Said kinds of use to be determined at the sole discretion of the CITY,
so long as such use is not incompatible with the facility's design purpose(s).
3.1.2 LeasehoM Excise Tax
Pursuant to RCW 82.29A.020(1), concessions fall within the definition of
leasehold interest, therefore, even though this agreement is not for a lease, it is still
subject to the leasehold tax set forth in Chapter 82.29A RCW. Accordingly,
CONCESSIONAIRE agrees to pay, in addition to other taxes and fees pursuant to Article
8.4.2, the leasehold excise tax pursuant to Chapter 82.29A RCW. The tax will be based
on the current appraised value of use of the property through this concession agreement
(concession rate value) as set forth in Exhibit C in the amount of $23,112 per year.
Since consideration to the City for this property use consists of hours of ice time at the
Premises established through a formula based upon the current hourly value of ice time,
no adjustments will be made for the property use or value of ice time during the term(s)
of this agreement. Therefore, for purposes of assessment and payment of the leasehold
tax only, the appraised value of the use of the property ($23,112) will be adjusted every
five years during the term(s) of this agreement based upon the prior five years' Consumer
Price Index (CPI) for all urban consumers as published by the United States Department
of Labor for Seattle-Tacoma-Bremerton, all items (1982-84-100) For purposes of the
CPI adjustment, the base shall be the June 2002 CPI index with adjustments made June to
June every five years (ie. June 2002- June 2007). In addition, CONCESSIONAIRE
agrees to pay when due, the leasehold excise tax, or any additional assessments thereto,
CONCESSION AGREEMENT 4
with respect to any payment or obligation hereunder, which is deemed by the State of
Washington to be taxable rant under said chapter and to indemnify and hold the City
harmless from the same.
CONCESSIONAIRE shall pay quarterly to the City by the fifteenth day of the
month following the end of each quarter, or as otherwise required by the State of
Washington, the amount of the leasehold tax owing. The leasehold tax will begin
accruing on the beginning of the first full month of issuance of the building permit for the
ice arena structure.
3.2 Ice arena Equipment/Personal Property Use
Premises use by the CITY received as consideration for this Agreement does not
include the use by the CITY of any of the CONCESSIONAIRE's ice arena equipment or
other personal property. Use by the CITY of any of the CONCESSIONAIRE's ice arena
equipment or other personal property will be negotiated separately between the CITY and
the CONCESSIONAIRE and is outside the scope of this Agreement.
3.3 Timing of Consideration Payment
The consideration paid by the CONCESSIONAIRE in the form of Premises use
by the CITY shall commence accruing from the date the Occupancy Permit is issued. It is
mutually understood and agreed that the CITY can receive its full annual compensation
of hours of Premises use at any time during the 12 month period-beginning with the date
CONCESSIONIARE receives the occupancy permit for use and every 12 month period
thereafter. It is mutually understood and agreed to that any CITY hours which are unused
in a given year do not accrue or transfer over into a new year unless mutually agreed.
3.4 Premises Use by CITY
3.4.1. Types of Use
The hours of Premises use provided by the CONCESSIONAIRE to the CITY in
consideration for this Agreement are intended to provide recreational opportunities of a
suitable and compatible nature for the residents of the CITY as part of the Parks and
Recreation programs. Such Premises use by the CITY shall be without cost to the CITY
to the extent of the annual hours of use of the Premises, pursuant to Articles 3.1, 3.2 and
3.3 herein. This will exclude the use of proprietary or sub-concessioned spaces within
the facility, including but not limited to management offices, refrigeration and
maintenance areas, and fitness club. It is mutually understood that the CITY will, under
all reasonable conditions, have the use of the ice surface (CONCESSIONNAIRE will
provide a clean surface prior to CITY use), party (multi-use) and team rooms, first aid
room, lobby and restrooms.
3.4.2 Maintenance & Utility Costs/Clean. Up After Use
The CONCESSIONAIRE shall be responsible for all overhead costs, including
the utilities and general maintenance, of the Premises during the use of the Premises by
the CITY. The CITY agrees to clean-up the Premises after each CITY use.
CONCESSION AGREEMENT 5
3.4.3 Damage, Claims, & Liability
The CITY shall be responsible for all damage or claims that may arise out of the
Premises use by any of the CITY's employees, agents, guests, or invitees. The CITY,
during such periods of use, shall supervise or cause the CITY's employees, agents,
guests, or invitees to be supervised. The provisions for mutual indemnity, hold harmless,
and liability insurance pursuant to Articles 8.5 & 8.6 herein apply during Premises use by
the CITY.
3.5 Scheduling Premises Use by CITY
The CITY and the CONCESSIONAIRE shall meet at least quarterly and other
times as necessary, to determine how such Premises use hours shall be allocated to the
CITY in the upcoming quarter in accordance with the following provisions. The CITY's
use shall be during normal operating hours of the facility, unless otherwise agreed.
3.5.1 Summer Quarter
The CITY shall have the full discretion to determine which hours of Premises use
the CITY intends to use during the Summer quarter (June, July, and August) of each year.
At the CITY'S discretion, the CITY has the right to schedule its full annual compensation
of hours of premises use during the summer quarter, however, it is mutually understood
and agreed to that, unless CONCESSIONAIRE agrees otherwise in advance, the
maximum hours the CITY may schedule in a single calendar month is 70 hours.
3.5.2 Fall, Winter, and Spring Quarters
The CONCESSIONAIRE shall have the full discretion to determine which hours
of Premises use the CONCESSIONAIRE may use the Premises during the Fall quarter
(September, October, and November), Winter quarter (December, January, and
February), and Spring quarter (March, April, and May) of each year. The
CONCESSIONAIRE has the right to schedule the CITY'S remaining compensation, if
any, of Premises use not previously scheduled by the CITY during the Summer quarter.
The CONCESSIONAIRE's discretion to schedule CITY use under this Article is limited
to scheduling CITY use during normal business hours.
3.6 CITY's Increased Premises Use
The CITY may increase its hours of Premises use beyond its annual compensation
by paying to the CONCESSIONAIRE an hourly rate not to exceed the rate then in effect
by the CONCESSIONAIRE for general public use and with scheduling at the discretion
of the CONCESSIONAIRE.
ARTICLE 4. USE & OPERATION OF PREMISES
4.1 Use of Premises
4.1.1 Indoor Ice Arena and Recreational Uses
The CONCESSIONAIRE will use and occupy the Premises throughout the full
term of this Agreement for the purpose of providing indoor ice sports, fitness, recreation,
and community activities directly related to the operation of an indoor ice arena.
CONCESSION AGREEMENT 6
4.1.2 Incidental Uses
The CONCESSIONAIRE may provide incidental uses in the form of coaching
and training services, food and beverage services, and the sale or rental of incidental
items directly related to the use of the ice arena facility including, but not limited to, ice
sports, fitness and athletic equipment, soap, shampoo, and similar shower supplies, and
clothing related to ice arena and fitness pursuits. This includes hiring vendors and/or sub-
concessions of interior space of the indoor ice arena facility. CONCESSIONAIRE
agrees that no alcohol will be sold or consumed on the premises.
4.1.3 Sub-Concessions
All sub-concessions will require the prior written consent of the Mayor or
designee, which consent will not be unreasonably withheld, and comply with any
requirements of the U.S. Secretary of Interior for the granting of concessions on the
subject property pursuant to the quitclaim deed, attached hereto as Exhibit D and
incorporated by reference, transferring title to the CITY to the real property upon which
this concession is granted. THE U.S. SECRETARY OF THE INTERIOR, THROUGH
THE NATIONAL PARK SERVICE, CONSENTING TO THIS AGREEMENT,
WA1VES ANY RIGHT TO REVIEW AND APPROVE SUB-CONCESSIONS WHICH
DO NOT REQUIRE THE APPROVAL OF THE CITY COUNC1L.
4.1.4 Security and Nuisance During Use
The CONCESSIONAIRE shall take reasonable precautions in securing the
Premises during the full term of this Agreement. The CONCESSIONAIRE shall use the
Premises for no unlawful purposes and shall not use or occupy the Premises in any
manner, which would constitute a public nuisance or violate State or CITY laws.
4.2 Operating Hours
The availability of recreational opportunities for CITY residents is a material
consideration for this Agreement. Accordingly and during the full term of this
Agreement, the CONCESSIONAIRE shall continuously conduct and carry on the
CONCESSIONAIRE'S permitted uses and shall keep the Premises open for business and
cause the CONCESSIONAIRE'S business to be conducted therein during the usual
business hours of each and every business day as mutually agreed upon. This provision
shall not apply if the Premises should be closed and the business of CONCESSIONAIRE
is temporarily suspended on account of weather conditions, power outages, labor strikes,
lockouts, or similar causes beyond the reasonable control of CONCESSIONAIRE, or for
maintenance, remodeling, repair, or renovation as approved by the CITY in writing
(including approvals of any construction schedules.) The CONCESSIONAIRE covenants
and agrees to provide sufficient personnel, and to keep the Preadses adequately stocked
with merchandise, recreational equipment, fixtures, and facilities so as to conduct its
business in accordance with sound business practice. The CONCESSIONAIRE, in order
to keep its business commitments, shall be in operation in accordance with sound
business practice.
CONCESSION AGREEMENT 7
4.3 Entry by CITY
CITY may enter the Premises at ail reasonable times during normai hours of
business operations to inspect; provide services required hereunder; post notices of
CONCESSIONAIRE's noncompliance with the provisions of this concession, ail without
being deemed a constructive eviction. Any person or persons who may have an interest in
the purpose of C1TY's visit may accompany CITY. CITY has the right to use any and ail
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 notice shall be given by
the CITY before entry by the CITY into proprietary areas of the facility.
4.4 Health Inspections
CONCESSIONAIRE shall not knowingly commit or willfully permit to be
committed any act or thing contrary to the rules and regulations prescribed by the locai
board of heaith, or which shail be contrary to the laws, rules or regulations of any federal,
state or municipal authority. CONCESSIONAIRE shail allow the Bremerton-Kitsap
County Heaith Department to make regular and ordinary inspections of the Premises as
said heaith department may deem proper.
4.5 Maintenance, Repair, & Improvements
4.5.1 Maintenance
CONCESSIONAIRE shall, at its sole cost and expense, clean and maintain the
Premises, and make repairs, restorations, and replacements to ail improvements to the
Premises, including without limitation the heating, ventilating, air conditioning,
mechanical, electricai, and plumbing systems, structurai roof, wails, and foundations,
roof coverings, sprinkling and irrigation systems, playing surfaces and the fixtures and
appurtenances to the Premises as and when needed to preserve them in "first class"
condition and repair (less normal wear from use) throughout the full term.
CONCESSIONAIRE shall further keep in repair and maintain as necessary all
machinery, equipment and facilities necessary for the playing of sports and the comfort of
players. CONCESSIONAIRE shail paint the exterior of the buildings (except the metai)
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
equai to the originai work or instailations. If CONCESSIONAIRE fails to make such
repairs, restorations, or replacements, following a notice of default and opportunity to
cure as provided for in Articles 6 and 7, CITY may make them at the expense of
CONCESSIONAIRE and such expense will be paid by CONCESSIONAIRE within
fifteen (15) days after delivery of a statement for such expense.
4.5.2 Sidewalks and Parking Maintenance
At its sole cost and expense, CONCESSIONAIRE shall maintain all sidewaiks
and parking lots on the Premises in good and presentable condition during the full term of
this Agreement, shall be responsible for correcting any unsafe conditions, and shall be
responsible for the removai of ice and snow from the sidewaiks and parking lots as
necessary for safe operation of the Premises.
CONCESSION AGREEMENT 8
4.5.3 Janitorial and Landscaping Services
At its sole cost and expense, CONCESSIONAIRE shall keep the Premises clean,
and shall provide sufficient janitorial services to maintain a tidy appearance on and about
the Premises. CONCESSIONAIRE shall provide landscaping maintenance services such
that landscaping on the Premises remains healthy, attractive, and well maintained.
4.5.4 Repair of Damage
Except that which may be caused by the actions, activities or negligence of the
CITY or its agents, representatives, employees, guests or invitees, in the event any
damage or injury shall occur to the Premises of any kind or nature whatsoever,
CONCESSIONAIRE shall promptly cause said damage or injury to be fully repaired at
CONCESSIONAIRE'S own cost and expense. In the event CONCESSIONAIRE falls to
accomplish such repairs within fifteen (15) days of receipt of written notice by the CITY,
then in that event CITY may, but is not required to, enter the Premises and accomplish
such repairs and bill CONCESSIONAIRE who will pay the bill within fifteen (15) days
after delivery of a statement for such expense. Any such damage or injury to the
Premises caused by the actions, activities or negligence of the CITY or its agents,
representatives, employees, guests or invitees shall be promptly repaired by the CITY at
its cost and expense.
4.5.6 Improvements
The CONCESSIONAIRE shall be solely responsible for providing adequate
funding for any alterations or improvements as provided in this Agreement and such
alterations or improvements shall be made without cost to the CITY.
4.5. 7 Alterations of Improvements after Construction
After such time as the Improvements have been completed and accepted as
defined above, the CONCESSIONAIRE shall not make any material alteration to the
Premises including any changes to the landscaping, without the CITY'S prior written
consent, which consent will not be unreasonably withheld.
4.6 Signs
CONCESSIONAIRE may place and maintain signs upon the Premises in
accordance with the sign ordinance of the CITY.
4.7 Utilities
4.7.1 Utility Services and Expense
The CONCESSIONAIRE will pay for all water, gas, garbage, sewage, electricity,
telephone, and other utilities and communications services used by CONCESSIONAIRE
on the Premises, whether or not such services are billed directly to CONCESSIONAIRE.
CONCESSIONAIRE will also procure, or cause to be procured, without cost to the
CITY, any and all necessary permits, licenses, or other authorizations required for the
lawful and proper installation and maintenance upon the Premises of utility
appurtenances and appliances for use in supplying such utilities and services to and upon
the Premises. The CITY, upon request of CONCESSIONAIRE, and at the sole expense
CONCESSION AGREEMENT 9
and liability of the CONCESSIONAIRE, will join with CONCESSIONAIRE in any
application required for obtaining or continuing any such services, provided that such
services do not violate any other applicable provision of this Agreement. The CITY shall
not be held liable for any injury, loss, or damage caused by or resulting from any
interruption or failure of utility services due to any cause whatsoever, except the CITY's
sole negligence. CONCESSIONAIRE shall not be entitled to any offset, reduction, or
return of consideration as a result of any interruption or failure of services.
4.7.2 Trash & Garbage
The CONCESSIONAIRE shall place all trash and garbage into such areas and
containers as are designed and intended to accommodate the trash and garbage generated
within or on the Premises. The CONCESSIONAIRE shall not allow trash and/or garbage
to accumulate such that a nuisance or health hazard results.
4.8 Parking
The CONCESSIONAIRE shall develop parking on the real property described in
Exhibit A providing a minimum of 155 vehicle parking spaces for CONCESSIONAIRE's
non-exclusive use in connection with the Premises, as identified more particularly
described in Exhibit B. CITY may use this parking lot for activities of the CITY or its
assigns at Eastpark in a manner not inconsistent or interfering with
CONCESSIONAIRE's use of the parking lot.
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, ordinance, rule, regulation, or other law now or hereafter in
affect pertaining to environmental protection, contamination, or cleanup.
4.9.2 Information
CONCESSIONAIRE shall keep upon the Premises, in a location accessible to
CITY, on request during normal business hours, copies of ail reports regarding hazardous
or toxic materials in the Premises that CONCESSIONAIRE has provided to any
governmental agency in the previous quarter. CONCESSIONAIRE shall, upon request
and at CONCESSIONAIRE'S expense, provide CITY with a copy of any such report as
to which CITY request a copy. In the event of any accident, spill, or other incident
involving hazardous or toxic matter that CONCESSIONAIRE is required to report to any
governmental agency, CONCESSIONAIRE shall immediately report the same to the
CITY and supply CITY with all information and reports with respect to the stone,
together with CONCESSIONAIRE'S clean-up or remediation plan and schedule. If such
clean-up or remediation plan is not acceptable to CITY in CITY'S sole discretion, CITY
may so notify CONCESSIONAIRE and, upon 48 hours prior written notice (or without
notice if so required by an emergency) may enter on the Premises to conduct the cleanup
and/or remediation and charge CONCESSIONAIRE the costs thereof. For non-
emergency cleanup and/or remediation, prior to the CITY exercising its right to cleanup
CONCESSION AGREEMENT 10
and/or remediation on the Premises, the parties will mutually agree upon a consultant for
determining the method of cleanup and/or remediation. All information described herein
shall be provided to CITY regardless of any claim by CONCESSIONAIRE that it is
confidential or privileged, provided that the CITY shall not publish or disclose the
information to any third party except as pursuant to Chapter 42.17 RCW.
4.9.3 Indemnification
CONCESSIONAIRE agrees to hold harmless, protect, indemnify, and defend
CITY from and against any damage, loss, claim, or liability, INCLUDING Attorney's
fees and costs, resulting from CONCESSIONAIRE'S use, disposal, transportation,
generation, and/or sale of any Hazardous Substances. The CITY agrees to hold harmless,
protect, indemnify, and defend CONCESSIONAIRE from and against any damage, loss,
claim, or liability, including attorney's fees and costs, resulting from (a) Hazardous
Substances existing on the Premises as of the EFFECTIVE DATE of this Agreement; or
(b) Hazardous Substances thereafter used, disposed of, or generated on the Premises by
the CITY. These indemnities will survive the termination of this Agreement, whether by
expiration of the Term or otherwise.
4.10 Risk of Loss
All personal property of any kind or description whatsoever in the Premises shall
be at the CONCESSIONAIRE's sole risk, and CITY shall not be liable for any damage
done to, or loss of, such personal property. However, CONCESSIONAIRE is not
responsible for losses or claims of damaged or stolen property under the care and control
of the CITY during the CITY'S use periods.
ARTICLE 5. DESIGN & CONSTRUCTION OF PREMISES
5.1 Design
The CONCESSIONAIRE shall retain a licensed architect or licensed professional
engineer, registered in the State of Washington, who shall design the indoor ice arena
facility and exterior landscaping, which shall visually blend with the setting. The CITY
shall have the right to approve the final design of the Improvements and shall have a
continuing right to approve the exterior color of any structure on the Premises, which
approval shall not be unreasonably withheld. CONCESSIONAIRE shall comply with the
Americans with Disabilities Act of 1990 (ADA) in the design, construction, and
operation of the Premises.
5.2 Building & Site Plans
The CONCESSIONAIRE shall retain a licensed architect or licensed professional
engineer, registered in the State of Washington, to prepare building and site plans for the
Premises, which shall reference the structure, utilities generally, and landscape plan. The
CITY shall have the right to approve the final building and site plans, which approval
shall not be unreasonably withheld.
CONCESSION AGREEMENT l 1
5.3 Construction/Site Work/Fencing
The CONCESSIONAIRE shall be solely responsible for ail development and
construction of the Premises and hold the CITY harmless from any and ail claims arising
out of the development and construction of the Premises pursuant to Article 8.6 herein,
except as may be caused by the sole acts or negligence of the CITY or its agents,
representatives or employees. CONCESSIONAIRE shall be responsible for the site work,
ail required permits and grading. CONCESSIONAIRE shail properly barricade the work
area and instail signage directing unauthorized person not to enter onto the building site
during any phase of development or construction. Unless otherwise agreed fencing shall
be placed around the work area. In addition, the building site shail be kept in a clean and
organized condition during development periods. CONCESSIONAIRE shall be
responsible for site security, traffic and pedestrian warnings at the site during the
development and construction phases.
5.4 Construction Deadlines
CONCESSIONAIRE shall be required to commence development and
construction of the Premises within nine months of the EFFECTIVE DATE of this
Agreement. Commencement of development and construction of the Premises is defined
as that date upon which there is physical movement or grading of the soil in preparation
for construction of any structure on the Premises. CONCESSIONAIRE shall be required
to complete the development and construction of the Premises within eighteen (18)
months of the EFFECTIVE DATE of this Agreement. Completion of the development
and construction of the Premises is defined as that date upon which all final occupancy
permits are obtained by the CONCESSIONAIRE for ail structures on the Premises.
5.5 Failure to Meet Construction Deadlines/Time of Essence
Except as provided in Article 8.15 herein, it is mutuaily understood and agreed
that failure by the CONCESSIONAIRE to meet the development and construction
deadlines shall constitute a materiai breach of this Agreement by the
CONCESSIONAIRE and the CITY, at its option, can terminate this Agreement for cause
pursuant to Article 7, subject, however, to the provisions of Article 6 below. Time is of
the essence with this Agreement.
5.6 Stormwater Drainage, Sewer, & Water Lines
The CONCESSIONAIRE will be responsible for relocating storm drains, sewers,
and water lines to the Premises, as required to complete development and construction of
the Improvements. The CITY shail provide CONCESSIONAIRE with all pertinent
information concerning the location of such existing lines.
5.7 Development and Construction Fees & Expenses
The CONCESSIONAIRE shall be responsible for obtaining and paying for
necessary permits, fees, and expenses associated with the development and construction
of the Improvements. In addition, CONCESSIONAIRE shall be responsible for any
additionai costs for inspections billed to the C1TY by any government agency, including
but not limited to the City of Bremerton, Kitsap County, or the State of Washington.
CONCESSION AGREEMENT 12
5.8 CONCESSIONAIRE's Development Project
The development and construction of Improvements on the Premises is
CONCESSIONAIRE's development project and is not a CITY public works project.
CONCESSIONAIRE is the developer and the CITY is not an owner, partner, joint
venturer, nor maintains any other business relationship with the CONCESSIONAIRE
regarding the indoor ice arena facility other than as grantor of a concession and user of
the Premises. The CITY is not involved with, nor has any responsibilities for, the
bidding, contracting or operations of the Premises and will occupy no space in the
Premises. The project signage and all literature, advertising by either the CITY or
CONCESSIONAIRE shall not indicate in any manner that this is a CITY project,
contract, or other misleading statement indicating that this project is a CITY public work
project directly or indirectly.
5.9 No Liens
Except liens and encumbrances of any lender pursuant to Article 6 herein, it is
mutually understood and agreed that the CONCESSIONAIRE shall have no authority,
express or implied, to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of the CITY in the Premises or to
charge the rentals payable hereunder for any claim in favor of any person dealing with
CONCESSIONAIRE, including those who may furnish materials or perform labor for
any construction or repairs, and each such claim shall affect and each such lien shall
attach to, if at all, only the right and interest granted to CONCESSIONAIRE by this
Agreement. If any such liens are filed, CITY may, without waiving its rights and
remedies for breach, and without releasing CONCESSIONAIRE from its obligations
hereunder, require CONCESSIONAIRE to post security in form and amount reasonably
satisfactory to CITY or cause such liens to be released by any means CITY deems proper,
including payment in satisfaction of the claim giving rise to the lien.
CONCESSIONAIRE shall pay to CITY upon demand any sum paid by CITY to remove
the liens. Further, CONCESSIONAIRE agrees that it will save and hold the CITY
harmless from any and all loss, cost, or expenses based on or arising out of the asserted
claims or liens, except those of the lender pursuant to the provisions of this Agreement,
against this Agreement or against the right, title, and interest of the CITY in the Premises
or under the terms of this Agreement, including reasonable attorney's fees and costs
incurred by CITY in removing such liens, and in enfoming this paragraph. Additionally,
it is mutually understood and agreed that this paragraph is intended to be a continuing
provision applicable to future repairs and improvements after the initial construction
phase.
ARTICLE 6. FINANCING & SECURITY INTERESTS
6.1 Financing - No CITY Obligation
CONCESSIONAIRE shall be solely responsible for all financing requirements for
all construction, maintenance, repairs, or subsequent improvements to the Premises. The
CITY shall be under no obligation directly or indirectly to pay for any labor, material, or
improvement associated with the facility except as provided herein or mutually agreed
upon. The CONCESSIONAIRE shall, in applying and obtaining financing, inform any
CONCESSION AGREEMENT 13
lender that the CITY has no financial obligations associated with the construction,
maintenance, repairs or subsequent improvements to the Premises.
6.2 Security Interest in Premises & Agreement/Consent
The CITY consents to the grant, transfer, pledge and assignment of any and all
right, title, claim, interest of CONCESSIONAIRE in and to this Agreement and in the
Premises, including improvements and personal property on the Premises ("Collateral")
to lender for financing purposes, including the re-financing of any loans and leasing of
equipment. The CITY shall recognize lender's first priority security interest in the
Collateral and the CITY hereby subordinates any and all interest of the CITY in said
Collateral to lender. CONCESSIONAIRE 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 kind or nature whatsoever upon, or in any manner on its title to
CITY real property. In the event of default by CONCESSIONAIRE to lender, in addition
to all its rights and remedies available at law and equity, lender may enforce and/or
foreclose its security interest/interests in the Collateral. CITY agrees that in connection
with any such default, and all without further consent of CITY, lender may:
a. Acquire CONCESSIONAIRE'S interest in the Collateral either by a deed in lieu
of foreclosure or actual foreclosure;
b. Rent and/or grant a ground and use concession of the Premises subject 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
CONCESSIONAIRE and operate said Collateral; and/or
e. Appoint a receiver.
f. All other rights and remedies at law or in equity.
Any assignment or transfer under Article 6.2 is subject to Article 8.7. Lender
shall have no interest in improvements located on the Premises at the time of expiration
of the term or terms of this Agreement pursuant to Article 2, at which time, all
improvements shall become the property of the CITY.
6.3 LENDER's Reliance on Term and Renewal Options
The City acknowledges that the CONCESSIONAIRE, in making 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 ten-year Agreement term with four options to
extend the ten-year Agreement for a total of fifty years with the renewal options
conditioned solely upon the CONCESSIONAIRE maintaining current payments and
remaining in full compliance with the terms and conditions of this Agreement. Lender
may, but is not obligated to exercise CONCESSIONAIRE's right to renew and extend the
terms of this Agreement. Additionally, the CITY acknowledges that, after any original
financing commitments by the CONCESSIONAIRE have been satisfied, these financing
provisions shall be applicable to all future advances or financing required by the
CONCESSION AGREEMENT 14
CONCESSIONAIRE 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 subject to this Agreement or
any other act of CONCESSIONAIRE shall be deemed to terminate this Agreement.
CITY will not terminate this Agreement voluntarily by agreement with
CONCESSIONAIRE unless lender has been previously notified in writing and has
consented to the termination in writing. This Agreement shall not be amended or
modified unless lender has been previously notified in writing and has consented to such
amendment or modification in writing.
6.5 Notice of Default and Lender's Rights
6.5.1 Notice of Default
If CONCESSIONAIRE 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 it may have under this
Agreement without first giving lender written notice of such default in accordance with
Article 6.11 below. A copy of each and every notice of default served or sent by CITY or
its agent to or upon CONCESSIONAIRE 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 outstanding and the time period at
the end of which the indicated 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
CONCESSIONAIRE has not cured such monetary default within 30 days after lender
receives the notice and CONCESSIONAIRE'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 CONCESSIONAIRE or lender within 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 CONCESSIONAIRE has not cured, or diligently pursued curing, such non-monetary
default within thirty (30) days after lender receives the notice, CITY may terminate this
Agreement pursuant to Article 7 if such non-monetary default is not cured by either
CONCESSIONAIRE or lender within sixty (60) days after lender receives notice of
default.
6.5.4 Termination due to Bankruptcy
CITY shall not terminate this Agreement because of CONCESSIONAIRE'S
breach of any terms of this Agreement relating to the solvency of CONCESSIONAIRE
or the institution of any bankruptcy, insolvency, receivership or related action by or
CONCESSION AGREEMENT 15
against CONCESSIONAIRE as long as lender cures any default under this Agreement by
CONCESSIONAIRE as provided herein, except that lender shall not be required to cure
any defaults relating to solvency of CONCESSIONAIRE.
6.6 Right to Assign
Lender shall have the right to assign its interest in the Collateral. Upon the
pumhaser's, assignee's or transferee's assumption of lenders assigned interest and
agreement to perform and 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 subject 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 insurance, and
the insurance proceeds are used to restore any improvements made by
CONCESSIONAIRE, CITY agrees that CONCESSIONAIRE and lender shall have the
right to such proceeds so long as none of CITY'S property, utilities or other services
therein are damaged or such damages are repaired. In the event the CITY'S land is
substantially damaged and CONCESSIONAIRE'S improvements have been repaired,
C1TY shall only participate in the insurance proceeds to the extent necessary to repair and
restore CITY'S land and any of CITY'S improvements on or in the ground to the same
condition the land was at the commencement of this Agreement, or in the same condition
at the time of the casualty. Other than as described herein, CITY shall have no claim to
insurance proceeds that are attributable to CONCESSIONAIRE's interest in the
Collateral.
6.8 Right to Participate in Litigation
Lender shall have the right to participate in any litigation, arbitration or dispute
directly affecting the Collateral or interest of CONCESSIONAIRE or lender therein,
including, without limitation, any suit, action, arbitration proceeding, condemnation
proceeding or insurance claim. CITY, upon instituting or receiving notice of any such
litigation, arbitration 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 CONCESSIONAIRE herein
including but not limited to the warranty, indemnity, hold harmless, choice of law and
venue, costs and attorney's fees as provided herein.
6.10 Right to Remove Collateral
In the event lender exercises its rights under its Collateral and realizes upon the
Collateral, CITY agrees that lender is entitled to remove the Improvements on the
Premises, including but not limited to building facility, furniture, movable trade fixtures
and equipment, from the Premises at any reasonable time and that the Collateral shall
remain personal property even though the trade fixtures may be affixed to or placed upon
CONCESSION AGREEMENT 16
the Premises. In the event lender so realizes on its Collateral, CITY waives any right,
title, claim, lien or interest in the Collateral.
6.11 Notices
All notices, copies of notices, consents or other communications to lender given
under this Agreement to lender must be in writing and shall be effective when received.
Such communications shall be given in person to an officer of lender, addressed to lender
at an address as provided by lender. CONCESSIONAIRE shall keep the CITY informed
of the name, address, and telephone number of any current lender or lenders for the
purpose of the CITY providing notice 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 additional financing needs of CONCESSIONAIRE, which may require
changes to the terms or conditions of this Agreement. In such case, the CITY will give
reasonable consideration to such changes to this Agreement, and may, at its sole
discretion, accept or reject the same. Any modifications to this Agreement are subject to
approval of the U.S. Secretary of Interior pursuant to Article 8.21.
ARTICLE 7. TERMINATION
7.1 Failure to Perform
7.1.1 Obligation to Perform
Nothing herein shall imply any duty upon CITY to do any work, which under any
provision of this concession CONCESSIONAIRE may be required to perform, and the
performance thereof by CITY shall not constitute a waiver of CONCESSIONAIRE's
default. CITY shall not in any event be liable for inconvenience, annoyance, and
disturbance in its activities in Eastpark.
7.1.2 Payments to Other Parties
Except as otherwise expressly provided hereunder, all obligations of the
CONCESSIONAIRE under this Agreement will be performed by CONCESSIONAIRE
at CONCESSIONAIRE's sole cost and expense. If CONCESSIONAIRE fails to pay any
sum of money owed to any party other than CITY for which CONCESSIONAIRE is
liable hereunder, or if CONCESSIONAIRE falls 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 releasing CONCESSIONAIRE from its
obligations, make any such payment or perform any such other act to be made or
performed by CONCESSIONAIRE. CONCESSIONAIRE shall pay CITY, on demand,
all sums so paid by CITY and all necessary incidental costs, together with interest
thereon at the lesser of 1V2 pement per month or the maximum rate permissible by law,
from the date of such payment by CITY, provided, however, CONCESSIONAIRE shall
have the right to contest any such obligation, upon such terms and conditions as the CITY
may reasonably insist, in order to protect its interests herein.
CONCESSION AGREEMENT 17
7.2 Default and Termination.
This Agreement and the concession granted herein may be terminated for default
as follows:
7.2.1 CITY's Default
CITY will not be in default unless CITY fails to perform an obligation within
thirty (30) days after notice by CONCESSIONAIRE, which notice must specify the
alleged breach; provided that if the nature of CITY's obligation is such that more than
thirty (30) days are reasonably required for cure, then CITY will not be in default if
CITY commences to cure within thirty (30) days of CONCESSIONAIRE's notice and
thereafter diligently pursues completion and completes performance within a reasonable
time.
7.2.2 CONCESSIONAIRE's Default
The occurrence of any one or more of the following events constitutes a default
under this Agreement by CONCESSIONAIRE: (1) CONCESSIONAIRE shall be in
default of the performance of any covenants, conditions, or provisions of this Agreement,
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 CONCESSIONAIRE's obligations is such that
more than thirty (30) days are reasonably required for cure, CONCESSIONAIRE will not
be in default if CONCESSIONAIRE commences to cure within thirty (30) days of
CITY's notice and thereafter diligently pursues completion and completes performance
within a reasonable time; or (2) CONCESSIONAIRE shall be adjudged 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 be appointed for
CONCESSIONAIRE's estate and such appointment is not vacated within 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 CONCESSIONAIRE; or (5) CONCESSIONAIRE 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 within thirty (30) days after mailing of written
notice thereof by CITY; or (6) CONCESSIONAIRE shall fail to comply with the same
concession agreement term or covenant on three occasions during any 10 year term, even
if such breach is cured within the applicable cure period. The CITY's right to terminate
pursuant to this Article for failure of CONSCESSIONAIRE to cure a default is subject to
the lender's fight to cure pursuant to Articles 6.5.2 and 6.5.3.
7.2.3 Default for Other Cause
Subject to lender's interest(s) as provided in Article 6, this Agreement may be
immediately terminated for other cause by a party if the other party substantially falls to
perform its obligations under this Agreement, through no fault of the terminating party,
and the non-performing party does not commence correction of the failure of
performance within thirty (30) days of the terminating party's sending notice to the non-
performing party.
CONCESSION AGREEMENT 18
7.2.4 Bankruptcy
Subject to lender's interest(s) as provided in Article 6, the Parties agree that if the
CONCESSIONAIRE is adjudged bankrupt, either voluntarily or involuntarily, then this
AGREEMENT, at the option of the CITY, may be terminated effective on the day and at
the time the bankruptcy petition is filed.
7.3 Remedies Are Cumulative
Remedies under this Agreement are cumulative; the failure to exemise on any
occasion any fight shall not operate to forfeit such remedy.
7.4 Destruction of Premises & Use of Insurance Proceeds
Unless otherwise mutually agreed by the Parties, in the event the Improvements
on the Premises are destroyed or injured by tim, earthquake, or other casualty, then
CONCESSIONAIRE shall proceed to rebuild and restore the Improvements, or such part
thereof as may be injured as aforesaid. In the event of any loss covered by the insurance
policies described and required pursuant to Article 8.5.1 herein, unless this Agreement
shall be terminated as provided herein, the proceeds of such insurance policies shall be
used by CONCESSIONAIRE first to rebuild and restore the Premises and replace the
improvements which may be damaged or destroyed by such casualty.
7.5 Duties upon Termination
Upon termination of this agreement, and unless otherwise arranged,
CONCESSIONAIRE shall remove from the Eastpark all its personal property, goods, and
effects. In the event that the CONCESSIONAIRE fails to perform this duty at
termination, the CITY may cause such removal to be made and said personal property,
goods, and effects to be stored, the cost and expense to be paid by the
CONCESSIONAIRE. It is mutually understood and agreed that the real property
constituting the Premises of this Agreement is the real property of the CITY and that all
improvements to said real property shall revert to the CITY at the termination of this
Agreement, subject to the rights of lender as provided in this Agreement in the event of
termination for default.
7.6 Eminent Domain
The following rules shall govern the rights and duties of the Patties in the event of
interference with the possession of the Premises by CONCESSIONAIRE by fight of
eminent domain 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 in lieu thereof,
then this Agreement shall automatically terminate as of the date that title shall be taken. If
more than twenty-five percent (25%) of the Premises shall be so taken and if the taking
renders the remainder thereof unusable for the purposes for which the Premises were
concessioned, then CITY and CONCESSIONAIRE shall each have the right to terminate
this Agreement on thirty (30) days notice to the other given within ninety (90) days after
the date of such taking. Provided, however, that if the CITY is exercising its rights of
CONCESSION AGREEMENT 19
eminent domain, a fair value shall be placed on this Agreement as if it had not been
terminated and the Premises with the compensation thereof awarded solely to
CONCESSIONAIRE, or lender pursuant to its security interest, 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 domain, the CITY shall, at its own cost
and expense, restore the remaining portion of the Premises to the extent necessary to
render it reasonably suitable for the purposes for which it 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 CONCESSIONAIRE in accordance with their respective interests as determined by a
court of competent jurisdiction. Additionally, CONCESSIONAIRE may prosecute any
claim directly against the condemning authority for the costs of removal of the goodwill,
stock, trade fixtures, furniture and other personal property belonging to
CONCESSIONAIRE. CITY shall have no claim to condemnation proceeds that are
attributable to CONCESSIONAIRE's interest in the Collateral, nor shall
CONCESSIONAIRE or lender have any interest in CITY's condemnation proceeds, if
any.
ARTICLE 8. GENERAL CONDITIONS
8.1 Relationship of Parties
&l.l CONCESSIONAIRE Independent Contractor Status
The Parties intend that an independent relationship shall be created by this
Agreement. Nothing contained herein shall create the relationship of principal and agent
or of partnership or of joint venture between the parties hereto, and neither the method of
computation of consideration nor any other provision contained herein shall be deemed to
create any relationship between the parties hereto other than the relationship of CITY as
granting a ground and use concession to the CONCESSIONAIRE. CONCESSIONAIRE
has the experience, ability, and resources to develop and operate an indoor ice arena
facility and is performing independent functions and responsibilities within its field of
expertise. CONCESSIONAIRE and its personnel are independent contractors and not
employees of the CITY. No agent, employee, servant, or representative of the
CONCESSIONAIRE shall be deemed to be an employee, agent, servant or representative
of the CITY. CONCESSIONAIRE and its personnel have no authority to bind the CITY
or to control the CITY's employees. As an independent contractor, CONCESSIONAIRE
is responsible for its own management. The CITY's administration and enforcement of
this Agreement shall not be deemed an exercise of managerial control over
CONCESSIONAIRE or its personnel.
CONCESSION AGREEMENT 20
&l.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
herein.
&l.3 No Joint Venture/Partnership
It is mutually understood and agreed that no joint venture or partnership formed
as a result of this Agreement.
&l.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 required or permitted hereunder
must be in writing and will be effective upon the earlier of personal delivery or three days
after being mailed by certified mail, return receipt requested, addressed to
CONCESSIONAIRE or to CITY at the address for that party designated herein. Either
party may specify a different address for notice purposes by written notice to the other,
except that CITY may in any event use the Premises as CONCESSIONAIRE's address
for notice purposes. Each of the below noted addressees shall be responsible for
notifying 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 following addresses:
CITY CONCESSIONAIRE
City of Bremerton Bremerton Ice Arena, Inc.
Attn: Director of Parks and Recreation Attn: Greg Meakin, President
680 Lebo Boulevard P.O. Box 1044
Bremerton, WA 98310 Bremerton, WA 98337
LENDER
Charles C. Haselwood
Joanne L. Haselwood
P.O. Box 4999
Bremerton, WA 98312
With a copy to:
Gary T. Chrey
Shiers Chrey Cox Digiovanni & Zak, LLP
600 Kitsap Street, Suite 202
Port Orchard, WA 98366
CONCESSION AGREEMENT 21
8.3 Reports & Information
When requested by the CITY, CONCESSIONAIRE shall furnish periodic reports
and documents on matters related to CONCESSIONAIRE's performance under this
Agreement. The reports and documents shall be furnished in the time and form requested.
CONCESSIONAIRE shall maintain accounting records in accordance with Generally
Accepted Accounting Principles (GAAP).
8.4 Permits, Licenses, Taxes, & Fees
8.4.1 Permits, Licenses, & Other Documents
The CONCESSIONAIRE shall possess a current Bremerton Business License and
shall obtain all regulatory licenses and permits, including all construction and building
permits, necessary to fulfill CONCESSIONAIRE's obligations under this Agreement at
CONCESSIONAIRE's sole expense. Each party agrees to execute such additional or
other documents as may be required to fully implement the intent of this Agreement.
&4.2 Taxes & Fees
As an independent contractor, the CONCESSIONAIRE shall be solely
responsible for all taxes, fees and charges incurred, including but not limited to license
fees, business and occupation taxes, workers' compensation and unemployment benefits,
all federal, state, regional, county and local taxes and fees, including leasehold excise tax
pursuant Chapter 82.29A RCW, ad valorem taxes, taxes imposed on personal property,
all other assessments for improvements or benefits which are assessed on the Premises,
income taxes, property taxes, permit fees, operating fees, surcharges of any kind that
apply to any and all persons, facilities, property, income, equipment, materials, supplies
or activities related to the CONCESSIONAIRE's use of the Premises and obligations
under this Agreement.
8.5 Insurance
&$.l Fire, Earthquake, & Casualty Insurance
The CONCESSIONAIRE agrees that, at all times during the full term of this
Agreement and at its own expense, CONCESSIONAIRE shall, at its sole cost and
expense, maintain in full force and effect adequate fire, earthquake, and other casualty
coverage covering the Premises and its contents, including all personal property and
improvements. Such policy shall include a replacement cost endorsement.
CONCESSIONAIRE will shall obtain and file with the CITY's Risk Manager a
Certificate of Insurance evidencing such coverage. All such insurance coverage shall
include a ten-day cancellation notice to CONCESSIONAIRE and the CITY. Adequacy of
coverage is defined as insurance sufficient to restore the Premises to its pre-casualty
condition.
&5.2 Liability Insurance
Prior to the commencement date of this Agreement, CONCESSIONAIRE, at its
own expense shall obtain and file with the CITY's Risk Manager a Certificate of
Insurance evidencing general comprehensive liability insurance coverage ("CGL")
CONCESSION AGREEMENT 22
providing coverage of at least $2,000,000 per occurrence for bodily injury and
$1,000,000 per occurrence for property damage. This Certificate of Insurance shall be
subject to approval by the CITY's Risk Manager as to company, terms and coverage, and
said approval shall not be unreasonably withheld. The CGL shall name the CITY as an
additional insured and must fully protect the C1TY from any and all claims and risks and
losses in connection with any activities or omissions by the CONCESSIONAIRE by
virtue of this Agreement. The CGL policy shall remain in full force and effect at the
CONCESSIONAIRE's sole expense for liability for property damage or personal injury
that may occur in connection with activities or omissions by the CONCESSIONAIRE,
and provide coverage for the full term of this Agreement. CONCESSIONAIRE shall
insure that the CITY's Risk Manager is given thirty-calendar days prior written notice, by
certified mail, of any cancellation, lapse, reduction or modification of such insurance.
&5.3 Release and Waiver of Subrogation
Any policy of insurance carried by either CITY or CONCESSIONAIRE pursuant
to any obligation under this Agreement, shall, to the extent available, contain a waiver of
subrogation clause on the part of the insurer. Such waiver shall apply to damages to
adjacent property. Notwithstanding any other provision of this Agreement, neither CITY
nor CONCESSIONAIRE shall be liable to the other party or to any insurance company
(by subrogation or otherwise) insuring the other party for any loss or damage to any
building, structure or tangible personal property of the other occurring in or about the
Premises or 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 lines of insurance, benefiting the party
suffering such loss or damage or was required under the terms of this Agreement to be
covered by insurance by the party covering the loss.
8.6 Hold Harmless, Indenmification, & Industrial Insurance
8.6.1 Hold Harmless & Indemnification
Each party hereto agrees to be responsible and assumes liability for its own
wrongful or negligent acts or omissions, or those of its officers, agents, or employees to
the fullest extent required by law. Each party agrees to save, indenmify, defend, or hold
the other party harmless against all liability, loss, damages, and expenses, including costs
and attorney's fees, resulting from actions, claims and lawsuits arising or alleged to have
arisen, in whole or in part, out of or in consequence of the acts or failures to act of the
other party, its employees, its subcontractors, its agents, or its assigns, which arise in any
way out of the performance of this Agreement. In the case of negligence of both the
CITY and the CONCESSIONAIRE, any damages allowed shall be levied in proportion
to thc percentage of negligence attributable to each party, and each party shall have the
right to seek contribution from the other party in proportion to the percentage of
negligence attributable to the other party.
CONCESSION AGREEMENT 23
8. 6.2 Industrial Insurance
The Parties have specifically negotiated CONCESSIONAIRE's waiver of its
immunity under Title 51 RCW, which is hereby waived for purposes of
CONCESSIONAIRE's indemnification and hold harmless of the CITY, including the
duty to defend. This provision shall be inapplicable to the extent such action, claim, or
lawsuit is judicially found to arise solely from the acts or failures to act of the CITY.
8.7 Successors & Assigns
The CITY and CONCESSIONAIRE each agree to be bound to the other party in
respect to all covenants, agreements, and obligations contained in this contract. Except as
provided in Article 6 herein, neither party shall assign the contract in part or as a whole,
without the written consent of the other, which consent shall not be unreasonably
withheld. Except as provided in Article 6 herein, the CONCESSIONAIRE 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
CONCESSIONAIRE shall be authorized to sub-concession areas within the Premises to
food and beverage purveyors, equipment sales, and similar supporting concessions as set
forth in Article 4.1.3. When requested, approval by the CITY of a subcontract or
assignment shall not be unreasonably withheld. In the event of an assignment,
subcontracting, or delegation of duties, the CONCESSIONAIRE shall remain responsible
for the full and faithful performance of this Agreement and the assignee, subcontractor,
or other obligor shall also become responsible to the CITY for the satisfactory
performance of the services, facilities, or equipment assumed. The CITY may condition
approval upon the delivery by the assignee, subcontractor, or other obligor of its covenant
to the CITY to fully and faithfully complete the requirements or responsibility undertaken
under this Agreement. Notwithstanding the foregoing, provided CONCESSIONAIRE is
not in default, the CONCESSIONAIRE may assign its interest in this Agreement without
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 binding upon and
inure to the benefit of the Parties and their respective heirs, personal representatives,
successors, and assigns. IN THE EVENT THE CONCESSIONAIRE SEEKS
CONSENT OF THE CITY OF AN ASSIGNMENT OF THIS AGREEMENT IN ITS
ENTIRETY, SUCH ASSIGNMENT SHALL REQUIRE THE PRIOR NOTIFICATION
AND REVIEW, APPROVAL OR WAIVER OF THE U.S. SECRETARY THROUGH
THE NATIONAL PARK SERVICE, WHO, BY CONSENTING TO THIS
AGREEMENT WAIVES THE RIGHT TO REVIEW AND CONSENT TO AN
ASSIGNMENT OF THIS AGREEMENT WHICH IS LESS THAN AN ASSIGNMENT
IN ITS ENTIRETY.
8.8 Compliance with Laws
The CONCESSIONAIRE, its officers, employees, and agents shall comply with
applicable federal, state, county, and local laws, statutes, rules, regulations, and
ordinances, in performing its obligations under this Agreement. Such compliance shall
include abiding by all applicable federal, state and local policies to ensure equal
employment opportunity based on ability and fitness to all persons regardless of race,
CONCESSION AGREEMENT 24
creed, color, national origin, religion, sex, physical handicaps or age. The
CONCESSIONAIRE shall comply with applicable laws pertaining to employment
practices and employee treatment. Conditions of the Federal Occupational Safety and
Health Act of 1970 (OSHA), the Washington Industrial Safety and Health Act of 1973
(WISHA), and standards and regulations issued under these Acts must be complied with.
The CONCESSIONAIRE agrees to indemnify and hold harmless the City from ail
damages assessed for the CONCESSIONAIRE's failure to comply with the Acts and
Standards issued thereunder. The CONCESSIONAIRE is also responsible for meeting ail
pertinent local, state and federai health and environmentai regulations and standards
applying to any operation in the performance of this Agreement.
8.9 Nondiscrimination
Parties shall not discriminate in employment or services to the public on the basis
of race, color, national origin, sex, religion, age, maritai status, or disability, except for
employment actions based on bona fide occupational qualification.
8.10 Choice of Law & Venue
This Agreement shail be interpreted according to the laws of the State of
Washington. Any judiciai action to resolve disputes arising out of this Agreement shail be
brought in Kitsap County Superior Court.
8.11 Costs & Attorneys' Fees
In any action brought to enforce any provision of this Agreement, including
actions to recover sums due or for the breach of any covenant or condition of this
Agreement, or for the restitution of the Premises to the CITY or eviction of the
CONCESSIONAIRE during the term or after expiration thereof, the substantially
prevailing party shall be entitled to recover from the other party ail 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
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
minor modifications to this agreement, relative to the use or operation of the Premises,
consistent with its purpose and intent. Any major modifications or modifications having
a financial impact on the City shall require City Council approval. All modifications to
this Agreement are subject to approval of the U.S. Secretary of Interior pursuant to
Article 8.21.
8.13 Change in Law/Renegotiation
The Parties agree that changes in federal, state or locai laws or regulations that
materially modify the terms and conditions of the Agreement and result in a detrimental
change in circumstances or a material hardship for either party in performing this
Agreement may be the subject of a request by a requesting party to renegotiate this
Agreement or negotiate Agreement amendments and the responding party agrees to
renegotiate fairly with the requesting party.
CONCESSION AGREEMENT 25
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 is prevented or delayed by acts of God including
landslides, lightning, 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 restraint or other causes, whether of the kind enumerated or
otherwise, which are not reasonably within the control of that obligated party ("Force
Majeure"). If as a result of a Force Majeure event, an obligated party is unable wholly or
partially to meet its obligations under this Agreement, it shall give the other party
promptly written notice of the Force Majeure event, describing it in reasonable detail.
The obligated party's obligations under this Agreement shall be suspended, but only with
respect to the particular component of obligations affected by the Force Majeure and only
for the period during which the Force Majeure exists.
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 obligation of either party hereto shall be
effective unless in writing, specifying such waiver, executed by the party against whom
such waiver is sought to be enforced. Waiver of any right or power arising out of this
Agreement shall not be deemed waiver of any other right or power.
8.16 Illegal Provisions - Severability
Should any part of this Agreement be found void, illegal, or unenforceable, the
balance of the Agreement shall remain in full force and effect.
8.17 Article Headings, Gender, & Number
Article paragraph headings are not to be construed as binding provisions of this
concession; they are for the convenience of the Parties only. The masculine, feminine,
singular and plural of any word or words shall be deemed to include and refer to the
gender and number appropriate in the context.
8.18 Entire Agreement
This Agreement and its Exhibits constitutes the entire agreement between the
Parties, and the Parties acknowledge that there are no other agreements, written or oral,
that have not been set forth in the text of this Agreement.
8.19 Counterparts
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.
8.20 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.
CONCESSION AGREEMENT 26
8.21 Approval of Agreement
This Agreement is subject to the approval of the U.S. Secretary of the Interior
pursuant to the Quitclaim Deed transferring title to the CITY to the real property upon
which this concession is granted.
8.22 Duplicate Originals
This document is executed in duplicate original.
IN WITNESS WHEREOF, this Agreement has been entered into between the
City of Bremerton and Bremerton Ice Arena, Inc. as of the 9th day of August, 2002.
BREM.ERTON ICE .ARENA, INC.
Greg'"Meakin~ President
CITY OF B~M~~E N
a Washin~nicipal c~
Cary Bozeman, Mayor
APPROVED AS TO FORM:
LIST OF EXHIBITS
Exhibit A - Legal Description of Premises
Exhibit B - Preliminary Building and Site Plans
Exhibit C - Appraisal and Compensation Information
Exhibit D - Quit Claim Deed from United States of America to the City of Bremerton
CONCESSION AGREEMENT 27
STATE OF WASHINGTON )
) SS.
COUNTY OF KITSAP )
I certify that I know or have satisfactory evidence that Cary Bozeman is the person who
appeared before me, and said person acknowledged that he signed this instrument, on
oath stated that he was authorized to execute the instrument and acknowledged it as the
Mayor of the CITY OF BREMERTON to be the free and voluntary act of such party for
the uses and purposes mentioned in the instrument.
Given under my hand and official seal this ~ day of ~d~ O 0',& ,2002.
~,Type/Print Name ~
~ ,'.;o**' Public in and for the
~ '~',~OT_s.~/:/~ ~'~te of Washington residin~ at
~ , /~ ~1 IG~ .~:~ Commission expires
STATE OF WA~
COUNTY OF KITSAP
On this at/~ day of .~.n? 8'~ ,2002, before me personally appeared Greg
eakin, to me known to be the President of BREMERTON ICE ARENA, INC. a
Washington corporation,, that executed the within and foregoing instrument and
acknowledged the said instrument to be the free and voluntary act and deed of said
corporation for the uses and purposes therein mentioned, and on oath stated that he was
authorized to execute and in fact executed said instrument on behalf of the corporation.
my hand and omcial seai this *-~/1 day of ~t~3tt$'~ ,2002.
Given
under
Type/Print Name ~l~f,~e
Notary Public in and for the
State of Washington residinggt
My Commission expires
CONCESSION AGREEMENT 28
EXHIBIT A
Legal Description of Premises
THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 12, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., IN THE CITY OF
BREMERTON, KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS:
COMMENCING AT A CONCRETE MONUMENT MARKING THE SOUTHEAST CORNER
OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION
12; THENCE NORTH 2°01'25" EAST ALONG THE EAST LINE THEREOF 460.48 FEET;
THENCE NORTH 81°50'04" WEST 49.07 FEET TO THE TOP OF A BANK AND THE
POINT OF BEGINNING; THENCE CONTINUING NORTH 81050'04" WEST 238.24 FEET
TO THE BACK OF AN EXISTING SIDEWALK; THENCE SOUTH 7°45'25" WEST ALONG
SAID SIDEWALK 34.99 FEET; THENCE NORTH 82°00'54" WEST 181.62 FEET; THENCE
SOUTH 7059'06'' WEST 174.03 FEET; THENCE SOUTH 59°45'59" EAST 174.78 FEET TO
THE BACK OF AN EXISTING SIDEWALK BEING A POINT ON A CURVE WHOSE
CENTER POINT BEARS NORTH 57019, 12" WEST 229.36 FEET; THENCE ALONG SAID
CURVE TO THE RIGHT THROUGH A CENTRAL ANGLE OF 35°26'41" FOR AN ARC
DISTANCE OF 141.89 FEET; THENCE SOUTH 32016'28" EAST 106.04 FEET; THENCE
SOUTH 78002'26" EAST 226.39 FEET TO THE SOUTH LINE OF THE SOUTHEAST
QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 12; THENCE SOUTH
87°55'14'' EAST ALONG SAID LINE 7.60 FEET TO THE TOP OF A BANK; THENCE
NORTHERLY ALONG SAID TOP OF BANK TO THE POINT OF BEGINNING;
EXCEPT THAT PORTION LYING WITHIN HOMER R. JONES DRIVE, BEING A 43 FOOT
WIDE STRIP, MORE OR LESS, AS MEASURED BETWEEN BACKS OF EXISTING
SIDEWALKS;
TOGETHER WITH A NONEXCLUS1VE 10-FOOT WIDE RIGHT OF ENTRY FOR
CONSTRUCTION, MAINTENANCE AND REPAIR OF ADJACENT FACILITIES, THE
SOUTH LINE OF WHICH IS DESCRIBED AS FOLLOWS:
COMMENCING AT A CONCRETE MONUMENT MARKING THE SOUTHEAST CORNER
OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION
12; THENCE NORTH 2°01'25'' EAST ALONG THE EAST LINE THEREOF 460.48 FEET;
THENCE NORTH 81050'04" WEST 49.07 FEET TO THE TOP OF A BANK AND THE
POINT OF BEGINNING OF THIS LINE; THENCE CONTINUING NORTH 81°50'04" WEST
238.24 FEET TO THE BACK OF AN EXISTING SIDEWALK AND THE POINT OF
TERMINATION OF THIS LINE.
CONCESSION AGREEMENT Exhibit A
EXHIBIT B - Preliminary Building and Site Plan
Exhibit B is a preliminary building and site plan for the Premises. The building and site plan, as approved and
permitted by the City, shall amend this Exhibit and constitute the final site plan for this Agreement.
EXHIBIT C
Appraisal and Compensation Information
Background: The City of Bremerton commissioned Richards and Associates, Inc. to
conduct a complete appraisal of a selected building site located within the boundaries of
Eastpark in May 2002. The purpose of this appraisal was to estimate the market value in
order to establish a concession rate value of a site to be acquired by concession
agreement from the City for an indoor ice skating facility to be developed, owned, and
operated by Bremerton Ice Arena, Inc. Richards and Associates submitted the appraisal
information in a summary report format on 1 June 2002.
Values: The Richards appraisal estimated the fair concession value of the site to be
$28,602 per year for 144,456 square feet, which equals $.198 per square foot per year. A
comparative market analysis of seven existing indoor ice skating facilities located in
western Washington in February 2002 established the fair rental or use value for indoor
ice skating facilities to be $220 per hour.
Calculations: The City of Bremerton has agreed to provide Bremerton Ice Arena, Inc
with 144,456 square feet of property at Eastpark to construct and operate an indoor ice
skating facility with associated parking. The parties have agreed that the "as-is"
concession rate value of this property is $28,602 per year (144,456 square feet @ $. 198
per year). The parties have further agreed that 8% of the $175,000 ($14,000) paid by the
City to defray the cost of moving the facility to this location, will be provided annually in
the form of additional ice time.
Conclusion: The City of Bremerton and Bremerton Ice Arena, Inc. have agreed that,
upon issuance of an occupancy permit, fair compensation for the Eastpark property
required by Bremerton Ice Arena, Inc. is $46,602 per year; and that fair rental or use
value for the Bremerton Ice Arena indoor ice skating facility is $220 per hour; and that
compensation provided by Bremerton Ice Arena, Inc. to the City of Bremerton for the
Eastpark property is equivalent to 194 hours of indoor ice skating facility usage per year
for the term of the Concession Agreement.
CONCESSION AGREEMENT Exhibit C
qUITCLAIM DEED
The UNITED STATES OF AMERICA, acClng b~ and through the
Secretary of the Interior, acting by and Chrou~h the Nor~hwes~ Re-
as amended, and par:icularly as amended by Public Law 485, 91st
County, grate of Washt.ng~on, and more pa~,~icularly described in
Exhibit "A;' attached hereto and by reference made a part hereof.
rules, and re~ulag~ons prescribed' by.the Secretary of the In=erior.
REEl.
CONCESSION AdREEMENT '~ ---
rules, regulations and'drdere promul~a[ed chareunder, Che General
/ Services ~dministreCion de~ermiued the proper~
needs of the ~ged St~es of ~er~oa and ass~ed the prop~y to
1. ~ proper~y s~ll be used and ~in~ained for the
public put.sea for whi~ i= ~s conveyed in perpe=uiCy as sa~ forth
da~ed Jan~ 8~ 19~1~ ~ suppl~en=ed on Jan~
by the ~ranCee and acaep~ by ~he Grantor on January ~ 19~1~ which
REEL'12FR1890
/
/
tion~ throu~k concms~i~n agreements ea2ered into w~th third parties,
~r~ ~he Secre~ o~ the
~. ~om the ~e o[ ~h~s commence, ~ha Crau~ee, ~s suc-
c~sors ~d ass~, shall submit b~a~l repo~s to 2he
of 2he ~n~er~or, se~n~ [or~h ~he ~e ~de of ~he proper~y dur~n~
~he precedins ~o-y~r p~od, a~ o~he~ pe~inen~ da~
~S ~ts cont~ use ~or 2he purposes se~ ~or~h above, ~o~
co~ut~ve re.ts and as ~urth~ datelined by the Secretary
the
5. ~e ~ant~ s~ll ~v~ the risht durins ~e ~ist~ce
o~ a~ m~io~l ~ersency dec.red ~ 2he ~iden~ o~ the
St~es of ~e~$ca, o~ ~he Con~a th~eo~ co ~he ~ull ~estz~cted
~ithout c~rge; pr~ded the ~antor shall bear the ~t~te cost
c~n~s a~ a~e~ ~or '~tseli~ its successor8 ~d a$s~s~
(1) the pro.am for o; ~ co~ectiou w~th ~h~ch chis ~ed ~ ~de
~11 be conducted ~n c~l~nce ~ith. and the Grantee, ~ts suces-
s~s and assi~, ~11 comply ~th all t~u~r~euts i~osed by or
in dfec~ on ~e ~te of .this Deed (43 C.F.R. Part 17) lssu~
(2) this c~nt shall be subject ~ all ;~pects to ~he
my be nec~sa~ :o effect~te this c~e~nt; (4) :he
S~tes s~ll h~e ~he ri~t to seek Judic~l e~o~c~t o[ ~his
(a) obtain ~d~ ~ch o~her p~son (auy ~e~ ~zy) wh~, ~hrou~:
3
tilt ~i2[R~89i
?
con~ractual or other arransemen~s ~£th the Grantee, its successors
shall~ vith respect to tlae services or benefits ~hich h~ ~ au~ho~-
~n~s and (b) fu~h a copy of such a~e~ ~o ~he Secretary of
~rd to t~l classii!~tia or des~tion, leal or o~he~ise,
be b~din~ ~o the fuller ~en~ permitted by la~ ~d equity for the
7. ~ the ~ent the~e is a brach of a~ of ~he conditions
al~, vhe~r ca~ed by ~he lepl o~ othe~ ~b~l~ of the Gr~ntea,
opC~, ~hich ~ addit~a to all oth~ ~dies fo~ such brach
sMll h~e the ~f~t of en:~ upon said p~lses~ and the Gran~ee,
Off the Grantee, les succ~sors and aasl~ with respect to such
furze perfo~uce s~ll continue in full f~ce and ~fect.
I{E[-:1.2 1892
~o be execu~ed.~n ~Cs ~e and on [~s ~e~ ~h~s the ~ day
Act~ ~ and through the
Nor~hves= Re~ion
B~u of Outdoor
.TATE OF W~H~ )
me~ ~he subs.cribe=~ pars~ily appeared B, 'B. ~, ~o me ~ an~
~o~ ~o be =he ~in~ ReSlo~l Dlrec=~, Nor=hwesC Re~ton~ Bureau
of ~oor Rec~ea~ion, of the ~iCed S~aS D~ar~men~ o~ .~ha In~r-
iox, a s~e~ental agony of ~he United S~a=es of ~eri~a, and
~ =o me to be =he s~ person d~cribed ~ anti ~to ~ecuted
~he fore~oinE ~=~ ~ such ~t~ Re~o~l Director aforesaid,
as tht act and deed of the United Sta=es of ~rica, for .'ang on
half of the Secretary oi the Iuterior~ duly desi~a~ed~ ~p~'i
o said 5~re2a~, and he ac~owle~=~h~
The ~orego;l,ng couveyance is hereby accepted and :he under-
si/ned a~-~ees~ b~ Chis acceptance, to assume and be bound by all the
The CITY OF BIt~MERTON, a municipal
corporation, located in l~l.l;sap
ATTEST: County~ S~:ata of Washtn~it~-.~
,,.
STATE OF WASH~GTON )
County of K~caap )
~he undesired Officer, personally appeared Glenn K, Jarstad an~
whose n~m~ are. subscribed =o the fore~otul accep=ance~ who bein~ by
me duly sworn, did depose ~d s~y ~= he, ~lenn K. J~rsZad, ~S the
Mayor, and that he, ~dr~ Pender~s=, is the Superintendent of
Department. of pa~ks and Recreation of the City of Brier=on,
=on, the= they are duly d~is~ted, e~owered, and au~ho=ized b~ a
=~olution adop~d by %h-e C~ty Council ~ the C~ty of
Washinston, on Dec~ber 30, 1970, to execute the fore~in~ accep=-
ance and to si~ ~heir ~m~ thereto; and that they si~ned
~es ~here~o and ack. ledge t~t'~hey executed the ior~io,~
st~nt f~ and .~°n bellies therein°f the CitYdes ~~°E Bre~ton,'. Wash~'t,' .,~
S
REt '::L2FR"1894
L~GAL DESCP~PTION
Described to sou~ si~e of si~e~ ~ s~ side of ~s~
~ ~c~ey
he~ appr~y at ~e ~rsec~on of ~e c~r ~es of
~Mst ~.70 feet ~ a co~r~ monet, s~d ~t be~
~ Sec~ ~e ~ Sec~ ~ ~d 1~ at a ~t
~ere ~e cen~rl~ of 3~ey ~ ~tersects said
~e; ~ence Sou~ 1°18'18,, ~t 2~.23 feet, ~re or ~sm, ~
~ side of S~ Seco~ ~ No. ~3; ~en~ N~ 70°27~,'
~fest ~ the ~r~r~ sl~e ~ s~ ~ ~9.68 feet;
S~ 19°32~20'' ~st ~g ~s~r~ side of s~ ~my ~0
~ce ~ a ~s~rXy d~c~on ~ong ~ ~herly side ~
H~ ~ a ~ of radius 547.97 feet a dis~ce of 227;32 feet;
~ence ~ong s~d H~h~y No~h 46°~u40" ~s~ 136,2~ feet; %h~ce
Nor~ 87052'56". West 7.~ fee%$ ~n~e ~ t~ ~he~rly side
of s~d Ni~y ~r~ ~°~s40" ~s~ 163.21 feet; ~ence
43018'20'' ~st 58.~ feet, ~re or ~s, ~ a ~int ~ ~ back
the side~ ~o~ ~ sou~ s~e of N0~ R. Jones ~ive$ ~ence
ac~ss ~id ~ve N~ 23005'~'' ~t ~ feets mere.or lesss
a po~t on t~ bask of ~e side~ on ~e n~ ~de~ ~n~ ~ong
~ bask of ~e s~e~k on a ~e to ~e ~t ~ a radius of
48.65 feet a die--ce ~ 44.~ fee%~ ~ence ~ong ba~ of side~
No~h 14035~'' _~st 72.~ feet; ~e~e ~g bock of side~k
z ~e ~ ~he right ~ a radihs cf 4~.5 feet[ i dish, ce of
216.78 feet, ~nce ~ong back of s~e~k No~ 12~s07'' ~st
105.56 fee%~ ~ence ~n~ bask of s~e~ on a c~e ~ ~e
~ a radius of 651.5 feet a dis~e of 227.47 feet; con~ue
~o~ bask of s~e~ on a c~e ~ t~ r~ht ~th rad~s ~1.31
feet a dis~ce of 273.79 f~t) ~ence ~ 68041'39'' ~s% ~6.26
f~t cross~g Ho~r R. Jones Drive at ~rsection ~ Sc~ey
~dz thence on a ~e ~ ~e l~t ~ a ra~us of 227.72
fe*t a dist~ce of 63.23 feet; ~ence Sou~ 29°46'35'' ~st
~ee~, ~hence S~ 87°58~35'' ~t 139.5 f~t, more or less 'co frae
po~t of beg~g, c~n~nE appr~a~ 18.1 acres: o:~cep~
~ea desi~a~d as "M~cip~ ~ea" describe4 as
E~BIT A
~[[[ ~12F~1889
,~ area desi§nat~d as ',Municipal Area" ~ ~ si~ of ~ Ea~p~k
Hous~ ~ojec~, ~0~ ~ ~ City of ~eme~n~ Co~y
~ap~ St~t~ of ~sh~ ~re p~i~ descried
Bs~2 at a p~t ~ ~s Moth 2°01~2~''
sec~on co~ of Sectio~ 12 ~d 13, To~p
~s~, ~,~t~ ~e~di~, a d~ ~ 20
~ 87v~8'3~'' West ~ f~t; ~ce ~uth 2
~Mst ~ f~t ~ a ~e ~ is p~ ~ ~ 20 feet ~.of ~e
~ ~e ~ 8ect~n ~; ~en~ ~ 8~52~56'' ~mt ~ feet ~o
~on~ ~e s~ l~e of ~d Sect~ ~; ~
~ement dated 29 No~ber ~ ~ ~ Po~r CO~ re~ed
~ V~u~ 89 of Deeds~ Page ~38~ reco~s of
re~rded ~ ~ ~8, Page 2~, records of
RE[ ' 12FR1859
WATER AND SEWER LINE LICENSE AGREEMENT
AGREEMENT made and entered into as of the ~ day of_~z/~ ,200,~, by
and between the CITY OF BREMERTON, a Washington municipal corl~r~tion ("Grantor"), and
BREMERTON ICE ARENA, INC., a Washington corporation ("Grantee").
RECITALS:
WHEREAS, Grantor is the owner of certain real property in the City of Bremerton,
Kitsap County, Washington, legally described on Exhibit A attached hereto and by this
reference made a part hereof (hereinafter "City Property").
WHEREAS, Grantee bolds a concession by agreement executed by and between the
parties dated on or about August 9, 2002, incorporated herein by this reference, (hereinafter
"Concession Agreement"), for the development and operation of an ice arena located on a
portion of City Property legally described in Exhibit B attached hereto and by this reference
made a part hereof (hereinafter "Arena Property").
WHEREAS, Grantee desires to utilize two separate portions of City Property located
adjacent or connecting to the Arena Property, for the installation of water and sewer utility lines
to serve the Arena Property and Grantor is willing to grant a license therefor.
NOW, THEREFORE, in consideration of the mutual benefits to be derived herefrom, it is
agreed:
1. INCORPORATION OF RECITALS: The foregoing Recitals are incorporated
herein by this reference and made a part hereof.
2. GRANT OF LICENSE: Grantor hereby grants and conveys to Grantee, its
successors and assigns for the benefit of the Arena Property a non-exclusive license for the
construction, installation, operation, inspection, maintenance, repair, replacement and removal of
a water utility line, subject to the approval of Grantor, over, under, across, through and above
that portion of the City Property legally described in Exhibit C and a sewer utility line, subject
to the approval of the Grantor, over, under, across, through, and above that portion of the City
property legally described in Exhibit D, both attached hereto and by this reference made a part
hereof (hereinafter the "License Property"); TOGETHER. WITH all appurtenant related pipes
and equipment related or incidental thereto; and TOGETHER WITH all rights and privileges
necessary or convenient for the full enjoyment and use thereof for the above-mentioned
purposes, including the right to cut and keep clear such vegetation as may be reasonably required
for such purposes.
The parties acknowledge that a second water utility line is to be installed within the
Arena Property legally described in Exhibit E and that, being within the Arena Property, a
license is not required but such is identified herein for the purpose of memorializing the location
of the same for future reference.
Water and Sanitary Sewer License Agreement
Page 1 of 11
3. GRANTOR'S USE RESTRICTIONS: Grantor, for itself and its successors and
assigns, covenants as follows:
(a) Grantor shall not use the License Property in any manner that might
interfere with Grantee's use, occupation and enjoyment of the License Property for the
purposes hereof.
(b) Grantor covenants that no building, structure, improvement or obstruction
shall be located or constructed on the License Property which interferes with Grantee's
use of the License Property for the purpose intended.
4. CONSTRUCTION AND MAINTENANCE COVENANT: Grantee, for itself
and its successors and assigns in the Arena Property, covenants and agrees to construct and
install the water and sewer systems pursuant to applicable city ordinances, rules and regulations,
at its sole cost and expense. Grantee shall maintain and repair the accepted water and sewer
utility systems installed on the License Property to the same standards as originally installed and
accepted at its sole cost and expense. In the event that Grantor reasonably determines that
Grantee has failed to so maintain and repair such systems, the Grantor reserves the right, but not
the obligation, to perform such maintenance and repair upon Grantee's failure to do so after thirty
(30) days prior written notice therefor from Grantor unless Grantee is diligently pursuing such
maintenance or repair. If Grantor undertakes such maintenance and repair, Grantee shall
reimburse Grantor the costs and expenses incurred within thirty (30) days after receipt of
Grantor's invoice(s) and demand therefor.
Grantee shall be required to restore the License Property following construction or repair
to its condition prior to said construction or repair.
5. LICENSE SUBJECT TO CONCESSION AGREEMENT: Subject to the terms
and conditions herein, the license granted by this agreement is subject to the fights, duties and
obligations of the Concession Agreement and all fights herein shall terminate when the fights of
Grantee or successor in interest to the Concession Agreement terminate.
6. INDEMNIFICATION: Grantee shall defend, indemnify and hold the Grantor, its
officers, officials, employees, agents and volunteers harmless from any and all claims, injuries,
damages, losses or suits, including ail legal costs and attorney fees, arising out of or in
connection with the Grantee's construction, maintenance and/or operation of water/sewer utility
facilities on the License Property pursuant to this Agreement, except for that portion of the
injuries and damages caused by the Grantor's negligence.
The Grantor's inspection or acceptance of any of Grantee's work when completed shall
not be grounds to avoid any of these covenants of indemnification.
Water and Sanitary Sewer License Agreement
Page 2 of 11
Should a court of competent jurisdiction determine that this Agreement is subject to
RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent negligence of the Grantee and
the Grantor, its officers, officials, employees, agents and volunteers, the Grantee's liability
hereunder shall be only to the extent of the Grantee's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE GRANTEE'S WAIVER 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. MISCELLANEOUS PROVISIONS: The following provisions apply to this
Agreement:
(a) Goveming law and Venue. This Agreement shall be construed and
interpreted pursuant to Washington law and any controversy or interpretation hereof shall be
by the state courts of Washington with venue in Kitsap County, Washington. The captions
throughout this Agreement are for convenience and reference only and the words contained
in them shall not be held to expand, modify, amplify or aid in the interpretation, construction
or meaning of this Agreement. Any reference herein to "days" means consecutive calendar
days. If the last day of any time period or any other specified date occurs on a day when the
recording office of Kitsap County is closed, such time period or date shall be extended to the
next day such recording office is open.
(b) Attome,/s Fees. In the event of any dispute between the parties arising out
of or in connection with this Agreement, the substantially prevailing party in any action or
proceeding to resolve the same shall be entitled to recover their costs and expenses incurred,
including reasonable attorney's fees.
(c) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
(d) Entire Agreement. This Agreement represents the entire agreement between
the parties with respect to the subject matter hereof. All prior negotiations, agreements,
representations, warranties or other matters of like or any other nature shall be of no further
force or effect and are superseded by this Agreement.
(e) Course of Dealing. Notwithstanding any course of dealing to the contrary,
this Agreement shall not be amended or modified in any manner other than by an instrument
in writing, signed by the parties.
Water and Sanitary Sewer License Agreement
Page 3 of 11
(0 Non-Waiver. Waiver of a breach of any provision hereof shall not be
deemed to be a waiver of a breach of any other provision or a subsequent breach of the same
provision.
(g) Notices. Any notice desired or required to be given hereunder shall be in
writing, and shall be deemed received three days after deposit with the U.S. Postal Service,
postage fully prepaid, certified mail, return receipt requested, and addressed to the party to
which it is intended at its last known address.
(h) Counterparts. This Agreement may, but need not be, executed in one or
more counterparts, all of which counterparts taken as a whole shall be deemed the entire
Agreement.
(i) Severability. In the event that one or more provisions of this Agreement
shall be determined to be invalid by any court of competent jurisdiction or agency having
jurisdiction thereof, the remainder of the Agreement shall remain in full force and effect and
the invalid provisions shall be deemed deleted.
1N WITNESS WHEREOF the parties hereto have caused this Agreement to be executed as of
the day and year first above written.
GRANTOR: GRANTEE:
CITY OF BREMERTON k BREMERTOIIKICE J~kRENA, 1N(~.
BY: ~
Mayor
'~y Clerk/
Approved as to form:
Water and Sanitary Sewer License Agreement
Page 4 of 1 1
STATE OF WASHINGTON )
) SS.
COUNTY OF KITSAP )
On this/~ay of ~.~_ ,2003, before me, the undersigned, a Notary Public
in and for the State of ~:as~r~ton, duly commissioned and swom, personally appeared Cary
Bozeman, to me known to be the Mayor of the CITY OF BREMERTON, a Washington municipal
corporation, and that he executed the foregoing instrument, and acknowledged the said instrument
to be the free and voluntary act and deed of the said municipal corporation, for the uses and
purposes therein mentioned, and on oath stated that he is authorized to execute the said insmm~ent.
WITNESS my hand and official seal hereto affixed the day and year first above written.
NO'~AR'~PUI~L~IC in arid f~r tl~
State of Was~gton
Residing at (._'~_tX2~
My commission expires: .,~'-/.ff.
Print Name: ~l-~t~.l.'-u] -L.
STATE OF WASHINGTON )
) SS.
COUNTY OF KITSAP )
On this/~ay of /T/a< / , 2003, before me, the undersigned, a Notary Public
in and for the State of Wasllington, duly commissioned and sworn, personally appeared
~t-~a /T}et~t'rl and~n~e i~Sa~,-h0~-~,,O , to me known to be the
President and Secretary, respectively, of BREMERTON ICE ARENA, INC., a Washington
corporation, and that they executed the foregoing instrument, and acknowledged the said instrument
to be the free and voluntary act and deed of the said corporation, for the uses and purposes therein
mentioned, and on oath stated that they are authorized to execute the said instrument,
WITNESS m' t hand and official seal hereto affixed the day and year first above written.
~ ~'o~O. ,~_~}~ ~ N6TATff'2 PUBLi~ in and for the
~?.,'.. o-oflBL.\~ .: ~ State of Washi~ngton
~,.,.f..?.~,:[.?.'l..:Oe/~ff Residing at ~"~O~vlA ~_r,~v'l
~ My commission expires: ,:$
Print Name."Wh~, { ann ~/
Water and Sanitary Sewer License Agreement
Page 5 of 1 1
..- . .~,"A" ' ' '""" : "' .'.,' '~ ".
~ec~d to sou~ ~e o~ ~e~ ~ ~ .ide ~ ~ ~'-; '"'.'~ .~ '
~ ~le~ ~. . ......'.~; ... '.....:.'
: . ~ a~ · ~ ~e~ ~ c~'~ ~ec~e~
~ ~ ~e.~ ~c~ ~ ~' ~ at a ~ ~~ ..(.' .y'.'..,/'
" ~j ~e ~u~ ~8s~8" ~ ~.2~ ~ee~, ~ ~ '~e~ ~o~e '," .'~:.:~.' '~.'.
~ ~ ~ ~e~ ~e ~ ~d ~'~,68 ~j .t~ge .:'
. ~ ~ 32'~" ~ ~g ~s~r~- side '~ o~ ~ 50 ~j ~ :' ' ' '.:
....... +.~e~ce ~ a ~t~s~ d~c~ ~o~ ~ ~h~ e~ ~ e~d '.'.
' ~b~ ~ a ~ ~.~us ~7.~ feet a ~e~ of ~2 ~eetj * :: ·
of e~No~ ~o~. ~t~3.~ f~ ~.~ ' '. ' . ' ..
· . aerobe a~ ~ 3~ ~ 05~" ~$ ~ fea~ ~,~
~8.65 ~t a ~e ~ ~.~ ~e~s ~enco ~ back of p~do~ ".-'* ' ". *.:'.' ..';~
.. · . ~ ~ ~".~ 72.~ ~ +~co ~ baSk.o~
a ~ ~ ~.rtg~ a rad~ ~,~, a d~ of ., *'.'. ~' .' :,-~
~.78 ~o~j ~nce ~o~ b~ oZ ~ ~ ~07~ ~ ::'..':~;..*' :.-. . ."('J
"~ a rad~ of ~.~ ~o~ a ~o ~ ~7.2~ feetj ~ :. "-. ". '., ,.~.~
~ .bask ~ ~e~ ~ a ~ ~ ~' ~ ~
· eet a dl~ ~ 273.79 f~ ~e No~ 6~s39n ~t 216.26.' '".. .'j
· ' ~ee~ ~ss~Ho~r R, ~ ~veat ~s~o~ ~ '- .:..~ * j
·feet a d~ce of 63.2~ fe~; ~e~e ~ ~°~3~n
feet~ ~e~e ~ 81°58~35" ~ ~.5 f~t, ~re or ~ee ~ ~' ...
po~t o~ ~S4~, ~'~"S ~a~ 18.1 a~.
'." " '.'" '"' -'·
.. ........_......,...,...... :-
...................................... ~, ................. r '" ' ' ' .---~' ~.~ '. .~._....
an'd Ad~nisCra~:.~e Ser~.c~ AcC o£.~9~,9,'as amended~ ~ud appZf, cable
· ' ........ : * ~e~~ of ~eo~ ~ ~ ~ ~an~.~'~o~ ~e:~ '...' .' ' - ....
~o~ly.~ o~ B~Y ~;' ~ce ~o~ 2~*~~ ~t" : · -
' 350 ~_~'~ ~ eet; '" ~ )'
~g ~ ~ ~.~ ~c~ ~ ' '. .*: '*[..*.*
~g~* ~ted ~ N~r ~,~ ~ Po~r ~ rended *' * ' '
; - . ... .. . . ,[ ' i',.. -...
..... ?.,,.,, .- ;~,,,:.:.,..,~ ". ....... . /"' .: .'.:.; .' . · .'[
'FU~U~nC'~O au=h~ty Ccn~atned ~u ~he F~d~ral
H2FR1889
EXHIBIT B
Arena Property
Legal Description
THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 12, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., 1N THE CITY OF BREMERTON,
KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS:
COMMENCING AT A CONCRETE MONUMENT MARKING THE SOUTHEAST CORNER OF THE
SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 12; THENCE
NORTH 2°01'25" EAST ALONG THE EAST LINE THEREOF 460.48 FEET; THENCE NORTH
81°50'04" WEST 49.07 FEET TO THE TOP OF A BANK AND THE POINT OF BEGINNING;
THENCE CONTINUING NORTH 81°50'04" WEST 238.24 FEET TO THE BACK OF AN EXISTING
SIDEWALK; THENCE SOUTH 7°45'25" WEST ALONG SAID SIDEWALK 34.99 FEET; THENCE
NORTH 82000'54" WEST 181.62 FEET; THENCE SOUTH 7o59'06" WEST 174.03 FEET; THENCE
SOUTH 59o45'59" EAST 174.78 FEET TO THE BACK OF AN EXISTING SIDEWALK BEING A
POINT ON A CURVE WHOSE CENTER POINT BEARS NORTH 57°19'12'' WEST 229.36 FEET;
THENCE ALONG SAiD CURVE TO THE RIGHT THROUGH A CENTRAL ANGLE OF 35°26'41''
FOR AN ARC DISTANCE OF 141.89 FEET; THENCE SOUTH 32°16'28" EAST 106.04 FEET;
THENCE SOUTH 78°02'26" EAST 226.39 FEET TO THE SOUTH LINE OF THE SOUTHEAST
QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 12; THENCE SOUTH 87°55'14"
EAST ALONG SAID LINE 7.60 FEET TO THE TOP OF A BANK; THENCE NORTHERLY ALONG
SAID TOP OF BANK TO THE POINT OF BEGINNING;
EXCEPT THAT PORTION LYING WITHIN HOMER R. JONES DRiVE, BEING A 43 FOOT WiDE
STRIP, MORE OR LESS, AS MEASURED BETWEEN BACKS OF EXISTING SiDEWALKS;
TOGETHER WITH A NONEXCLUSIVE 10-FOOT WIDE RIGHT OF ENTRY FOR
CONSTRUCTION, MAINTENANCE AND REPAIR OF ADJACENT FACILITIES, THE SOUTH
LINE OF WHICH IS DESCRIBED AS FOLLOWS:
COMMENCING AT A CONCRETE MONUMENT MARKING THE SOUTHEAST CORNER OF THE
SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 12; THENCE
NORTH 2°01'25" EAST ALONG THE EAST LINE THEREOF 460.48 FEET; THENCE NORTH
81050'04'' WEST 49.07 FEET TO THE TOP OF A BANK AND THE POINT OF BEGINNING OF
THIS LINE; THENCE CONTINUING NORTH 81050'04" WEST 238.24 FEET TO THE BACK OF AN
EXISTING SIDEWALK AND THE POINT OF TERMINATION OF THIS LINE.
Water and Sanitary Sewer License Agreement
Page 8 of 11
EXHIBIT C
License Property
Legal Description
Water
THAT PORTION FO THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 12, TOWNSHiP 24 NORTH, RANGE 1 EAST, W.M. 1N THE CITY OF
BREMERTON, KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS:
COMMENCING AT A CONCRETE MONLrMENT MARKING THE SOUTHEAST CORNER
OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION
12; THENCE NORTH 2°01'25" EAST ALONG THE EAST LiNE THEREOF 460.48 FEET;
THENCE NORTH 81o50'04'' WEST 76.17 FEET TO THE POINT OF BEGINNING; THENCE
NORTH 8o09'56'' EAST 33.80 FEET; THENCE NORTH 81o50'04'' WEST 15.00 FEET;
THENCE SOUTH 8009'56'' WEST 18.80 FEET; THENCE NORTH 81050'04'' WEST 196.25
FEET, MORE OR LESS, TO THE BACK OF AN EXISTING SIDEWALK; THENCE SOUTH
7045'25'' WEST ALONG SAID SIDEWALK 15.00 FEET; THENCE SOUTH 81o50'04'' EAST
211.14 FEET TO THE POINT OF BEGINNING.
Water and Sanitary Sewer License Agreement
Page 9 of 11
EXHIBIT D
License Property
Legal Description
Sewer
THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 12, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., 1N THE CITY OF
BREMERTON, KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS:
COMMENCING AT A CONCRETE MONUMENT MARKING THE SOUTHEAST CORNER
OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION
12; THENCE NORTH 87°55'14'' WEST ALONG THE SOUTH LiNE THEREOF 155.49
FEET; THENCE NORTH 78°02'26" WEST 226.39 FEET; THENCE NORTH 32°16'28" WEST
60.64 FEET TO THE POINT OF BEGINNING; THENCE CONTINUING NORTH 32°16~28'
WEST 17.73 FEET; THENCE SOUTH 89°57'07.. WEST 119.06 FEET; THENCE SOUTH
00002'53.. EAST 15.00 FEET; THENCE NORTH 89057'07', EAST 128.52 FEET TO THE
POINT OF BEGINNING.
Water and Sanitary Sewer License Agreement
Page 10 of 1 1
EXHIBIT E
Legal Description
Water
THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 12, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M. 1N THE CITY OF
BREMERTON, KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS:
COMMENCING AT A CONCRETE MONLFMENT MARKING THE SOUTHEAST CORNER
OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION
12; THENCE NORTH 2°01'25" EAST ALONG THE EAST LINE THEREOF 140.25 FEET;
THENCE NORTH 81°53'17" WEST 178.72 FEET TO THE POINT OF BEGINNING;
THENCE CONTINUING NORTH 81%3'17" WEST 74.55 FEET; THENCE NORTH 59°23'16''
WEST 97.45 FEET TO THE BACK OF AN EXISTING SIDEWALK BEING A POINT ON A
CURVE WHOSE CENTER POINT BEARS NORTH 55°36'37'' WEST 229.36 FEET;
THENCE ALONG SAID CURVE TO THE RIGHT THROUGH A CENTRAL ANGLE OF
3045'58.. FOR A DISTANCE OF 15.08 FEET; THENCE SOUTH 59°23'16'' EAST 101.92
FEET; THENCE SOUTH 81°53'17'' EAST 62.53 FEET; THENCE SOUTH 8o06'44'' WEST
25.31 FEET; THENCE SOUTH 81°53'16'' EAST 15.00 FEET; THENCE NORTH 8006'44''
EAST 40.31 FEET TO THE POINT OF BEGINNING.
Water and Sanitary Sewer License Agreement
Page 1 1 of 1 1
STORM WATER LICENSE AGREEMENT
AGREEMENT made and entered into as of the~ day o£~q.~ ,20tg, j, by
and between the CITY OF BREMERTON, a Washington municipal cor~o~tion ("Grantor"), and
BREMERTON ICE ARENA, 1NC., a Washington corporation ("Grantee").
RECITALS:
WHEREAS, Grantor is the owner of certain real property in the City of Bremerton,
Kitsap County, Washington, legally described on Exhibit A attached hereto and by this
reference made a part hereof (hereinafter "City Property").
WHEREAS, Grantee holds a concession by agreement executed by and between the
parties dated on or about August 9, 2002, incorporated herein by this reference, (hereinafter
"Concession Agreement"), for the development and operation of an ice arena located on a
portion of City Property legally described in Exhibit B attached hereto and by this reference
made a part hereof (hereinafter "Arena Property").
WHEREAS, Grantee desires to utilize another portion of City Property located adjacent
to the Arena Property, for the installation of a storm water drainage and retention system to serve
the Arena Property and Grantor is willing to grant a license therefor.
WHEREAS, provisions for maintenance and repair of such storm water system need to
be made.
NOW, THEREFORE, in consideration of the mutual benefits to be derived herefrom, it is
agreed:
1. iNCORPORATION OF RECITALS: The foregoing Recitals are incorporated
herein by this reference and made a part hereofi
2. GRANT OF LICENSE: Grantor hereby grants and conveys to Grantee, its
successors and assigns for the benefit of the Arena Property a non-exclusive license for the
construction, installation, operation, inspection, maintenance, repair, replacement and removal of
a storm water drainage and retention system, subject to the approval of Grantor, over, under,
across, through and above that portion of the City Property legally described on Exhibit C
attached hereto and by this reference made a part hereof (hereinafter the "License Property");
TOGETHER WITH all appurtenant related pipes and equipment related or incidental thereto;
and TOGETHER WITH all rights and privileges necessary or convenient for the full enjoyment
and use thereof for the above-mentioned purposes, including the fight to cut and keep clear such
vegetation as may be reasonably required for such purposes.
3. GRANTOR'S USE RESTRICTIONS: Grantor, for itself and its successors and
assigns, covenants as follows:
Storm Water License Agreement
Page 1 of 9
(a) Grantor shall not use the License Property in any manner that might
interfere with Grantee's use, occupation and enjoyment of the License Property for the
purposes hereof.
(b) Grantor covenants that no building, structure, improvement or obstruction
shall be located or constructed on the License Property which interferes with Grantee's
use of the License Property for the purpose intended.
4. CONSTRUCTION AND MAiNTENANCE COVENANT: Grantee, for itself
and its successors and assigns in the Arena Property, covenants and agrees to construct and
install the storm water drainage and retention system pursuant to applicable city ordinances, rules
and regulations, at its sole cost and expense. Grantee shall maintain and repair the accepted
storm water facilities/system installed on the License Property to the same standards as originally
installed and accepted at its sole cost and expense. In the event that Grantor reasonably
determines that Grantee has failed to so maintain and repair such facilities/system, the Grantor
reserves the right, but not the obligation, to perform such maintenance and repair upon Grantee's
failure to do so after thirty (30) days prior written notice therefor from Grantor unless Grantee is
diligently pursuing such maintenance or repair. If Grantor undertakes such maintenance and
repair, Grantee shall reimburse Grantor the costs and expenses incurred within thirty (30) days
after receipt of Grantor's invoice(s) and demand therefor.
Grantee shall be required to provide low maintenance, attractive ground cover
landscaping such as grass and shrubbery and shall maintain such landscaping within the License
Property in a neat clean condition as well as to provide general maintenance of the area. The
landscaping requirements set forth herein shall not diminish the landscaping requirements set
forth in the landscaping plan on file with the Grantor associated with the site plan review
approval for the Arena Property.
5. LICENSE SUBJECT TO CONCESSION AGREEMENT: Subject to the terms
and conditions herein, the license granted by this agreement is subject to the rights, duties and
obligations of the Concession Agreement and all rights herein shall terminate when the rights of
Grantee or successor in interest to the Concession Agreement terminate.
6. TERMINATION OF LICENSE: The license granted shall terminate upon notice
by the Grantor that a city storm drainage facility is available for connection by Grantee's ice
arena facility. It is anticipated that such a city storm drainage facility will be developed in the
future in conjunction with the development of the nearby Eastpark property or other property
located within the area. Upon notice by Grantor, Grantee shall, at its own cost and expense,
connect into the city storm drainage facility and restore the License Property to its original
condition, unless Grantor approves other restoration plans. Upon connection to the city system
and restoration of the License Property, this license shall terminate. Failure to connect to the city
system when given notice to do so and failure to restore the License Property shall be deemed a
default of the Concession Agreement.
Storm Water License Agreement
Page 2 of 9
7. INDEMNIFICATION: Grantee shall defend, indemnify and hold the Grantor, its
officers, officials, employees, agents and volunteers harmless from any and all claims, injuries,
damages, losses or suits, including all legal costs and attorney fees, arising out of or in
connection with the Grantee's construction, maintenance and/or operation of storm drainage
facilities on the License Property pursuant to this Agreement, except for that portion of the
injuries and damages caused by the Grantor's negligence.
The Grantor's inspection or acceptance of any of Grantee's work when completed shall
not be grounds to avoid any of these covenants of indemnification.
Should a court of competent jurisdiction determine that this Agreement is subject to
RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent negligence of the Grantee and
the Grantor, its officers, officials, employees, agents and volunteers, the Grantee's liability
hereunder shall be only to the extent of the Grantee's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE GRANTEE'S WAIVER 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. MISCELLANEOUS PROVISIONS: The following provisions apply to this
Agreement:
(a) Governing law and Venue. This Agreement shall be construed and
interpreted pursuant to Washington law and any controversy or interpretation hereof shall be
by the state courts of Washington with venue in Kitsap County, Washington. The captions
throughout this Agreement are for convenience and reference only and the words contained
in them shall not be held to expand, modify, amplify or aid in the interpretation, construction
or meaning of this Agreement. Any reference herein to "days" means consecutive calendar
days. If the last day of any time period or any other specified date occurs on a day when the
recording office of Kitsap County is closed, such time period or date shall be extended to the
next day such recording office is open.
(b) Attorney's Fees. In the event of any dispute between the parties arising out
of or in connection with this Agreement, the substantially prevailing party in any action or
proceeding to resolve the same shall be entitled to recover their costs and expenses incurred,
including reasonable attomey's fees.
(c) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Storm Water License Agreement
Page 3 of 9
(d) Entire Agreement. This Agreement represents the entire agreement between
the parties with respect to the subject matter hereof. All prior negotiations, agreements,
representations, warranties or other matters of like or any other nature shall be of no further
force or effect and are superseded by this Agreement.
(e) Course of Dealing. Notwithstanding any course of dealing to the contrary,
this Agreement shall not be amended or modified in any manner other than by an instrument
in writing, signed by the parties.
(f) Non-Waiver. Waiver of a breach of any provision hereof shall not be
deemed to be a waiver of a breach of any other provision or a subsequent breach of the same
provision.
(g) Notices. Any notice desired or required to be given hereunder shall be in
writing, and shall be deemed received three days after deposit with the U.S. Postal Service,
postage fully prepaid, certified mail, return receipt requested, and addressed to the party to
which it is intended at its last known address.
(h) Counterparts. This Agreement may, but need not be, executed in one or
more counterparts, all of which counterparts taken as a whole shall be deemed the entire
Agreement.
(i) Severabilit¥. In the event that one or more provisions of this Agreement
shall be determined to be invalid by any court of competent jurisdiction or agency having
jurisdiction thereof, the remainder of the Agreement shall remain in full force and effect and
the invalid provisions shall be deemed deleted.
1N WITNESS WHEREOF the parties hereto have caused this Agreement to be executed as of
the day and year first above written.
GRANTOR: . GRANTEE: "
CITY OF BREMERTON ( BREMERTON, ICE/J
BYI~Iayor /~
Attest: .~ ~~~ ~ /~ )~~
Cff~Cle~ .... ~ Secreta~
' ~y Attorney'
Storm Water License ~t
Page 4 of 9
STATE OF WASHINGTON )
) SS.
COUNTY OF K1TSAP )
On thist~Jlay of~, 2003, before me, the undersigned, a Notary Public
in and for the State of Wa~hiffgton, duly commissioned and sworn, personally appeared CarT
Bozeman, to me known to be the Mayor of the CITY OF BREMERTON, a Washington municipal
corporation, and that he executed the foregoing instrument, and acknowledged the said instrument
to be the free and voluntary act and deed of the said municipal corporation, for the uses and
purposes therein mentioned, and on oath stated that he is authorized to execute the said instrument.
and official seal hereto affixed the day and year first above written.
N~);FARY~rBLI~C in and for th~
State o f Washin_n~,ton
Residing at
My commission expires:
Print Name: (_~t]~.~t / /. ~.~
STATE OF WASHINGTON )
) SS.
COUNTY OF KITSAP )
On this ,t,y,~ay of /~[ ,2003, before me, the undersigned, a Notary Public
in and for the. State of Was~fington, duly commissioned and sworn, personaily appeared
~rneo /~ffo~'Jrq and ~:~m~ [~0~n~,eqou- Mnvl, V~o me known to be the
Presi~lent and Secretary, respectively, of BREMERTON ICE ARENA, INC., a Washington
corporation, and that they executed the foregoing instrument, and acknowledged the said instrument
to be the free and voluntary act and deed of the said corporation, for the uses and purposes therein
mentioned, and on oath stated that they are authorized to execute the said instrument.
WITNESS my hand and official seal hereto affixed the day and year first above written.
NOTARY ?LTBLIC in m',-d £or the
State ofWashi,~gton t
Residing at ,_F)r~O"'~sm
My commission expires: ,.~.
Print Name: ~-~,~ 6f 0~61
Storm Water License Agreement
Page 5 of 9
". ~ I~,SC~'f'ZON ,, ... :. ;....' ... ., ,:!
]:~er~d to ~uth ~tdo oS ,~ ~o~~ ~ ~ ~' ~' ".?(( .:" ".'
~ s~ ~. . . -. . · :...f'~: ...'....::.'~
:. ~ ~, ~ ~,~ ~ ~'~ ~ ~g. "~[".;-::')~.:: ~ .:'~
~.~ f~t ~ ~ ~ ~ of ~ ~'~U~.~' /"....".:.....
· · '"'~c~ ~ a ~s~r~ d~c~ ~o~ ~ ~r~ ~ ~ ~d "." ' .'" ·
' ~ ~ a ~ ~.~ ~7.~ feet a ~s~ of ~ ~eet~ ,"~. ::: · ': ~
.' ~.J~ f~ .~ .~ ba~ ~ ~e'"~ on , ~e ~ ~ ~t"-i.1 '/ . ..' ':
~ .ba~ of ~ ~ a ~ ~ ~'r~ht ~ r~s ~.~ ':'-:. ' '.' .. ' '
feet a d~ of 273.~ f~t~ ~e No~ 6~" ~t 2~.26.' -.'. .'~
: .' fee~ ~os~ ~r R. ~es ~e a~ ~ec~on ~ S~ "': ' i:
.. ~; ~e ~ ~e ~ ~e~ a r~ua ~?.?~ '' . -.' '
' "' ' "- feet a d~ ~ 6~.~ ~ee~; ~ ~ ~o~, ~t ?5.~ "
, feet; ~ ~ 8~o~J~" ~ ~.~ f~t, ~re o~ ~ ~ ~..:. ,.' .
". ' - ~ dastard a~ ~c~p~ ~" de=~ed e~ ~ .. ~ ... ': ':. -.. '
:. . ~ '. ~ '. .:' .'.. '~ .:...'f.'.....' :
.. · . . . .- . .( -'. . ' .: '. ' ~. ':...:. '.:",..." ... ....
......_,...,.
.......................................... ~ ................ ~ .' .... . .~ ~_._~.._~ '.
and Ad~ntn~st:rai::.ve S~c~ Act: of .~gt+9~'as amende~ and eppltca~le
' . :. .,'_;c~:~'~'~a~a~g~'' ~t~ :~' . ".: . ' .
. .e;o;;,~, ~,~ ;0 ~ ~ ~.~.~ o~ ~.~, ~, ~... "('..
~ ~ ~ ~.~ ~c~; ~ '. ~' .'~ ":.."'
~' ~d ~ N~er ~ .~ ~ ~o~r ~. r~d~ ' '." -: '
-, , · .. /~ '
: · . :. .. . . ,/ · ~. ....
'~u~U~n~' ~o au~h~y ~ou~a~ued fl3 the F~d~l ~oper~y
' an~ ~in~ra~:,ve Se~c~ ~C o~.~9~9,'~ au~de~ and
EXHIBIT B
Arena Property
Legal Description
THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 12, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., 1N THE CITY OF BREMERTON,
KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS:
COMMENCING AT A CONCRETE MONUMENT MARKING THE SOUTHEAST CORNER OF THE
SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 12; THENCE
NORTH 2°01'25'' EAST ALONG THE EAST LINE THEREOF 460.48 FEET; THENCE NORTH
81°50'04'' WEST 49.07 FEET TO THE TOP OF A BANK AND THE POINT OF BEGiNNiNG;
THENCE CONTINUING NORTH 81°50'04'' WEST 238.24 FEET TO THE BACK OF AN EXISTING
SIDEWALK; THENCE SOUTH 7°45'25'' WEST ALONG SAID SIDEWALK 34.99 FEET; THENCE
NORTH 82°00'$4" WEST 181.62 FEET; THENCE SOUTH 7°59'06TM WEST 174.03 FEET; THENCE
SOUTH 59°45'59" EAST 174.78 FEET TO THE BACK OF AN EXISTING SIDEWALK BEING A
POINT ON A CURVE WHOSE CENTER POINT BEARS NORTH 57°19'12'' WEST 229.36 FEET;
THENCE ALONG SAID CURVE TO THE RIGHT THROUGH A CENTRAL ANGLE OF 35°26'41TM
FOR AN ARC DISTANCE OF 141.89 FEET; THENCE SOUTH 32°16'28'' EAST 106.04 FEET;
THENCE SOUTH 78°02'26'' EAST 226.39 FEET TO THE SOUTH LINE OF THE SOUTHEAST
QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 12; THENCE SOUTH 87°55' 14"
EAST ALONG SAID LINE 7.60 FEET TO THE TOP OF A BANK; THENCE NORTHERLY ALONG
SAID TOP OF BANK TO THE POINT OF BEGINNING;
EXCEPT THAT PORTION LYING WITHIN HOMER R. JONES DRiVE, BEING A 43 FOOT WIDE
STRIP, MORE OR LESS, AS MEASURED BETWEEN BACKS OF EXISTING SIDEWALKS;
TOGETHER WITH A NONEXCLUSiVE 10-FOOT WIDE RIGHT OF ENTRY FOR
CONSTRUCTION, MAINTENANCE AND REPAIR OF ADJACENT FACILITIES, THE SOUTH
LINE OF WHICH IS DESCRIBED AS FOLLOWS:
COMMENCING AT A CONCRETE MONUMENT MARKING THE SOUTHEAST CORNER OF THE
SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 12; THENCE
NORTH 2°01 '25" EAST ALONG THE EAST LINE THEREOF 460.48 FEET; THENCE NORTH
81°50'04'' WEST 49.07 FEET TO THE TOP OF A BANK AND THE POINT OF BEGINNING OF
THIS LINE; THENCE CONTINUING NORTH 81°50'04'' WEST 238.24 FEET TO THE BACK OF AN
EXISTING SIDEWALK AND THE POINT OF TERMINATION OF THIS LINE.
Storm Water License Agreement
Page 8 of 9
EXHIBIT C
License Property
Legal Description
THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 12 AND OF GOVERNMENT LOT 6, SECTION 13,
TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., 1N THE CITY OF
BREMERTON, KITSAP COUNTY, WASHINGTON, DESCRIBED AS
FOLLOWS:
COMMENCING AT A CONCRETE MONUMENT MARKING THE
SOUTHEAST CORNER OF THE SOUTHEAST QUARTER OF THE
SOUTHWEST QUARTER OF SAID SECTION 12; THENCE NORTH
87°55'14'' WEST ALONG THE SOUTH LINE THEREOF 155.49 FEET;
THENCE NORTH 78002'26'' WEST 55.57 FEET TO THE POINT OF
BEGINNING; THENCE CONTINUING NORTH 78o02'26'' WEST 170.82
FEET; THENCE NORTH 32016'28'' WEST 106.04 FEET TO THE BACK OF
AN EXISTING SIDEWALK BEING A POINT ON A CURVE WHOSE
CENTER POINT BEARS NORTH 22o16'47'' WEST 229.36 FEET; THENCE
ALONG SAID CURVE TO THE RIGHT THROUGH A CENTRAL ANGLE OF
17°01'58" FOR AN ARC DISTANCE OF 68.18 FEET; THENCE SOUTH
30o19'49'' WEST 41.76 FEET; THENCE SOUTH 49°22'19'' EAST 144.87
FEET; THENCE SOUTH 86o55'38'' EAST 72.24 FEET; THENCE NORTH
48o04'53'' EAST 39.23 FEET; THENCE SOUTH 89014'33'' EAST 99.65 FEET
TO THE POINT OF BEGINNING.
Storm Water License Agreement
Page 9 of 9