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HomeMy WebLinkAbout4363 Contract Number: 4363 Vendor: COLUMBIA HOSPITALITY INC Subject: Conference Center - Management of Department: Finance File Class: GS50-01-11 Rev. 3 General Begin Date: 6/1/2003 End Date: 3/31/2016 Review Date: Vault Date: 1/1/2017 Comments: Termination Letter 2/23/16 s i RECEIVED FEB 2 3 2016 'I�--------`- ��-- --- �I • ' CITY CLERK THE CITY OF PRIDE AND OPPORTUNITY Mayor Patty lent mayor@ci 6rem� o�.us Tel 360-473-5266 Fox 3.0 a th AGA of 5 ite 600 Bremer on,WA 96937-1873 February 23, 2016 John Oppenheimer Columbia Hospitality, Inc. 2205 Alaskan Way Seattle WA 98121 Fax: (206) 239-1801 Re: Notion of Termination Dear Mr. Oppenheimer: As you know the City would like to review and renegotiate the terms of the Management Agreement between and the City of Bremerton and Columbia Hospitality, Inc. originally executed June 6, 2003, for the Conference Center on the Bremerton Waterfront. In order to accomplish this goal, the City is providing ninety(90) days notice of termination pursuant to section 3.5.1 of the agreement. I look forward to speaking with you soon. Sincerely, Patty Le t Mayor City of emerton CC: Cairncross & Hempelman, P.S. 524 Second Avenue, Suite 500 Seattle,WA 98104 Attention: Gregory J. Duff Fax: (206) 587-2308 Contract Number* 4363 Vendor: COLUMBIA HOSPITALITY INC Subject* Conference Center - Management of Department Finance File Class LEG 12 -1 Begin Date. 6/1/2003 End Date Review Date 2/1/2014 Vault Date Comments Amendment #1 -7/04 #2 -3/07 #3 -6/07 Extension letter 3/10, Automatic Renewal for 2 yr terms unless_ termed with 90 days notice ��r��� � ����� ���fJ��� �T ����A�RI'�##� �l��Bt���l�� March 17, 2010 Barbara Stepfienson Directo� of Financial Services C�ty of Bremertan 345 6 Street, Suite 600 Bremerton, WA 98337-1873 Dear Barba�a Pursuant ta section 3 51 your signature belaw indicates the autamatic twa year renewat of the management agreement between the C�ty of Bremerton and Columbia Hospitahty, Inc dated June 4, 2003 CI F BR�MERTO � � Barbara Stephenson Date Director of Financia! Sennces � Contract Number: Vendor: Subject: Department: File Class: Begin Date: End Date: Review Date: Vault Date: Comments: 4363 COLUMBIA HOSPIRALITY Conference Center - Management of Finance LEG 12-1 06/01/2008 05/31/2010 02/01/2010 Amendment #1-7/04 #2-3/07 #3-6/07 Extension letter dated 6/08 o COLUMBIA.. HOSPITALITY June 18, 2008 Ms. Laura Lyon Director of Financial Services City of Bremerton 345 6th Street, Ste. 600 Bremerton, WA 98337 Dear Laura, This letter will acknowledge that the City of Bremerton consents to automatically renew Columbia Hospitality lnc's present management agreement for an additional two-year term, pursuant to Article 3.5.1 Automatic Renewal, unless either party provides ninety (90) days written notice to terminate prior to the expiration of each term. We look forward to continuing the successful management of Kitsap Conference Center. Best regards, ~;?4-;4 ~ Bret Matteson Chief Operating Officer Please sign confirmation of receipt and agreement 2223 Alaskan Way, Ste. 200 Seattle,WA 98121 tel: 206.239.1800 fax: 206.23<;>.1801 colum blahospitahty.com Vendor Subject Department Status Code Amount Begin Date End Date Review Date Insurance Comments Contract Number 4363 COLUMBIA HOSPITALITY Conference Center - Management of Finance PRO File Class LEG 12-1 $ 06/01/2003 05/31/2008 02/01/2008 GL AL E&O $2000000.00 $1000000.00 $ Insurance Total Insurance Review Date $3000000.00 07/01/07 Amendment #1-7/04 #2-3/07 #3-6/07 AMENDMENT NO.3 TO MANAGEMENT AGREEMENT This Amendment No.3 to Management Agreement ("Amendment") is entered into as of this j,tlt. day of June, 2007 ("Effective Date"), between the City of Bremerton ("City") and Columbia Hospitality, Inc. ("Contractor"). RECIT ALS A. The City and Contractor entered into a Management Agreement on June 4, 2003, as amended by Amendment No.1 dated July 26, 2004, and Amendment No.2 dated February 26, 2007, collectively the ("Agreement"). Capitalized tenus not otherwise defined herein shall have the same meanings as set forth in the Agreement. B. The City owns and is developing certain facilities located within Harborside Fountain Park, which consist of (1) a meeting/event room and adjoining deck and associated kitchen facilities ("Event Facilities"), (2) restrooms serving the facilities together with connecting hallways ("Bathroom Areas") and (3) adjacent open areas ("Park,"), collectively the ("Fountain Park Facilities"). The Harborside Fountain Park is legally described in Exhibit A-I and depicted in the site plan attached hereto as Exhibit B-1. The Fountain Park Facilities are also depicted in Exhibit B-1. C. The parties desire to make certain additional amendments to the Agreement to incorporate the Fountain Park Facilities into the list of facilities managed by Contractor on the City's behalf under the Agreement and to provide for certain pre-opening services associated with the opening of Fountain Park Facilities, all on the terms and conditions set forth herein. AGREEMENT NOW THEREFORE, and in consideration of the mutual agreements contained herein, the City and Contractor amend the Agreement as follows: 1. Primary Premises Redefined. Section 2.1.1, "Primary Premises", is hereby amended to include the Event Facilities in the list of areas exclusively managed by Contractor under Section 2. 1. l(a) through (k) of the Agreement. 2. Additional Premises Redefined. Section 2.1.2, "Additional Premises", is hereby redefined to include the Bathroom Areas and Park in the list of areas accessible and usable by Contractor under Section 2.1.2 of the Agreement. 3. Commencement of Operating Year for Fountain Park Facilities. For purposes of calculating Net Income, Operating Expenses and the Percentage Fee, the Fountain Park Facilities shall not be considered a part of the Facility until August 1, 2007 ("Harborside Commencement Date"), assuming that a Certificate of Occupancy is issued for the Fountain Park Facilities on or before July 7,2007. Any delay in the issuance ofa certificate of occupancy beyond July 7, 2007 shall operate to delay the Harborside Commencement Date by the same {00519402.DOCJ} number of days. Notwithstanding the foregoing, the City shall be responsible for directly contracting with and paying utility service providers for utilities serving the Fountain Park Facilities, provided that the City may allocate as an Operating Expense a share of the utility costs for the Fountain Park Facilities proportionate to Contractor's use or occupancy of the Fountain Park Facilities. 4. Increase to Fixed Fee. Commencing on the Effective Date, the Fixed Fee shall increase to Seven Thousand Dollars ($7,000) per month during the Term. 5. Pre-Opening Services for Fountain Park Facilities. Section 6.2 of the Agreement shall not apply to the Fountain Park Facilities. Contractor shall perform only the following pre- opening services for the Fountain Park Facilities in accordance with further specifications and a budget to be agreed upon by the parties: a. Purchase limited office/meeting room, restroom, and cleaning supplies and equipment. b. Provide staff to perform labor for pre-opening services. c. Provide various management services related to pre-opening. d. Train service personnel. e. Prepare marketing package. 6. FF&E Procurement and Pre-opening Expenses for Event Facilities. Contractor shall purchase on the City's behalf approximately One Hundred and Five Thousand Dollars ($105,000) of FF&E and City shall provide Fifteen Thousand Dollars ($15,000) for use by Contractor as pre-opening working capital for the Fountain Park Facilities, all of which shall be in accordance with an equipment list and service expenses to be agreed upon by the parties. In consideration for this service, City shall pay Contractor nine percent (9%) of Total FF &E Costs. "Total FF&E Costs" are the sum of all costs associated with FF&E purchased by or through Contractor, including costs for design, manufacturing, transportation and storage. Fees owed under this Section shall be paid by the City upon installation of the subject FF &E. 7. Pro Forma. Except for the period between August 1, 2007, through December 31, 2007, for which Contractor shall provide a separate Pro Forma for the Fountain Park Facilities, Section 6.5 of the Agreement shall apply to the Facility, as that term has been redefined pursuant to the provisions of this Amendment. 8. Counterparts. This Amendment may be executed. in counterparts each of which shall be deemed and original and all of which together shall constitute one and the same document. The parties may execute and deliver facsimile signature pages. 9. Conflict of Provisions. To the extent that the terms of this Amendment conflict with the tenus of the Agreement, the terms of this Amendment shall control. 10. Ratification. Except as specifically modified by the terms hereof, the Agreement remains in full force and effect and is hereby ratified. [Signatures on Following Page) {00519402.DOCJ} 2 IN WITNESS WHEREOF, this Amendment is dated as of the day and date first set forth above. COLUMBIA HOSPITALITY, INC. CITY OF BREMERTON ~~ Its: Mayor ~~ By: Bret Matteson Its: Chief Operating Officer APPROVED AS TO FORM: {00519402. DOCJ) 3 PARCEL A THAT PORTIO)\; OF TIlE PLAT OF "TOWN OF BREr-.IERTON", RECOIWED IN VOU;ME 2 OF PLATS, PAGE 30, SI rUATE \VlTHIN GOVERM,lENT LOT 3 OF SECTION 24, TOWNSHIP 24 NORTH, RANGE] EAST, \V,M., CITY OF BRElvlFRTON, KITSAP COUNTY, \VASIIlNGTON, DfSCRlllED AS FOLLOWS; CO!\lMENCING A TA CASED t.lONUMENT AT THE INTERSECTION OF FIRST STREET AND P ACmC A VENUE; THENCE SOUTH 88024'32" EAST ALONG THE CENTERLINE OF SAID FlRST STREET 149.02 FEET TO A BRASS MONUMENT; THENCE SOUTH 01036'57" WEST 35.00 FEET TO THE SOUTHERLY RlGHT-OF-WA Y MARGIN OF SAID FIRST STREET; THENCE NORTH 88024'32" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY MARGIN 14.00 FEET TO THE WESTERLY LINE OF THE ALLEY IN BLOCK 10 OF SAID PLAT AND THE POINT OF BEGINNING; THENCE SOUTH 01035'20" WEST ALONG SAID WESTERLY LINE 87.24 FEET; THENCE NORTH 29014'24" WEST 44.17 FEET; THENCE SOUTH 60046 '07" WEST 96.34 FEET TO THE BEGINNING OF A NON- TANGENT CURVE CONCAVE TO THE SOUTHWEST FROM WHENCE ITS CENTER BEARS SOUTH 41029'40" WEST 150.00 FEET DISTANT; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE 35.20 FEET THROUGH A CENTRAL ANGLE OF 13026'40"; THENCE NORTH 61057'00" WEST 43.68 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE NORTHEAST FROM WHENCE ITS CENTER BEARS NORTH 28003'00" EAST 67.00 FEET DISTANT; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE 74.31 FEET THROUGH A CENTRAL ANGLE OF 63032'46" TO THE SOUTHERLY RIGHT-OF-WAY MARGIN OF SAID FIRST STREET; THENCE SOUTH 88024'32" EAST ALONG SAID SOUTHERLY MARGIN 211.01 FEET TO THE POINT OF BEGINNING. CONTAINING 14,581 SQUARE FEET OR 0.33 ACRES, MORE OR LESS. {ODS I 9402.DOC;3} Exhibit A- I I' ARCEL B PORTIONS OF THE PLAT OF 'TOWN OF BREMERTON", RECORDED IN VOLUME 2 OF PLATS, PAGE 30, GOVERNMENT LOT 3 SECTION 24, TOWNSHIP 24 NORTH, R..A.NGE 1 EAST, W.M., AND TIDELANDS SlTUATE WfTHlN THE CITY OF BREMERTON, KITS,A.P COUNTY, WASHINGTON, DESCIUBED AS FOLLOWS; COMMENCING AT A CASED MONUMENT AT THE INTERSECTION OF FIRST STREET AND PACIFIC A VENUE; THENCE SOUTH 88024'32" EAST ALONG THE CENTERLINE OF SAID FIRST STREET 149.02 FEET TO A BRASS MONUMENT; THENCE SOUTH 01036'57"WEST 35.00 FEET TO THE SOUTHERLY RIGHT-OF-WAY MARGIN OF SAID FIRST STREET; THENCE NORTH 88024'32" WEST ALONG SAID SOUTHERLY MARGIN 14.00 FEET TO THE WESTERLY LINE OF THE ALLEY IN BLOCK 10 OF SAID PLAT; THENCE SOUTH 01035'20" WEST ALONG SAID WESTERLY LINE 108.35 FEET TO A BRASS MONUMENT STAMPED PSNS2; THENCE SOUTH 38018'20" EAST 26.28 FEET TO THE POINT OF BEGINNING; THENCE CONTINUING SOUTH 38018'20" EAST 44.49 FEET; THENCE SOUTH 29019'15" EAST 585.51 FEET TO THE LINE OF ORDINARY HIGH TIDE; THENCE SOUTH 46033'33" WEST ALONG SAID LINE OF ORDINARY HIGH TIDE 214.46 FEET; THENCE NORTH 42058'09" WEST 13.67 FEET; THENCE NORTH 00000'23" EAST 208.76 FEET; THENCE NORTH 29014'02" WEST 237.36 FEET; THENCE NORTH 60045'58" EAST 61.05 FEET; THENCE NORTH 29014'02" WEST 210.48 FEET; THENCE NORTH 60045'58" EAST 36.72 FEET; THENCE NORTH 29023'31" WEST 38.79 FEET; THENCE NORTH 60033' 18" EAST 3.60 FEET TO THE POINT OF BEGINNING. CONTAINING 62,512 SQUARE FEET OR 1.44 ACRES, MORE OR LESS. t:J1 3/ ZCClcP {00519402.DOC;3 } Exhibit A-I PARCEL C TH.\T PORTION OF PLAT OF "TOWN OF BREivlERTON", RECORDED IN VOLUME 2 OF PL\ TS, PACiE 30, SITLJA TE WITHIN GOVERNMENT LOT 3 OF SECTION 24, TOWNSHIP 24 NORTH, RANGE I EAST, \\I.M.. CITY OF BREi'vlERTON, KITSAP COUNT'y', \VASHINGTON, DESCRIBED AS FOLLOWS; COf\lIvlENCING AT A CASED MONUMENT AT THE INTERSECTION OF FIRST STREET AND PACIFIC AVENUE; THENCE SOUTH 88024'32" EAST ALONG THE CENTERLINE OF SAID FIRST STREET ]49.02 FEET TO A BRASS MONUMENT; THENCE SOUTH 01 "36'57" WEST 35.00 FEET TO THE SOUTHERl Y RIGHT-OF-WA. \{ MARGIN OF SAID FIRST STREET; THENCE NORTH 88"24'32" WEST ALONG SAID SOUTHERLY MARGIN 14.0() FEET TO THE WESTERl Y LINE OF THE ALLEY IN BLOCK 10 OF SAID PLAT; THENCE SOUTH 01035'20" WEST ALONG SAID WESTERLY LINE 87.24 FEET TO THE POINT OF BEGINNING; THENCE CONTINUING SOUTH 01035'20" WEST ALONG SAID WESTERLY LINE 21.11 FEET TO A BRASS MONUMENT STAMPED PSNS2; THENCE SOUTH 38018'20" EAST 26.28 FEET THENCE SOUTH 60033'18" WEST 3.60 FEET; THENCE SOUTH 29023'31" EAST 38.79 FEET; THENCE SOUTH 60045'58" WEST 82.77 FEET; THENCE NORTH 29014'02" WEST 45.85 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCA VE TO THE SOUTHWEST HA VING A RADIUS OF ] 03.00 FEET FROM WENCE THE CENTER BEARS SOUTH 7804] '30" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE 32.22 FEET THROUGH A CENTRAL ANGLE OF ] 7055'33" TO THE BEGINNING OF A COMPOUND CURVE CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 150.00 FEET FROM WENCE THE CENTER BEARS SOUTH 60045'38" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE 50.45 FEET THROUGH A CENTRAL ANGLE OF 19016'18"; THENCE NORTH 60046'07" EAST 96.34 FEET; THENCE SOUTH 29014'24" EAST 44.17 FEET TO THE POINT OF BEGINNING. CONTAINING 10,870 SQUARE FEET OR 0.25 ACRES, MORE OR LESS. {00519402.DOC;3} Exhibit A-I PARCEL D PORTIONS OF THE PLAT OF 'TOWN OF BREMERTON", RECORDED IN VOLUME 2 OF PLATS, PAGE 30, AND GOVERNMENT LOT 3 SECTION 24, TOWNSHIP 24 NORTH, RANGE I EAST, W.M., SITUATE WITHIN THE CITY OF BREMERTON, KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS; COMMENCING ATA CASED MONUMENT ATTIIE INTERSECTION Of FIRST STREET AND PACIFIC AVENUE; THENCE SOUTH 88024'32" EAST ALONG THE CENTERLINE OF SAID fIRST STREET ]49.02 fEET TO A BRASS MONUMENT; THENCE SOUTH 0]036'57" WEST 35.00 FEET TO THE SOUTHERLY RIGHT-Of-WAY MARGIN OF SAID FIRST STREET; THENCE NORTH 88024'32" WEST ALONG SAID SOUTHERLY MARGIN 14.00 FEET TO THE WESTERLY LINE OF THE ALLEY IN BLOCK 10 OF SAID PLAT; THENCE SOUTH 01035'20" WEST ALONG SAID WESTERLY LINE 108.35 FEET TO A BRASS MONUMENT STAMPED PSNS2; THENCE SOUTH 38018'20" EAST 26.28 fEET; THENCE SOUTH 60033'18" WEST 3.60 FEET; THENCE SOUTH 29023'3]" EAST 38.79 FEET; THENCE SOUTH 60045'58" WEST 36.72 FEET TO THE POINT Of BEGINNING; THENCE SOUTH 29014'02" EAST 210.48 FEET; THENCE SOUTH 60045'58" WEST 61.05 FEET; THENCE NORTH 29014'02" WEST 197.92 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE EAST FROM WHENCE ITS CENTER BEARS NORTH 60045'58" EAST 110.00 fEET DISTANT; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE 48.05 FEET THROUGH A CENTRAL ANGLE OF 25001 '40" TO THE BEGINNING OF A REVERSE CURVE CONCAVE TO THE SOUTHWEST FROM WHENCE ITS CENTER BEARS SOUTH 85047'38" WEST 103.00 FEET DISTANT; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE 12.77 FEET THROUGH A CENTRAL ANGLE OF 07006'08"; THENCE SOUTH 29014'02" EAST 45.85 FEET; THENCE NORTH 60045' 58" EAST 46.05 FEET TO THE POINT OF BEGINNING. CONTAINING 13,229 SQUARE FEET OR 0.30 ACRES, MORE OR LESS. {00519402.DOC;3 } Exhibit A-I {005l9402.DOC;3 } T 'l;;r ~) (0:) f ~~I T I II I I II I , i tL-~ r': ..",-----..1.. -r- . i '.....r~.'...., .1;- - ~ - t.. .'" r-- - ..." -. -' , ~ I :- .'. ~--'-YlL~__, ...:..--,--.--....; ...... .. I -i "I"'" . ...~- I I . I , . . I !ti C'" ,I - "---... t- "In !I~; (;'-_ ~H' ... . .~_......:..._ ! ' .- 1- .1 I~; .11"".. __..............- ___~'_' _~ ..~.' .... ',,'u. ....-.~_.Il.. ...1- ,-' t .~ ,-~"- . - i · fIB -, I . I..:~l- .- --- '.~~ ,r"C,' '-,,' ~.. .. \,~. . 8 '.;: (", . ;;r.!IJ'J I .'. ~ "J 1~:~-:~:'llFrr.: :~;- - :.=r .. . ~ 1-- ..' 1I I' . "',. .'~' .:., L ' . ,~ '~I' :l'.,.m -- - - jn~m. [2~, 'y. ....l.- - -~ . . 'i' l, I:::>~. . I :1~~ ~;~--=-::i --J L1.- .~. !~ .. -1-..(J ff.~.b..:-:'~..:~.'...... .""""':;;: =~~=.l_..., '. r- j' ;,"'" -. ..........,-,~'~~. ~~. ---', .1..-:. -+ .. ...~.._< -'I ' ~ I j~.-.. 'I--ll't-~L.- "~'r~~T=="=' , J' !l~",~"" J 11 J.l1.f.J.1 ~ ~ Exhibit B-1 ....:-, ... '-~) - J1 .($ I I ~ ~ ~ -'-' c.. - "= .., ":'i' ~. ..., /-,), ~ -- (005 I 9402.DOC;3 } EXHIBIT B-1 Park Site Plan T "'~';i' '.' ;. II !' --r (~;.' --". .; I .'-' I ~)--- ~ --- - ....- -~- .' f ;;; , I . --.., ('= I' .. ... .. ..-...-.. - _...;;'.'p'..r_...~..I.",.. ../!",..,.. _ . .~ _-; ~ ..... .'. _A.... _. {~...__. . ...~ - . ~~'. --.. ._-~ '.' .~~.:.. .:_~ ~ I 'I ()---.:-..-- "'-1""' .' "~'" e;~',,, ._. ......... .-~.:.~ .':...:. ....~.l.. : ~r. ..~..,- . .,~ , 0J.."..,..............-. ..... .,'.1 . I:Z"'~ ~. _ v.~ ..... - . ';lf~ . . . ,.... . - . . - "3,,-, /~'I' ... ......,. (So- ......,.. ... . " ~~ - '''_~''':'''''.~.::.'' . . ~ ~n Exhibit B-1 J . t. ~. ~ 7- ;:J; ..J ~I i!.:: cl ~I ~ ~ l%,~ ~ J C ~.:. ~ ,,:'~:-~~. .};--~~.:. .~~ ;.~~:.:::;>~.. \ .-' ""'/:://:"-<;i . ~."'\:. . ."." , I .d ! 'f r I,' '.1 I, II . ! ! I i' {00519402.DOC;3} Exhibit B-1 ! I 'I ~ ,/ i I I _.. I I -~--- I I 1 I I I I I I I I I : I L._J.-.' ~; 1. &' .~. ..~ ~:1 PI J '" "'- 1 i J ". :( :. ~lt ~5r; Vendor Subject Department Status Code Amount Begin Date End Date Review Date Insurance Comments Contract Number 4363 COLUMBIA HOSPITALITY CONFERENCE CENTER - MANAGEMENT OF . FINANCE PRO File Class LEG 12-1 $ 06/01/2003 05/31/2008 02/01/2008 GL AL E&O $2000000.00 $1000000.00 $ Insurance Total Insurance Review Date $3000000.00 7/1/07 Amendment #1-7/04 #2-3/07 AMENDMENT NO.2 TO MANAGEMENT AGREEMENT This Amendment No.2 to Management Agreement is entered into as of the 26th day of February, 2007, between the City of Bremerton ("City") and Columbia Hospitality, Inc. ("Contractor"). RECITALS WHEREAS, City and Contractor entered into a Management Agreement on June 4, 2003, as amended by Amendment No.1 dated July 26, 2004 (collectively the "Agreement"); and WHEREAS, the parties desire to make certain additional amendments to the Agreement; /" AGREEMENT NOW THEREFORE, and in consideration of the mutual agreements contained herein, the City and Contractor amend the Agreement as follows: 1. Section 2.1.1 is amended to read as follows: 2.1.1 Primary Premises. Contractor shall have exclusive control over, and responsibility for the following areas, all of which shall be clearly identified on Exhibit B (the "Primary Premises") (The identifying room numbers below are taken from LMN Architects record drawings dated 10.01.04, page A210 & A212): (a) Conference Center Conference Rooms, including the Conference Center conference room(s), the boardroom, the Conference c_enter lobby and reception offices, and the Conference Center pre-function area (100,101,102 a-d, 103, 126) (b) 120b, 118, 119); Conference Center prep kitchen and staff restrooms (120, 120a, (c) All storage rooms (P204); (d) Conference Center Bridal/Guest Dressing Rooms (114, 115); (e) All Conference Center storage rooms adjacent to the receiving area and prep kitchen (listed above); (f) Conference Center Sales Office (123, 124, 125); {00498062.DOC;2} (g) All Conference Center public restrooms (121, 122); (h) Conference Center Patio (Exterior plaza immediately in front of room 101); (i) Conference Center Audio - Visual Room (113); CD Conference Center janitor closets and all electrical, mechanical and communications rooms (112a, ll2b, 111); and (k) All corridors and common areas among the above stated areas together with all reasonable ingress and egress thereto (110, 11 Oa, 11 Ob, 116); 2. Section 4.1 is amended to read as follows: 4.1 Fixed Fee to Contractor. Commencing on June 1, 2003, as compensation for services rendered by Contractor, the City shall pay to Contractor (without right to setoff) a fixed fee of six thousand ($6,000) per month during the Term (the "Fixed Fee"). The Fixed Fee is payable monthly not later than the last day of the month following the month for which services are provided. 3. Section 4.7 (m) is amended to read as follows: (m) Deposits into the Reserve Account; and 4. Section 6.6 is amended to read as follows: 6.6 Annual Plan and Budget. By September 1 st of each Operating Year of the Term hereof (with an initial estimate of total Gross Revenues and Operating Expenses without detail no later than August 1 st) Contractor shall prepare and submit to the City for its review and approval a proposed operating plan and budget for the Facility forthe following Operating Year (the "Annual Plan and Budget"). The Annual Plan and Budget must provide reasonable detail regarding the time and money to be spent on operations as well as reasonable estimates of Gross Revenues and Operating Expenses and proposed FF &E replacements and withdrawals from the Reserve Account. The Annual Plan and Budget will also include a narrative description of the sales and marketing program. The Annual Plan and Budget shall be considered with the Pro Forma as adjusted by changes in general economic conditions past operating experience, and competitive conditions. The Annual Plan and Budget will be Contractor's best estimate of operations for the following calendar year and the parties recognize that actual results may vary from the Annual Plan and Budget. The Annual Plan and Budget will contain a summary of the proposed expenditures for the year ("Suinmary Page"). The City shall have one hundred twenty (120) days from its receipt of the Annual Plan and Budget to {00498062.DOC;2 } approve or disapprove the Annual Plan and Budget. Once the Annual Plan and Budget is approved, Contractor is authorized to incur the expenditures and implement the provisions of the Annual Plan and Budget. Contractor may not expend more than the expense items in the Annual Plan and Budget in the aggregate or exceed any line item of the Budget. Contractor may not exceed spending for any line item on the Summary Page by more than fifteen percent (15%) without the City's prior written approval or as otherwise provided herein. Until the Annual Plan and Budget is approved, Contractor must operate the Facility in accordance with the prior year's Annual Plan and Budget. The City shall ensure that sufficient Working Capital funds exist at all times to meet the operating needs of the Facility in light of the Mission Statement, the Operating Plan and the Pro Forma. 5. Section 6.9.3 is amended to read as follows: 6.9.3 Reserve Account. Contractor shall establish an interest-bearing account and deposit into the account an amount equal to three percent (3%) of Gross Revenues as a reserve fund to pay for replacements of all FF&E in the Facility (the" Reserve Account"). Expenditures from the Reserve Account shall be set forth in the Annual Plan and Budget or otherwise approved by the City, except Contractor is authorized to make expenditures for FF&E that require replacement due to unanticipated breakdowns or damage or Legal Requirements. 6. Section 6.11 is amended to read as follows: 6.11 Statements to City. Contractor shall provide monthly and annual financial statements to City along with operating statements reasonably detailing all Gross Revenues, Operating Expenses, and expenditures from the Reserve Fund, a comparison to the then-current Annual Plan and Budget on an item-by-item basis, and a marketing update. The statements and update will be provided within 20 calendar days after the end of the preceding calendar month. 7. Section 14.16 is amended to read as-follows: . 14.16 Confidentiality. For a period of five (5) years after disclosure, neither party will use the other party's confidential information other than in furtherance of this Agreement, nor will it disclose the other's confidential information except (i) to obtain advice from legal or financial consultants (who will themselves treat the information as confidential) or (ii) when compelled to do so under public record and disclosure laws, in which case the disclosing party will give the other party as much notice as is possible before releasing any confidential information so the requested disclosure can be contested and will cooperate with the contest. "Confidential Information" shall mean information marked as confidential or which, under the circumstances surrounding disclosure, ought in good faith be treated as confidential, {00498062.DOC;2} including, without limitation, all information concerning Conference Center contracts and accounts, and Contractor's Proprietary Information. Confidential Information shall not include information that the recipient developed independently, or information that is or subsequently becomes readily publicly available, in both cases other than by a breach of an obligation of confidentiality. 8. Counterparts. This Amendment may be executed in counterparts each of which shall be deemed and original and all of which together shall constitute one and the same document. The parties may execute and deliver facsimile signature pages. 9. Ratification. To the extent that the terms of this Amendment conflict with the terms of the Agreement, the terms of this Amendment shall control. Except as specifically modified by the terms hereof, the Agreement remains in full force and effect and is hereby ratified. IN WITNESS WHEREOF, this Amendment No.2 is dated as of the day and date first set forth above. COLUMBIA HOSPITALITY, INC. CITY OF BREMERTON ERf; By: Cary BCzeman Its: Mayor t.jo Date: oyIoZ 7 ~~ By: Bret Matteson Its: Chief operat% Officer Date: ~ I z-/ ?- I / APPROVED AS TO FORM: {00498062.DOC;2} +--------------------------------------------------------------------------+ of Browse: Next Previous First Last Update Delete Restart X - Exit - - of Retrieve the Next record -- of Found: 1 Record(s) MAINTAIN Contract Transactions 1= of Contract Number 4363 J: of - - ofvendor Name COLUMBIA HOSPITALITY INC - - of Subject CONFERENCE CENTER - MANAGEMENT OF 1= =l=Department FINANCE of ..Status Code PRO of - . Amount of - . Begin Date 06/01/2003 of 1= Insurance End Date 05/31/2008 == of Type Amount Review Date 02/01/2008 == =1= GL $2000000.00 1= - - AL $1000000.00 of - - E&O $1000000.00 of -- Insurance Total $4000000.00 of 1= Insurance Review Date 07/01/2006 of of of of Comments AMENDMENT #1 - 7/04 of of of of of +--------------------------------------------------------------------------+ AMENDMENT NO.1 TO MANAGEMENT AGREEMENT BETWEEN CITY OF BREMERTON AND COLUMBIA HOSPITALITY, INC. 4 This Amendment No.1, entered into as of the ~/J day of July, 2004, to that certain Agreement dated June 1,2003, between the City of Bremerton and Columbia Hospitality, Inc. for management services at the conference center on the Bremerton waterfront is based upon the following recital of facts: WHEREAS, Columbia Hospitality, Inc. does not have a legally insurable interest in the conference center or its furniture and fixtures, the parties desire to amend the Agreement to delete the requirement that Columbia Hospitality, Inc. purchase all risk property insurance on the conference center and its furniture and fIxtures owned by the City of Bremerton. NOW THEREFORE, and in consideration of the mutual agreements contained herein, the parties do hereby agree: Section 7.1.7 of the Agreement is deleted in its entirety. IN WITNESS THEREOF, the Parties hereto have executed this Amendment No.1 as of the day and year first written above. COLUMBIA HOSPITALITY, INC. CITY OF BREM ~~ ~?2 By: .i?rC't-~gn By: Cary ozeman Its: C.tJ.O, Its: Mayor TO FORM: R:\LEGAL\Files\Current Active Files\Conference Center. Roger\Columbia Hospitality Amend. I.doc --- +--------~-----------------------------------------------------------------+ ==Press Esc Key to Insert new record, Ctrl-Z to Clear form =1= ==Press Del Key to Terminate Insert Mode -- ;= INSERT Contract Maintenance - . of Contract Number 4363 =l= =1= - - ==Vendor Name COLUMBIA HOSPITALITY INC - - ==Subj ect CONFERENCE CENTER - MANAGEMENT OF -- ==Department FINANCE - - =1=Status Code PRO - . =1= Amount - . -- Begin Date 06/01/2003 =: -- Insu;r-ance End Date 05/31/2008 .. -- Type Amount Review Date 03/01/2008 == == Press F1 for - . 1= valid insurance -- of type codes 1= of Insurance Total $0.00 of of Insurance Review Date 07/01/2003 =1= of -- =l= Comments NEED CERTIFICATE OF INSURANCE -- of ;= =l= =l= +--------------------------------------------------------------------------+ ~} . . 6/04/03 MANAGEMENT AGREEMENT Conference Center on the Bremerton Waterfront BETWEEN CITY OF BREMERTON AND COLUMBIA HOSPITALITY, INC. This MANAGEMENT AGREEMENT ("Agreement") is entered into as of the /r day of ~_ 2003 between the City of Bremerton, a Washington municipal corporatio ("City") and Columbia Hospitality, Inc., a Washington corporation ("Contractor"). A. The City is the owner of real property legally described on the attached Exhibit A (the "Real Property") on which it is constructing a conference center and other improvements. The City desires to hire Contractor to provide certain pre-opening services and to serve as the manager for the conference center on the terms and conditions described below. B. Contractor IS experienced III providing management servIces for conference centers and is willing and able to provide the conference center with services required by the City. Now, therefore, the parties agree as follows: 1. Appointment of Manager. 1.1 Purpose and Administration. The purpose of this Agreement is to establish a management services agreement whereby Contractor will provide certain management and related services to the Facility (as defined below). This Agreement is not a lease, nor does it create a leasehold interest or other similar property interest in Contractor to the Facility. 1.2 Appointment of Contractor as Manager. City hereby engages Contractor, and Contractor hereby agrees to be engaged, as the City's operator and manager of the Facility, with right and control to service, promote, operate and manage the Facility and its personnel in accordance with the terms and conditions set forth herein. 1.3 Scope of Services. Contractor's responsibilities include promoting and managing the use of the Facility; providing food and beverage service; providing other services as set forth herein related to the operation of the Facility; and providing janitorial services for the areas of Contractor's responsibility pursuant to this Agreement, except as otherwise agreed upon between the parties in writing. Additionally, Contractor shall 1 -- r . . ^. provide competent personnel necessary for such operations and shall train and supervise them in their work. 1.4 Legal Relationship. 1.4.1 This Agreement shall not be construed as establishing a partnership or joint venture between the City and Contractor, and neither party shall be liable for the acts, omissions, debts or obligations ofthe other, except to the extent as may otherwise be expressly agreed to herein. Except as provided herein, neither party may make any representation or create any liability on behalf of the other, and no rights in any third party shall arise by virtue of the agreements contained herein. 1.4.2 Contractor, its subcontractors, and their employees, are not employees of the City and are not eligible for any benefits through the City, including without limitation federal social security, health benefits, workers' compensation, unemployment compensation, and retirement benefits. 1.4.3 Except as otherwise provided herein, the parties agree and acknowledge that Contractor is an independent contractor and that no liability shall attach to City as a result of the acts or omissions of Contractor, its agents or employees. 2. Facility. 2.1 The Facility. The Facility is depicted on Exhibit B and shall consist of the Primary Premises (as defined below) and the Additional Premises (as defined below) (collectively, the "Facility") as follows: 2.1.1 Primary Premises. Contractor shall have exclusive control over, and responsibility for the following areas, all of which shall be clearly identified on Exhibit B (the "Primary Premises"): (a) Conference Center Conference Rooms, including the Conference Center conference room(s), the boardroom, the Conference Center lobby and reception offices, and the Conference Center pre-function area; (b) Conference Center prep kitchen and staff restrooms; (c) All storage rooms; (d) Conference Center Bridal/Guest Dressing Rooms; (e) All Conference Center storage rooms adjacent to the receiving area and prep kitchen; (1) Conference Center Sales Office; 2 e e (g) All Conference Center public restrooms; (h) Conference Center Patio; (i) Conference Center Audio - Visual Room; G) Conference Center janitor closets and all electrical, mechanical and communications rooms; and (k) All corridors and common areas among the above stated areas together with all reasonable ingress and egress thereto. 2.1.2 Additional Premises. In addition to the Primary Premises, Contractor may use and book, arrange and conduct events in the Conference Center/Hotel Plaza depicted on Exhibit C (the "Additional Premises"), and, in any event, Contractor shall be the exclusive provider of food, beverage and event booking and production services for the Additional Premises. In the event that Contractor utilizes any portion of the Additional Premises, all of the terms of this Agreement shall apply for the limited period of use; provided, however, Contractor shall not have the obligation of maintenance and repair as set forth in Section 6.4 hereof, but instead shall only be responsible for returning that portion of the Additional Premises utilized by Contractor in as good and clean a condition as when received, subject to normal wear and tear. 2.2 The City's Right to access the Facility. The City may access and utilize the Facility as follows: 2.2.1 Repair & Maintenance. The City may enter the Primary Premises to perform any repair and maintenance the City reasonably believes necessary, provided that the City's repair and maintenance work shall not materially interfere with Contractor's use of the Facility as contemplated herein and the City provides Contractor reasonable advance notice. The City may also enter the Primary Premises to alter or construct major improvements to the Primary Premises in accordance with the Annual Plan and Budget (as defined below), provided that the City's alteration and construction shall not materially interfere with Contractor's use of the Facility as contemplated herein and that the City provides at least 10 business days advance written notice to ContractoL Pursuant to Section 6.4, Contractor shall be responsible for maintenance and repair of the Primary Premises. 2.2.2 Use & Occupancy. Except as otherwise expressly provided in this Agreement, the City shall have no right to use or occupy the Primary Premises, other than as a customer of the ContractoL 3. Term and Termination 3 e e 3.1 Initial Term and Renewal. Pursuant to IRS Revenue Procedure 97-13, the initial term of this Agreement shall be five (5) years, commencing on June 1, 2003, (the "Commencement Date")and, unless terminated earlier in accordance with this agreement, expiring on May 31, 2008. 3.2 Termination - Default. In addition to the other termination rights set forth elsewhere in this Agreement, this Agreement may be terminated prior to expiration of the then current term (Initial or Renewal) by either party, if the other party materially breaches any term of this Agreement or defaults in the performance of any obligation under this Agreement and fails to cure such breach or default within thirty (30) days (fifteen (15) if the default involves the nonpayment of money) following notice thereof by the non-defaulting party, provided, that if the default cannot reasonably be cured within the 30-day period, the defaulting party shall not be in default if it commences to cure the default within the initial 30-day period and diligently pursues it to completion. The non-defaulting party, shall in addition to its right of termination, be entitled to pursue all other remedies at law or in equity as a result of a default. 3.3 Termination - IRS Revenue Procedure 97-13. Pursuant to IRS Revenue Procedure 97-13, the City reserves the right to terminate this Agreement, without cause and without penalty on the third anniversary of the Commencement Date. In such event, the City shall provide Contractor no less than ninety (90) days' prior written notice of termination. 3.4 Termination - Performance. Provided the City is not then in default under this Agreement, the City shall have the right, subject to Contractor's right to cure described below, to terminate this Agreement prior to the expiration of the then current term (Initial or Renewal) upon not less than forty-five (45) days' prior written notice to Contractor, without penalty, if for reasons other than Force Majeure (as defined below), the Facility's Net Income (as defined below) is not equal to or greater than seventy-five percent (75%) of the Net Income budgeted in the applicable Annual Plan and Budget (the . "Performance Threshold") for any two (2) consecutive Operating Years (as defined below) commencing with the second full year the Facility is operating, provided, however, that such notice of termination shall be deemed null and void and shall not effect a termination of this Agreement if, within thirty (30) days after the City gives Contractor the notice of termination, Contractor pays to the City the difference between the Facility's actual Net Income and the Performance Threshold for the Operating Year for which the termination notice is provided. For the purposes of this Agreement, "Operating Year" shall be defined as each calendar year during the Term, except that the first Operating Year shall be the partial year beginning on the Commencement Date and ending on the following December 31, and the final Operating Year shall be the partial year beginning on January 1 of the year in which the Agreement expires or is earlier terminated and ending on the expiration date or effective date of termination. 3.5 Renewal of Term 4 -- - --- ----------- e e 3.5.1 Automatic Renewal. This Agreement shall automatically renew for additional two year terms unless either party provides ninety (90) days written notice to terminate prior to the expiration of each term. 3.5.2 Compensation For Renewal Term. The compensation structure in force during the final year of the Agreement shall remain in force throughout any renewals of this Agreement except as may be adjusted pursuant to Section 4.3 or except as may otherwise be agreed. 3.5.6 Survival. Sections 9, 10, and 14 of this agreement shall survive expiration or earlies termination of this agreement. 4. Compensation and Reimbursable Expenses. 4.1 Fixed Fee to Contractor. As compensation for services rendered by Contractor the City shall pay to Contractor (without right to setoff) a fixed fee calculated in accordance with the table below for each Operating Year during the Term (the "Fixed Fee"): 1-6 $6,000 per month The Annual Fixed Fee shall be paid in equal monthly installments payable not later than the last day of the month following the month for which services are provided. 4.2 Percentage Fee to Contractor. As additional compensation for services rendered by Contractor the City shall pay to Contractor (without right of setoff) an amount equal to one and one-half percent (1.5%) of Gross Revenues (as defined below) for the applicable period (the "Percentage Fee," and together with the Fixed Fee, the "Management Fee"). The Percentage Fee shall be payable for each Operating Year commencing with the date the Facility opens to the public (the "Facility Opening Date"). The Percentage Fee shall be paid monthly in arrears based on actual Gross Revenues accrued through the end of the immediately preceding calendar month. 4.3 Reimbursable Expenses. The City shall promptly reimburse Contractor for any Operating Expenses (as defined below) to the extent paid directly by Contractor and not out of the Operating Accounts. 4.4. Payment. Amounts payable to Contractor or its Affiliates (as defined below) under this Agreement shall be paid to Contractor in immediately available funds without deduction for taxes or other assessments. At Contractor's option, payments due Contractor or its Affiliates under this Agreement may be made by Contractor out of the appropriate bank accounts required under Section 6.9.2. 5 e e 4.5 Default Interest. Any and all amounts that may become due from one party to the other under this Agreement shall bear interest from and after the respective due dates thereof at an annual rate of interest of eight percent (8%). An amount due Contractor under this Agreement is deemed received by Contractor when Contractor has the authority and ability, consistent with the prudent exercise of Contractor's duties under this Agreement, to pay itself such amount from the Operating Accounts. 4.6 Required -- Fee Adjustment. Kitsap County issued $11,395,000 in Limited Tax General Obligation Bonds, Series 2002A on April 11, 2002, in part to finance the Kitsap Public Facilities District's contribution towards construction of the Facility. As a condition to receipt of such funds, the City has agreed not to take actions with respect to the Facility that would jeopardize the tax-exempt status of the bonds. Therefore, pursuant to IRS Revenue Procedure 97-13, the Percentage Fee paid to Contractor for any full Operating Year shall not exceed the Fixed Fee for that Operating Year. In the event the parties reasonably anticipate that the Percentage Fee for any full Operating Year will exceed the Fixed Fee for that Operating Year, the parties shall adjust the fee schedule to comply with this provision and, in doing so, shall ensure that the level of compensation to be paid Contractor as calculated under the compensation formula originally established above is maintained. In addition, during the first year of operation of the Facility, the Percentage Fee and Fixed Fee may be adjusted by the parties ona monthly basis as necessary to comply with the fixed/percentage fee requirements of IRS Revenue Procedure 97-13. Finally, the Fixed Fee and Percentage Fee formulas in Sections _ and _ above will be evaluated on an annual basis by the parties and adjusted by the parties as necessary to comply with IRS Revenue Procedure 97-13 and further as may be agreed upon between the parties. 4.7 Definitions. For purposes of this Agreement, the following terms have the meanings set forth below: "Gross Revenues" means all revenue of any kind resulting directly or indirectly from operations at the Facility generated by Contractor pursuant to this Agreement during the period at issue as determined in accordance with Generally Accepted Accounting Principles (GAAP), including without limitation, (i) all income and proceeds from the rental and use of space within the Facility; (ii) all income and proceeds from food and beverage operations at the Facility; (iii) commissions from subcontractors; and (iv) all income and proceed from goods and services supplied to Facility users. Gross Revenues does not include the following: (a) Applicable federal, state and local excise, sales, use or admissions taxes collected directly from patrons as part of, or based on, the sales price of goods and services. (b) The service staff distribution portion of service charges collected by or on behalf of employees. 6 e e "Operating Expenses" means all ordinary and necessary expenses incurred in the maintenance and operation of the Facility, including without limitation the following: (a) Cost of operations, maintenance, and repair of all operating equipment and replacement of minor items initially supplied by the City and cost of operating supplies. (b) Contractor's expense associated with the cost of compensation, benefits and payroll taxes of all personnel working at the Facility or while performing duties with respect to the Facility from other locations, including, without limitation, at Contractor's or Contractor's Affiliates' offices, excluding Contractor's "Executive Personnel" and the portion of gratuities kept by Contractor employees. For proposes of this provision, Contractor's Chief Executive Officer, the Chief Operating Officer, the Vice President of Marketing, Corporate Controller and the Corporate Director of Projects and their successors (unless specifically otherwise agreed in writing) are Contractor's "Executive Personnel." City has the right to approve all time spent and billed to the Facility operations by Contractor personnel located outside the Facility that is not otherwise reflected in the annual plan and budget; (c) Cost of utilities servicing the Facility; (d) Cost of repair and maintenance of the Facility, excluding maintenance and repairs that are the City's sole responsibility; (e) Premiums for workers' compensation insurance and public liability insurance as may be required under this Agreement, together with any deductibles or reasonable costs to cover any self-insured losses; (I) Cost of all business taxes and valid third party assessments against Contractor or the City with respect to the operation of the Facility, excluding federal, state and local income taxes; (g) Cost of reasonable legal, accounting and auditing fees for services directly related to the preparation for opening and to the operation of the Facility, provided, however, that each party shall bear its own legal and accounting fees associated with the negotiation and drafting of this Agreement; (h) Costs of technical consultants and specialized operational experts for specialized services in connection with non-recurring work on operation, functional, design or construction problems; (i) All costs and expenses for marketing, advertising, promotion and sales activity directly related to the Facility, including travel, food and beverage and lodging while away from the City of Bremerton on these activities; City will 7 e e reimburse Contractor for these expenditures to the extent they were incurred in accordance with City's travel policies. (j) All costs and expenses associated with the Pre-Opening Services; (k) Contractor's Fixed Fee and Percentage Fee pursuant to Sections 4.1 and 4.2; (I) All costs and expenses associated with the provision of food and beverage services and event production services for events at the Facility; (m) Deposits into the Capital Reserve Account; and (n) All other reasonable charges and expenses associated with the operation and management of the Facility to the extent set forth in the Annual Plan and Budget, authorized under Section 6.6 or otherwise authorized by the City in writing. Notwithstanding the foregoing Operating Expenses do not include (i) depreciation or amortization; (ii) debt service on any bonds or indebtedness to construct. the Facility; (iii) costs of repairing or maintaining the roof, exterior, foundations and structural components of the Facility; (iv) costs to repair or replace construction or design defects in the Facility. "Net Income" means for any period, the amount, if any, by which Gross Revenue for that period exceeds Operating Expenses for that period. 5. City Responsibilities 5.1 Generally. Subject to the terms and conditions set forth herein, the City shall commit sufficient financial and other resources to permit the Facility to be operated by Contractor in accordance with the Annual Plan and Budget and in a manner consistent with the other conference centers and properties managed by Contractor (the "Operating Standard"). 5.2 Parking. City shall provide for at least 150 parking spaces at the Facility garage for use by patrons of the Facility at then prevailing market rates or as otherwise negotiated by Contractor. The City will provide additional parking as requested by Contractor if Contractor provides five (5) days' notice of a need for such parking in conjunction with an event at the Facility. Patrons do not include any employees or subcontractors of Contractor. City shall provide, as available, parking for use by employees and caterers ofthe Facility at a negotiated hourly rate. City will provide seven (7) spaces for senior staff of the Facility at monthly market rates. All costs and expenses for parking under this Section shall be Operating Expenses under Section 6.6. 8 e It 5.3 Repair & Maintenance. The City, at its sole cost and expense, shall repair and maintain the roof, foundations, fire suppression system, HV AC system, elevators, escalators, security system, dock structure (if any), structural components and all exterior elements of the Facility. 5.4 Noninterference. Contractor has the sole responsibility and authority to manage the day-to-day operations of the Primary Premises and any of Contractor's activities occurring within the Additional Premises. To the extent the City's consent or approval is required under this Agreement, such consent or approval may not umeasonably be withheld, delayed or conditioned. The City may, however, withhold its consent whether or not such withholding is considered umeasonable if Contractor's proposed actions are reasonably deemed by City to be contrary to the Facility's Mission Statement, a copy of which is attached hereto as Exhibit D, or the Annual Plan and Budget. 5.5 Pre-Opening Working Capital. Within 45 days of executing this Agreement, the City will provide Contractor with Fifty Thousand and Noll 00 Dollars ($50,000) for Contractor's deposit into the Operating Accounts, which sum is intended to be used by Contractor for payment of Operating Expenses from the Commencement Date through July 1, 2003. On or before August 30, 2003, the City will provide Contractor with One Hundred Thousand and NollOO ($100,000) for Contractor's deposit into the Operating Accounts, which sum is intended to be used by Contractor for payment of Operating Expenses between August 2003 and December 2003. The City will provide Contractor with One Hundred Fifty Thousand and NollOO ($150,000) for Contractor's deposit in the Operating Accounts, which sum is intended to be used by Contractor for payment of Operating Expenses between January 2004 and July 2004. 5.6 Sales of Goods at the Facility. The City reserves the right to approve any items sold at the Facility or items that carry any sort of identification with the Facility, except for food and beverage as provided as part of a function under this Agreement. 6. Contractor Responsibilities. 6.1 Professional Skill & Judgment. Contractor shall use its highest standard of professional skill and judgment in managing the Facility and shall use all reasonable efforts promote the reputation and financial success of the Facility. Contractor shall at all times undertake its activities in a manner consistent with the Mission Statement. Contractor will be responsible for the overall management of the Facility, including, without limitation, the services described in this Section 6. In so doing, Contractor may, at its option, directly perform such services itself and on an exclusive basis or through the use of a short list of preferred vendors. If Contractor chooses to work with preferred vendors, it is authorized and directed to use its sole discretion and good faith judgment in choosing and managing such vendors and sub-contractors. 6.2 Pre-Opening Services. Contractor shall provide to the City and its designated design and development team those pre-opening technical and marketing 9 e e services set forth in Exhibit E (the "Pre-Opening Services") from the Commencement Date through the Facility Opening Date. 6.3 Personnel. Contractor shall hire, train, manage and terminate all executive staff, operating and service employees and subcontractors hired or retained to assist in the operation of the Facility. All personnel hired by Contractor for the Facility shall be Contractor's employees or sub-contractors and not the City's, provided that such personnel shall be employed at the expense ofthe City. 6.4 Maintenance and Repairs; Alterations. Contractor shall, at the City's sole cost and expense, undertake normal maintenance and repair to the Primary Premises and all FF&E located within the Primary Premises. Contractor shall comply with RCW Chapters 39.04, 39.12 and 39.80, if and as applicable, for maintenance and repairs. In this regard, Contractor will periodically seek the advice of the City in such matters and the City will provide administrative and purchasing support to Contractor if requested. Contractor may not undertake physical alterations (excluding paint and wall and floor finishes) to the Facility without the prior written consent of the City unless set forth in the Annual Plan and Budget. All contracts entered into pursuant to this paragraph, without regard to whether City is bound thereon, shall contain a provision (1) that City isa third- party beneficiary of the agreement, (2) that all representations, warranties and guarantees are fully assignable to City, and (3) that the contract may be assumed by City in the event of termination of this Agreement. In addition, all goods acquired pursuant to this paragraph shall be titled in the name of City. 6.5 Pro Forma. Contractor will prepare and submit to City a pro forma financial and operating statement that describes Contractor's planned activities at the Facility over the first five years of the term of this Agreement, including proposed budgets for marketing, catering, and operations (the "Pro Forma") by August 1, 2003. Contractor will prepare the Pro Forma using its good faith business judgment. The Pro Forma represents an estimate and is subject to factors beyond Contractor's control. Contractor acknowledges that City will refer to the Pro Forma, as adjusted for actual results, to judge performance by Contractor during the term of this Agreement. 6.6 Annual Plan and Budget. By September 1 st of each Operating Year of the Term hereof (with an initial estimate of total Gross Revenues and Operating Expenses for the first operating year without detail no later than August 1 st) Contractor shall prepare and submit to the City for its review and approval a proposed operating plan and budget for the Facility for the following Operating Year (the "Annual Plan and Budget"). The Annual Plan and Budget must provide reasonable detail regarding the time and money to be spent on operations as well as reasonable estimates of Gross Revenues and Operating Expenses and proposed FF &E replacements and withdrawals from the Capital Reserve Account. The Annual Plan and Budget will also include a narrative description of the sales and marketing program. The Annual Plan and Budget shall be considered with the Pro Forma as adjusted by changes in general economic conditions past operating experience, and competitive conditions. The Annual Plan and Budget will be 10 -- e Contractor's best estimate of operations for the following calendar year and the parties recognize that actual results may vary from the Annual Plan and Budget. The Annual Plan and Budget will contain a summary of the proposed expenditures for the year ("Summary Page"). The City shall have sixty (60) days from its receipt of the Annual Plan and Budget to approve or disapprove the Annual Plan and Budget. Once the Annual Plan and Budget is approved, Contractor is authorized to incur the expenditures and implement the provisions of the Annual Plan and Budget. Contractor may not expend more than the expense items in the Annual Plan and Budget in the aggregate or exceed any line item of the Budget. Contractor may not exceed spending for any line item on the Summary Page by more than fifteen percent (15%) without the City's prior written approval or as otherwise provided herein. Until the Annual Plan and Budget is approved, Contractor must operate the Facility in accordance with the prior year's Annual Plan and Budget. The City shall ensure that sufficient Working Capital funds exist at all times to meet the operating needs of the Facility in light of the Mission Statement, the Operating Plan and the Pro Forma. 6.7 Quarterly Condition Survey. Unless waived by City, the parties shall conduct a quarterly inspection of the Facility to observe and note the condition of, cleanliness of, and existing damage to, the Facility and to determine whether funds on deposit in the Capital Reserve Account will be applied at the Facility. Pursuant. to Section 6.4, Contractor shall be responsible for repairing any problems or defects noted except those that are the City's responsibility pursuant to Section 5.3. 6.8 Additional Responsibilities of Contractor. Contractor shall in its own name perform the following additional services, or cause the same to be performed for the Facility: 6.8.1 determine and implement personnel policies and practices relating to the Facility, including policies and practices relating to terms and conditions of employment, screening, selection, training, compensation, employee benefits, discipline, dismissal and replacement; 6.8.2 recruit, hire, relocate, pay, supervise and dismiss all personnel providing services in the name of the Facility; 6.8.3 establish all relevant prices, price schedules, rates, rate schedules, rents, lease charges and concession charges for all areas of the Facility; 6.8.4 negotiate and administer, in the name and on behalf of the Facility, leases, licenses and concession agreements for all appropriate areas of the Facility; 6.8.5 except as otherwise provided in Section 5.3, manage the design, construction and installation of renovations, improvements, repairs or replacement of FF&E; 11 e e 6.8.6 negotiate, enter into, and administer, in the name of Contractor, contracts, licenses an~ purchase orders for services, inventories, provisions, and supplies that are necessary for maintenance and operation of the Facility to the extent set forth in the Annual Plan and Budget, and to use the same in the management and operation of the Facility; 6.8.7 negotiate, enter into, and administer, in the name and on behalf of Contractor, contracts for the use of banquet and meeting areas within the Facility by groups and individuals; 6.8.8 apply for, and use commercially reasonable efforts to obtain in the name of the City or Contractor (as applicable) all licenses and permits including liquor licenses required of the City or Contractor in connection with the operation and management of the Facility, provided that the City agrees to execute and deliver any and all applications and other documents as shall be reasonably required and to otherwise cooperate with Contractor in applying for, obtaining and maintaining such licenses and permits; 6.8.9 use reasonable efforts to do, or cause to be done, all such acts and thing in and about the Facility as shall be necessary to comply in all material respects with all Legal Requirements (as defined below); 6.8.10 collect all charges, rent and other amounts due from customers, tenants, licensees and concessionaires of the Facility and use those funds, together with funds from other sources that may be available to the Facility, first to pay all Operating Expenses and then any other financial obligations of the Facility as the City may reasonably direct; and 6.8.11 perform such other tasks as are customary and usual in the operation of a conference center of a class and standing equal to the Facility. 6.9 Accounting System & Operating Accounts. 6.9.1 IACC Standards. Contractor shall establish an accounting system for the Facility consistent with the most recent version of the International Association of Conference Centers Uniform Systems of Accounts for Conference Centers III consultation with the City to properly reflect all Gross Revenues and Operating Expenses of the Facility on an accrual basis in accordance with GAAP. 6.9.2 Operating Account. Contractor shall establish one or more interest-bearing Operating Accounts in the name of the Facility into which all Gross Revenues shall be deposited and from which all Operating Expenses, including amounts due Contractor, shall be paid. Contractor's designees shall be the only persons authorized to draw from the Operating Accounts. Contractor will deposit all funds into the Operating Account and pay all Operating Expenses and distributions as provided in this 12 e e Agreement from the Operating Account. All signatories to this account (and any separate account) must be bonded for any amounts in the accounts. 6.9.3 Capital Reserve Account. Contractor shall establish an interest- bearing account and deposit into the account an amount equal to three percent (3%) of Gross Revenues as a reserve fund to pay for replacements of all FF&E in the Facility (the "Capital Reserve Account"). Expenditures from the Capital Reserve Account shall be set forth in the Annual Plan and Budget or otherwise approved by the City, except Contractor is authorized to make expenditures for FF&E that require replacement due to unanticipated breakdowns or damage or Legal Requirements. 6.9.4 Compliance, Access & Audits. Contractor shall keep all books and records with respect to the Facility, including the Operating Accounts and the Capital Reserve Account, in accordance with GAAP as prescribed by the Financial Accounting Standards Board (F ASB) and open for inspection and copying by the City or its representatives at any reasonable time. The City or its representatives may audit all of Contractor's books and records relating to the Facility and its operation each year, and may audit some or all those books and records at any other reasonable time, upon not less than five days' prior written notice. The cost of any such audits shall be paid by the City unless the results of the audit reveal a discrepancy of five percent (5%) or more in Contractor's favor in the calculation of Gross Revenue and Operating Expenses, either individually or combined. In the case of such discrepancy, Contractor will pay the full cost of the audit and Contractor will promptly remit any funds owing under the audit calculations. All such books and records and patron information shall be the property of the City, provided that Contractor shall also own all patron information. 6.9.5 Per the Washington State Auditor, Contractor shall retain these records for inspection, audit, and copying for at least three (3) years from the date of completion or termination of this Agreement. Contractor shall, at all times, provide City with all records three (3) years old and older that relate to the financial matters of the facilities managed by Contractor under this Agreement. 6.10 Continuous Operation. During the term of this Agreement, Contractor shall continuously conduct the business of operating and promoting the use of the Facility for conferences and other approved uses in such a manner as to maximize Gross Revenues and fulfill the Mission Statement and goals prepared by Contractor and approved by City as long as the City is providing funding pursuant to Section 6.6. Contractor shall therefore provide all necessary support to operate the Facility for its intended purposes at all times. 6.11 Statements to City. Contractor shall provide monthly and annual financial statements to City along with operating statements reasonably detailing all Gross Revenues, Operating Expenses, and expenditures from the Capital Reserve Fund, a comparison to the then-current Annual Plan and Budget on an item-by-item basis, and a marketing update. The statements and update will be provided within 20 calendar days after the end of the preceding calendar month. 13 e e 6.12 Quarterly Remittance to City. To the extent Net Income is positive in any calendar quarter (calculated on Operating Year-to-date basis), Contractor shall remit to the City the positive Net Income amount within 25 days from the end of every calendar quarter, provided, however, that sufficient Working Capital shall remain in the Operating Accounts. 6.13 Compliance with Laws & City Regulations. Contractor shall comply with all applicable federal, state, and local laws, ordinances and regulations in the operation of the Facility, including those relating to environmental matters. Contractor must comply with all City rules and regulations, relating to the improvements at the Facility and its use, which are applied to all users on a nondiscriminatory basis, and excluding internal City requirements for bidding or hiring. Contractor shall comply with any future City resolutions relating to use of the Facility, which are applied to all users on a nondiscriminatory basis. If a future resolution requires Contractor to cancel a contract for an event at the Facility entered into by Contractor prior to the passage of the resolution, or such resolution makes it impracticable or financially unfeasible for Contractor to perform its duties hereunder, City will indemnify and hold Contractor harmless from all direct losses or direct damage resulting there from. 6.14 Institution of Legal Action. Contractor shall obtain City's written approval prior to commencing any legal action related to the Facility (except for any disputes between City and Contractor and collection matters in the ordinary course of business). 6.15 Security Services. Contractor shall be responsible for determining, and shall provide, all necessary security in the Primary Premises and for any events conducted by Contractor within the Additional Premises; provided, however, nothing in this paragraph shall make Contractor responsible for determining, or providing, general security in, on or about City's other properties. In the event of any major event that requires extra security outside the Facility, Contractor shall be responsible for coordinating with City Police or other law enforcement body having jurisdiction. 6.16 Emergency Procedures Plan. Contractor will consult with City and with emergency service providers having jurisdiction and devise, monitor and, if necessary, implement an Emergency Procedures Plan for the Facility that is acceptable to City. 6.17 Liens & Encumbrances. Contractor shall use commercially reasonable efforts to keep the Facility free and clear of any liens and encumbrances arising out of Contractor's operation of the Facility. Contractor shall exercise reasonable care and judgment in resolving all claims and shall make reasonable settlement of claims. 6.18 Contractor's Proprietary Information. City acknowledges that Contractor has directly or indirectly created, invented, authored, produced and conceived certain proprietary information, processes and systems and that Contractor may utilize or cause to be utilized such proprietary information, processes and systems in its 14 e e management and operation of the Facility (collectively, "Contractor's Proprietary Information"). Contractor's Proprietary Information shall include, without limitation, software, budgets, worksheets and sales and market plans or actions. The City may not access, use, copy, distribute, reproduce or allow access to or use of, Contractor's Proprietary Information except in conjunction with Contractor's services provided hereunder. The City acknowledges and agrees that (i) all right, title and interest in and to Contractor's Proprietary Information, and all copyrights, trademarks or other intellectual property or proprietary rights relating thereto are and shall remain with Contractor, and (ii) that, except as expressly provided in this Section, no right, title or interest in Contractors' Proprietary Information is granted under this Agreement. 6.19 Business License. Contractor shall obtain a City of Bremerton business license as required by Chapter 5.02 of the Bremerton Municipal Code prior to beginning work under this Agreement. 7. Insurance. 7.1 Liability/Casualty Insurance. Contractor shall, at all times during the Term and at the City's sole cost and expense, to the extent specifically contemplated and permitted by the applicable Plan and Budget or otherwise authorized under Section 6;6, procure and maintain the following minimum coverages with commercial carriers reasonably acceptable to both the City and Contractor. Contractor shall be the named insured, and the City shall be an additional insured, under the insurance policies obtained pursuant to this Section. All of the insurance policies obtained pursuant to this Section shall be primary and non-contributory to any insurance maintained by the City. . 7.1.1 Commercial General Liability insurance on an occurrence basis against claims for personal injury (including bodily injury or death) and property damage occurring on, in or about the Facility, or any elevator therein or otherwise arising under this Agreement in an amount not less than $1 million combined single limit for each occurrence. This insurance must include bodily injury and property damage liability, independent contractors' liability, contractual liability, products and completed operations liability, liquor liability, and personal and advertising injury liability, and may not include any exclusions for terrorism; 7.1.2 Commercial automobile liability insurance on an occurrence basis against claims for injury or death to persons or damage occurring in or about the Facility with minimum limits of liability of $1 million combined single limit for each occurrence. Such insurance must include coverage for bodily injury liability, personal injury liability, property damage liability, and the operation of owned, hired and non-owned vehicles. 7.1.3 Employment practices liability insurance (with an extended reporting period not less than one (1) year in the event that the coverage is given in a "claims made" form) in an amount not less than $1 million for each occurrence and without any exclusion for terrorism; 15 e e 7.1.4 Excess or "umbrella" liability insurance no less broad than the underlying coverages on an occurrence basis providing excess coverage in a total amount no less than $5 million in the annual aggregate; 7.1.5 Worker's compensation insurance as shall be required by and be in conformance with the laws of the State of Washington, including employers liability insurance with limits of not less than $1 million for each accident and disease for all of Contractor's employees working with the Facility and $1 million in the aggregate; 7.1.6 Professional liability insurance (with an extended reporting period not less than one (1) year in the event the coverage is given in a "claims made" form) for errors and omissions that may arise out of the negligent acts of Contractor while providing professional services as manager of the Facility. The minimum amount of this insurance must be $1 million for each occurrence and may not include any exclusion for terrorism; and 7.1.7 All Risk property insurance on the Facility and the FF&E therein owned by the City insuring 100% of the replacement cost; 7.1.8 Such other insurance coverage (including employee dishonesty) reasonably requested by Contractor to insure against other insurance risks not covered under the above subsections that are commonly insured against by Contractor or owners of similar conference facilities. 7.2 Policies and Endorsements. All insurance policies furnished and maintained under this Section shall include a requirement that the insurer provide each party at least thirty (30) days written notice of any cancellation or material change in the terms and provision of the applicable policy. As soon as practicable prior to the effective date of the policies furnished and maintained hereunder, each party shall provide the other with certificates of insurance evidencing that the insurance requirements of this Agreement have been satisfied. Contractor and the City acknowledge and agree that the policies and limits described above shall be subject to adjustment by the parties from time to time during the Term to reflect changes in the insuring practices for facilities similar to the Facility and changes in insurance products. 7.3 Waiver of Subrogation. Each party shall request its respective insurance companies to waive subrogation against the other party and its Affiliates (as applicable) and their respective authorized representatives on account of any loss, damage, injury and all liability of every kind and nature arising from any risk generally insured against under any insurance policies carried by the parties or required to be carried by the parties under this Agreement. 8. EQualOpportunitv. 8.1 Services. Contractor shall not discriminate against any person or persons because of race, sex, age, creed, color, physical disability, HIV infection, veteran's state, 16 ---------- e e marital status, sexual orientation, national origin or any other basis made unlawful (whether on a national, state or local level) during the term of this Agreement in furnishing, or by refusing to furnish to any person the use of Contractor's services associated with the Facility. 8.2 Employment. Contractor shall conduct its business in a manner that assures fair, equal and nondiscriminatory treatment of all full or part-time employees. Contractor shall not discriminate against any full or part-time employee on the basis of race, sex, age, creed, color, physical disability, HIV infection, veteran's state, marital status, sexual orientation, national origin or any other basis made unlawful (whether on a national, state or local level) during the term of this Agreement. Contractor shall seek to hire and maintain a diverse work force. 9. Indemnification. 9.1 By the City. The City shall indemnify, defend and hold harmless Contractor and its Affiliates and their respective owners, officers, directors, employees and agents from any and all claims and liability (including reasonable attorneys' fees) arising or alleged to arise out of (i) the City's ownership or operation of the Facility, the Real Property or the surrounding development; (ii) a default by the City under this Agreement; or (iii) any violation of the Legal Requirements by the City or its employees, representatives or agents. For purposes of this Agreement, "Legal Requirements" means all laws, statutes, ordinances, regulations, codes, by-laws, orders, judgments, directives, rules, guidelines, orders or other requirements of any governmental or regulatory authority having jurisdiction over the City, the Facility, or the Real Property, including those related to employees, building, health, safety, environmental matters and the accessibility of public facilities to persons with disabilities. 9.2 By Contractor. Contractor shall indemnify, defend and hold harmless the City, its owners, officers, directors and employees, from and against any and all claims and liabilities (including reasonable attorneys' fees) arising or alleged to arise out of the negligent act or omission or willful misconduct of Contractor or its Affiliates or their respective owners, officers, directors, employees or agents. 9.3 Waiver of Industrial Immunity. TO THE EXTENT NECESSARY TO GIVE FULL EFFECT TO THE INDEMNITY OBLIGATIONS SET FORTH IN THIS SECTION _, EACH PARTY HERETO HEREBY WAIVES ITS IMMUNITY WITH RESPECT TO THE OTHER PARTY UNDER THE INDUSTRIAL INSURANCE ACT (RCW TITLE 51) AND EACH PARTY EXPRESSLY AGREES TO ASSUME POTENTIAL LIABILITY FOR ACTIONS BROUGHT AGAINST THE OTHER PARTY BY THE WAIVING PARTY'S EMPLOYEES. THIS WANER HAS BEEN SPECIFICALLY NEGOTIATED BY THE PARTIES TO THIS AGREEMENT AND EACH PARTY HAS HAD THE OPPORTUNITY TO, AND HAS BEEN 17 e e ENCOURAGED TO, CONSULT WITH INDEPENDENT COUNSEL REGARDING THIS W AIVER. ~ City's InitialS~Contractor's Initials 10. Representations and Warranties. 10.1 By the City. The City represents and warrants to Contractor as follows: 10.1.1 The City has, and throughout the Term will maintain, sole ownership of the Facility, including its contents, and Real Property, free and clear of any liens, charges or encumbrances of any kind. 10.1.2 There is no litigation or proceeding pending or threatened against the City or the Facility that could adversely affect the validity of this Agreement or the ability of the City to comply with its obligations under this Agreement. 10.1.3 Contractor may peaceably and quietly possess, manage and operate the Facility during the Term, subject to the conditions hereinafter. 10.2 By Contractor. Contractor represents and warrants to the City as follows: 10.2.1 There is no litigation or proceeding pending, or to Contractor's knowledge threatened, against Contractor or that could adversely affect the validity of this Agreement or the ability of Contractor to comply with its obligations under this Agreement. 11. Mort2:a2:es. 11.1 The City shall have the right to encumber the assets that comprise the Facility and the Real Property, including the Facility building, FF&E and operating supplies used in connection with operation of the Facility, and to assign to any mortgagee as collateral security for any such loan, all of the City's right, title and interest in and to this Agreement, provided that the City (a) provides Contractor with a true and complete copy of any mortgage and related documents within thirty (30) days of the signing of such documents, (b) ensures that, so long as Contractor is not in material default under this Agreement beyond any applicable cure period, Contractor shall be able to enjoy, occupy and manage the Facility throughout the Term free from interference or ejection by the City, any mortgagee, any ground lessor or any other entity or individual claiming under, through, or by right of the City, except as may be provided in this Agreement, and (c) ensures that all existing and future mortgages and lessors provide Contractor with nondisturbance protection in form and content reasonably satisfactory to Contractor, except as may be provided in this Agreement. 18 - e e 12. Casualty & Condemnation. 12.1 Casualty. If the Facility is damaged or destroyed by casualty and City determines it is not feasible to rebuild, City or Contractor may terminate this Agreement. If City elects to rebuild, then this Agreement shall continue in full force and effect. If the Facility is closed for longer than three months as the result of such casualty and City elects to rebuild the Facility, this Agreement and its obligations will be suspended until the Facility is re-opened or such other time as the parties agree. The parties may negotiate an interim management agreement to cover the period of such suspension. 12.2 Condemnation. 12.2.1 Permanent Taking. Upon a taking of either a fee interest in, or a perpetual easement on, all or any portion of the Facility, if the part not taken may not be repaired, restored, replaced or rebuilt so as to constitute a conference facility as contemplated by the parties under this Agreement, then this Agreement shall terminate as of the date that is 90 days after the earlier of the date on which the relevant governmental authority (i) is entitled to possession or (ii) takes possession. Upon a taking of less than all of the Facility, and if this Agreement has not been terminated as permitted under this Section, this Agreement shall remain in full force and effect with respect to the remainder of the Facility and the awards or other proceeds on account of the taking shall not be included in. the calculation of Gross Revenue for the Operating Y ear( s) in which received. The City shall promptly repair, restore, replace or rebuild the remainder of the Facility as nearly as possible to its value, condition, and character immediately prior to the taking and the costs of any such works shall not be deducted as an Operating Expense. Upon any taking, Contractor shall, in its sole discretion, be entitled to terminate this Agreement on 30 days' written notice to the City. 12.2.2 Temporary Taking. Upon a taking of all or any portion of the Facility for temporary use, this Agreement shall remain in full force and effect, and the award or other proceeds on account of the temporary taking shall not be included in the calculation of Gross Revenue for the Operating Y ear( s) in which received. When and if, during the Term, the period of temporary taking ceases, the City shall make all such restoration, repairs and alterations as are necessary to restore the Facility to its condition prior to the taking. The City shall promptly repair, restore, replace or rebuild the remainder of the Facility as nearly as possible to its value, condition, and character immediately prior to the taking and the costs of any such work shall not be deducted as an Operating Expense. Notwithstanding the foregoing, if a temporary taking occurs so that the Facility may not be operated in the manner contemplated by the parties under this Agreement and continues in effect for a period of longer than twelve (12) months, either the City or Contractor shall, in its sole discretion, be entitled to terminate this Agreement on thirty (30) days' written notice to the other. 13. Names & Marks. 19 e e The name of the Facility shall be "The Centre of Bremerton" and the trademark associated with the Facility shall be as established by the City hereafter and neither may be changed without the consent of both parties. Contractor may identify itself as the manager of the Facility in connection with advertising and promotion of the Facility and Contractor with due recognition to City as the owner of the Facility. In the event the parties agree to change the name of the Facility, the City shall pay the costs associated with any name changes. 14. General Provisions. 14.1 Waiver. No express or implied waiver by either party of any event of default shall in any way be or be construed to be a waiver of any future or subsequent event of default. The written waiver by either party of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein contained. 14.2 Construction as Covenants. Wherever in this Agreement it is provided that either party shall or will make any payment or perform or refrain from performing any act or obligation, each such provision shall, even though not so expressed, be construed as an express covenant to make such payment or to perform, or not to perform, as the case may be, such act or obligation. 14.3 Time of Performance. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. 14.4 14.5 Partial Invalidity. Any provision of this Agreement which is held to be invalid, void or illegal by any court of competent jurisdiction shall in no way affect, impair or invalidate any other provision hereof. 14.6 Choice of Law; Venue. The laws of the State of Washington shall govern this Agreement and the legal relations of the parties without giving effect to conflicts of laws principles. The venue of any proceeding shall be Kitsap County, Washington. 14.7 Attorneys' Fees. In the event an action is commenced by either party to enforce any right or obligation hereunder, the substantially prevailing or successful party shall be entitled to reasonable attorneys' fees and court costs, including fees and costs incurred on appeal or review, or in ay bankruptcy proceeding. 14.8 Entire Agreement; Modification. This Agreement, together with the Exhibits attached hereto, contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Agreement, and no prior agreements or understanding pertaining to any such matters shall be effective for any purpose. No provision of this Agreement may be amended or waived except by an agreement in 20 e e writing signed by the parties hereto or their respective successors in interest. This Agreement shall not be effective or binding upon any party until fully executed by both parties hereto. 14.9 Counterparts. This Agreement may be executed in counterparts, both of which shall form but one and the same contract. 14.10 Integration. This Agreement contains the entire agreement between City and Contractor and supersedes all prior written or oral discussions or agreements. 14.11 Non-Solicitation. During the Term and the two (2) years following expiration or earlier termination of the Agreement, if the City should terminate the Agreement, the City shall not directly or indirectly, for itself or any affiliated individual or entity, solicit, recruit, hire, employ, or retain the services of, the employees of Contractor or its Affiliates that performed services at, or for, the Facility during the 12- month period immediately preceding the expiration or earlier termination of this Agreement, except as provided for under jurisdictional civil service rules, and regulations and/or other employment laws. 14.11.1 Contractor and City may amend this Agreement at any time only by written amendment executed by Contractor and City. 14.11.2 Contractor and City agree that this Agreement shall be amended at any time if, in the opinion of bond counsel to City, such amendment is necessary to preserve the tax exempt status of interest on obligations of City issued to finance the Conference Center. If Contractor finds such amendments unreasonable, Contractor may terminate this agreement upon ninety (90) days written notice. 14.12 Authority. Each individual executing this Agreement on behalf of each party represents and warrants that he or she is duly authorized to execute and deliver this' Agreement. 14.13 Notices. Except as otherwise provided in this Agreement, all notices, demands, request, consents, approvals and other communications (herein collectively called "Notices") required or permitted to be given hereunder, or which are to be given with respect to this Agreement, shall be in writing sent by registered or certified mail, postage prepaid, return receipt requested, addressed to the party to be so notified at the addresses set forth below or transmittal by facsimile. If to Contractor: If to City: Columbia Hospitality, Inc. City of Bremerton 2205 Alaskan Way City Hall, 239 Fourth Street Seattle, W A 98121 Bremerton, W A 98337 21 ------------ -- - - --- ----- e e Attention: John Oppenheimer Attention: Gary Sexton, Director of Economic Development Tel: (206) 239-1800 Fax: (206) 239-1801 Tel: (360) 473-5282 Fax: (360) 473-5850 with a copy to: Caimcross & Hempe1man, P.S. 524 Second A venue, Suite 500 Seattle, W A 98104 Attention: Gregory J. Duff Tel: (206) 587-0700 Fax: (206) 587-2308 Any notice shall be deemed delivered upon receipt or three (3) days after the mailing thereof. Either party may at any time change the addresses for notices to such party by mailing a notice as aforesaid. 14.14 Use of Affiliates. The City acknowledges and agrees that Contractor may from time to time purchase goods, supplies and services from or through Contractor and its Affiliates. If an Affiliate performs services Contractor is required to provide under this Agreement, Contractor shall be ultimately responsible to the City for Contractor's Affiliate's performance. For purposes of this Agreement, "Affiliates" means any entity directly or indirectly controlled by, controlling or under common control with Contractor. 14.15 Remedies Cumulative and Non-Exclusive. The parties' rights and remedies set forth in this Agreement are in addition to all other rights and remedies available at law or in equity, including without limitation specific performance and temporary and permanent injunctive relief 14.16 Confidentiality. For a period of five (5) years after disclosure, neither party will use the other party's confidential information other than in furtherance of this Agreement, nor will it disclose the other's confidential information except (i) to obtain advice from legal or financial consultants or (ii) if compelled by law, in which case the disclosing party will use its best efforts to give the other party notice of the requirement so that disclosure can be contest. "Confidential Information" shall mean information marked as confidential or which, under the circumstances surrounding disclosure, ought in good faith be treated as confidential, including without limitation the terms and conditions of this Agreement and Contractor's Proprietary Information. Confidential Information shall not include information that (a) the recipient developed independent, (b) the recipient knew before receiving it under this Agreement; or (c) is or subsequently becomes publicly available or is received from another source, in both cases other than by a breach of an obligation of confidentiality. 22 e e 14.17 Force Majeure. Performance of this Agreement by either party is subject to acts of God, government authority, disaster, strikes, civil disorders or other emergencies, any of which make it illegal or impossible to provided the facilities or services contemplated herein. 14.18 Assignment. Contractor shall not either voluntarily or by operation oflaw assign, transfer, mortgage, pledge, hypothecate, or encumber this Agreement or any interest therein and shall not subcontract the obligations under this Agreement, or any part thereof, or allow any person (employees, agents, servants, and invitees of Contractor excepted) to use the Conference Center, or any portion thereof, without the prior written consent of City, which consent shall not be unreasonably withheld. Any such assignment, subcontracting or use without compliance with the terms of this paragraph shall be void and shall constitute a default under the terms of this Agreement. If Contractor is a corporation, any transfer of this Agreement from Contractor by merger, consolidation, or liquidation, or any change in the ownership or power to vote in a majority of the outstanding voting stock of Contractor shall constitute an assignment for purposes of this paragraph. Any consent to one assignment, subcontracting, or use by any other person shall not be deemed to be a consent to any subsequent assignment, subcontracting, or use by another person. Consent to any such assignment, subcontracting or use shall in no way relieve Contractor of any liability under this Agreement. 14.19 Subcontracting. Contractor shall not subcontract its work under this Agreement, in whole or in part, without the written approval of City. City reserves the right to review and approve any subcontracts prior to execution to ensure compliance with the provisions of this Agreement. Contractor shall require any approved subcontractor to agree, as to the portion subcontracted, to comply with all terms and conditions as specified in this Agreement. Notwithstanding City approval of a subcontractor, Contractor shall remain obligated for full performance hereunder, and City shall incur no obligation other than its obligations to Contractor hereunder. Any subcontracts approved by City shall be subject to and shall not extend any rights granted beyond those set forth in this Agreement to Contractor. Contractor agrees that if subcontractors are employed in the performance of this Agreement, Contractor and its subcontractors are subject to the requirements of the State of Washington, Workers' Compensation Laws. This Agreement is dated as of the day and year first st;:t forth above. CITY: Citye::on, ~iCiPal corporation By: '--7 k ------. Its: /I111'r~ 4..- G- ~ - D .-3 CONTRACTOR: Columbia Hospitality, Inc. 23 e e B4~~ Its: c..w R:\LEGALlFiles\CUlTent Active Files\Conference Center - Roger\Columbia Hospitality.agrZ.doc 24 06/04/2003 12: 11 13604735850 KCCHA PAGE 02 .. 4( '",.' . rlU Pf/lT'1 I{ 1 T SAP t ~ttrJ.c if ~'. - ~ IJ- I t;:;-. I I, # - LEGAL DESCRIPTION OWER NO. 890745-0 PARCEL A: LOTS 1 AND 2 IN BLOCK 2 OF TOWN OF BREMERTON. ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS ATPAGE(S) 30, IN KITSAP COUNTY, WASHINGTON; TOGEntER WITH THAT PORnON OF V ACA TED ALLEY ADJOINING OR. ABUTIING ON TIIE EAST L YINO BETWEEN TIlE PROJECTIONS EASTERLY OF THE NORTH AND SOUTH LINES OF SAID LOTS, WHICH UPON V ACA nON, ATTACHED TO SAID PREMISES BY OPERA nON OF LAW; ALSO TOGETIlEll...WITH TIlOSE PORTIONS OF V ACA TED FRONT (FIRST) STREET AND WASHINGTON A VENUE ADIOfNl'NG OR ABUTIING THEREON, WHICH UPON V ACA TION, ATTACHED TO SAJO PREMISES BY OPERATION OF LAW. PARCEL B: LOT 3 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KlTSAP COUNTY. WASHINGTON; TOGETHER Willi THAT. PORTION OF V ACA TED ALLEY ADJOINING OR ABUTl1NG ON 1HE EAST LYING BETWEEN THE PROJECTION OF nm NORTHERLY AND SOUTHBRL YLINES OF SAID LOT 3, WHlCH UPON VACATION,. ATTACHED TO SAID PREMISES BY OPEunON OF LAW, PURSUANT TO KITSAP COUNTY SUPERIOR COt.J'RT CAUSE NO. 66664. PARCEL C: - LOTS 4, S. 6 AND 7 IN BLOCK 2 OF TOWN OF BREMERTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KlTSAP COUNTY, WASHINGTON; TOGETHER wrm m:AT PORTION OF VACATED ALLEY ADJOINING OR ABUITING ON nIE EAST LYING BETWEEN THE SOtrrHERL Y LINE OF LOT 4 AND 1lIE NORTIIElU. Y LlNE OF LOT 7 PROJECTED EAST, WHICH UPON VACATION, ATIACHED TO SAID PREMISES BY OPERATION OF LAW. .. PARCEL D: THE SOUTHEASTERLY 30 FEET OF TIlE FOLLOWING DESCRIBED PRQPERlY: TIlAT PORTION OF GOVERNMENT LOT I, SECTION 34, TOWNSlUP 24 NORTH, RANGE 1 EAST, W.M.. IN KITSAP COUNTY, WASHINGTON, DESCRlBED AS FOLLOWS: COMMENCING AT A POINT ON TIIE NORTHEASTERLY LINE OF FRONT (NOW FIRST) STREET, BREMER-TON, WASHINGTON. 14 FEET SOUTHEASTERLY FROM TIIE SOUTHEAST CORNER OF LOT I IN BLOCK 2 OF TOWN OF BREME:RTON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHINGTON; TIlENCE NORTIIEASTERL Y PARALLEL WITH THE SOUTHEASTEIU. Y LINE OF SAID BLOCK 2 A DrST ANCE OF 60 FEET. . ~ ~CE SOUTHEASTEiu. Y PARALLEL WlTI1 THE NORTHEASTERLY LINE OF FRONT STREET FEET, MORE OR LESS, TO INNER HARBOR. LINE; .. nIENCE SOUTl-{WESTERL YPARALLEL WITH THE SOl./lHEASTERLY UNE OF SAID BLOCK 2 A ~ ~i, =NCE OF 60 FEET, MORE OR LESS, TO TIfE NORTHEASTERJ... Y LINE OF FRONT STREET; I .~ .. . CE ALONG SAID LINE NOitTIlWESTERL '{ TO nlE PLACE OF BEGINNING; .' 1'~. . '~r ' Page 2 ., JUN-04-2003 12: 14 13604735850 98% P.02 ,-, --'< 05/04/2003 12: 11 13504735850 KCCHA PAGE 04 .... er UI'...... " .c liOO8' ' <.':' .'" .. \,"~ \.. 'r ..' '::'~~~; .: .:': ~:';it~.'" " , .. ~::~. ':,.",.."~ " ,"'. c ,rtrR.A p<<r, - - ~~ I, I ~/r- ,2 LEGAL I)ESCRIP110N aRDn NO. 80Ut-Cl PARCEL I: THAT PoanaN aF OOVE1Ul1MENI' LOT 3, SEcnON 13, A..'ID THAT Po.RTION OF OOVERNMENT LOT I, SBCIION 24, AND TIDELANDS ADJOINING>> ALL IN TOWNSHIP 24 NORTH, lL\NGB 1 EAST, W M., IN IOTS.AP caUNTY, W ASHINGTo.N. DBSCRIBED AS FOLLaws: COMMENCING AT THE MaST SOUTHER.!. Y CQRNER. OF Lor IlN BLOCK. 2 OF TOWN OF BREMB.itTON>> ACCo.RDING TO. PLAT RECaRDED IN VOLUME 2 OF PLATS AT PAGE(S) 30. IN IOTSAP COUNTY. WASHlNOTON; THENCE saum 45"20'30" EAST ALo.NG nm NOR11IBAST.8RL Y MAROJN aF FIRST STREET (FRONT S'I'REBT) IN SAID PLAT A DISTANCE OF 14.18 FJmT TO THE MOST SOUl'HERLY CORNER aF AN .A.I..LBY DELlNEA TED aN BLOCK 2 OF SAID PLAT; 1HENCE No.Rm 350)7'10" BAST 60.00 FEET ALONG SAID DRIJNEATED ALLBY'Ta THE TRUE POINT OF BEGlNNING, WInca IS ALSO. CALLED POOO -A" FOil REFERENCE PURPOSES; nmNCE SOtITH 4S~O>>30" EAST PARALLEL TO. THE NORT.BEASTRRL Y MARGIN o.F FIRST S'I'REET (FRONT STREET) TO. AN INTER.sEcnoN WITH ~ ~ HARBaR LINE DELINEATED ON. 1958 .. SUPPLEMENTAL MAP OF THBBItEMERTaN TIDE.tANDS~ ON PlLB IN ,THE OFFICE aF 1HB Co.MMIsSIONER OF PUBLIC LANDS, OLYMPIA. WASHINGTON; 1HBNCE NORTHE^5I'ERL Y AtaNGSAlD INNER-HARBOR LINE TO TIlE So.UIHWESTERL Y MARGIN OF 2ND STREET AS DEL1NP.ATED ON SAID SUPPLEMENTAL MAP; ~ 'TIiBNCB NaRmwES11UU. Y ALaNGSAlD MARGIN TO. A POINT ON THE MOST BAST.ElU. Y CORNER. aF THE ALLEY DELINEATED aN BLOCK 2 IN' PLAT OF TOWN OF BREMERTON; THENCE saum. 35037'10" WEST ALaNG SAID ALLEY 247.21 FEET TO THE TRUE POINiOF BEOINNlNG; EXCEPT THAT PORTIo.N DESCRlBED .AS FOLLOWS; Co.MMENCING AT POINT "A" HERETOFo.RE DESClUBED; THENCE So.lTI'H 4S"20'30n EAST PARALLEL TO. TIm NOR11IEASTBRL Y MARGIN OF FIRST STREET 34.02 PEEl' TO THE TRUE POINT ,OF BEGlNNlNG OF THIS EXCEmo.N; THENCE NORm 45029'10" EAST 14.,17 FEET; THENCE NOR.TH 35036'30" BASTS.,90 FEET TO mE So.UTHWEST caRNER OF AN EXISTING BRICK. BUILDING; THENCE sotrm 4S"20'30" EAST ALONG THE SOurHEAS'I'ElU. Y WALL THEREOP 129 FEET; TIlENCE saum 41"53'20. WEST 20 FEET, MORE OR LESS, TO. THE SOUIHWEST BOUNDARY OF TaB MAIN TRACT HERETOFORE DESCRIBED; TIrENCENORTH 45"20'30" WEST 129.41 FEET, MaRE OR. LESS, TO TIm TRUE POINT o.F BEGINNlNO. PARCEL n: CO~CING AT A POlNl' aN TIrE NORrHEASTHRL Y LOO OF FRONT STREET, AlSO. lCNaWN .AS FIRST STREET, BREMERTaN, W ASHINOTON, WHica IS SOUTH 45"20'30" .BAST A DISTANCE aF 14.18 FEET FROM THE SOtJ'I'HSAST CaRNER OF LOT 1 IN BLOCK:1 OP ORIOINAL PLAT OF THE TOWN OF BREME:RTON, ACCORDING TO. PLAT RBCaBDED IN vaLUME 2 OF PLATS AT PAGE(S) 30, IN KITSAP COUNTY, WASHINGTON; THENCE NORTH 35"37'10" EAST Fo.R A DISTANCB OF 60 FEET; nrENCE SOtJ'IH 45"20'30" EAST FORA otSTANCB o.F 16.3.43 FEET TO. THE 1'1U1:B POINT OF BEGINNING; Page 2 JUN-04-2003 12: 14 13604735850 98% P.04 135/134/213133 12,; ,11-. __-1351347358513 KCCHA PAGE 135 ~ UI"ll. 0 "e- aOO7 ~. - '.. . ~ , , . - DESClUP110N CONT. ORDER. NO. a90144-C3 THENCE soum 45.20'30" EAST 45 FEET; mENCE SOUTH 41.53'20" WEST .59.39 FEET, MORE OR LESS. TO THE NOR'I1IBAS1'ERLY LINE OF . SAID FRONT STREET (PlRST STREEt); TBENCB NORntWBSTElU. Y ALONG T.SB NOR.TBEAstERLY LINE OP FRONT STI.lE.ET (P!RST . STREET) 4.5 FEET; . THENCB NOR.m 418S3 '20" BAST .59.39 PEB'I't MORE OR. LESS. TO THE TRUE POINT OF BEGINNING; . TOGBnmR. wrm THAT PORTION OF VACATED FRONT (fIR.ST) S1"UBT ADJOINING OR ABUTI1NG THEREON, WHICH UPON VACATION. ATfACHED TO SAID P1lHMJSES BY OPERATION OF LAW. PAR.em. m; 11i:AT PORTION OF GOVERNMENT LOT 1, Sl~.cnON 24, TOWNSBJP 24 NOR.TH. RANGE 1 BAST, W.Mo, AND THE TIDELANDS ADI0INlNG. "IN ltn"SAP COUNTY, WASHINGTON, DESCIUBBD AS FOLLOWS: CO:M:MENCINO AT TIre MOST.SOtJ'l11ElU.V CORNER. OF LOT lIN BLOCK 2 OF TOWN OF ", B.REMERTON, ACCORDING TO-PUT lUlCORD.ED INVOLUMB.2 OF PLATS AT PAGE(S) 30, IN IOTSAP COUNTY, WASHlNGTOl:'li, ' . . THENCE. sourn 45"2.0'3&- EAST ALONG TSE NOR'l1mASTHRL Y LIN.E OF FlRST srREBT (FRONT STREET) 14.18 FEET TO THE 'I'R.t1E: POINT OF BEGINNING;' - THENCE NORTH 3S"37'10"'BAST ISO FEETi . ..... TItENCE SOUTH 45"20'30" EAST 34.02 FEET; nmNCB SOtrrHWES'TERL Y to A POINT ON 11m NOR.TBEASTEIU. Y LINE OF FIRST STRBBT WHICH ISSoum 45020'30" EAST 23.69 FEET nOM THB TRUE POINT OF BEGINNING; nrENCE NOR.TH 4su20'30" WEST 23.69 FEET TO nm TRUE POINf OF BEGINNING; TOOE'l'HBR WITH TIlAT PORTION OF VACATED FRONT (FIRST) STREET AD10INING OR ABUT11NG THEREON, WHICH uPON VACATION. AIT.ACHED TO SAID PREMISES BY OPERATION OF LAW. PARCEL IV: LOTS 8 AND 9 IN BLOCK 2 OF Tom OF BIlliMERtON, ACCORDING TO PLAT RECORDED IN VOLUME. 2 OF PLATS AT PAOE(Sl.3(), ,IN KIl'SAP C,OUNlY, WASHINGTON; TOGEnlER. WITH 11IAT PORTION OF VAcATED AL.i:.EY AD10INING OR ABUITING THEREON. WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW. Page 3 JUN-i214-2i21i213 12: 14 1361047358510 97% P.i215 PAGE ~.;:I , 136047358513 KCCHA -=__ _:."-. i ... ~ T.,., . '. . ~ ... .....17";. /'"...,1.... . -.. .:~..~;,;.;;.;':~. ~~~.'.:"\. . ',""'~"~'." ' Y':~:~'.:t : ",.;:'.,t::'.... OWER. NO. 8!)074!-C3 -~ . ":"!"."'1oGETHER Wlnl mAT PORTION OF VACATED FRONT (FIRST) STREET ADJ1iNING OR ..:~~ ',ABtrrrING THEREON, WHICH UPON VACATION, AlTACHED TO SAID p~S BY _ ;'. OPERA.nON OF LAW; , .. . . .' . EXCEPT FROM ALL OF 1llE ABOVE~ ANY PORTION THEREOF L YING EAS~ Y OF THE INNER , .. ffA.R.BOR LINE. ...... PARCEL E: .t. . THAT PORTION OF THE GOVERNMENT LOT I, SECTION 24, TOWNSHIP 24l'o\'ttTH. RANGE 1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON AND TIlE TIDELANDS ADIOlA.'llNG, DESCRlBED AS FOLLOWS: COMMENCING AT mE MOST SOunrERL Y CORNER. OF BLOCK 2 OF TOWN (if BREMER-TON, ACCORDING TO PLAT RECORDED IN VOLUME 2 OF PLATS AT PAGE(S) 30; THENCE SOlT1ll4SD20'30" EAST ALONG TIm NORTHEAST LINE Of FIRST snEET 14.18 FEET TO THE TRUE POINT OF BEGINNING; tHENCE NORm 35037'10" EAST 60 FEET; THENCE soum 45020'30" EAST 34.02 FEET; THENCE NORTII 4S~9']O" EAST 14.17 FEET; mENCE NORm 35036'30" EAST '.90 FEET TO THE SOUIHWESTERL Y cORNEll OF EXISTING BRICK Bun..DING; ,__ "'. .......' .., THENCE ALONG THE SOUTHEASTElU. Y WALL OF SAID BUILDING AND THE LINE OF SAID WAlL PRODUCED, SOtrrH 45~O'30" EAST 129.00 FEET; mENCE SOUTH 410S3'20" WEST 79.39 FEET, MORE OR LESS, TO A POINT ON THE NORnIEASTERL Y LINE OF FIRST STREET; . THENCE NORm 45020'30" WEST ALONG SAID LINE TO THE TRUE POINT OF BEGINNING; I TOGETHER WITH TIlAT PORTION OF VACATED FRONT (FIRSD STREET ADJoINING OR ABUTTING ON THE SOUTH, WIllCH UPON V ACA TION, A IT ACHED TO SAID PflEMlSES BY ,I OPERATION OF LAW. EXCEPT 1HE FOLLOWING DESCRIBED TRACT: ~ COMMENCING AT MOST SOUIllERLY CORNER OF SAID BLOCK 2; ! THENCE SOUTH 45D20'30" EAST ALONG THE NORTHEASTER!. Y LTNE OF FlRS'f STREET 14.18 i FEET TO THE TR.UE POINT OF BEGINNING; " THENCE NORm 35037"10" EAST 60 FEET; THENCE SOUTH 4SD20'30" EAST 34.02 FEET; THENCE SOUTHWESTERLY TO ^ POINT ON TIiE NORTHEASTERLY LINE Of 'IIRST STREET WHICH IS soum 45020'30" EAST 23.69 FEET FROM nm TRUE POINT OF BEGI~G; THENCE NORTH 45D20'30" WEST 23.69 FEET TO TIm TRUE POINT OF BEGINNING; rNCLUDING wrm SAID EXCEPTED TRACT, THAT PORTION Of VACATED FRom (:FIRST) STREET ADJOINlNG OR ABUTTING SAID EXCEPTED TRACT ON TIlE SOUTH, WHICH UPON VACATION, ATTACHED TO SAID PREMISES BY OPERATION OF LAW. I I I I I i I II l I I I Page 3 I 97Y. P.03 ~ 13604735850' JUN-04-2003 12:14 e e EXHIBIT C Depiction of Additional Premises 27 I ------ ---------- . 'E ')L hi t.a l~ g~ C. e LEGE '" gYMS< - ---------- :i r]:i II ,; : I! I ~ - -.-.... ~ 0 '-., ~s: - " 1'1 -i-~\ I " , , bi-.j I ~~\I I , i r' ~ i 1 , \ I j j t j f ~ (,- \ '" ~ .. ~ \l FC I , . ~<-...i!MCJ(1~'.""::, ,,' v/ _ '. ~ tz --- / , . "'" ~'~'"7~;f>--- ~~\',-::~=~~-== ~~- ; - f'-:: :. -- ----T\. . ' () -- ~ I'~ ,,----- ill " i' . #,l ~ ,0... .,~~ -,; . /.l~-~lh)::;?~! o ' $TAI~~~RAlL . 16'0< J6" J.;T C;,Ff'lA'II~ -..... - .~. . ;AA~~ ~?f'~ :;~:~>~:. I' . 'i'~,.~i Ii. ~\:\ __......,-i ~ ~1:;E:-1:k(3J1.D4i:.LE~gHCtESFlEQ I,,~ e e EXHIBIT D Facility Mission Statement The Kitsap County Regional Conference Center will be designed and operated to establish a first-class conference and event center on the Bremerton waterfront. Its unique design, spectacular view, creative cuisine, and first-class service will provide a complete experience for corporate meetings, community social events, naval facility activities, and create opportunities for county educational institutions. The Conference Center will serve as an economic enhancement for the further revitalization of the Bremerton waterfront and Kitsap County. 28 e e EXHIBIT E Pre-Opening Services: Marketing and Technical Design Development Project Design Consultation Services- . Direct work of consultants retained by Contractor and the City to perform services outlined in detail as required . Participate in ongoing design meetings with the City and its architects, engineers, contractors, and other representatives . Provide any additional project standards information relevant to design development with emphasis on functional aspects Provide Additional Detailed Space Allocation Information for the Design Documents . Develop project operational philosophy, criteria and guidelines . Develop food and beverage service concepts . Assist in the development of the interior design philosophy and concepts . Comment on or clarify audiovisual and IT requirements, as needed . Specification input may include room dimensions, finishes, hardware, and audio visual/technology requirements, mechanical, electrical, plumbing and foodservice requirements . Review and commend on City-provided food and beverage preparation facilities, schematic layouts, and preliminary equipment schedules Provide the Following Space Planning Information (as needed) . Locations of furniture and equipment placements . Locations of electrical and communications terminal (e.g. telephone outlets, sound and lighting controls, Internet connections) . In conjunction with interior designer, develop specifications for administrative furniture and fixtures and review other areas as required Review and Advise on Interior Design . Plans, elevations, special interior design features, and lighting . FFE selections . Interior materials, finishes and colors . Cost reductions and operational issues . Food and beverage preparations equipment floor plans, elevations, equipment selections, and related details Review Design Consultant Telephone and Computer Programs and Systems 29 e e . Review computer systems criteria identifying: 1. Devices, circuiting, utility requirements, and installation 2. Operating requirements and locations Construction Services . Make recommendations to the owner on value engineering alternatives . Develop a detailed pre-opening plan turnover schedule for the owner . Telecommunications, audiovisual, and IT related services . Review proposals for the telephone and information technology/computer systems . Assist with start-up of building and operating systems . Provide quantity schedules, budget, and specifications for operating equipment and supplies . Review all contract bids and make recommendations to the owner Pre-Opening Planning . Update operating pro forma on changes in project schedule as required . Prepare a preliminary cost estimate for initial food and beverage inventories, house banks, and accounts receivables reserve . Provide a detailed FF &E budget . Prepare project pre-opening expense budget including monthly expenditure chart . Prepare pre-opening plan with operating personnel, organization, and staffing guidelines . Prepare and keep updated project operating personnel organization chart and staffing plan . Develop specifications for operating equipment including, but not limited to: linen, china, glassware, silver, and small wares, uniforms for service staff, such as wait staff, conference floor attendants, janitors, culinary, concierge, and miscellaneous equipment/materials including branded or trademark items Construction Technical Services . Conduct onsite inspections and participate in all scheduled progress meetings that require problem-solving decisions plus ongoing value engineering. 30 e e EXHIBIT F Facility Trademark 31 I e e " EXHIBIT G Form of Memorandum of Management Agreement 32 . (43(4)3 AC 8/D CERTIFICATE OF LIABILITY INSURANCE DA08/18/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Parker,Smith&Feek,Inc. PHONE 425-709-3600 FAX 425-709-7460 2233 112th Avenue NE RECEIVED (AIC,No,Ext): (A/C,No): E-MAIL Bellevue,WA 98004 ADDRESS: INSURER(S)AFFORDING COVERAGE NAIC# AUG 2 8 2015 INSURER A: Hanover American Insurance Company INSURED INSURER B: Columbia Hospitality,Inc. Attn:Finance DepartmentINSURER C: 2223 Alaskan Way,Suite 200 City of Bremerton INSURER D: • Seattle,WA 98121 Risk Management INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: • THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER (MM/DD/YYYY) (MM/DD/YYYY), LIMITS A GENERAL LIABILITY ZZ2A391436018/15/2015 8/15/2016 EACH OCCURRENCEDAMAGE RENTE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY PREM SESO(Ea occur ence) $ 500,000 CLAIMS-MADE X OCCUR MED EXP(Any one person) $ 10,000 PERSONAL&ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GE 'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 2,000,000 POLICY PRO X LOC $ JECT A AUTOMOBILE LIABILITY ZZ2A39143601 8/15/2015 8/15/2016 C(Ea aBccI dent,INGLE LIMIT 1,000,000 V ANY AUTO - BODILY INJURY(Per person) $ ALL OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS AUTOS XX -OWNED PROPERTY DAMAGE $ HIRED AUTOS AUTNONOS (Per accident) UMBRELLA LIAB OCCUR EACH OCCURRENCE $ iI EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED RETENTION$ - $ WORKERS COMPENSATION ZZ2A39143601 WC STATU- X OTH- A• AND EMPLOYERS'LIABILITY YIN 8/15/2015 8/15/2016 TORY LIMITS ER ANY PROPRIETOR/PARTNER/EXECUTIVE WA Stop Gap E.L.EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under 10 , 00000 DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ , DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (Attach ACORD 101,Additional Remarks Schedule,if more space is required) RE:Kitsap County Conference Center @ Bremerton Harborside(100 Washington Avenue,Bremerton,WA 98337.)City of Bremerton is included as an Additional Insured per General Liability endorsement 421-2915 12 14 attached;coverage is primary and non-contributory per endorsement 421-2915 12 14. Waiver of Subrogation applies per General Liability endorsement 421-2915 12 14. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. CITY OF BREMERTON 345 6th Street,Suite 600 AUTHORIZED REPRESENTATIVE Bremerton,WA 98337 ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25(2010105) The ACORD name and logo are registered marks of ACORD 2 of 6 COLUHOSP(ASA00) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL GENERAL LIABILITY BROADENING ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SUMMARY OF COVERAGES 1. Additional Insured by Contract,Agreement or Permit Included 2. Additional Insured—Primary and Non-Contributory Included 3. Blanket Waiver of Subrogation Included 4. Bodily Injury Redefined Included 5. Broad Form Property Damage—Borrowed Equipment, Customers Goods& Use of Elevators Included 6. Knowledge of Occurrence Included 7. Liberalization Clause Included 8. Medical Payments Included 9. Newly Acquired or Formed Organizations-Covered until end of policy period Included 10. Non-owned Watercraft 51 ft. 11. Supplementary Payments Increased Limits - Bail Bonds $2,500 - Loss of Earnings $1000 12. Unintentional Failure to Disclose Hazards Included 13. Unintentional Failure to Notify Included This endorsement amends coverages provided under the Commercial General Liability Coverage Part through new coverages, higher limits and broader coverage grants. 1. Additional Insured by Contract, Agreement or (1) "Your work" for the additional insured(s) Permit designated in the contract, agreement or The following is added to SECTION II — WHO IS permit; AN INSURED: (2) Premises you own, rent, lease or occupy; Additional Insured by Contract, Agreement or or Permit (3) Your maintenance, operation or use of a. Any person or organization with whom you equipment leased to you. agreed in a written contract, written agreement b. The insurance afforded to such additional or permit that such person or organization to insured described above: add an additional insured on your policy is an (1) Only applies to the extent permitted by additional insured only with respect to liability law; and for "bodily injury", "property damage", or "personal and advertising injury" caused, in (2) Will not be broader than the insurance whole or in part, by your acts or omissions, or which you are required by the contract, the acts or omissions of those acting on your agreement or permit to provide for such behalf, but only with respect to: additional insured. 421-2915 12 14 Includes copyrighted material of Insurance Services Office,Inc.,with its permission. Page 1 of 4 3 of 6 COLUHOSP(ASA00) (3) Applies on a primary basis if that is advertising injury" involved the rendering required by the written contract, written of or failure to render any professional agreement or permit. services by or for you. (4) Will not be broader than coverage d. With respect to the insurance afforded to provided to any other insured. these additional insureds, the following is (5) Does not apply if the "bodily injury", added to SECTION III — LIMITS OF "property damage" or "personal and INSURANCE: advertising injury" is otherwise excluded The most we will pay on behalf of the from coverage under this Coverage Part, additional insured for a covered claim is the including any endorsements thereto. lesser of the amount of insurance: c. This provision does not apply: 1. Required by the contract, agreement or (1) Unless the written- contract or written permit described in Paragraph a.; or agreement was executed or permit was 2. Available under the applicable Limits of issued prior to the "bodily injury", "property. Insurance shown in the Declarations. damage", or "personal injury and This endorsement shall not increase the advertising injury". applicable Limits of Insurance shown in the (2) To any person or organization included as Declarations. an insured by another endorsement 2. Additional Insured — Primary and Non- issued by us and made part of this Contributory Coverage Part. The following is added to SECTION IV — (3) To any lessor of equipment: COMMERCIAL GENERAL LIABILITY (a) After the equipment lease expires; or CONDITIONS, Paragraph 4. Other insurance: (b) If the "bodily injury", "property 'Additional Insured Primary and Non- damage", "personal and advertising Contributory injury" arises out of sole negligence of If you agree in a written contract, written the lessor agreement or permit that the insurance provided to (4) To any: any person or organization included as an (a) Owners or other interests from. whom Additional Insured under SECTION II — WHO IS land has been leased which takes AN INSURED, is primary and non-contributory, place after the lease for the land ex the following applies: pires;or If other valid and collectible insurance is available (b) Managers or lessors of premises if: to the Additional Insured for a loss covered under Coverages A or B of this Coverage Part, our (i) The occurrence takes place after obligations are limited as follows: you cease to be a tenant in that premises; or a. Primary Insurance (ii) The "bodily injury", "property This insurance is primary to other insurance damage", "personal injury" or that is available to the Additional Insured "advertising injury" arises. out of which covers the structural alterations, new con- Additional Insured as a Named Insured. We struction or demolition operations will not seek contribution from any other performed by or on behalf of the insurance available to the Additional Insured manager or lessor. except: (5) To "bodily injury", "property damage" or (1) For the sole negligence of the Additional "personal and advertising injury" arising Insured; out of the rendering of or the failure to (2) When the Additional Insured is an render any professional services. Additional Insured under another primary This exclusion applies even if the claims liability policy; or against any insured allege negligence or (3) when b. below applies. other wrongdoing in the supervision, hiring, employment, training or monitoring If this insurance is primary, our obligations are of others by that insured, if the not affected unless any of the other insurance "occurrence" which caused the "bodily is also primary. Then, we will share with all injury" or"property damage" or the offense that other insurance by the method described which caused the "personal and in c. below. 421-2915 12 14 Includes copyrighted material of Insurance Services Office,Inc.,with its permission. Page 2 of 4 4 of 6 COL.UHOSP(ASA00) b. Excess Insurance insurer contributes equal amounts until it has (1) This insurance is excess over any of the paid its applicable limit of insurance or none of other insurance, whether primary, excess, the loss remains, whichever comes first. If any contingent or on any other basis: of the other insurance does not permit contribution by equal shares, we will contribute (a) That is Fire, Extended Coverage, by limits. Under this method, each insurer's Builder's Risk, Installation Risk or share is based on the ratio of its applicable similar coverage for"your work"; limit of insurance to the total applicable limits (b) That is Fire insurance for premises of insurance of all insurers rented to the Additional Insured or 3. Blanket Waiver of Subrogation temporarily occupied by the Additional Insured with permission of the owner; The following is added to SECTION IV — COMMERCIAL GENERAL LIABILITY (c) That is insurance purchased by the CONDITIONS, Paragraph 8. Transfer Of Rights Additional Insured to cover the Of Recovery Against Others To Us: Additional Insured's liability as a tenant for "property damage" to We waive any right of recovery we may have premises rented to the Additional against any person or organization with whom you Insured or temporarily occupied by the have a written contract that requires such waiver Additional with permission of the because of payments we make for damage under owner; or this coverage form. The damage must arise out of your activities under a written contract with that (d) If the loss arises out of the person or organization. This waiver applies onlyto maintenance or use of aircraft, "autos" g pp the extent that subrogation is waived under a or watercraft to the extent not subject written contract executed prior to the "occurrence" to Exclusion g. of SECTION I — or offense giving rise to such payments. COVERAGE A — BODILY INURY AND PROPERTY DAMAGE 4. Bodily Injury Redefined LIABILITY. SECTION V — DEFINITIONS, Definition 3. "bodily (2) When this insurance is excess, we will injury"is replaced by the following: have no duty under Coverages A or B to 3. "Bodily injury" means bodily injury, sickness or defend the insured against any"suit" if any disease sustained by a person including death other insurer has a duty to defend the resulting from any of these at any time. "Bodily insured against that "suit". If no other injury" includes mental anguish or other insurer defends, we will undertake to do mental injury resulting from "bodily injury". so, but we will be entitled to the insured's 5. Broad Form Property Damage — Borrowed rights against all those other insurers. Equipment, Customers Goods, Use of (3) When this insurance is excess over other Elevators Insurance, we will pay only our share of a. SECTION I—COVERAGES, COVERAGE A— the amount of the loss, if any, that BODILIY INJURY AND PROPERTY exceeds the sum of: DAMAGE LIABILITY, Paragraph 2. (a) The total amount that all such other Exclusions subparagraph j. is amended as insurance would pay for the loss in the follows: absence of this insurance; and Paragraph (4) does not apply to "property (b) The total of all deductible and self damage" to borrowed equipment while at a insured amounts under all that other jobsite and not being used to perform insurance. operations. We will share the remaining loss, if any, • Paragraphs (3), (4) and (6) do not apply to with any other insurance that is not "property damage"to "customers goods" while described in this Excess Insurance on your premises nor do they apply to the use provision and was not bought specifically of elevators at premises you own, rent, lease , to apply in excess of the Limits of or occupy. Insurance shown in the Declarations of b. The following is added to SECTION V — this Coverage Part. DEFINTIONS: c. Method Of Sharing 24. "Customers goods" means property of If all of the other insurance permits your customer on your premises for the contribution by equal shares, we will follow this purpose of being: ' method also. Under this approach each 421-2915 12 14 Includes copyrighted material of Insurance Services Office,Inc.,with its permission. Page 3 of 4 5 of 6 COLUHOSP(ASA00) a. worked on; or SECTION I — COVERAGES, COVERAGE A b. used in your manufacturing process. BODILY INJURY AND PROPERTY DAMAGE LIABILITY, Paragraph 2. Exclusions, c. The insurance afforded under this provision is subparagraph g.(2) is replaced by the following: excess over any other valid and collectible property insurance (including deductible) g. Aircraft,Auto Or Watercraft available to the_ insured whether primary, (2) A watercraft you do not own that is: excess, contingent (a) Less than 51 feet long; and 6. Knowledge of Occurrence (b) Not being used to carry persons or The following is added to SECTION IV — property for a charge; COMMERCIAL GENERAL LIABILITY This provision applies to any person who, CONDITIONS, Paragraph 2. Duties in the Event with your consent, either uses or is of Occurrence, Offense,Claim or Suit: responsible for the use of a watercraft. e. Notice of an "occurrence", offense, claim or 11. Supplementary Payments Increased Limits "suit" will be considered knowledge of the insured if reported to an individual named SECTION I — SUPPLEMENTARY PAYMENTS insured, partner, executive officer or an COVERAGES A AND B, Paragraphs 1.b. and "employee" designated by you to give us such 1.d. are replaced by the following: a notice. 1.b.Up to $2,500 for cost of bail bonds required 7. Liberalization Clause because of accidents or traffic law violations arising out of the use of any vehicle to which The following is added to SECTION IV — the Bodily Injury Liability Coverage applies. COMMERCIAL GENERAL LIABILITY We do not have to furnish these bonds. CONDITIONS: Liberalization Clause 1.d.All reasonable expenses incurred by the insured at our request to assist us in the If we adopt any revision that would broaden the investigation or defense of the claim or "suit", coverage under this Coverage Form without including actual loss of earnings up to $1000 a additional premium, within 45 days prior to or day because of time off from work. during the policy period, the broadened coverage 12. Unintentional Failureto Disclose-Hazards will immediately apply to this Coverage Part. The following is added to SECTION IV — 8. Medical Payments COMMERCIAL GENERAL LIABILITY a. SECTION I—COVERAGES, COVERAGE C— CONDITIONS, Paragraph 6. Representations: MEDICAL PAYMENTS, Paragraph 1. We will not disclaim coverage under this Coverage Insuring Agreement, subparagraph a.(3)(b) Part if you fail to disclose all hazards existing as of is replaced by the following: the inception date of the policy provided such • (b) The expenses are incurred and reported failure is not intentional. to us within three years of the date of the ' 13. Unintentional Failure to Notify accident; and The following is added to SECTION IV — b. This coverage does not apply if COVERAGE COMMERCIAL GENERAL LIABILITY C — MEDICAL PAYMENTS is excluded either CONDITIONS, Paragraph 2. Duties in the Event by the provisions of the Coverage Part or by of Occurrence, Offense, Claim or Suit: endorsement. Your rights afforded under this policy shall not be 9. Newly Acquired Or Formed Organizations prejudiced if you fail to give us notice of an SECTION II — WHO IS AN INSURED, Paragraph "occurrence", offense, claim or"suit", solely due to 3.a. is replaced by the following: your reasonable and documented belief that .the a. Coverage under this provision is afforded until "bodily injury" or"property damage" is not covered the end of the policy period. under this policy. 10. Non-Owned Watercraft ALL OTHER TERMS, CONDITIONS, AND EXCLUSIONS REMAIN UNCHANGED. 421-2915 12 14 Includes copyrighted material of Insurance Services Office,Inc.,with its permission. Page 4 of 4 6 of 6 COLUHOSP(ASAOO) CITY OF BREMERTON 345 6th Street, Suite 600 Bremerton,WA 98337 1 of 6 CCLUHOSP(ASA00)