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HomeMy WebLinkAbout5.955 Original Contract 5. 95;5 AGREEMENT FOR OPERATION OF WILLIAM SHORE MEMORIAL POOL THIS AGREEMENT made this &/f).tA- day of June, 2009, by and between the City of Port Angeles, a Municipal Corporation of the State of Washington, hereinafter referred to as "City," and William Shore Memorial Pool District, a Metropolitan Park District formed pursuant to RCW 35.61, hereinafter referred to as "WSMPD." WHEREAS, the City owns the William Shore Memorial Pool (hereinafter "Facility") located at 225 E. Fifth Street, Port Angeles, Washington; and WHEREAS, pursuant to an election certified June 3, 2009 by the Clallam County Auditor, Clallam County citizens within the Port Angeles School District boundaries elected to form the William Shore Memorial Pool District to assume the operation and maintenance of the William Shore Memorial Pool for public use; and WHEREAS, the WSMPD is now beginning to organize itself as a new entity and does not have the staff necessary to operate the Facility; and WHEREAS, the City has the staff, resources, expertise and other qualifications necessary to operate the Facility until the WSMPD is capable of doing so; and WHEREAS, the WSMPD has requested the City to continue operation and maintenance of the Facility until WSMPD is organized and capable of doing so, NOW, THEREFORE, in consideration of the mutual covenants and agreements specified herein, to be kept and performed by the parties hereto, it is hereby agreed as follows: 1. CONVEYANCE The City shall immediately convey to WSMPD, and WSMPD shall accept, that Facility. The conveyance shall be substantially in the form as the Exhibit A, which is attached hereto and incorporated by this reference. 2. TERM The effective date of this Agreement is June 3, 2009. This Agreement shall terminate on December 31, 2009, or on the last day of the month following the forty-fifth day on which WSMPD gives to the City written notice of termination, whichever occurs first. 3. RIGHT TO POSSESS AND OPERATE THE FACILITY During the term of this Agreement, the City shall have the exclusive right to possess, manage, and operate the Facility consistent with the terms and conditions set forth herein. 4. CITY'S OBLIGATION TO OPERATE AND MAINTAIN THE FACILITY For many years prior to execution of this Agreement, the City had continuously operated the Facility as a public swimming pool. Throughout the term of this Agreement the City will continue to operate the Facility as a swimming pool open to the public in substantially the same manner as the City has operated it in the past. Such routine maintenance may be performed, at the City's option, either by City employees or by contract. In the event the Facility requires a typical or exceptional maintenance or repair, or in the event of major equipment breakdown, the City will not undertake any repair, replacement, or remedial work, except as directed by WSMPD. 5. PAYMENT WSMPD shall fully reimburse the City for all costs, charges, fees, employee benefits and entitlements, debts, obligations, and other expenses incurred by the City to operate and maintain the Facility from June 3,2009, through the last day of the term of this Agreement. The City shall have the right to retain all revenue from the operation of the Facility during the term of this Agreement, which revenue shall be a credit against the amount owed to the City. The City shall maintain accurate and appropriate bookkeeping and accounting methods and shall permit the WSMPD to review the records of expenses incurred in operation and maintenance of the Facility and of proceeds generated. Such records shall be made available to the WSMPD upon request during normal hours of business. For each calendar month during the effective term of this Agreement, the City shall deliver to WSMPD an itemized statement showing for that month all the costs and expenses incurred by the City to operate and maintain the Facility. The amount stated in 2 the invoice shall be due and payable to the City in full 20 days after the date it is delivered to WSMPD. Upon inception of this agreement, City shall provide to WSMPD estimated maintenance and operation costs for the term of this agreement. Any increases in costs in excess of five percent of the total estimate shall be reported to the WSMPD Board immediately. 6. INDEPENDENT CONTRACTOR RELATIONSHIP The relationship created by this Agreement is that of independent contracting entities. No agent, employee, servant, or representative of the City shall be deemed to be an employee, agent, servant, or representative of the WSMPD, and the employees of the City are not entitled to any of the benefits the WSMPD provides for its employees. The City shall be solely and entirely responsible for its acts and the acts of its agents, employees, servants, subcontractors, or representatives during the performance of this Agreement. The City shall assume full responsibility for payment of all wages and salaries and all federal, state, and local taxes or contributions imposed or required, including, but not limited to, unemployment insurance, workers compensation insurance, social security, and income tax withholding. 7. OPERATING CONDITIONS - the City shall comply with the following conditions: A. The City shall operate and maintain the Facility in accordance with the same policies and procedures as the City applied in operating and maintaining the Facility prior to the execution of this Agreement. B. The City shall operate in compliance with the laws of the State of Washington, all ordinances of the City of Port Angeles, and all regulations of the Port Angeles Parks and Recreation Department, and will not allow the violation of any of these laws, ordinances, or regulations by any other party within the area in which the City operates. C. WSMPD shall establish the fees to be charged to users of the swimming pool. In the event WSMPD does not establish a schedule of fees, the City shall continue to charge fees as they were in effect prior to the execution of this Agreement. 3 8. MAINTENANCE/UTILITIES During the term of this Agreement, the City shall perform all regular and routine maintenance of the Facility, including the regular annual maintenance of the Facility currently scheduled to be done in July 2009. 9. ALTERATIONS The City shall not make significant or substantial alterations to the Facility or to the operations of the Facility without prior written consent of the WSMPD. 10. INDEMNIFICATION/INSURANCE A. Indemnification The City shall defend, indemnify and hold the WSMPD, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or in connection with the operation and maintenance of the Facility during the term of this Agreement, except for injuries and damages caused by the sole negligence of the WSMPD. B. Insurance During the term of this Agreement, the City shall continue to provide and maintain liability insurance coverage for the Facility and for the operation of the Facility to the same extent and amounts and by the same means as the City had prior to the execution of this Agreement. The City is a member of a municipal governments self insurance pool. The parties acknowledge and agree that the coverage under the insurance pool satisfies the City's obligation to provide insurance as required by this Agreement. The WSMPD will maintain property insurance on the Facility. 11. ASSIGNABILITY Neither this Agreement nor any rights or obligations hereunder shall be assigned or delegated without the prior consent of both parties. 4 12. SURRENDER OF POSSESSION The City shall surrender possession of the Facility to the WSMPD at the expiry of this Agreement or in the event of termination of this Agreement. 13. NOTICES Any notices required by the terms of this Agreement or by law shall be deemed to have been given when made in writing and deposited in the United States mail, postage prepaid, and addressed to the last address provided by the parties to each other. 14. SUCCESSORS/APPLICABLE LAW The terms and conditions of this Agreement shall be binding on the parties hereto, their successors, administrators, and assigns, may only be modified in writing by all . parties hereto, and shall be construed in accordance with the laws of the State of Washington. 15. WAIVER / MODIFICATION The waiver by the City or the WSMPD of any breach of any term contained in this Agreement shall not be deemed to be a waiver of such term for any subsequent breach of the same or any other term. The Agreement may be modified only by a written instrument executed by authorized representatives of the parties and approved by the WSMPD Board and the City Council. 16. DISPUTES In the event of any dispute between the WSMPD and the City concerning the effect, interpretation, or application of this Agreement, the parties agree to make good faith efforts to resolve such dispute through direct discussions. If such efforts are unsuccessful, the parties agree to endeavor to settle the dispute by mediation. The mediator shall be selected by agreement of the parties. Following mediation, if either party gives to the other a written demand for arbitration, any unresolved controversy or claim shall then be submitted to binding arbitration. In that event, each party shall appoint one arbitrator, and the two arbitrators first appointed shall appoint a third. The three arbitrators shall then hear and decide the dispute. All fees and expenses for mediation or arbitration shall be 5 borne by the parties equally. However, each party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence. IN WITNESS WHEREOF, the parties have executed this Agreement on the date set forth above. WILLIAM SHORE MEMORIAL POOL DISTRICT BY: 0~~tpjJ U;JW~ CITY OF PORT ANGELES BY: Title: ~~ Title: G:\Legal_BackupIAGREEMENTS&CONTRACTS\2009 Agrmts&Contracts\WSMPD. Pool Operations. 060309.doc (6/15/2009) ? ~~ :~ 6 AFTER RECORDING RETURN TO: William E. Bloor, City Attorney City of Port Angeles P.O. Box 1150,321 E 5th St Port Angeles, W A 98362 DOCUMENT: GRANTOR: GRANTEE: LEGAL DESCRIPTION: QUIT CLAIM DEED City of Port Angeles, a municipal corporation William Shore Memorial Pool District, a metropolitan park district Lots 12-16 and Lots 17-18, Block 169, Townsite of Port Angeles, ClaIlam County, Washington. ASSESSORS'S PARCEL NO: 0630000169400000,0630000169500000 QUIT CLAIM DEED The GRANTOR, CITY OF PORT ANGELES, a municipal corporation, for and in consideration of mutual benefits and other valuable consideration grants, conveys and quit claims to the GRANTEE, William Shore Memorial Pool District (WSMPD), a Metropolitan Park District, the real estate described below, to have and to hold for so long as a swimming pool open to the public is maintained and operated on the land, and when a swimming pool open to the public is no longer so maintained and operated, the land shall revert to the City of Port Angeles: Description of Real Estate: Situated in the County ofClallam, State of Washington, Lots 12-16 and Lots 17-18, Block 169 , Townsite of Port Angeles, as shown per survey accepted per Commissioners letter "E" dated January 11, 1893, together with that portion ofthe south half of the vacated alley abutting said lots, vacated as per Ordinance No. 1172 adopted on October 9, 1946. Reserving under the GRANTOR, and its assigns, the permanent and perpetual right, permit, and easement in the lands heretofore described, to construct, reconstruct, alter, repair, make connections to, and maintain both above and below ground utilities including, but not limited to, water, sewer, and storm water facilities and their necessary appurtenances, through, over, under and across said Lots; also reserving to the GRANTOR the right to utilize Lots 17 and 18 for overflow parking for City Hall; and also reserving to the GRANTOR the right of vehicular ingress and egress across Lots 17 and 18 to and from Lots 1 and 2. Dated this _ day of June, 2009. CITY OF PORT ANGELES By: Gary Braun Mayor -1- Exhibit "A" Page 2 - Quit Claim Deed City of Port Angeles, Grantor \ WSMPD, Grantee By: Becky J. Upton, City Clerk STATE OF WASHINGTON) ) ss. County of Clallam ) On this _ day of June, 2009, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared GARY BRAUN and BECKY J. UPTON, to me known to be the Mayor and City Clerk of the CITY OF PORT ANGELES, the municipal corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that they are authorized to execute the said instrument. Notary Public in and for the State of Washington, residing at Port Angeles. My commission expires: G:\Legal_Backup\QUlT CLAIM DEEDS\WSMPD- QCD.060209.wpd -2- Exhibit "A" This First Amendment is entered into this / day of n eCem her , 2009 by and between the City of Port Angeles, a Municipal Corporation of the State of Washington, hereinafter referred to as "City," and William Shore Memorial Pool District, a Metropolitan Park District formed pursuant to RCW 35.61, hereinafter referred to as "WSMPD." For and in consideration of the mutual benefits to be derived herefrom, the Parties recite, covenant, and agree as follows: 1. On the 26 day of June, 2009, the Parties entered into an "Agreement for Operation of William Shore Memorial Pool," which Agreement is incorporated by this reference and may hereafter be referred to as "the Agreement." 2. The Parties wish to extend the term of the Agreement to March 31, 2010. For that purpose, the Parties do hereby amend Section 2 of the Agreement to read as follows: 2. TERM The effective date of this Agreement is June 3, 2009. This agreement shall terminate on March 31, 2010, or on the last day of the month following the forty -fifth day on which WSMPD gives to the City written notice of termination, whichever occurs first. 3. As amended, the Agreement is ratified and confirmed. IN WITNESS WHEREOF, the parties have executed this First Amendment to Agreement for Operation of William Shore Memorial Pool in duplicate by the subjoined signatures of their duly authorized officials. WILLIAM SHORE MEMORIAL POOL CITY OF PORT ANGELES DISTRICT By: PA ►C,6C9G& C. Cj mun Title: CA 1< FIRST AMENDMENT TO AGREEMENT FOR OPERATION OF WILLIAM SHORE MEMORIAL POOL G\ Legal_ Backup \AGREEMENTS &CONTRACTS\2009 Agrmts &Contracts\AMENDMENT TO WILLIAM SHORE POOL DISTRICT.doc September 28, 2009 Page - 1 of 1 By: - �� v � /IHIIGrl 2. TERM SECOND AMENDMENT TO AGREEMENT FOR OPERATION OF WILLIAM SHORE MEMORIAL POOL This Second Amendment is entered into this /tiv day of February, 2010 by and between the City of Port Angeles, a Municipal Corporation of the State of Washington, hereinafter referred to as "City," and William Shore Memorial Pool District, a Metropolitan Park District formed pursuant to RCW 35.61, hereinafter referred to as "WSMPD." For and in consideration of the mutual benefits to be derived herefrom, the Parties recite, covenant, and agree as follows: 1. On the 26 day of June, 2009, the Parties entered into an "Agreement for Operation of William Shore Memorial Pool," which Agreement is incorporated by this reference and may hereafter be referred to as "the Agreement." On December 1, 2009 a First Amendment to the Agreement for Operation of William Shore Memorial Pool was entered into extending the term of the Agreement to March 31, 2010. 2. The Parties wish to further extend the term of the Agreement to May 31, 2010. For that purpose, the Parties do hereby amend Section 2 of the Agreement, as amended, to read as follows: The effective date of this Agreement is June 3, 2009. This Agreement shall terminate on May 31, 2010. 3. As amended, the Agreement is ratified and confirmed. IN WITNESS WHEREOF, the parties have executed this Second Amendment to Agreement for Operation of William Shore Memorial Pool in duplicate by the subjoined signatures of their duly authorized officials. WILLIAM SHORE MEMORIAL POOL CITY OF PORT ANGELES DISTRICT J, OAK By: m i CV)O I C . C',ina 10m001 ley: Kent Mye Title: P(L.S' aPXt vJ SM P ►4 Title: City M i e G: \Legal _Backup \AGREEMENTS &CONTRACTS \2010 Agrmts &Contracts \WSMPD Amendment. 02.03.10.doc (2/8/2010) 5:955 312310