2018/05/09 Council Agenda Packet

i) option to terminate this Agreement in the event of such a closure under the terms set forth below in this Section 12: Effective as of the date of the occurrence of the Forest Park Peimanent Closure (as defined below) and continuing in effect for five years thereafter, the YMCA has an option to terminate this Agreement. (For the purposes of clarity,the parties agree that the YMCA has no option to terminate this Agreement unless and until Forest Park Permanent Closure occurs.) In order to exercise the option, the YMCA must deliver to the City no later than the fifth anniversary of Forest Park Permanent Closure: (A) written notice of the termination date of this Agreement, which date must be no earlier than 90 days after delivery of the notice and (B) a termination payment in immediately available funds in an amount equal to $2.5 million, less the total Everett Resident User Fees paid to the City on or before the termination date. If the YMCA so terminates this Agreement,the Park Property shall remain in City ownership and remain subject to the requirements of the Companion Agreement. For the purposes of this Section 12, "Forest Park Permanent Closure" is deemed to occur if the City's Forest Park pool (which as of the Effective Date is about 5089 square feet) is closed to public use for more than 90 consecutive days and such closure is not the result of(i)pool maintenance or repair, (ii) pool improvements, or (iii) casualty loss requiring closure of the pool,so long as the City is reasonably working toward rebuilding the pool in order to reopen it to public use.. 13. Miscellaneous. A. Entire Agreement. This Agreement contain the entire agreement between the parties as to the subject matter hereof and supersedes all prior discussions and understandings between them with reference to such subject matter. B. Modification. This Agreement may not be amended or rescinded in any manner except by an instrument in writing signed by a duly authorized representative of the YMCA and by the Mayor of the City. C. Covenants Running with the Land; Easement in Gross. Subject to the terms hereof, the Access Easement and the terms and conditions referenced herein shall be deemed covenants running with and encumbering the YMCA Property, and shall be binding upon the YMCA's successors, grantees, and assigns with respect to the YMCA Property. The Access Easement is,however, an easement in gross. Accordingly, the rights and benefits under the Access Easement shall not attach to any property,but rather shall personally inure to the benefit of the City and Everett Resident Users. The 13 57