043-18 - Abadan Holdings, LLC - ContractBanner Agreement
Between City of Port Orchard and
Abadan Holdings, LLC
Contract No. 043-18
THIS AGREEMENT ("Agreement") is entered into by and between the City of Port
Orchard, a Washington municipal corporation (hereafter the "City"), and Abadan
Holdings, LLC, a limited liability company organized under the laws of the State of
Washington (hereafter the "Owner"), effective as of the date set forth below, granting the
City permission to attach certain advertising banners to the Owner's building, and setting
forth the parties' agreement regarding their related rights and responsibilities.
RECITALS
WHEREAS, the City has for many years suspended banners across Bay Street for
the purpose of advertising events that promote tourism in the City; and
WHEREAS, these banners have heretofore been suspended from the City -owned
marquee, which the City has determined is no longer sufficiently stable to perform this
function; and
WHEREAS, the City has requested and the Owner has agreed to allow the City to
install the necessary hardware/equipment on the Owner's building at 715 Bay Street, Port
Orchard, WA 98366 (hereafter the "Building") for the purpose of suspending the banners
across Bay Street; and
WHEREAS, the City and the Owner wish to memorialize their agreement with
regard to the installation and maintenance of the hardware/equipment to suspend the
banners, and each party's rights and responsibilities relating thereto;
NOW, THEREFORE, for and in consideration of the mutual covenants contained
in this Agreement and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto mutually agree as follows:
Recitals. The recitals above are incorporated into this Agreement.
2. Installation, Maintenance & Repair. The City hereby agrees to install, at its sole
cost and expense, hardware/equipment of a kind and at a location on the Building that are
agreeable to the Owner, to allow the suspension of the banners across Bay Street. The City
will maintain, at its sole cost and expense, the banners themselves as well as the area of the
Building on which the hardware/equipment is installed to minimize damage to the
Building. If the Owner discovers damage to the Building resulting from any action or
omission covered by this Agreement, the City agrees to repair the damage within thirty
(30) calendar days of notification. If a repair cannot be made within a period of thirty (30)
calendar days from the date of notification, the City may make a written request of the
Owner for an extension of time. The Owner agrees not to deny such a request without
good cause.
3. Right of Entry. Subject to the terms of the Agreement, the Owner hereby permits
the City, its employees, its authorized agents, contractors and subcontractors a right of
entry to the Building for the purpose of installation, maintenance, repair, and removal of
the hardware/equipment for the suspension of the banners. The City shall access the
Building only after notifying the Owner of the need to perform work and coordinating with
the Owner on the date and time of such work.
4. Term and Termination. This Agreement shall remain in effect until May 31, 2020
or until terminated as set forth herein, whichever occurs first, or upon default by the City
as set forth in Section 7, below. Either parry may terminate this Agreement for any reason
upon ten (10) days prior written notice to the other party. Upon termination of this
Agreement, the City shall promptly remove any banner then suspended from the Building
and all related hardware/equipment, and restore the portion of the Owner's property
affected by the hanging banner hardware/equipment to substantially the condition it was in
before such hardware/equipment was installed.
5. Indemnification. The City expressly agrees to indemnify and hold the Owner
harmless from any and all claims, liabilities, losses, or damages to any and all persons or
property, costs or judgments, including costs and reasonable attorneys' fees for defense of
the same that the Owner may suffer, which result from, arise out of, or are in any way
connected with the negligent acts or omissions of the City or its employees, agents,
contractors and subcontractors when acting within the scope of their employment as such
in the performance of this Agreement. This expressly includes any and all claims by
employees, contractors and subcontractors of the City for which the City would have
immunity under the Workers Compensation Act for purposes of this indemnification only.
The City specifically assumes potential liability for actions brought by the City's own
employees against the Owner and, solely for the purpose of this indemnification and
defense, the City specifically waives any inununity under the state industrial insurance law,
Title 51 RCW. The foregoing waiver was mutually negotiated by the parties. The City
shall not be required to indemnify, hold harmless or defend the Owner if the claim, suit or
action for injuries, death or damages to persons or property is caused by the Owner's
negligence; provided, that if such claims, suits or actions result from the concurrent
negligence of. (a) the City, its employees, agents, contractors or subcontractors; and (b) the
Owner or its agents or representatives, or involves those actions covered by RCW 4.24.115,
the indemnity provisions herein shall be valid and enforceable only to the extent of the
negligence of each party, its employees, authorized agents/representatives and/or
contractors/subcontractors.
6. Insurance. Each party shall maintain its own insurance and/or self-insurance for its
liabilities fiom damage to property and/or injuries to persons arising out of its activities
associated with this Agreement as it deems reasonably appropriate and prudent.
7. Default. If the City fails to perform any act or obligation required to be performed
hereunder, the Owner shall deliver written notice of such failure to the City. The City will
have fifteen (15) business days after receipt of such notice in which to correct its failure to
perform the act or obligation at issue, after which time it shall be in default ("Default")
under this Agreement; provided, however, that if the non-performance is of a type that
could not reasonably be cured within said fifteen (15) business day period, then the City
shall not be in Default if it commences cure within said fifteen (15) business day period
and thereafter diligently pursue cure to completion. If the City is determined to be in
Default, this Agreement will automatically terminate, and the City will promptly undertake
the work to remove the hardware/equipment installed on the Building and restore the
Building as set forth in Section 4, above.
8. Notices. All notices required to be given by either party under this Agreement shall
be in writing and shall be deemed delivered if personally delivered or dispatched by
certified or registered mail, return receipt requested, addressed to the parties as follows:
City of Port Orchard
Robert Putaansuu, Mayor
216 Prospect Street
Port Orchard, WA 98366
Owner
Abadan Holdings, LLC
15300 Bothell Way NE
Lake Forest Park, WA 98155
Notice shall be deemed given on the date it is personally delivered or two days after it is
deposited in the mail. Any party may change the address for notification by prior written
notice in accordance with the foregoing.
9. Waiver. The failure of either party to insist upon strict adherence to any term of
this Agreement on any occasion shall not be considered a waiver thereof or deprive the
other party of the right thereafter to insist upon strict adherence to that term or any other
term of this Agreement.
10. General Provisions. This Agreement represents the complete understanding
between the parties hereto as to the subject matter hereof and supersedes all prior
discussions between the parties relative to the same. No modification of this Agreement
shall be binding unless set forth in writing and signed by all parties hereto. This Agreement
shall be governed by and construed and enforced in accordance with the laws of the State
of Washington. In the event any suit, action or proceeding shall be brought in connection
with any of the terms or conditions of this Agreement, the parties stipulate that jurisdiction
and venue for such suit, action or proceeding shall be in Kitsap County. If any provision
of this Agreement is declared by a court of competent jurisdiction to be void or
unenforceable, the same shall only affect such particular portion of this Agreement and the
balance of this Agreement shall remain in full force and effect. This Agreement may be
executed in counterparts and delivered via electronic mail.
DATED this Myth day of / _ , 2018.
CITY OF PORT ORCHARD
Robert Put ansuu, Mayor
ATTEST/AUTHENTICATED:
Bran y earson, MMC, City er
APPROVED AS TO FORM:
Nrn Cates, City Attorney
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OWNER
Dalia Alfi, Manager