HomeMy WebLinkAbout035-25 - PO Historic Theatre - ContractDocusign Envelope ID: 29D6F35E-FCDF-4FC2-BA47-93C755EFE571
Contract No. 035-25
PROFESSIONAL SERVICES AGREEMENT FOR
TOURISM PROMOTION (LODGING TAX) SERVICES
This Professional Services Agreement ("Agreement') is made by and between the City of Port
Orchard, a Washington municipal corporation ("City"), and Port Orchard Historic Theatre
Foundation/Polaris Theatre, a Non -Profit organized under the laws of the State of Washington, doing
business at: 822 Bay Street, Port Orchard, WA 98366 (hereinafter the "Organization").
A. The City collects a lodging tax for the purpose of contracting through Port Orchard
Historic Theatre Foundation/Polaris Theatre for event and event marketing, as allowed by RCW
67.28.1816, and Port Orchard Historic Theatre Foundation/Polaris Theatre has applied for the use of
the revenues, also as allowed by the same statute; and
B. The Organization proposes to market and promote Port Orchard as a destination for
visitors as described in this Agreement; and
C. In an effort to implement the City's wayfinding system to assure tourists are at the
correct community, the organization is authorized and encourage to use the City's wayfinding
logos in accordance with the City's graphic standards and Use Policy attached as Exhibit D and E;
and
D. The City agrees to contract with the Organization for this purpose under the terms
and conditions set forth below;
NOW, THEREFORE, the Parties agree as follows:
1. Services by Organization.
The services performed by the Organization shall not exceed the payment amount as referenced
in Section 4 of this agreement. The Organization agrees to promote tourism as defined in RCW
67.28.080(6) 'Tourism Marketing' and as allowed by RCW 67.28.1816 in the manner described in the
Statement of Work attached hereto as Exhibit "A," and incorporated by this reference ("Services").
2. Term.
The term of this Agreement shall commence as of the date of the last authorizing signature
affixed hereto, and shall continue until the completion of the Services or if terminated consistent with
the terms hereof, but in any event no later than December 31, 2025.
3. Termination.
A. Either party may terminate this Agreement for any reason whatsoever upon giving
the other party at least 60 days' prior written notice thereof. Any expenses incurred prior to the
date of termination but not submitted by the Organization may be submitted for reimbursement
by the Organization and reimbursed by the City of Port Orchard.
B. In situations other than as described in Subsection A above, the City of Port Orchard
shall have the right to terminate this Agreement or reduce the amount which it has agreed to
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pay hereunder in the following circumstances: (1) In the event the City determines, in its sole
and absolute discretion, that tax revenues from the tax authorized by RCW 67.28.180 are
insufficient to generate sufficient revenues for the City of Port Orchard to make said payment,
considering that other commitments for a portion of said funds have also been made; (2) if the
tax itself is repealed by appropriate authority; (3) in the event the funds paid by the City to the
Organization are not used in compliance with the provisions of this agreement and/or Chapter
67.28 RCW, as determined by the City of Port Orchard or the State of Washington. The City of
Port Orchard shall have the discretion to determine the appropriate allocation of such funds
among those entities to which such commitments have been made for the funds subject to
Chapter 67.28 RCW.
C. Notice of Termination. Either party may terminate this agreement for the reasons
set forth above, by written notice thereof to the other party. If termination is based on the
reasons in Section B, the termination may be effective immediately. Upon such termination, the
City of Port Orchard shall be under no further obligation to make payments hereunder, except
any expenses incurred prior to the date of termination, but not yet submitted may be submitted
by the Organization and shall be reimbursed by the City of Port Orchard.
D. Non -Appropriation of Funds.
If sufficient funds are not appropriated or allocated for payment under this Agreement
for any future fiscal period, the City will not be obligated to continue the Agreement after the end of
the current fiscal period, and this Agreement will automatically terminate upon the completion of
all remaining Services for which funds are allocated. No• penalty or expense shall accrue to the
City in the event this provision applies.
4. Payment.
A. Total Payment. In consideration of the Organization's performance of the Services, the
City agrees to grant the Organization an amount not to exceed Three Thousand, and 00/100
($3,000).
• Event and Event Marketing
B. Method of Payment. Payment by the City for the Services will only be made after the Services
have been performed, and after the Organization has submitted a voucher or invoice to the City
using the form attached as Exhibit "B". All reimbursement claims shall be submitted to the Finance
Department within 90 days of receipt of invoice unless your event occurs after October, in which the
claims must be submitted no later than January 9, 2026.
The City shall pay invoices within thirty (30) days after receipt of such voucher or invoice. Final
invoices, along with any supporting documents, must be submitted to the City no later than
January 9, 2026, to avoid loss of funding.
C. Organization Responsible for Taxes. The Organization shall be solely responsible for the
payment of any taxes imposed by any lawful jurisdiction as a result of the payment by the City for any
Services under this Agreement.
5. Compliance with Laws.
The Organization shall comply with and perform the Services in accordance with applicable
federal, state, and City laws including, without limitation, City codes, ordinances, resolutions,
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standards and policies, as now existing or as the same are hereafter adopted or amended.
6. Reporting Obligations.
Pursuant to RCW 67.28.1816 (2)(c)()i), the Organization must provide the City of Port Orchard a report
in a form labeled JLARC Municipality Report, attached as Exhibit "C, no later than January 31, 2025.
7. Independent Contractor
It is the intention and understanding of the Parties that the Organization shall be an
independent contractor in the performance of this Agreement and that the City shall be neither
liable nor obligated to pay the Organization sick leave, vacation pay, or any other benefit of City
employment, nor to pay any social security or other tax which may arise as an incident of City
employment. The Organization shall pay all income and other taxes due. Industrial or any other
insurance that is purchased for the benefit of the City, regardless of, whether such may provide a
secondary or incidental benefit to the Organization, and the same shall not be deemed to convert
this Agreement to an employment contract.
8 Indemnification.
The Organization shall defend, indemnify and hold the City, its officers, officials, employees, agents
and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal
costs and attorneys' fees, arising out of or in connection with the performance of this Agreement,
except for injuries and damages caused by the sole negligence of the City.
Should a court of competent jurisdiction determine that this Agreement is Subject to RCW 4.24.115,
then, in the event of liability for damages arising out of bodily injury to persons or damages to
property caused by or resulting from the concurrent negligence of the Organization and the City, its
officers, officials, employees, agents and volunteers, the Organization's liability hereunder shall be
only to the extent of the Organization's negligence. The provisions of this section shall survive the
expiration or termination of this Agreement.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION
PROVIDED HEREIN CONSTITUTES THE ORGANIZATION'S WAIVER OF IMMUNITY UNDER
INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS
INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY
NEGOTIATED THIS WAIVER. THE ORGANIZATION's WAIVER OF IMMUNITY UNDER THE
PROVISIONS OF THIS SECTION DOES NOT INCLUDE OR EXTEND TO ANY CLAIMS BY THE
ORGANIZATION'S EMPLOYEES DIRECTLY AGAINST THE ORGANIZATION.
9 Insurance.
The Organization shall procure and maintain for the duration of the Agreement, insurance against
claims for injuries to persons or damage to property which may arise from or in connection with the
performance of the work hereunder by the Organization, its agents, representatives, volunteers, or
employees.
A. Minimum Scope of Insurance. Contractor The Organization shall obtain insurance of the
types described below:
1. Automobile Liability insurance as required covering all owned, non -owned, hired and leased
vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01, or a
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substitute form providing equivalent liability coverage. If necessary, the policy shall be
endorsed to provide contractual liability coverage.
2. Commercial General Liability insurance shall be written on ISO occurrence
form CG 00 01, or a substitute form providing equivalent liability coverage and shall cover
liability arising from premises, operations, independent contractors and personal injury and
advertising injury. The City shall be named by endorsement as an additional insured under
the Consultant's Commercial General Liability insurance policy with respect to the work
performed for the City.
3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of
Washington.
B. Minimum Amounts of Insurance. The Organization shall maintain the following
insurance limits
1. Automobile Liability insurance with a minimum combined single limit for bodily injury and
property damage of $1,000,000 per accident.
2. Commercial General Liability insurance shall be written with limits no less than $1,000,000
each occurrence, $2,000,000 general aggregate.
C. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to
contain, the following provisions for Automobile Liability, and Commercial General Liability
insurance:
1. The Organization's insurance coverage shall be primary insurance as respect the
City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall
be excess of the Organization's insurance and shall not contribute with it.
2. The Organization's insurance shall be endorsed to state that coverage shall not
be cancelled by either party, except after thirty (30) days prior written notice by certified
mail, return receipt requested, has been given to the City.
3. The City will not waive its right to subrogation against the Organization. The
Organization's insurance shall be endorsed acknowledging that the City will not waive their
right to subrogation. The Contractor's Organization's insurance shall be endorsed to waive
the right of subrogation against the City, or any self-insurance, or insurance pool coverage
maintained by the City.
4. If any coverage is written on a "claims made" basis, then a minimum of a three (3)
year extended reporting period shall be included with the claims made policy, and proof of
this extended reporting period provided to the City.
D. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best rating of not less than ANIL
E. Verification of Coverage. The Organization shall furnish the City with original certificates
and a copy of the amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements of the Contractor
Organization before commencement of the work.
10. Equal Opportunity Employer.
A. In all of the Organization's services, programs or activities, and all of the Organization's
hiring and employment made possible by or resulting from this Agreement, there shall be no
discrimination by the Organization or by the Organization's employees, agents, subcontractors or
representatives against any person because of sex, age (except minimum age and retirement
provisions), race, color, creed, national origin, marital status, veteran status, sexual orientation or
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the presence of any disability, including sensory, mental or physical handicaps; provided, however,
that the prohibition against discrimination in employment because of disability shall not apply if
the particular disability prevents the performance of the essential functions required of the
position. This requirement shall apply, but not be limited to the following: employment,
advertising, layoff or termination, rates of pay or other forms of compensation, and selection for
training, including apprenticeship. The Organization shall not violate any of the terms of Chapter
49.60 RCW Title VU of the Civil Rights Act of 1964, the Americans with Disabilities Act, Section 504 of
the Rehabilitation Act of 1973 or any other applicable federal, state or local law or regulation
regarding non- discrimination. Any material violation of this provision shall be grounds for
termination of this Agreement by the City and, in the case of the Organization's breach, may result
in ineligibility for further City agreements.
B. In the event of the Organization 's noncompliance or refusal to comply with the above
nondiscrimination plan, this Agreement may be rescinded, canceled, or terminated in whole or
in part, and the Organization may be declared ineligible for further contracts with the City. The
Organization, shall, however, be given a reasonable time in which to correct this noncompliance.
11. Work Product. The Organization shall perform and produce any work product consistent with
the Services described in Exhibit "A".
12. Books and Records.
The Organization agrees to maintain books, records, and documents which sufficiently and
properly reflect all direct and indirect costs related to the performance of the Services and
maintain such accounting procedures and practices to assure proper accounting of all funds paid
pursuant to this Agreement. These records shall be subject, at all reasonable times during normal
business hours, to inspection, review or audit by the City, its authorized representative, the State
Auditor, or other governmental officials authorized by law to monitor this Agreement.
13. General Provisions.
A. Assignment or Subcontracting. The Organization shall not assign, transfer, subcontract
or encumber any rights, duties, or interests accruing from this Agreement without the express prior
written consent of the City.
B. Notice. Any notices required to be given by the City to the Organization or by the
Organization to the City shall be in writing and delivered to the parties at the following addresses:
Robert Putaansuu
Mayor
216 Prospect Street
Port Orchard, WA 98366
Phone: 360-876-4407
Fax: 360 895-9029
Port Orchard Historic Theatre
Foundation/Polaris Theatre
Attn: Josh Johnson
822 Bay Street
Port Orchard, WA 98366
Phone: 360.271.4028
C. Resolution of Disputes and Governing Law.
1. Should any dispute, misunderstanding or conflict arise as to the terms and
conditions contained in this Agreement, the matter shall first be referred to the Mayor, who
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shall determine the term or provision's true intent or meaning. The Mayor shall also decide all
questions which may arise between the parties relative to the actual services provided or to the
sufficiency of the performance hereunder.
2. If any dispute arises between the City and the Organization under any of the
provisions of this Agreement which cannot be resolved by the Mayor's determination in a
reasonable time, or if the Organization does not agree with the Mayor's decision on a disputed
matter, jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court,
Kitsap County, Washington.
3. This Agreement shall be governed by and construed in accordance with the laws
of the State of Washington. In any suit or action instituted to enforce any right granted in this
Agreement, the substantially prevailing party shall be entitled to recover its costs,
disbursements, and reasonable attorney's fees from the other party.
D. Non -waiver of Breach. The failure of either party to insist upon strict performance of
any of the covenants and agreements contained herein, or to exercise any option herein contained in
one or more instances, shall not be construed to be a waiver or relinquishment of said covenants,
agreements, or options, and the same shall be in full force and effect.
E. Modification. No waiver, alteration, modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of the City
and the Organization.
F. Severability. The provisions of this Agreement are declared to be severable. If any
provision of this Agreement is for any reason held by a court of competent jurisdiction to be invalid or
unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of
any other provision.
G. Entire Agreement. The written provisions of this Agreement, together with any Exhibits
attached hereto, shall supersede all prior verbal statements of any officer or other representative of the
City, and such statements shall not be effective or be construed as entering into or forming a part of or
altering in any manner whatsoever, the Agreement or the Agreement documents. The entire agreement
between the parties with respect to the subject matter hereunder is contained in this Agreement and
the Exhibits attached hereto, which may or may not have been dated prior to the execution of this
Agreement. All of the above documents are hereby made a part of this Agreement and form the
Agreement document as fully as if the same were set forth herein. Should any language in any of the
Exhibits to this Agreement conflict with any language contained in this Agreement, then this Agreement
shall prevail.
H. Authority. Each individual executing this Agreement, on behalf of the City, and the
Organization, represents and warrants that such individuals are duly authorized to execute and
deliver this Agreement on behalf of the Organization or the City.
I. Performance. Time is of the essence in performance of this Agreement and each and all
of its provisions in which performance is a factor. Adherence to completion dates set forth in Exhibit
A is essential to the Organization's performance of this Agreement.
J. Remedies Cumulative. Any remedies provided for under the terms of this
Agreement are not intended to be exclusive but shall be cumulative with all other remedies
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avai la ble to the City at law, i n eq u ity o r by st atute,
K. Oyu ntema rt5- Th is Agre�!miasnt may bE? axe- vtii�d i n any nunnIb& of rounterpa rts,
wh ich cqu riterpart 5 sh all rg Iler#ive ly ciDnst irute # he a n# ire Aregime nt.
City Gf P Drt Orchard
Signed by:
- • 3Bb6C-d' Fb�C...
Ro02;t Putaansw
r,ayor
21IS P ros peet Street
Port Orchard, DNA 98.36.6
Tel epho ne= (3 � 876-4407
Fax- r360ti 895-9029
.A-•::
Brandy Wallace, N4MC, City -Clerk
APPROVED A5 TO FORM;
Signed by:
By:
Ctha rlotte Arche r, City Attorney{
Port .O rd Historic Thea#re
Fc i nd atiicOlRolaris Theatre
i'
Joshlohn�on
Doe rd Preslant
822 Say Street
Port Orc F a rd. A 98366
Tale phone - 3. 2 71-4078
Pi?rx OK hard Historic Theaut FquriidatiogPolaris TYieiatra Tourism P'ro ramlo n Contract
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Exhibit A
Statement of Work
Tourism Promotion — Port Orchard Historic Theatre Foundation/Polaris Theatre contract
amount not to exceed Three Thousand and 00/100 ($3,000).
• Event and Event Marketing - $3,000
To fulfill the terms of its Lodging Tax Agreement with the City of Port Orchard, Port Orchard
Historic Theatre Foundation/Polaris Theatre (Organization) will provide the following service to
promote the City and attract and welcome tourists during 2025:
[Insert Marketing Plan as provided by Section 2a of the Lodging Tax Application. To be
completed by Organization]
Attached
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City of Port Orchard
2025 Lodging Tax Application
Port Orchard Historic Theatre Foundation/Polaris Theatre
A) Marketing Plan
i. In 1924 the Knights of Pythias built a meeting hall at 820/822 Bay 5t. and then leased the
lower part of the building to a movie theatre operator. This building, purchased inn 2021 by
four local individuals/family members comprising the company Brigadoon Ventures in has
ONLY operated as a movie theatre (with several closures over the years) and is now 100
years old making it the oldest theatre building in Kitsap county.
Restoring and renovating the theatre is a significant capital expenditure and is a work still in
process. In the short term, grant and community organization funding allowed us to create
the Polaris Backstage Alley in what was previously a muddy, weedy, dumpster filled vacant
lot (part of the theatre property). In 2024, through sponsorships, in -kind contributions and
City Lodging Tax funding we were able to activate the Backstage Alley and provide
entertainment, art, music, events and activities to thousands of individuals, families,
tourists, students, artists and musicians through out 2024.
ii. Until the theatre building can open as a: movie theatre, entertainment and music venue
and venue for meetings, weddings and other celebrations - we will continue to provide
entertainment, music, art and history activities and events for families, students, kids and
individuals in the Polaris Back stage Alley.
While many of our participants are local residents of South Kitsap, eager for and looking for
entertainment , music and activities in Port Orchard, we have also promoted beyond Kitsap
into all of Kitsap, Belfair, Gig Harbor, and parts of Pierce and King County. We are targeting
all ages and economic levels, families, seniors and students - with an emphasis on art and
music and historical presentations. In 2024, we hosted about a dozen musicians, about a
dozen artists, a participative art activity, bingo games, a history/astronomy presentation, a
outdoor family movie, a Haunted Alley, two Community Christmas events, with Karaoke
and Carol singing, free popcorn events, service organization events, a beer garden, kids
craft market and much more.
Overnight stays are very difficult to gauge and difficult to recruit for --until our building is
fully opened. Marketing to those outside of South Kitsap primarily through social media and
boosted ads and through local Bed and Breakfasts is our only avenue. But in all honestly, at
this stage of our not for profit theatre/venue restoration project- we are primarily serving
the residents of Kitsap and nearby areas.
iii. Marketing for our Backstage Alley events is done primarily through social media and
some print materials, earned media, our website and our network of donors, supporters
and community organizations and partners.
Our Budget for next year's entertainment, music, art and other activities is $7500. With an
estimated 30% of total going to marketing of Backstage Alley events. Approximately 35% of
our Lodging Tax request of $4000 is for marketing, the rest to pay for entertainment,
supplies, materials and other expenses.
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The 30% of Lodging tax funds for marketing will be used as 60% for social media marketing
and 40%for printed materials.
B) Financial Status
i. The Port Orchard Historic Theatre Foundation continues to apply for and receive funding
from foundations, grantors, organizations and corporations for the renovation and
restoration of this historic 100 year old theatre. We have not applied to other sources for
the Backstage Alley events, activities and marketing, as our other focus and efforts is for
the very large capital budget we are fund raising for to restore and renovate the theatre. We
have received in -kind support from area businesses for those events and activities in 2024.
ii/iii. In addition, to our own activities and events, entertainment and presentations, the
Port Orchard Theatre Foundation has made a concerted effort to participate and engage in
all other activities in downtown. Our collaborations also includes in -kind contributions,
shared marketing and other support from organizations such as Port Orchard Farmers
Market, Port Orchard Bay Street Association, Fathoms O' Fun, Port Orchard Ford, Love
Kitsap, John L. Scott, Lowe's to name a few. In return, the theatre has helped market
downtown and other organization events on our theatre building marquee for the greater
good of our community.
iv. In the future, when we are able to open this venue and make it fully operational
(estimated for mid 2026) we may continue to apply for LTAC for more targeted marketing of
the venue and much, much bigger music, comedy, cinema and other types of activities and
events. However, we will also then have a source of funding through admissions/tickets,
concessions, wine and alcohol sales and venue bookings, as well as continued support
from donors, supporters and grantors.
v.. If we do not receive all of the funding requested for our 2025 activities, entertainment
and events we would either scale back on such events or try to seek other local
sponsorships. 90% of our fund raising efforts are going to and must go to the capital
needed to complete the restoration and renovation of this very important, historic 100 year
old theatre building in the heart of our City.
This venue wit[ be a much needed addition to downtown Port Orchard, available for
musicians, comediennes, weddings, other private parties and functions, organization
meetings and conferences, small stage shows, educational presentations, student
activities, film festivals and of course movies. And it is also our intention to provide access
to as many of these activities and events, especially movies to income challenged families
and youth.
The Polaris Theatre is a much needed space. There is no movie theatre in Port Orchard or
South Kitsap. There is almost no available meeting/presentation/event space. The theatre
will be a complimentary partner to the City of Port Orchard Community Event Center when
completed. It is anticipated the completion of our small venue will precede the community
event center completion by several years.
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