HomeMy WebLinkAbout3223 Nov 16 - 7A Fifth Addendum (Admiral Theatre)Page 1 of 4
FIFTH ADDENDUM
TO OPERATING AGREEMENT
(Admiral Theatre)
This Fifth Addendum to Operating Agreement is entered into on the date fully
executed below by and between the CITY OF BREMERTON, hereinafter referred to as
the "City," and the ADMIRAL THEATRE FOUNDATION, hereinafter referred to as the
"Foundation."
WHEREAS, the City and the Foundation entered into an agreement entitled Operating
Agreement dated September 18, 1990, with a ten (10) year term expiring on the September 27,
2000; and
WHEREAS, the City and the Foundation entered into a First Addendum to
Operating Agreement dated December 12, 2001 (herein referred to as the "First
Addendum"), to extend the termination date of the Operating Agreement to September 27,
2040, and to provide continued funding support in the amount of $90,000 for the Admiral
Theatre, and to further clarify conditions of the Operating Agreement; and
WHEREAS, the City and the Foundation entered into a Second Addendum to Operating
Agreement on January 25, 2013 (herein referred to as the “Second Addendum”), increasing the
annual funding to $150,000 per year for a period of five (5) years, amending language relating to
audit reports, and making other related matters; and
WHEREAS, the City and the Foundation entered into a Third Addendum to Operating
Agreement on July 15, 2015 (herein referred to as the “Third Addendum”), relating to funding,
audit reports, and related matters, to replace in its entirety the First Addendum and the Second
Addendum; and
WHEREAS, the City and the Foundation entered into a Fourth Addendum to Operating
Agreement (herein referred to as the “Fourth Addendum”) to extend the funding of $150,000 an
additional five (5) years through calendar year 2022, and to replace in its entirety the Third
Addendum; and
WHEREAS, the City and the Foundation now desire to enter into a Fifth Addendum
to Operating Agreement (herein referred to as the "Fifth Addendum") to extend the funding
of $150,000 an additional five (5) years through calendar year 2027;
NOW, THEREFORE, in consideration of the terms and conditions contained herein,
the parties mutually agree that this Fifth Addendum to Operating Agreement hereby amends
the Operating Agreement and replaces in its entirety the Fourth Addendum as follows:
1. Findings. The findings set forth in the recitals above are hereby adopted and
incorporated as if fully set forth herein.
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2. Addendums Repealed. The Forth Addendum is hereby repealed and replaced in its
entirety by this Fifth Addendum.
3. Term. The initial term of the Operating Agreement commenced on September 28,
1990 and shall terminate on September 27, 2040.
4. Building Maintenance. The foundation is solely responsible for maintaining the
Admiral Theater facility including all building areas and appurtenances (“Facility”) and
improvements therein in good condition. The City shall have no responsibility for building
maintenance, repairs, or damage to the structure, except to the extent insurance proceeds are
available to cover any loss.
5. Financial contribution. Commencing in calendar year 2023, the City shall pay the
Foundation a contribution (“Financial Contribution”) of $150,000 annually for a period of
five (5) years subject to the existing terms of the Operating Agreement as amended herein.
Commencing in calendar year 2028, the annual Financial Contribution shall automatically
revert to the previous annual Financial Contribution of $90,000 unless otherwise extended
or adjusted by the parties in writing. Provided, however, the obligation to pay the Financial
Contribution is conditioned upon the following:
a. The Foundation properly maintaining the Facility; and
b. The Foundation continuing to market and provide performing and visual
arts at the Theater on a full-time basis, including education and cultural
events; and
c. Upon request from the City, the Foundation shall provide the City its
annual budget and marketing plans within thirty (30) days of adoption by the
Foundation Board; and
d. The Foundation shall make available to the City all financial information
the City deems appropriate to determine that the Foundation is using its funds
in accordance with its non-profit purpose and the purpose of the Operating
Agreement and this Fifth Addendum.
e. The Foundation shall provide a review, issued by a Certified Public
Accountant, to the City for fiscal year ending August 31, 2022, and for all of
the following fiscal years except when an external audit is required pursuant
to subsection (f) below. All reviews shall be provided to the City Department
of Financial Services by January 31st of the calendar year following the end of
the fiscal year being reviewed.
f. The Foundation shall provide an external audit report or the Foundations’
990 tax filing, issued by a Certified Public Accountant, to the City for fiscal
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year ending August 31, 2021 and every third year thereafter. All audit reports
shall be provided to the City by January 31st of the calendar year following
the end of the fiscal ear being audited; and
g. The City’s Hotel/Motel Tax generates at least an amount to cover the
Financial Contribution ($150,000 or $90,000 as applicable) each year for each
two percent (2%) of tax imposed, otherwise, the City’s Financial Contribution
shall be reduced accordingly; and
h. The City Council following receipt of the audit review or external audit as
set forth in subsections (e) and (f) above, as applicable, renews its
commitment to the above-referenced Financial Contribution amount or such
other amount as it deems within the best interests of the City and its citizens.
The review of commitment shall be included as part of the City’s budget
process during the year following the end of the fiscal year being reviewed or
audited. It is anticipated that the Financial Contribution commitment will be
renewed each year, so long as the Foundation has used the funds in a manner
that the Council deems as promoting the best interests of the City and its
citizens and the purpose of the Hotel/Motel Tax enabling legislation; and
i. Commencing in calendar year 2028 the City’s annual Financial
Contribution shall automatically revert to $90,000 unless otherwise extended
or adjusted by the parties in writing following receipt of the external audit;
and
j. The Foundation shall not apply for or be eligible for additional lodging tax
funds provided the City’s Financial Contribution is $150,000 annually.
6. Notices. Any Notices required to be given by the City to the Foundation or by the
Foundation to the City shall be in writing and delivered to the following parties at the
following addresses:
Mayor Executive Director
City of Bremerton Admiral Theatre Foundation
345 6th Street, Suite 100 507 Pacific Avenue
Bremerton, WA 98337 Bremerton, WA 98337
7. Confirmation of Agreement Terms. The parties mutually agree that this Fifth
Addendum to Operating Agreement hereby amends the Operating Agreement and replaces
in its entirety the Fourth Addendum. Except as modified by this Fifth Addendum to
operating Agreement, the terms and conditions of the Operating Agreement are hereby
confirmed in their entirety and incorporated herein as if fully set forth in this Fifth Addendum.
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The parties hereby enter into this Fifth Addendum to Operating Agreement on date fully
executed below.
CITY OF BREMERTON ADMIRAL THEATRE FOUNDATION
By:________________________ By: _____________________________
Greg Wheeler, Mayor ________________________________
Date: _____________________ Date:____________________________
Approved as to form:
____________________________
Kylie J. Finnell, Attorney
Attest:
____________________________
Angela Hoover, City Clerk
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Executive Director
12/5/202212/5/2022