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HomeMy WebLinkAboutR-1991-D5914 Agreement4 RESOLUTION NO. 411, • • D 5914 A RESOLUTION authorizing execution of the 1991 Modification of Capitol Theatre Operating Agreement. WHEREAS, the City of Yakima and the Capitol Theatre Corporation have previously entered into a Capitol Theatre Operating Agreement whereby the Capitol Theatre Corporation manages and operates the Capitol Theatre; and WHEREAS, the City of Yakima and the Capitol Theatre Corporation have negotiated new levels of compensation for the Capitol Theatre Corporation during the calendar year 1991, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and City Clerk are hereby authorized and directed to execute the "1991 Modification of Capitol Theatre Operating Agreement" a true copy of which is attached to this resolution and incorporated herein. ADOPTED BY THE CITY COUNCIL this 14th day of May 1991. ATTEST City Clerk (res/cptl.jv) Mayor • 1991 MODIFICATION OF CAPITOL THEATRE OPERATING AGREEMENT WHEREAS, by virtue of a "Capitol Theatre Operating Agreement," dated October 28, 1988, the Capitol Theatre Committee, Inc., a Washington non-profit corporation (CTC) occupies, manages, and operates the Capitol Theatre (Theatre) owned by the City of Yakima which agreement contemplates that CTC shall be responsible for all maintenance and operation costs of the Theatre except for costs for which the City is specifically liable; and WHEREAS, the City of Yakima desires to provide CTC with a management fee for 1991 so as to allow CTC to carry out its respon- sibilities under the aforementioned agreement; and WHEREAS, the City desires to furnish additional funds to CTC for the purpose of underwriting artists, now, therefore, In consideration of the premises, and in consideration of the benefits to be derived by the public for the continued occupancy, maintenance, and operation of the Theatre by CTC the parties agree to modify the aforementioned agreement as follows "1. Section D.2. is modified to read The City shall pay CTC the amount of Twenty Three Thou- sand Dollars ($23,000.00) in 1991 for the services to be performed by CTC consisting of occupation, management, and operation. of the Theatre. In addition, the City shall pay CTC Thirty Five Thousand Dollars ($35,000.00) in 1991 to underwrite artist fees for CTC Performing Artist Series. Payment of both amounts shall be made by the City to CTC upon the written request of CTC as fol- lows Twenty Three Thousand, Two Hundred Fifty Dollars ($23,250.00) due on March 31, 1991, Five Thousand, Seven Hundred Fifty Dollars ($5,750.00) due on June 30, 1991, Five Thousand, Seven Hundred Fifty Dollars ($5,750.00) due on September 30, 1991, and Twenty Three Thousand, Two Hundred Fifty Dollars ($23,250.00; due on December 31, 1991. For the remaining years of this agreement, the City shall pay to CTC that amount of money which is mutually determined by the parties in the City budget process payable at a time mutually determined by the parties. 2. With the exception of the amendment contained in this modification agreement, all other provisions of the Capitol Theatre Operating Agreement executed on October 28, 1988 shall remain in full force and effect." (agr/cptl.jv) Page 1 of 2 MODIFICATION OF CAPITOL THEATRE OPERATING AGREEMENT WHEREAS, by virtue of a "Capitol Theatre Operating Agreement," dated October 28, 1988, the Capitol Theatre Committee Incorporated (CTC) occupies, manages, and operates the Capitol Theatre (Theatre) owned by the City of Yakima which agreement contemplates that CTC shall be responsible for all maintenance and operation costs of the Theatre except for costs for which the City is specifically liable; and WHEREAS, the City of Yakima desires to provide CTC with a management fee for 1990 so as to allow CTC to carry out its respon- sibilities under the aforementioned agreement; and WHEREAS, the management fee amount of Twenty-three Thousand Dollars ($23,000.00) in 1989 is not sufficiently adequate to allow CTC to meet its obligations in 1990 under said agreement, now, therefore, In consideration of the premises, and in consideration of the benefits to be derived by the public for the continued occupancy, maintenance, and operation of the Theatre by CTC the parties agree to modify the aforementioned agreement as follows: 1. Section D.2. is modified to read: "The City will pay CTC the amount of $48,000.00 in 1990 for the services to be performed by CTC consisting of occupation, management, and operation of the Theatre. Payment shall be made in two (2) amounts of Twenty-four Thousand Dollars ($24,000.00), one (1) payment of Twenty- four Thousand Dollars ($24,000.00) due on execution of this agreement and the remaining Twenty-four Thousand Dollars ($24,000.00) due on October 1, 1990. For the remaining years of the term, the City shall pay to CTC that amount of money which is mutually determined by the parties in the City budget process payable at a time mutually determined by the parties." 2. With the exception of the amendment contained in this modification agreement, all other provisions of the Capitol Theatre Operating Agreement executed on October 28, 1988 shall remain in full force and effect. ADOPTED BY THE CITY COUNCIL this day of August, 1990. City Manager ATTEST: City Clerk CAPITOLo..THEATRE COMMTE, INC. By: Its: (agr/cptl.jv) circ CONTkACT W0 9O -t 5b'O9 CAPITOL THEATRE OPERATING AGREEMENT THIS AGREEMENT, made and entered into this c9%e.t. day of OC-14q.ti ..at, 1988, by and between CITY OF YAK IMA, a municipal corporation, hereinafter called "City," and CAPITOL THEATRE COMMITTEE, INC., a Washington non-profit corporation, hereinafter referred to as "CTC." W 1TN ESSETH: WHEREAS, the City of Yakima is the owner of a performing arts facility, (hereinafter referred to as the "THEATRE") which is situate upon the following described real property in Yakima County, State of Washington, to wit: Lots 29, 30, 31 and 32, Block 71, Town of North Yakima, now Yakima, Washington, according to the official plat thereof recorded in Volume "A" of Plats, p.age 10, and re-recorded in Volume "E" of Plats, page 1, records of Yakima County, Washington; WHEREAS, CTC has been organized for the express purpose of occupying, managing and operating the Theatre as provided by this agreement, and WHEREAS, both parties desire that the THEATRE be managed and operated as a place for public entertainment and cultural events in accordance with the provisions, terms and conditions of this agreement, to the end that the THEATRE will serve as an economic and cultural stimulant for the community and the people of the City of Yakima and its environs: In consideration of the mutual undertaking and promises contained herein, and the benefits to be realized by each party and in future consideration of the benefit to the general public by the enhancement of the economic and cultural climate of the City and its environs to be realized by the performance of this agreement, and as a direct benefit to the City, the parties agree as follows: A. RESPONSIBILITIES OF CTC: 1. CTC shall occupy, manage and operate the THEATRE according to the provisions, terms and conditions of this agreement, CTC shall generally promote the THEATRE through brochures or other means of advertising designed to attract performances and stage exhibitions and events to the THEATRE, and shall schedule and book such performances, exhibitions and events to occur at the THEATRE. CTC shall be responsible for all costs of administration and daily operational expenses as the same shall directly relate to such facility's use as a performing arts facility, auditorium and meeting hall. CTC shall be the sole operator of the facility and shall do all things necessary, including but not limited to approval of all requests for the use of said facility, CTC shall be responsible for the control and security of the THEATRE and all property pertaining thereto. 2. CTC shall be responsible for general maintenance of the THEATRE building and premises, including, but not limited to, janitorial and cleaning services; removal of snow, ice and debris from pedestrian walkways; routine minor repair and replacement of THEATRE premises, property and fixtures (including, but not limited to, plumbing, electrical, fighting fixtures and damage resulting from vandalism or accident); provided, the liability of CTC to the City pursuant to this section shall not exceed $250.00 for each incident or item of damage or repair not covered by insurance nor otherwise reimbursable to CTC, unless the damage or necessity for repair was caused by CTC or resulted from the negligent use of the premises by CTC or the failure of CTC to perform routine repairs and maintenance as contemplated by this agreement. 3. All funds expended by CTC shall relate directly to the promotion, operation and/or use of such facility for assembly purposes. Any excess profits as determined by the internal Revenue Service of the United States Department of Treasury shall be paid to the City of Yakima and shall be maintained by the City in the Capitol Theatre Fund as provided by Chapter 3.98 of the City of Yakima Municipal Code. 4. CTC shall obtain and maintain public liability insurance with a minimum/maximum amount of $1,000,000.00 which policy shall name both CTC and City as named insurers. CTC shall file with the City a copy of such policies or memorandum thereof with the provision that they may not be cancelled without ten (10) days notice to the City. 5. CTC shall manage and operate the THEATRE in accordance with all applicable laws as shall be related thereo. 6. CTC, for information purpose, shall furnish to City, copies of policies, rules and regulations, rental procedures, charges, hours of operation, uses to which the THEATRE may put, together with sample license agreements and contracts entered into with the performances, concessionaires and so forth. 7. The rules and regulations adopted by CTC shall specifically prohibit the giving of free tickets or other free entry to any performance or event to any City employee or officer or to CTC employees or officers, except in the performance of their duties. 8. CTC agrees that it shall maintain fiscal records and accounts in accordance with systems and procedures prescribed by law or regulation as applicable to financial affairs of the City; and CTC will annually render to the City a written financial operating statement within sixty (60) days after the end of the fiscal year of CTC. 9. CTC agrees that its books and records pertaining to THEATRE management shall be open and available for examination at all times by the Yakima City Manager, Director of Finance and Budget, and other City personnel designated by either of them. The City Manager and others designated by him shall have the right to enter upon and inspect the premises at any reasonable time. 10. Except as provided for the necessity of operation, CTC shall not subcontract or assign to any person, firm or corporation, any rights or obligations of CTC under this agreement. 11. CTC agrees and promises to manage and operate the THEATRE and afford its services to the public on a fair, equal and not unjustly discriminatory basis to all users thereof, and further agrees and promises it 'will not, on the grounds of race, color, national origin, religion or sex, discriminate against any person or group of persons in any manner prohibited by local, state or federal laws and regulations. B. RESPONSIBILITIES OF CITY: 1. The City shall perform, or cause to be performed by contract, the major upkeep, maintenance, and repair of THEATRE premises and fixtures as indicated on the schedule attached hereto marked Exhibit "A", to this agreement, which items of expense shall be borne directly by the City and which will not be included within the CTC obligation of maintenance, management and operation responsibility. 2. The City shall maintain any and all fire, casualty and extended coverage insurance on the building and its contents in such amount as the City deems appropriate. Any funds derived from such insurance shall be used to repair or replace the damaged items or property; except should said property as a whole be damaged to an extent of over fifty percent (50$) of its value, either party may cancel this agreement by notice in writing within sixty (60) days of the date of damage. CTC and the City hereby release and discharge each other from and against all liability arising either from fire loss or extended coverage or damage caused by any of the perils covered by insurance policies which are in force and effect at the time of such loss or damage, even though such loss or damage may be due to negligence, act or neglect of either CTC or the City or agents or employees of either party. It is expressly understood and agreed that it is the intention of the parties that this provision constitutes a waiver and release of any and all subrogation rights which the insurance companies might have under such insurance policies. 3. The City shall make available to CTC the use of City financial and purchasing systems and forms for bookkeeping purposes, rights for the purchase of equipment, materials and supplies, and other recordkeeping and business purposes connected with THEATRE maintenance, management and operation. To facilitate the management and operation of the THEATRE, CTC may utilize City services, procedures and forms to the extent that the parties may agree from time to time. C. TAXES: CTC agrees to collect and pay to the City the admission tax on the tickets to THEATRE events as required by applicable City laws, as they now exist or as they may be amended from time to time. Taxes that are applicable to CTC's occupancy and management of the THEATRE shall be the responsibility of CTC. r -r O! ri r,c D. TERMS OF AGREEMENT: 1. This agreement shall be in full force and effect for a period of five (5) years from the date of the a•reement and CTC shalfi-6e-given an option to renew this for an additional two (2) five (5) year periods on condition that CTC shall notify City at least six (6) months prior to the termination of the original five (5) year period and in the event of the election of the second five (5) year period notice shall be given at least six (6) months prior to the expiration of the second five (5) year period of their intent and desire to continue for an additional period. In the event the same is continued, it shall be under the same terms and conditions of this agreement. 2. The City will pay to CTC the amount of $23,000 in 1989 for the services to be performed by CTC consisting of the occupation, management and operation of the Theatre. Payment shall be made in four (4) amounts of $5,750 each, with one payment due at the time of the execution of this agreement and the others to be paid on or about the first day of the month of April, July and October during the terms of this agreement. 3. In the event CTC shall fail to perform the terms and conditions of this agreement, then and in that event City shall be entitled to terminate this agreement by giving to CTC thirty (30) days' written notice by registered or certified mail, return card requested, at the address provided under Paragraph D.5 of its desire to terminate the agreement, which notice shall contain a complete and itemized list of all matters in which CTC is in default. During said thirty (30) day period, CTC shall be entitled to reinstate itself by correcting such default. 4. CTC shall be considered as an independent contractor in the operation of the THEATRE, and this agreement shall not be construed as creating any form of partnership between City and CTC. 5. In the event that any dispute shall arise as to the interpretation of this agreement, or in the event of a notice of default as to whether such default does constitute a breach of the contract and if the parties hereto cannot mutually settle such differences, then either party hereto shall be entitled to submit the determination of such matter to arbitration as provided by the laws of the State of Washington. 6. Any notice herein provided to be given to the City shall be addressed and delivered to the City Manager, Yakima City Hall, 129 North Second Street, Yakima, Washington, 98901. Any notice to be given to the CTC shall be addressed and delivered to Capitol Theatre, 13 North Third Street, Yakima, Washington, 98901. IN WITNESS WHEREOF the parties have hereunto set their hands the day and year first above written. CITY OF YAKIMA BY -CITY MANAGER ATTEST: CITY CLERK City Contract No. 88- 5'7 CAPITOL THEATRE COMMITTEE, INC. Resolution No. D-5513 By EXHIBIT "A" CAPITOL THEATRE OPERATING AGREEMENT Pursuant to paragraph B.1. of the Agreement, following is a schedule of major upkeep, maintenance and repair which shall be the obligation of the City: A. System Maintenance 1. Air Handling System and Controls 2. Air Conditioning Equipment, Associated Pumps, Controls, etc. 3. Heating Equipment 4. Pump Motors 5. Elevator 6. Orchestra Pit Mechanism 7. Sound System 8. Lighting Control System The City will furnish to CTC a maintenance schedule and/or other information relative to the means by which the maintenance and repair work is to be accomplished on the foregoing items, which maintenance schedule may be revised from time to time by the City, with information relative to any such revision also to be furnished to CTC. B. Periodic Refurbishing The City shall periodically refurbish the Theatre building, as shall be necessary by mutual agreement of City and CTC. C. Damage -- Repair Pursuant to paragraph A.2. of the Agreement, the City shall be responsible for the repair or replacement of Theatre premises, property and fixtures for any amount in excess of $250.00 for each incident or item of damage or repair not covered by insurance nor CDPLN D8 otherwise reimbursable to CTC, unless the damage or necessity for repair was caused by CTC or results from the negligent use of the premises by CTC or from the failure of CTC to perform routine repairs and maintenance as contemplated by this Agreement. The parties agree that this schedule, and the provisions of paragraphs A.2 and B.1. of the Agreement, shall be reviewed from time to time with a view toward CTC undertaking some or all the responsibilities of the City; and if the parties agree, this schedule and paragraphs A.2. and B.1. shall be then amended, accordingly. CDPLN D9 RESOLUTION NO. '5809 A RESOLUTION authorizing modification of the 1988 Capitol Theatre Operating Agreement. WHEREAS, by virtue of a "Capitol Theatre Operating Agree- ment," dated October 28, 1988, the Capitol Theatre Committee Inc. occupies, manages, and operates the Capitol Theatre which is owned by the City of Yakima which agreement contemplates Capitol Theatre Committee shall be responsible for all maintenance and operation costs of the theatre except for costs for which the City is specifically liable; and WHEREAS, the City of Yakima desires to provide the Capi- tol Theatre Committee with a management fee for 1990 and thereafter to allow the Capitol Theatre to carry out its responsibilities under the aforesaid agreement, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and City Clerk are hereby authorized and directed to execute a "Modification of Capitol Theatre Oper- ating Agreement," a true copy of which is attached hereto and incorporated herein by reference. ADOPTED BY THE CITY COUNCIL this I ! �� day of 1990. Mayor ATTEST: Kan -4=s._) /2 1 C i' City Clerk (res/cptl.jv) MODIFICATION OF CAPITOL THEATRE OPERATING AGREEMENT WHEREAS, by virtue of a "Capitol Theatre Operating Agreement," dated October 28, 1988, the Capitol Theatre Committee Incorporated (CTC) occupies, manages, and operates the Capitol Theatre (Theatre) owned by the City of Yakima which agreement contemplates that CTC shall be responsible for all maintenance and operation costs of the Theatre except for costs for which the City is specifically liable; and WHEREAS, the City of Yakima desires to provide CTC with a management fee for 1990 so as to allow CTC to carry out its respon- sibilities under the aforementioned agreement; and WHEREAS, the management fee amount of Twenty-three Thousand Dollars ($23,000.00) in 1989 is not sufficiently adequate to allow CTC to meet its obligations in 1990 under said agreement, now, therefore, In consideration of the premises, and in consideration of the benefits to be derived by the public for the continued occupancy, maintenance, and operation of the Theatre by CTC the parties agree to modify the aforementioned agreement as follows: 1. Section D.2. is modified to read: "The City will pay CTC the amount of $48,000.00 in 1990 for the services to be performed by CTC consisting of occupation, management, and operation of the Theatre. Payment shall be made in two (2) amounts of Twenty-four Thousand Dollars ($24,000.00), one (1) payment of Twenty- four Thousand Dollars ($24,000.00) due on execution of this agreement and the remaining Twenty-four Thousand Dollars ($24,000.00) due on October 1, 1990. For the remaining years of the term, the City shall pay to CTC that amount of money which is mutually determined by the parties in the City budget process payable at a time mutually determined by the parties." 2. With the exception of the amendment contained in this modification agreement, all other provisions of the Capitol Theatre Operating Agreement executed on October 28, 1988 shall remain in full force and effect. ADOPTED BY THE CITY COUNCIL this day of August, 1990. Mayor ATTEST: City Clerk CAPITOL THEATRE COMMITTEE, INC. By: Its: (agr/cptl.jv) CAPITOL THEATRE OPERATING AGREEMENT THIS AGREEMENT, made and entered into this day 0C406,2-6(---, 1988, by and between CITY OF YAKIMA, a municipal corporation, hereinafter called "City," and CAPITOL THEATRE COMMITTEE, INC., a Washington non-profit corporation, hereinafter referred to as "CTC." WITNESSETH: WHEREAS, the City of Yakima is the owner of a performing arts facility, (hereinafter referred to as the "THEATRE") which is situate upon the following described real property in Yakima County, State of Washington, to wit: Lots 29, 30, 31 and 32, Block 71, Town of North Yakima, now Yakima, Washington, according to the official plat thereof recorded in Volume "A" of Plats,_ page 10, and re-recorded in Volume "E" of Plats, page 1, records of Yakima County, Washington; WHEREAS, CTC has been organized for the express purpose of occupying, managing and operating the Theatre as provided by this agreement, and WHEREAS, both parties desire that the THEATRE be managed and operated as a place for public entertainment and cultural events in accordance with the provisions, terms and conditions of this agreement, to the end that the THEATRE will serve as an economic and cultural stimulant for the community and the people of the City of Yakima and its environs: In consideration of the mutual undertaking and promises contained herein, and the benefits to be realized by each party and in future consideration of the benefit to the general public by the enhancement of the economic and cultural climate of the City and its environs to be realized by the performance of this agreement, and as a direct benefit to the City, the parties agree as follows: CDPLN D1 A. RESPONSIBILITIES OF CTC: 1. CTC shall occupy, manage and operate the THEATRE according to the provisions, terms and conditions of this agreement, CTC shall generally promote the THEATRE through brochures or other means of advertising designed to attract performances and stage exhibitions and events to the THEATRE, and shall schedule and book such performances, exhibitions and events to occur at the THEATRE. CTC shall be responsible for all costs of administration and daily operational expenses as the same shall directly relate to such facility's use as a performing arts facility, auditorium and meeting hall. CTC shall be the sole operator of the facility and shall do all things necessary, including but not limited to approval of all requests for the use of said facility, CTC shall be responsible for the control and security of the THEATRE and all property pertaining thereto. 2. CTC shall be responsible for general maintenance of the THEATRE building and premises, including, but not limited to, janitorial and cleaning services; removal of snow, ice and debris from pedestrian walkways; routine minor repair and replacement of THEATRE premises, property and fixtures (including, but not limited to, plumbing, electrical, lighting fixtures and damage resulting from vandalism or accident) ; provided, the liability of CTC to the City pursuant to this section shall not exceed $250.00 for each incident or item of damage or repair not covered by insurance nor otherwise reimbursable to CTC, unless the damage or necessity for repair was caused by CTC or resulted from the negligent use of the premises by CTC or the failure of CTC to perform routine repairs and maintenance as contemplated by this agreement. CDPLN D2 3. All funds expended by CTC shall relate directly to the promotion, operation and/or use of such facility for assembly purposes. Any excess profits as determined by the Internal Revenue Service of the United States Department of Treasury shall be paid to the City of Yakima and shall be maintained by the City in the Capitol Theatre Fund as provided by Chapter 3.98 of the City of Yakima Municipal Code. 4. CTC shall obtain and maintain public liability insurance with a minimum/maximum amount of $1,000,000.00 which policy shall name both CTC and City as named insurers. CTC shall file with the City a copy of such policies or memorandum thereof with the provision that they may not be cancelled without ten (10) days notice to the City. 5. CTC shall manage and operate the THEATRE in accordance with all applicable laws as shall be related thereo. 6. CTC, for information purpose, shall furnish to City, copies of policies, rules and regulations, rental procedures, charges, hours of operation, uses to which the THEATRE may put, together with sample license agreements and contracts entered into with the performances, concessionaires and so forth. 7. The rules and regulations adopted by CTC shall specifically prohibit the giving of free tickets or other free entry to any performance or event to any City employee or officer or to CTC employees or officers, except in the performance of their duties. 8. CTC agrees that it shall maintain fiscal records and accounts in accordance with systems and procedures prescribed by law or regulation as applicable to financial affairs of the City; and CTC will annually render to the City a written financial operating statement within sixty (60) days after the end of the fiscal year of CTC. CDPLN D3 9. CTC agrees that its books and records pertaining to THEATRE management shall be open and available for examination at all times by the Yakima City Manager, Director of Finance and Budget, and other City personnel designated by either of them. The City Manager and others designated by him shall have the right to enter upon and inspect the premises at any reasonable time. 10. Except as provided for the necessity of operation, CTC shall not subcontract or assign to any person, firm or corporation, any rights or obligations of CTC under this agreement. 11. CTC agrees and prornises to manage and operate the THEATRE and afford its services to the public on a fair, equal and not unjustly discriminatory basis to all users thereof, and further agrees and promises it - will not, on the grounds of race, color, national origin, religion or sex, discriminate against any person or group of persons in any manner prohibited by local, state or federal laws and regulations. B. RESPONSIBILITIES OF CITY: 1. The City shall perform, or cause to be performed by contract, the major upkeep, maintenance, and repair of THEATRE premises and fixtures as indicated on the schedule attached hereto marked Exhibit "A", to this agreement, which items of expense shall be borne directly by the City and which will not be included within the CTC obligation of maintenance, management and operation responsibility. 2. The City shall maintain any and all fire, casualty and extended coverage insurance on the building and its contents in such amount as the City deems appropriate. Any funds CDPLN D4 derived from such insurance shall be used to repair or replace the damaged items or property; except should said property as a whole be damaged to an extent of over fifty percent (50%) of its value, either party may cancel this agreement by notice in writing within sixty (60) days of the date of damage. CTC and the City hereby release and discharge each other from and against all liability arising either from fire loss or extended coverage or damage caused by any of the perils covered by insurance policies which are in force and effect at the time of such loss or damage, even though such loss or damage may be due to negligence, act or neglect of either CTC or the City or agents or employees of either party. It is expressly understood and agreed that it is the intention of the parties that this provision constitutes a waiver and release of any and all subrogation rights which the insurance companies might have under such insurance policies. 3. The City shall make available to CTC the use of City financial and purchasing systems and forms for bookkeeping purposes, rights for the purchase of equipment, materials and supplies, and other recordkeeping and business purposes connected with THEATRE maintenance, management and operation. To facilitate the management and operation of the THEATRE, CTC may utilize City services, procedures and forms to the extent that the parties may agree from time to time. C. TAXES: CTC agrees to collect and pay to the City the admission tax on the tickets to THEATRE events as required by applicable City laws, as they now exist or as they may be amended from time to time. Taxes that are applicable to CTC's occupancy and management of the THEATRE shall be the responsibility of CTC. CDPLN D5 D. TERMS OF AGREEMENT: 1. This agreement shall be in full force and effect for a period of five (5) years from the date of the agreement and CTC shall be given an option to renew this for an additional two (2) five (5) year periods on condition that CTC shall notify City at least six (6) months prior to the termination of the original five (5) year period and in the event of the election of the second five (5) year period notice shall be given at least six (6) months prior to the expiration of the second five (5) year period of their intent and desire to continue for an additional period. In the event the same is continued, it shall be under the same terms and conditions of this agreement. 2. The City will pay to CTC the amount of $23,000 in 1989 for the services to be performed by CTC consisting of the occupation, management and operation of the Theatre. Payment shall be made in four (4) amounts of $5,750 each, with one payment due at the time of the execution of this agreement and the others to be paid on or about the first day of the month of April, July and October during the terms of this agreement. 3. In the event CTC shall fail to perform the terms and conditions of this agreement, then and in that event City shall be entitled to terminate this agreement by giving to CTC thirty (30) days' written notice by registered or certified mail, return card requested, at the address provided under Paragraph D.5 of its desire to terminate the agreement, which notice shall contain a complete and itemized list of all matters in which CTC is in default. During said thirty (30) day period, CTC shall be entitled to reinstate itself by correcting such default. CDPLN D6 4. CTC shall be considered as an independent contractor in the operation of the THEATRE, and this agreement shall not be construed as creating any form of partnership between City and CTC. 5. In the event that any dispute shall arise as to the interpretation of this agreement, or in the event of a notice of default as to whether such default does constitute a breach of the contract and if the parties hereto cannot mutually settle such differences, then either party hereto shall be entitled to submit the determination of such matter to arbitration as provided by the laws of the State of Washington. 6. Any notice herein provided to be given to the City shall be addressed and delivered to the City Manager, Yakima City Hall, 129 North Second Street, Yakima, Washington, 98901. Any notice to be given to the CTC shall be addressed and delivered to Capitol Theatre, 13 North Third Street, Yakima, Washington, 98901. IN WITNESS WHEREOF the parties have hereunto set their hands the day and year first above written. ATTEST: CITY OF YAKIMA By CITY CLERK City Contract No. 88- 5 Resolution Nc. D--5513 CDPLN D7 -CITY MANAGER CAPITOL THEATRE COMMITTEE, INC. By EXHIBIT "A" CAPITOL THEATRE OPERATING AGREEMENT Pursuant to paragraph B.1. of the Agreement, following is a schedule of major upkeep, maintenance and repair which shall be the obligation of the City: A. System Maintenance 1. Air Handling System and Controls 2. Air Conditioning Equipment, Associated Pumps, Controls, etc. 3. Heating Equipment 4. Pump Motors 5. Elevator 6. Orchestra Pit Mechanism 7. Sound System 8. Lighting Control System The City will furnish to CTC a maintenance schedule and/or other information relative to the means by which the maintenance and repair work is to be accomplished on the foregoing items, which maintenance schedule may be revised from time to time by the City, with information relative to any such revision also to be furnished to CTC. B. Periodic Refurbishing The City shall periodically refurbish the Theatre building, as shall be necessary by mutual agreement of City and CTC. C. Damage -- Repair Pursuant to paragraph A.2. of the Agreement, the City shall be responsible for the repair or replacement of Theatre premises, property and fixtures for any amount in excess of $250.00 for each incident or item of damage or repair not covered by insurance nor CDPLN D8 otherwise reimbursable to CTC, unless the damage or necessity for repair was caused by CTC or results from the negligent use of the premises by CTC or from the failure of CTC to perform routine repairs and maintenance as contemplated by this Agreement. The parties agree that this schedule, and the provisions of paragraphs A.2 and B .1 . of the Agreement, shall be reviewed from time to time with a view toward CTC undertaking some or all the responsibilities of the City; and if the parties agree, this schedule and paragraphs A.2. and B.1. shall be then amended, accordingly. CDPLN D9 CITY OF YAKIMA ( 1/ // 1/ / , 1h/1/ 1, 11 1 S/// \ ( 1 () \ 9N901 Nom, • (5L9) 575-0000 SCAN 278-6000 eptember 27, 1988 Larry Wright Capitol Theatre Corporation 3 South Third Street Yakima, WA 98901 In response to our meeting and comments of last week we would like to put in writing some of the understandings of that discussion and to make you fully aware of our position with respect to the City's portion of the Capitol Theatre budget including the Management Fee. Originally you sought changes in the Capitol Theatre Agreement to reflect two things: 1. A reduction in the responsibility of the Capitol Theatre Corporation for general maintenance of the theatre building and premises from $1,000 deduction for each incident or item of damaage or repair not covered by insurance to a $250 deductible. 2. A request to change the next 5 -year operating agreement to provide for indexing of hotel/motel funds received by the City of which not less than 16% would be devoted to the Capitol Theatre. We fully agree and will recommend to the City Council that the $250 deductible be approved based on the excellent job the Capitol Theatre has done in managing this facility on behalf of the City. It is, however, not possible for us to recommend to the Council that the Management Fee (currently at $23,000 which is not proposed to change for 1989) be tied to some sort of guaranteed index arrangement for funds secured from hotel/motel taxes. Competition for municipal tax dollars exists from several sources particularly recently with the advent of the Yakima Sun Dome and the agreement by the City Council to assume a portion of the debt for this project. Some elements of the community have and will continue to seek additional revenues from the hotel/motel tax source. To date the Council has stated that the needs of the Capitol Theatre and the Yakima Center must come first from this source before any other projects are considered including any additional growth in this fund. We think you will see a continuing commitment on the part of the City Council in this position. s 04,4, Ilvi,fle .e?, '.° 4., Cle .‘ k: -1-4:is .4" 0 z YAKIMA A BICENTENNIAL COMMUNITY As to your :inquiry about how current arrangements were promulgated and funds to the Yakima Center and the Capitol Theatre, we offer the following: Room Tax The Yakima Center construction was financed by bonds issued to be repaid in 20 years from the date of completion from hotel and motel taxes revenues. Due to special provisions in the state law we were allowed to collect extra monies for the retirement of these bonds. Without going into great detail, hotel/motel tax revenues as they are now collected will be terminated in 1996 which will necessitate the adoption of a local 2% :room tax to be added to local hotel and motel rentals to ensure the continuation of funds for both the Yakima Center and the Capitol Theatre. Fee Distribution Yakima Center management fees, operations and maintenance funds and capital needs are all derived from the hotel/motel tax. In the case of the Capitol Theatre, the Management Fee and Center maintenance budget are paid for out of hotel and motel tax. Other capital needs are met from the interest earned from insurance reserves established in 1978 as a result of the fire and the destruction of the old theatre. Therefore, you can see that the Capitol Theatre has a distinct advantage for revenue not available to the convention center or any other public facility. In closing, we agree with the idea of a reduction in the deductible costs from $1,000 to $250. However the distribution of funds utilizing the current method of hotel/motel tax utilization must be preserved to provide flexibility to the City at this time. The index method requested by the Theatre is also unnecessary given the ongoing commitment of the City Council to fund the needs of the Yakima Center and the Theatre. Adjustments in these allocations are possible for the benefit of both depending upon available resources and the need for assistance. Attached for your review is a cover sheet for a Yakima City Council business item to authorize a resolution authorizing execution of modification to the Capitol Theatre Operating Agreement for the reduction in the deductible from $1,000 to $250. It also reflects the current amount allocated to the Capitol Theatre Corporation of ($23,000) for the management services performed by CTC. All other terms and conditions will be recommended to remain the same for the next 5 -year period under the original Capitol Theatre Corporation Inc./City of Yakima Agreement dated October 4, 1978 except for the additional two 5 - year options as requested in the letter from Herb Frank in July 1988. -2- If you have any additional questions I will be glad to answer them. Very truly yours, GLENN K. RICE, Director, Department of Community & Economic Development R. A. ZAIS, City Manager Enc. A RESOLUTION RESOLUTION NO. 5 5 1 3 authorizing and directing the City Manager and City Clerk of the City of Yakima to execute a Capitol Theatre Operating Agreement with the Capital Theatre Committee, Inc. WHEREAS, the City owns the Capitol Theatre, a performing arts facility, a portion of which reconstruction costs were paid by an organization known as the Capitol Theatre Trust Fund by virtue of an agreement between the City and that organization authorized by City of Yakima Resolution No. D-3523, adopted May 24, 1976, and WHEREAS, by the adoption of said Resolution No. D-3523, the City agreed to enter into an agreement with the Capitol Theatre Committee, Inc., for the purpose of operating the Capitol Theatre, and WHEREAS, the City and the Capitol Theatre Committee, Inc., have agreed to the provisions, terra and conditions of such an operating agreement as set out on the agreement document attached hereto; and the City Council deem it to be in the best interests of the City that such agreement be executed, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and the City Clerk of the City of Yakima are hereby authorized and directed to execute an agreement with the Capitol Theatre Committee, Inc., for the reasons and purposes mentioned hereinabove, a copy of which agreement, entitled "Capitol Theatre Operating Agreement," is attached hereto and by reference made a part hereof. I� ADOPTED BY THE CITY COUNCIL this ) I day of October, 1988. ATTEST: CITY CLERK ORDRES DD1 MAYOR