HomeMy WebLinkAboutR-1990-D5809 Operation Agreement RESOLUTION NO. R'
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 I" day of ,S
1990.
( C)tt
Mayor
ATTEST:
l C.VV1C�.-
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.
City Manager
ATTEST:
CONTRAST 90 SOU
City Clerk
CAPITO HEATRE COMM iTE INC.
,�/ ►
BY � �L�l /�_ _ _ .. L L _ ,..
Its: ,64
(agr /cptl.jv)
CAPITOL THEATRE OPERATING AGREEMENT
THIS AGREEMENT, made and entered into this cat, day of
C'C- t -. 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."
W ITN E S S E T H:
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:
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.
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 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 SDI M nC
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 shalt 5 - 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
- C TY MANAGER
ATTEST:
CITY CLERK
City Contract No. 88 51 CAPITOL THEATRE COMMITTEE, INC.
Resolution No. D - 5513
By -Y
Pr
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
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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.
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