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HomeMy WebLinkAboutR-1993-118 Operating AgreementRESOLUTION NO. R-93- 118 A RESOLUTION authorizing the City Manager and City Clerk of the City of Yakima to execute a revised Operating Agreement with Capitol Theatre Committee, Inc. for the operation of the Capitol Theatre. WHEREAS, the City of Yakima is the owner of the Capitol Theatre; and WHEREAS, since 1988 the Capitol Theatre has been operated pursuant to a Capitol Theatre Operating Agreement; and WHEREAS, the parties desire to enter into a revised agreement for the operation of the Capitol Theatre relating to the financial aspects of the Capitol Theatre's operation; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to execute the revised and attached Capitol Theatre Operating 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 the attached Capitol Theatre Operating Agreement with Capitol Theatre Committee, Inc., a Washington nonprofit corporation. ADOPTED BY THE CITY COUNCIL thisl6th day of November , 1993. Q)-e_ ATTEST: City Clerk (1s)res/capitol theatre rp Mayor CAPITOL THEATRE OPERATING AGREEMENT THIS AGREEMENT, made and entered into this krY day of U" 1993, 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 situated 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 culture 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: CTC Operating Agreement - November 10, 1993 Page 2 of 7 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 $2,000 for each incident or item of damage or repair, or shall not exceed a total annual aggregate of $25,000, 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. Ail funds expended by CTC shall relate to the enhancement of the economic and cultural climate of the City and its environs. This includes, but is not limited to the promotion, operation and/or use of such facility for assembly purposes. 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 CTC Operating Agreement - November 10, 1993 Page 3 of 7 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 canceled 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 thereto. 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 CTC Operating Agreement - November 10, 1993 Page 4 of 7 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 record keeping 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 CTC Operating Agreement - November 10, 1993 agree from time to time . C. TAXES. Page 5 of 7 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. 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 $45,000 in 1994 for the services to be performed by CTC consisting of the occupation, management, general maintenance (Pursuant to paragraph A. 2. of the agreement), and operation of the Theatre. Payment shall be made in four (4) amounts of $11,250 each, to be paid on or about the tenth day of the month of February, May, August and November during the terms of this agreement. The service fee of $45,000 for 1994 is considered a base -line and will be adjusted, on an annual basis, depending on the needs of CTC and resources available to the City for such purposes. 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 CTC Operating Agreement - November 10, 1993 Page 6 of 7 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, 19 South 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 ATTEST: CITY MANAGER CITY CLERK CAPITOL THEATRE COMMITTEE, INC. CTC Operating Agreement - November 10, 1993 Page 7 of 7 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 $2,000 for each incident or item of damage or repair, or if the total annual aggregate exceeds $25,000, not covered by insurance nor 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.