ORDINANCE _________________ AN ORDINANCE relating to the Seattle Center Department; authorizing execution of an agreement with Theatre Puget Sound to manage and operate space in the Seattle Center House for use by non-profit arts organizations and individual artists. BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS: Section 1. As requested by the Seattle Center Director and recommended by the Mayor, the Seattle Center Director or her designee is authorized to execute, for and on behalf of The City of Seattle, an agreement with Theatre Puget Sound substantially in the form of the agreement attached hereto and identified as "LICENSE AGREEMENT BETWEEN SEATTLE CENTER AND THEATRE PUGET SOUND" (Attachment 1) under which Theatre Puget Sound will operate and manage certain spaces in the Seattle Center House for use by non-profit arts organizations and individual artists, for a term ending December 31, 2008. Section 2. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and confirmed. Section 3. This ordinance shall take effect and be in force thirty (30) days from and after its approval by the Mayor, but if not approved and returned by the Mayor within ten (10) days after presentation, it shall take effect as provided by Municipal Code Section 1.04.020. Passed by the City Council the ____ day of _________, 2004, and signed by me in open session in authentication of its passage this _____ day of __________, 2004. _________________________________ President __________of the City Council Approved by me this ____ day of _________, 2004. _________________________________ Gregory J. Nickels, Mayor Filed by me this ____ day of _________, 2004. ____________________________________ City Clerk (Seal) Attachment 1: LICENSE AGREEMENT BETWEEN SEATTLE CENTER AND THEATRE PUGET SOUND Ned Dunn/nd TPS Ordinance July 20, 2004 version #1 1Attachment 1 LICENSE AGREEMENT BETWEEN SEATTLE CENTER AND THEATRE PUGET SOUND PARTIES This License Agreement entered into by The City of Seattle (hereinafter called "City") a First Class City of the State of Washington, acting by and through the Director of the Seattle Center Department or such official's designee (hereinafter called "Director") and Theatre Puget Sound, a non-profit Washington Corporation (hereinafter called "Licensee") witnesses that: FACILITY (IES)/PURPOSE/PERIOD (S) OF USE In order to further the vision of the Seattle Center, home to the finest artistic organizations in The City of Seattle, and in conjunction with the vision of Theatre Puget Sound, the City enters into this Agreement with Theatre Puget Sound for the purpose of providing space at below-market rates for non-profit arts organizations and artists to develop, teach and/or perform their creative products. The City hereby grants to Licensee a license to manage and operate the Seattle Center House 4th floor multi-room Theatre 4 and the Center House Theatre complex, including dressing rooms and lobby area (as further described below and hereinafter called "the Premises") from January 1, 2004 to December 31, 2008, subject to all of the terms and conditions hereof. Licensee shall rent the Premises on a short-term basis to non-profit organizations and individual artists, including performing and visual artists, theatrical production organizations, educational organizations and City-approved meeting, festival, or other clients (hereinafter called "Renters"), for ticketed performances, related rehearsals and other City-approved functions or activities. The Premises Description: Portions of the building at Seattle Center commonly known as "Seattle Center House" and located on the following real property: Lot 1-12, Block 46, D.T. Denny's Third Addition to North Seattle, according to plat recorded in Vol. 1 of Plats, Page 145, Records of King County, Washington. Those portions of the Seattle Center House subject to this License Agreement are identified as follows (but may be altered by discretion of Seattle Center Director and if so, TPS will be provided reasonable notice of any changes): A. Center House, fourth floor, Rooms A, B, C, D, E, F, and H, and Suite No. 401, consisting of approximately 7,826 square feet. Room H is referred to in this License Agreement as "Theatre 4." B. Center House, fourth floor, Room G shall be included on a temporary basis with status to be reviewed periodically with the Director. C. Center House, first floor, Center House Theatre, including rehearsal halls, dressing rooms, and main lobby, consisting of approximately 9,000 square feet. LICENSE FEE A. Definition of "Gross Receipts". As used in this License Agreement, "Gross Receipts" means the total fees realized by Licensee from rental of the Premises by Renters, including all deposits not refunded to Renters. "Gross Receipts" does not include the amount of money refunded to and not merely credited to the account of licensees; the Washington State sales tax and any other tax imposed by any government agency directly on sales; and admission taxes collected by Licensee. (Business and occupation taxes are not taxes imposed directly on sales and shall not be deducted from the amount of "gross receipts" reported to the City.) "Gross Receipts" shall not include any fees Licensee receives from third party Renters for theater technical support or services; maintenance fund collections, receipts from food vending concessions; and Licensee's share of any ticket revenues from theatrical performances. B. Revenue Sharing Terms and Other Financial Obligations to the City. 1.) Management Fees. Licensee shall pay the City fifty percent (50%) of all Gross Receipts. Fees shall be paid semiannually, according to the schedule in Section 4. 2.) Maintenance Fund. Licensee shall collect twenty-five dollars ($25.00) from the Renter for every performance in Theatre4 and the Center House Theatre. These amounts shall be deposited in a separate interest-bearing account at a depository approved by the Director and shall be used solely to maintain and replace theatrical equipment and to maintain the Premises. The City's and Licensee's designated representatives shall meet from time to time, but no less frequently than once per year to discuss and mutually agree upon the expenses that will be paid for from this maintenance account. No expenditure from the maintenance account shall be made without the approval of the City. Licensee shall remit the balance of the funds in the maintenance account to the City at the expiration or termination of this Agreement. All theatrical equipment shall become the property of the City upon termination of this Agreement. TIME AND PLACE OF PAYMENT. A. Due Date: Payment of fees to the City shall be made each year according to the following schedule: Use Period Due Date January 1st June 30th July 15 July 1st December 31st January 15 B. Place of Payment. All payments shall be delivered to The City of Seattle, Seattle Center Accounting Office, 305 Harrison Street, Seattle, Washington, 98109, or to such other address as the Director shall specify by notice to Licensee. C. Delinquencies. All sums due and owing to the City shall be delinquent if not paid on or before the fifth (5th) day after the date due. In the event of any delinquency, Licensee shall also pay the City a service charge of Fifty Dollars ($50.00) per month, or such larger sum as may be established by ordinance, for each month the delinquency continues plus interest on such delinquent sum at the rate of one and one-half percent (11/2%) per annum, or such larger percentage as may be established by ordinance, from the date due to the date of payment. D. Returned Check, Insufficient Funds. If any payment or check for payment is returned for insufficient funds, Licensee shall owe as an administrative charge an additional $20.00, or such larger sum as may be established by ordinance. USE OF PREMISES BY SEATTLE CENTER. Notwithstanding any provision of this Agreement to the contrary, Seattle Center shall have the right to use the following portions of the Premises at the times and for the purposes indicated, without any fee being assessed: A. Fourth Floor Rooms. Set-up and restoration of Premises for all listed activities are the responsibility of Seattle Center personnel. 1.) Annual Summer Academy: 2004 July 21 August 6 2005 Comparable Dates 2006 Comparable Dates 2007 Comparable Dates 2008 Comparable Dates 2.) Miscellaneous Academy Needs: Five (5) additional free days in each room, to be used on a space available basis. 3.) Seattle Youth Involvement Day - 2005 March 22-23 2006 March 21-22 2007 Comparable Dates 2008 Comparable Dates 4.) Manana Coalition Latino Youth Conference 2005 February 10-11 2006 February 9-10 2007 Comparable Dates 2008 Comparable Dates B. First Floor Rooms. 1.) Academy: Set-up and Restoration of Premises is the responsibility of Seattle Center Personnel, 2004 July 21 August 6 2005 Comparable Dates 2006 Comparable Dates 2007 Comparable Dates 2008 Comparable Dates 2.) Seattle Center Festivals: Set-up and restoration of Premises is the responsibility of each Festival. 2004 SICF May 10 15 2004 Folklife May 26 May 31 2004 Bumbershoot May Sept. 4 6 2005 2008 Comparable Dates Festival and Academy dates must be secured with Theatre Puget Sound at least 9 months in advance, as the seasons of Renters must be scheduled around these dates. C. Miscellaneous Use: Throughout the term of this Agreement and upon not more than fortyeight (48) hours' notice, either party shall have the right to schedule and use for its own purposes, without a fee being assessed, any room in the Premises not already rented to a third party. On twenty (20) occasions per calendar year, the City shall have the right to schedule and use for its own purposes, without a fee being assessed, any first floor room in the Premises not already rented to a third party. On ten (10) occasions per calendar year, the Licensee shall have the right to schedule and use for its own purposes, without a fee being assessed, any first floor room in the Premises not already rented to a third party. SPECIAL CONDITIONS PROGRAM AND NOVELTIES Licensee is authorized to permit Renters of the Premises to sell programs, novelty items or other merchandise during occupancy of the Premises by such Renters. FOOD AND BEVERAGE CONCESSIONS Licensee is authorized to sell, and to permit Renters of the Premises to sell, concession food or beverage classified as "Exempt" under the Seattle Food Code, during occupancy of the Premises by Licensee or Renters. UTILITIES AND CUSTODIAL SERVICES 1st Floor: The City shall provide heating and lighting for the Premises and will provide and service recycling containers and waste receptacles in the hallways. The City will provide custodial services for the Center House Theatre not more than 12 occurrences annually. The City shall maintain and provide supplies for non-theatrical lighting needs and heat/air conditioning in the Center House Theatre complex. 4th Floor: The City shall provide basic custodial services to the fourth floor facilities at least one time per week. These services shall include trash removal, sweeping and dust mopping, and wet mop or scrubbing of floors. From time to time, based upon Seattle Center's assessment of the level of soil and wear, the City will provide window cleaning, horizontal surface dusting, and waxing and buffing of the floors, all to a level comparable to that provided to other Cityoccupied Center House facilities. The City shall maintain and provide supplies for light fixture needs and heat devices in the 4th Floor rooms. The City may elect, but shall not be obligated, to provide additional custodial services for the Premises. Costs for other services such as telephones, and cleaning and custodial services beyond those provided by the City are to be borne by Licensee. HOURS OF OPERATION No member of the general public shall be permitted on the Premises outside the official hours of operation for the Seattle Center House except in accordance with procedures approved by the Director. Unless approved, all members of the public who are not Licensee employees, Licensee-contracted workers or theater production staff must leave the Seattle Center House before its closing time. Licensee shall inform the City with as much prior notice as possible if it will have employees, contracted workers or production staff in the Seattle Center House after hours and provide the Seattle Center Emergency Services Unit with a roster of these personnel. INSURANCE Licensee shall obtain, and maintain continuously for the term of this Agreement, at no expense to the City, occurrence form Commercial General Liability insurance with endorsements, including business vehicle coverage and any other insurance required to provide coverage against any and all costs, expenses, and damages that may result form Licensee's or Renters' use and occupancy of the Premises. Minimum limit of coverage shall be $1,000,000 each occurrence. For any event in which pyrotechnics are used, the minimum limit of coverage shall be $2,000,000 each occurrence. Carrier is subject to approval of the City. Such insurance shall be endorsed to include The City of Seattle, its officers, employees, and agents as additional insured, and provide that the coverage shall not be reduced, canceled or materially changed without forty-five days' prior written notice to the City's address set forth herein. Such insurance shall include a provision (whether by endorsement of otherwise) indicating that, except with respect to the limits of insurance and any rights or duties specifically assigned to the first named insured, such insurance shall apply (a) as if each party insured thereunder (whether as named insured or additional insured) were the only party insured by such policy (ies), and (b) separately to each party that is insured thereunder and against whom a claim is made or suit is brought. Not less than eleven (11) business days prior to the commencement of Licensee's or any Renter's use of the Premises pursuant to this Agreement, Licensee and Renter(s) shall deliver to the City's address as set forth herein, a duplicate (photocopy or facsimile acceptable) of the insurance policy with its endorsements as evidence of coverage. Approval of insurance is a prerequisite to Licensee's or Renters' use or occupancy of the Premises. Coverage for Theater Activities: Licensee shall ensure that liability coverage(s) of levels satisfactory to the City are secured for performances in Theatre4 and the Center House Theatre, and that the City of Seattle is named as an additional insured on all such insurance policies. All such insurance shall provide coverage on a "per occurrence" rather than on a "claims made" basis, and shall be primary to any other insurance that may be apply to the insured activities. INDEMNIFICATION The Licensee shall indemnify and hold the City harmless from any and all losses, claims, actions, or damages suffered by any person or entity by reason of or resulting from any negligent or intentional act of omission of the Licensee or any of its agents, employees, patron or Renters in connection with use or occupancy of the Premises, including trademark, patent, and copyright infringement; and in the event any suit or action is brought against the City, the Licensee, upon notice of the commencement thereof, shall defend the same, at no cost and expense to the City, and promptly satisfy any final judgment adverse to the City or to the City and the Licensee jointly. The above liability shall not be diminished by the fact, if it be a fact, that any such death, injury, damage, loss, cost, or expense may have been, or may be alleged to have been, contributed to by the negligence of the City or its officers, employees, or agents; Provided, however, that nothing contained in this section shall be construed as requiring the Licensee to indemnify the City against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the City or its officers, employees, or agents. For purposes of this Agreement and for the benefit of the City only, Licensee hereby waives its immunity under Title 51 RCW or other employee benefit act. ASSIGNMENT AND SUBCONTRACTING Licensee shall not assign, transfer, convey or encumber this Agreement or its rights hereunder or sublicense any interest herein without the Director's prior written consent. TERMINATION The City shall have the option to terminate this License agreement for convenience without recourse to the Licensee at any time upon thirty (30) days notice. AMENDMENTS No alteration or modification of the terms hereof shall be valid unless made in writing and signed by an authorized representative of each of the parties hereto. EFFECTUATION OF AGREEMENT This License must be signed by Licensee and returned to the City at the address set forth below, on or before thirty days from the date City Council approves legislation authorizing this agreement. Both parties agree that a faxed copy of the complete License agreement and Authorized Signature of Licensee are valid. In order to be effective, this Agreement must also be signed by the Director. ACKNOWLEDGMENT OF NEGOTIATED LICENSE AGREEMENT. The parties to this Agreement acknowledge that it is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof. IN WITNESS WHEREOF, the parties hereto have executed this license agreement by having their authorized representative(s) sign his/her/their name(s) in the spaces below: LICENSEE: CITY: THEATRE PUGET SOUND THE CITY OF SEATTLE By ______________________________ By ______________________________ Scott Nolte Virginia Anderson, Director Board President Seattle Center Department Date:____________________________ Date:____________________________ BUSINESS ADDRESSES FOR NOTICES: LICENSEE: CITY: Manager, Contracts & Concessions Theatre Puget Sound Seattle Center Department 305 Harrison St. Ste. 401 305 Harrison, Room 312 Seattle, WA 98109-4645 Seattle, WA 98109-4645 PHONE NO.: 206-770-0370 PHONE NO.: 206-684-7114 ACKNOWLEDGMENTS STATE OF WASHINGTON) ) ss (Licensee's Acknowledgment) COUNTY OF KING ) On this _______ day of _____________________________, 20____, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared _______________________________________________ to me known to be the person described in the above, who executed the foregoing license agreement, and acknowledged said license agreement to be the free and voluntary act and deed of such Licensee for the uses and purposes therein mentioned, and on oath, stated that ______ was authorized to execute said License agreement for and on behalf of such Licensee. GIVEN UNDER MY HAND AND SEAL the day and year first above written. Signature (Print or Type Name) NOTARY PUBLIC in and for the State of Washington, Residing at My appointment expires: STATE OF WASHINGTON) ) ss (Acknowledgment for The City of Seattle) COUNTY OF KING ) On this _______ day of _____________________________, 20____, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared Virginia Anderson to me known to be the Director of the Seattle Center Department of The City of Seattle, who executed the foregoing license agreement, and acknowledged said license agreement to be the free and voluntary act and deed of The City of Seattle for the uses and purposes therein mentioned, and on oath, stated that she was authorized to execute said license agreement for and on behalf of The City of Seattle. GIVEN UNDER MY HAND AND SEAL the day and year first above written. Signature (Print or Type Name) NOTARY PUBLIC in and for the State of Washington, Residing at My appointment expires: 310 Attachment 1 to TPS Ordinance August 2, 2004 TPS_final.doc January 10, 2001