ORDINANCE _________________

AN ORDINANCE relating to the Seattle Center Department; authorizing execution of Amendment No. 1 to the Agreement with The Westin Seattle for the Management of Food and Beverage Services at Marion Oliver McCaw Hall and the Exhibition Hall at Seattle Center.

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 his or her designee, is authorized to execute, for and on behalf of The City of Seattle, an agreement with The Westin Seattle substantially in the form of the agreement attached hereto and identified as "AMENDMENT No. 1 TO THE AGREEMENT FOR THE MANAGEMENT OF FOOD AND BEVERAGE SERVICES AT MARION OLIVER McCAW HALL AND THE EXHIBITION HALL AT SEATTLE CENTER BETWEEN THE CITY OF SEATTLE AND THE WESTIN SEATTLE" (Attachment 1).

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 _________, 2006, and signed by me in open session in authentication of its passage this _____ day of __________, 2006.

_________________________________

President __________of the City Council

Approved by me this ____ day of _________, 2006.

_________________________________

Gregory J. Nickels, Mayor

Filed by me this ____ day of _________, 2006.

____________________________________

City Clerk

(Seal)

Attachment 1: AMENDMENT No. 1 TO THE AGREEMENT FOR THE MANAGEMENT OF FOOD AND BEVERAGE SERVICES AT MARION OLIVER McCAW HALL AND THE EXHIBITION HALL AT SEATTLE CENTER BETWEEN THE CITY OF SEATTLE AND THE WESTIN SEATTLE

Version #1

Attachment 1

AMENDMENT NO. 1

TO THE AGREEMENT FOR

THE MANAGEMENT OF FOOD AND BEVERAGE SERVICES

AT MARION OLIVER McCAW HALL

AND THE EXHIBITION HALL AT SEATTLE CENTER

BETWEEN

THE CITY OF SEATTLE

AND

THE WESTIN SEATTLE

THIS FIRST AMENDATORY AGREEMENT is entered into by and between The City of Seattle, a municipal corporation of the State of Washington ("City"), operating through its Seattle Center Department ("Seattle Center") and The Westin Seattle ("Westin"), having its principle place of business at 1900 Fifth Avenue, Seattle, Washington, 98101.

WHEREAS, on December 30, 2002, the parties hereto entered into an agreement for the Management of Food and Beverage Services at the Marion Oliver McCaw Hall ("McCaw Hall") and the Exhibition Hall at Seattle Center, pursuant to which The Westin Seattle was authorized to provide the Seattle Center and its patrons with exclusive food and beverage concession and catering services at McCaw Hall and exclusive food and beverage concession services at the Exhibition Hall ("Agreement"); and

WHEREAS, the Agreement provided for The Westin Seattle to pay to the City a percentage of its annual Gross Sales; and

WHEREAS, in a separate agreement between the City of Seattle, Pacific Northwest Ballet Association and Seattle Opera (together "Resident Entities) Relating to the Use and Management of Marion Oliver McCaw Hall it is recognized that the Resident Entities have certain status, rights and responsibilities in the management and operation of McCaw Hall; and

WHEREAS, the parties hereto desire to modify their Agreement to reflect certain practical considerations based on the experience gained since McCaw Hall opened in June of 2003, and to recognize the contribution that the Resident Entities make to the financial sustainability of McCaw Hall; NOW, THEREFORE,

IN CONSIDERATION of the mutual promises, covenants and conditions set forth in this Amendment No. 1, the parties agree as follows:

1. The third paragraph of Section 4.9, Obligation to Actively Market for Catering Events and Share in Rental Payments, is amended to read as follows:

The Westin shall receive a portion of all rental fees paid by a client, other than the Pacific Northwest Ballet and the Seattle Opera, for events in the front of house spaces in McCaw Hall, as shown in Exhibit E. Cancellation fees for events in the front of house spaces shall be shared equally by the Westin and Seattle Center. Seattle Center shall pay the Westin its share of the front-of-house rental fees monthly, for rents received during the previous calendar month. The Westin shall record such payments as Gross Sales in the month in which such payments are received. Seattle Center, in consultation with the Westin, shall establish and change as necessary the rental rates shown in Exhibit E, along with the Seattle Center deductions, which shall be tied to Seattle Center event costs and not unreasonably inflated.

2. The first paragraph of Section 5.1, Percentage of Gross Sales, is amended to read as follows:

In exchange for the grant of rights set forth in Article IV, the Westin agrees to pay to the City a percentage of its annual Gross Sales on a Monthly Accounting Period basis during each year of the term of this Agreement, in the manner set forth below and in accordance with the following graduated percentage payment schedule:

Gross Sales Percentage

Zero to $1,000,000 7.5% to City

$1,000,001 to $1,500,000 8.5% to City

$1,500,001 to $2,000,000 9.5% to City

$2,000,001 to $2,500,000 10.5% to City

$2,500,001 to $3,000,000 11.5% to City

$3,000,001 and higher 12.5% to City

For the purposes of this paragraph only and in order to establish the percentage sales due Seattle Center, Westin shall include in its calculation of cumulative Gross Sales the proceeds from Catering sales made to Pacific Northwest Ballet, Seattle Opera, Seattle Center or the Seattle Center Foundation, but no percentage payments to the City shall be due for such sales. In exchange for such payment exemption, the Westin agrees to provide Catering services to Pacific Northwest Ballet, Seattle Opera, Seattle Center and Seattle Center Foundation at prices that are 15% less than the Westin's standard prices for such Catering services.

3. The second paragraph of Section 5.2, Timing and Form of Payments, is deleted in its entirety.

4. Section 6.1, Monthly Report, is amended to read as follows:

Within ten (10) days following the end of each Monthly Accounting Period, the Westin shall submit to the City an accounting report on an event-by-event basis for such period. Each report shall include for each event at least the following information: the Event Service Order number, event name, date of event, location of event if not in McCaw Hall, nature of services provided, estimated attendance, and the amount of Gross Sales received or remaining owing. All information shall be documented satisfactory to the Seattle Center, which may include requests for additional kinds of related information from time to time, formatted to correspond with the "event type" categories currently used by the Seattle Center and provided in electronic as well as paper form, utilizing a computer application Approved by the Seattle Center Director.

5. Section 7.4, Menus, Prices and Signage, is amended to read as follows:

Each year during the term of the Agreement, the Westin shall submit proposed Concession menus and prices, and proposed prices for any other services provided under this Agreement, to the Seattle Center Director for Approval, which Approval shall not be unreasonably withheld. Such proposed menus and prices shall be submitted no later than July 1 for implementation on the following September. If the Westin desires to make any menu and price changes at any other time, it shall submit its request to the Seattle Center Director for Approval not less than thirty (30) days prior to the date of the proposed change. In the event no written response is provided by the City within the thirty (30) day review period, the Westin's proposed changes shall be deemed Approved. The Westin shall provide a wide range of Catering menus and prices to meet the variety of needs and price points of Seattle Center clients. Client event orders and cost estimates shall clearly indicate all client costs including service charges, gratuities, labor costs and sales tax. Subject to the Approval of the Seattle Center Director, all Westin signage, marketing, menus and employee uniforms and identification shall tastefully reflect the relationship hereunder between the Seattle Center and the Westin.

6. The notifications for Seattle Opera and Pacific Northwest Ballet in Section 21.1, Requirements for Notice, are amended to read as follows:

If to the Seattle Opera:

Seattle Opera

Ms. Kelly Tweeddale, Administrative Director 102 John Street P.O. Box 9248 Seattle, WA 98109 Telephone: (206) 676-5515 Facsimile: (206) 389-7651

If to the Pacific Northwest Ballet:

Pacific Northwest Ballet Mr. D. David Brown, Executive Director 301 Mercer Street Seattle, WA 98109 Telephone: (206) 441-2441 Facsimile: (206) 441-2440

7. A revised Exhibit E, attached, is hereby incorporated into the Agreement.

8. All of the terms and conditions of the Agreement for the Management of Food and Beverage Services at the Marion Oliver McCaw Hall not modified by this Amendment shall remain in full force and effect. The additions, deletions, and modifications made herein shall be effective as of the date this Agreement is fully executed.

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by having an authorized representative of each such party affix his/her signature in the space below:

THE CITY OF SEATTLE THE WESTIN SEATTLE

Robert Nellams Elisabeth James

Seattle Center Director General Manager

Date: Date: